vs. WHATABURGER,
Respondent.
) Case No. 10-4445
A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on January 10, 2011, in Pensacola, Florida.
For Respondent: S. Gordon Hill, Esquire
Hill, Ward & Henderson, P.A.
The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based upon her sex/gender and/or disability. For the reasons more fully explained below, Respondent did not sexually harass
Petitioner nor did it discriminate against her on the basis of her alleged disability.
Carolyn Johnson filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR) against Whataburger on December 22, 2009, claiming she was the victim of sexual harassment and discrimination based upon a disability. Following an investigation of Petitioner's allegations, FCHR issued a Determination: No Cause on June 14,
2010.
on June 28, 2010. The petition was forwarded to the Division of Administrative Hearings and noticed for final hearing, which was held on January 10, 2011.
At the hearing, Petitioner testified on her own behalf, presented no additional witnesses, but cross-examined the witnesses called by Respondent. She offered no exhibits.
10 exhibits that were admitted into evidence.
A one-volume Transcript was filed on February 7, 2011.
After the Transcript was filed, Respondent filed its proposed findings of fact and conclusions of law on February 17, 2011.
ex-parte communication on March 18, 2011. While late, both of
those documents are accepted for purposes of this Recommended Order. A subsequently filed letter from Petitioner received on May 12, 2011, will not be considered for purposes of this Recommended Order.
References to statutes are to Florida Statutes (2010) unless otherwise noted.
Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Respondent operates a chain of fast food restaurants, including several in the Pensacola area.
Petitioner, an African-American female, began working for Respondent in April or May 2008. Petitioner was still working for Respondent on December 22, 2009, when she filed her complaint with FCHR.
Petitioner was hired to work 10 to 15 hours per week.
She worked the late-night shift and worked primarily in the cash register area inside the restaurant where she took customers' orders and delivered them food. Additionally, Petitioner typically cleaned the front of the restaurant.
During the late-night shift, the restaurant is typically staffed with just three or four people—one manager and two to three employees. Consequently, everyone is expected to work hard during the entire shift. Further, the late-night
shift is when the restaurant undergoes its daily major cleaning, which Petitioner typically performed.
Petitioner has a long history of pursuing discrimination or workers' compensation claims against her employers. Petitioner admitted that she had filed discrimination claims against every employer for whom she had worked, except Waffle House. She claims that at other jobs (not at Whataburger) her co-workers had assaulted her, cast Satanic spells on her, intentionally hurt her (e.g., poured hot grease on her and hit her in the face with a pan), and threatened to kidnap her children. She also alleged she had been discriminated against before, such as being called "Kunta Kinte" at two different jobs. Petitioner has not been previously successful in pursuing any of these claims.
Petitioner claims to have written to and/or discussed these various claims with the FBI and President Obama. She also claims that she sees events before they occur through dreams and "flashes." She claims to have foreseen the kidnapping of a young local boy and that she has the ability to "block" hurricanes in the Gulf of Mexico from harming Pensacola "where her babies live" and even predict hurricanes.
All of Petitioner's prior claims and her boasts of mystical powers undermine her credibility in this case.
Sexual Harassment
Petitioner claims to have been the victim of sexual harassment. At the hearing, she testified that one of her supervisors, James Cook, touched another supervisor, Shurnita Ruffin, in a sexual way (put his hands in her pants and shirt), on more than one occasion, and allegedly asked Petitioner if she was going to tell his wife what she witnessed. Petitioner claims this occurred because Mr. Cook wanted to somehow prove she was a racist (Mr. Cook is Caucasian, and Ms. Ruffin is African-American), and because Petitioner's son was dating Caroline Dickerson's babysitter. Petitioner claimed this was a racist action on the part of the two supervisors, not sex or gender discrimination.
Petitioner further claimed that Mr. Cook encouraged one of Petitioner's co-workers, Jordan Yeager, to talk about his homosexuality at work.
Finally, Petitioner alleged that Ms. Ruffin frequently cursed out Mr. Cook, the same individual she allegedly allowed to put his hands on her in a sexual way on multiple occasions in Petitioner's presence. Petitioner did not explain how these alleged actions were related to her sex or gender.
Petitioner claimed that Ms. Ruffin treated everyone (except Jordan Yeager) poorly, regardless of the person's sex or gender.
Mr. Cook, Ms. Ruffin, and Mr. Yeager testified. Each denied all of the allegations against them, and each denied doing or witnessing anything that could be construed as sexual harassment. The testimony of each of these witnesses was straightforward and credible.
Mr. Yeager testified that he was sensitive to talking about his homosexuality since he was the only homosexual employee to his knowledge. Regardless, talking about one's sexuality is not sexual harassment even if it did occur and even if Petitioner were offended by homosexuality.
After Petitioner filed her complaint with FCHR, Respondent investigated the allegations by interviewing all of the people with whom Petitioner worked and reviewing video taken in the store at the time of Petitioner's alleged sexual harassment. Respondent has eight different video cameras positioned around the restaurant (except in the bathrooms in which no claims of harassment had been made) and no footage corroborated any of Petitioner's allegations. Further, all of the employees interviewed signed statements that they had witnessed no incidents of sexual harassment. The restaurant is small enough that it is highly unlikely any sexual activity alleged by Petitioner could have occurred outside the view of the cameras.
Petitioner's testimony regarding the claims of sexual harassment was not credible, and she failed to prove the existence of a sexually hostile work environment.
Further, Petitioner never complained about or reported the alleged sexual harassment to her supervisors or through any of the prescribed channels provided by Respondent for reporting harassment or discrimination. This was despite the fact that she was aware Respondent has a zero tolerance policy towards sexual harassment, provided multiple ways for her to report sexual harassment, and even required that she take a sexual harassment quiz when she was hired. Also, Petitioner was no stranger to the corporate office when she had a complaint or needed information. Since she worked only a block away from the corporate office, she had visited there several times on a variety of issues. Petitioner failed to utilize the well-known procedures put in place by Whataburger for reporting the alleged harassment.
Disability Discrimination
Petitioner also claims she was the victim of disability discrimination because her hours were reduced from 10 to 15 per week down to only three hours per week because Respondent perceived her as being disabled.
Petitioner described in detail an accident in June 2008 when she slipped and fell in the back of the restaurant on
some grease or pickle juice that had been spilled on the floor. She completed her shift on the date of the fall, but sought medical attention the next day.
Petitioner claimed to have suffered a second accident on the job in June 2009, when she hit her knee on a toilet in the restaurant.
Petitioner filed a workers' compensation claim after the first accident, but not the second. Respondent was aware of the first accident, but not the second.
Petitioner claimed these incidents were not accidents, but were intentional acts on the part of Respondent's employees. She could not identify the particular employees involved, and she could not testify as to why anyone would have caused these accidents other than her belief that they did not like her. The evidence does not support any of these allegations, especially Petitioner's claims that the accidents were intentionally caused. There was no showing these accidents had anything to do with her sex or gender, sexual harassment, or alleged disability.
Petitioner's claim that her hours were reduced from 10 to 15 per week to three per week due to Respondent perceiving her as disabled is not supported by credible evidence. Petitioner acknowledged she was hired to work part-time for
10 to 15 hours a week and could not even provide a timeframe of
when her hours were further reduced to only three per week, other than to say this occurred sometime in July 2009.
Respondent noted that the reduction in hours occurred during a four-week period in October and November 2009, when Petitioner underwent the first of her two surgeries on both knees. She had surgery on her left knee on November 11, 2009, and on her right knee on February 12, 2010.
Petitioner admitted that Ms. Ruffin, one of Respondent's managers, reduced her hours around the time of her first surgery because she was working too slowly, and Petitioner admitted she moved 60-70 percent slower during this period than when she first started working for Respondent. Petitioner further admitted she was in chronic pain every day, that both her knees swelled up constantly, and that her leg would lock constantly. Petitioner also admitted she called Respondent's corporate office and told them she could not stand the pain she was suffering, and that she also had stomach and rectal bleeding. Petitioner did not know whether Ms. Ruffin was aware of this call.
Petitioner also admitted that she was often sent home early by Ms. Ruffin once the restaurant stopped serving customers inside (typically around midnight or 1:00 a.m.), and business slowed down. Petitioner admitted Ms. Ruffin did this to reduce the restaurant's labor costs which, in turn, enhanced
Ms. Ruffin's bonus. Petitioner testified that Ms. Ruffin never told her she was being sent home early for anything related to her health or alleged disability.
Respondent's witnesses testified that Petitioner's hours were reduced only because Petitioner had a habit of calling out of work (before her scheduled shift began) and asking to leave early almost every time she was scheduled to work (generally after she had finished cleaning the front of the restaurant). In each instance, Petitioner initiated her own reduction in work time.
Also, in March 2010, Petitioner was warned about calling in advance after a "no call/no show" where she failed to call her supervisor and did not show up for work that night.
She used the same excuse that she had used two weeks earlier (that all four of her car's tires had been slashed). This created a hardship for her supervisor who had to work short- handed that night since she was unable to find a last-minute replacement. Such behavior of not calling in advance or calling at the last minute was repeated by Petitioner on other occasions. Respondent considers this a serious offense because the manager is left without sufficient personnel to operate the restaurant at the last minute.
Additionally, Petitioner experienced a slow recovery from each surgery and missed long periods of work before she was
able to return. When she did return to work, she missed several scheduled shifts due to pain and/or slipping and falling outside of work. Petitioner's reduction in hours caused by these absences was not the result of Respondent perceiving her as being disabled and was not otherwise the result of disability discrimination.
Respondent's witnesses were more credible than Petitioner concerning this claim.
Petitioner did not prove that she was disabled or that Respondent treated her as though she were disabled. Although Respondent was aware of Petitioner's first accident on the job in June 2008, it was not aware of her alleged second accident in July 2009. Petitioner never filed a workers' compensation claim based upon the alleged second accident.
Regardless of such knowledge, Respondent provided legitimate, non-discriminatory reasons for Petitioner's receiving fewer work hours, which Petitioner did not show were mere pretexts for unlawful discrimination. Therefore, any reduction in Petitioner's hours was not the result of Respondent's perceiving her as being disabled and was not otherwise the result of disability discrimination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 760.11(4)(b), Fla. Stat.
Section 760.10(1)(a) states:
It is an unlawful employment practice for an employer:
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.
Petitioner is an "aggrieved person," and Respondent is an "employer" within the meaning of subsections 760.02(10) and (7), respectively.
The Florida Civil Rights Act (FCRA), sections 760.01 through 760.11, as amended, was patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. 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-
71 (Fla. 3d DCA 1999); Fla. 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 has discriminated
against her. See Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
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 unwanted 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. Fla. Bd. of Regents, 212 F.3d 571, 582-83 (11th Cir. 2000).
In this case, there is no credible evidence that any of Respondent's managers or employees sexually harassed Petitioner. All of Respondent's witnesses denied there was any inappropriate conduct and each denied witnessing anything that could be construed as sexual harassment. In addition, once Petitioner filed her discrimination complaint with FCHR, Respondent investigated the allegations by interviewing the people with whom Petitioner worked and reviewing video taken in the store, including footage from specific nights when Petitioner claimed the alleged harassment took place. The video footage from eight cameras in such a small store would almost certainly have captured the acts alleged by Petitioner had they
occurred, and no inappropriate behavior was witnessed on the video. Further, all of the persons interviewed saw no acts of sexual harassment as alleged by Petitioner and executed written statements to that effect. Respondent's witnesses were more credible than Petitioner on this claim.
Even if the claims of harassment were true, Petitioner did not prove the alleged harassment was based on her sex or gender. Further, Petitioner has not shown that the conduct complained of, if it occurred at all, was sufficiently severe or pervasive to alter the terms and conditions of her employment and create an abusive working environment. Finally, Petitioner has not shown that Respondent is liable for the alleged harassment.
Since Petitioner did not prove she was the victim of any sexual harassment, she also did not prove that the alleged harassment culminated in a tangible employment action because she did not establish a causal connection between her response to the alleged harassment and any subsequent adverse employment action taken by Respondent. Faragher v. City of Boca Raton, 524
U.S. 775 (1998). Under Faragher, Respondent can be held vicariously liable for any harassment in which Respondent's managers may have engaged. Id. at 806-807. However, Faragher further states that "[w]hen no tangible employment action is taken, a defending employer may raise an affirmative defense to
liability or damages, subject to proof by a preponderance of the evidence." Id. at 808. This "defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior
and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm." Id. The first element is satisfied when the employer promulgates an anti-harassment policy that sets out a procedure for victims of harassment to complain about the harassment. Id.; Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th Cir. 2000). If the employer adopts such a policy and the employee fails to avail herself of the policy and reporting mechanisms, "such failure will normally suffice to satisfy the employer's burden under the second element of the defense." Faragher and Madray, supra.
Respondent established both prongs of its affirmative defense. First, Respondent established and disseminated a policy prohibiting harassment and a procedure for reporting harassment which encouraged employees to report to a wide variety of personnel both inside and outside the restaurant. Petitioner was aware of this and was even given a test on her knowledge of the policy and procedures. Despite being aware of the reporting mechanisms, Petitioner never reported being harassed to any of the designated employees. Petitioner's
failure to report the alleged harassment is inexcusable, especially in light of the fact that Petitioner reported other matters to her supervisors and the corporate office which was only a block away from the store where she worked. As a matter of law, Petitioner unreasonably failed to take advantage of Respondent's policy prohibiting sexual harassment in the workplace and regarding reporting such harassment.
Consequently, Petitioner cannot hold Respondent liable for any sexual harassment she claims to have suffered.
Disability Discrimination
Section 760.10 makes it unlawful for Respondent to discharge or otherwise discriminate against Petitioner based on an employee's disability.
It is an unlawful employment practice for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's handicap. § 760.10(1), Fla. Stat.
"Handicap" is defined in section 760.22(7), as follows:
(a) A person has a physical or mental impairment which substantially limits one or more of major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment; . . . .
This definition is essentially similar to the definition in the Americans with Disabilities Act of 1990 (ADA),
42 U.S.C. §§ 12101-12213, which defines a disability as:
A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
A record of such an impairment;
Being regarded as having such an impairment.
Factors to consider when determining whether an individual is "substantially limited include: (1) the nature and the severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment." See 29 C.F.R. § 1630.2(j)(2).
An impairment's minor interference in major life activities does not qualify as a disability. See Toyota Motor
Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002).
Petitioner has the ultimate burden to establish discrimination either by direct or indirect evidence. Direct evidence is evidence that, if believed, would prove the existence of discrimination without inference or presumption. Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989).
Petitioner provided no direct evidence of discrimination on the basis of a disability. Therefore, no discussion on the direct evidence standard is necessary.
The burden of proof in discrimination cases involving circumstantial evidence is set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-03 (1973). Federal discrimination law may be used for guidance in evaluating the merits of claims arising under chapter 760. Tourville v. Securex, Inc., 769 So. 2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Elec. Co-op.,
Inc., 701 So. 2d 646 (Fla. 5th DCA 1997); Brand v. Fla. Power Corp., 633 So. 2d 504 (Fla. 1st DCA 1994).
Florida courts have recognized that actions for discrimination on the basis of disability are analyzed under the same framework as ADA claims. Chanda v. Englehard/ICC, 234 F.3d 1219 (11th Cir. 2000). The ADA defines a disability as a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Chanda, 234 F.3d at 1221.
If Petitioner succeeds in making a prima facie case, the burden shifts to Respondent to articulate some legitimate, nondiscriminatory reason for its conduct. If Respondent carries this burden of rebutting Petitioner's prima facie case, Petitioner must demonstrate that the proffered reason was not the true reason, but merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-03.
Applying the required standard of proof, Petitioner has not established a prima facie case of disability
discrimination which requires that she: (1) have a disability;
she is qualified to perform the essential functions of the position either with or without reasonable accommodations;
she identified reasonable accommodations; and (4) she was unlawfully discriminated against because of her disability. Schwertfager v. City of Boynton Beach, 42 F. Supp. 2d 1347, 1357 (S.D. Fla. 1999) (citing Willis v. Conopco, Inc., 108 F.3d 282,
283 (11th Cir. 1997)). Petitioner must satisfy all elements of a prima facie case under the ADA in order to meet her burden. She has done so.
Once Petitioner has established a prima facie case of discrimination, Respondent's burden on rebuttal is to produce a legitimate, nondiscriminatory reason for the challenged employment decision. See McDonnell Douglas, 411 U.S. at 802. "This burden is merely one of production, not persuasion, and is exceedingly light." See Texas Dep't of Cmty. Aff. v. Burdine,
450 U.S. 248, 254 (1981); Lee v. Russell Cnty. Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982). However, since Petitioner has not established a prima facie case of discrimination on the basis of a disability, no further proof is required on the part of Respondent. Even if Petitioner had made a prima facie case that her hours were reduced based upon her alleged disability, the evidence provided legitimate, non-discriminatory reasons for the reduction in work hours, namely that Petitioner was sent
home when business was slow and she had finished her cleaning work in the front of the restaurant. Respondent's witnesses were more credible on this claim than was Petitioner.
Petitioner claims her employment was terminated based upon her being sexually harassed as well as based upon her claim of disability. Although Petitioner's employment was terminated, she was terminated for legitimate, nondiscriminatory and non- retaliatory reasons. Repeated instances of "no call/no show," slow work, and general unreliability all are legitimate, non- discriminatory reasons for termination of employment that had nothing to do with Petitioner's allegations of harassment and discrimination. See Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (employees cannot recast or question the wisdom of employer's reasons because courts "do not sit as a super-personnel department that reexamines an entity's business decisions"); Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984)(an "employer may fire for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason").
Regardless of the reason Petitioner was sent home early from work on occasion, Respondent or its employees never sent her home or even told her they were sending her home for anything having to do with her health or alleged disability.
Any reduction in hours was not the result of Respondent perceiving Petitioner as being disabled, and was not otherwise the result of disability discrimination.
RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief.
DONE AND ENTERED this 13th day of July, 2011, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2011.
S. Gordon Hill, Esquire Hill, Ward & Henderson, P.A.
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.
