vs. ) Case No. 10-7210
Respondent. )
Pursuant to notice, a formal hearing was held in this case on December 7, 2010, and December 8, 2010, by video teleconference, with the parties appearing in West Palm Beach, Florida, and Tallahassee, Florida, before June C. McKinney, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.
For Respondent: Margaret L. Cooper, Esquire
Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475
Barbara Signo ("Petitioner" or "Signo"), filed with the Florida Commission on Human Relations (Commission) a Complaint of Discrimination, alleging harassment, employment discrimination and retaliation based on age, sex, or marital status. On June 30, 2010, the Commission issued its Determination: No Cause.
On August 3, 2010, Petitioner filed a Petition for Relief with the Commission, and on August 6, 2010, the Commission
forwarded the matter to the Division of Administrative Hearings ("DOAH") for the assignment of a DOAH administrative law judge.
The matter was noticed for hearing for September 25 and 28, 2010. The hearing was canceled and re-scheduled for December 7 through 8, 2010, and proceeded as scheduled.
At hearing, Signo testified in her own behalf and presented the testimony of Dr. Paul Layden. Petitioner's Exhibits numbered 1 through 11 were admitted into evidence. Respondent presented the testimony Jean Carillo; Carlos Blanchard; Robert Orr; James Shine; Sharon Leah Roberts; Kathy Graydon Moore; Jose Alverez; Brent Woodham; and William Kramer (by deposition transcript). In addition, the following exhibits were offered and received into evidence: Respondent's 1 through 28.
The proceeding was recorded but was not transcribed. The parties were given until December 20, 2010, to file proposed recommended orders. Both parties filed Proposed Recommended Orders, which were considered in the preparation of this Recommended Order.
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
Sugar Cane Growers Cooperative of Florida ("Respondent" or "Cooperative") is a cooperative of sugar cane farmers that is
approximately 50 years old. The Cooperative owns and operates a sugar cane mill that harvests and mills the sugar cane grown by its member growers in Belle Glade, Florida.
On November 1, 2001, Signo was hired as a Project Engineer in the Planning Department of the Cooperative by Jose Alverez ("Alverez"), Senior Vice President of Planning and Operations. He was Signo's supervisor while she was employed at the Cooperative.
Signo received the employee handbook when she was hired that included the Cooperative's grievance procedures.
When Signo started her employment at the Cooperative, Signo's marital status was divorced.
Upon Signo's hire, her educational background included a master's degree in mechanical engineering that she received in 1993 and a bachelor's degree in nuclear engineering that she earned in 1984. She had no prior experience in the sugar cane industry.
Signo's prior work experience included being a Quality Assurance Auditor and Program Management Business Consultant for DirectTV; Business Unit Leader for Florida Power & Light; training specialist for Pacesetter, and an instructor. Before those positions from 1984-1988, Signo was the project manager and Principal Engineer at Herb Askwith and Fay Askwith International, Inc.
At the time that Signo was hired, the Cooperative had 874 people employed. Of these employees, 487 were year-round employees and the remaining 387 were seasonal employees.
The Cooperative's Planning Department was created to plan for major projects such as expansions, upgrades, and new equipment to the mill.
Signo's job duties as a project engineer involved overseeing projects to completion including coordinating the design of special projects, review of the plans and specifications, and the final rendition of the plans. She also served as the owner's representative interacting with outside engineers and contractors during the planning and construction of major projects.
Special projects Signo worked on during her tenure included the de-arator project, which involved taking oxygen out of the water supplied to the boilers; cooling tower project; caustic soda project (tank and piping); mud hopper project; and the potable water plant project.
The 2004 hurricanes damaged the Cooperative's crops, thereby reducing the amount of sugar cane crop produced and tonnage of cane being processed.
The next hurricane, Wilma, compounded the production problems. It affected the net profit and/or losses because the
fixed operational costs remained the same no matter how much cane was processed.
Due to the financial challenges, the Cooperative's Board of Directors ("Board") formed a Cost Reduction Task Force("Task Force").
The Task Force was charged with looking at any saving the Cooperative could accomplish, including increasing automations and technology and labor reductions. The goal was to get the mill totally automated.
Alverez served on the Task Force and was charged with reducing the number of employees in the Planning Department.1
While Signo was working for the Cooperative, Signo felt that she was treated differently because she was a female. In 2004 while working on a project, Signo calculated the thickness of pipes for a requisition. A male, Sanchez, changed Signo's order and ordered thinner pipes. Signo was upset about the change and complained about the order switch without her authorization to Alverez. Alverez instructed Sanchez to reorder the right piping Signo had ordered originally.
By 2004, the automation and technology allowed the Cooperative to reduce the number of employees by 100.
Around 2005, Rene Rodriquez touched Signo several times on her head and neck. Signo informed him she didn't like
it. Rodriquez responded by telling her that she didn't make him coffee.
Signo reported the touching to Alverez who later talked to Rodriguez and told him that he couldn't do it again. Rodriquez apologized to Signo.
Signo was aware of the Cooperative's policy for filing a grievance. In 2005, Signo was dissatisfied when the Cooperative switched from defined benefits to a 401K retirement plan. Signo grieved because she felt the new benefits were wrong and provided a better percentage to older people.
Signo wanted a company car to drive from home to work and her gasoline paid for by the Cooperative. She made a request to Alverez for the car. Alverez denied her request because the company only provided cars and gas cards to supervisors who had business off site and driving was a part of their job duties. Signo did not fall in that category.
At hearing, Signo admitted that Alverez encouraged her to get involved with automation projects. He sent her to a one- week General Electric Company training course in automation at Nicholls State University in Louisiana for her to learn automation for the mill.
Signo testified, "Alverez encouraged me to learn more and get involved in automation." He also told her it was in her best interest to get into automation.
Signo was assigned some automation projects in 2005 and 2006. She completed the first automation project and did an excellent job. Subsequently, when Alverez assigned her the next automation project, Signo started on the project but then told Alverez she only wanted to work on the major projects. Signo informed Alverez on more than one occasion, "that she didn't go to school for that" and refused to continue to do automation projects.2
In 2005, the Board approved the last capital improvement project, the reverse osmosis potable water project. The time line for completion of the project was 2008. It was the last major project that Signo was assigned to act as the owner's representative.
In 2006, Alfonso Salido ("Salido"), Chief of Manufacturing Fabrication, started calling Signo "vieja."3 Signo complained about it to Alverez; and Alverez told Salido to stop referring to her as vieja. Salido stopped after his conversation with Alverez.
Alverez started reducing the Planning Department employees by not filling positions as employees left. Jaime Carillo retired in 2006 after drafting for the Cooperative for
38 years. He was not replaced.
The second employee to leave the Planning Department was Bob Mattox, a mechanical engineer, who served as an owner's
representative like Signo. He took a medical leave of absence in December 2006. His position has never been filled and has since been eliminated since the major project work has ended.
In June 2007, Dennis Seller ("Seller"), an Electrical Engineer, took over running the automation for the Cooperative. He began implementing automation projects for Respondent in 1991. Seller was the only remaining engineer in the Planning Department when Signo left and he had worked with Respondent for
25 years. Seller also supervised all electrical operations for the entire manufacturing facility.
In October 2007, Alverez left the pipes in place at the reverse osmosis water plant because the Cooperative was still buying water from the city. Phase two had not been certified and permitted and Alverez wanted a back flow preventer or independent pipe as back up. Signo wanted the pipes removed. She tried repeatedly to convince Alverez of her position. Alverez became frustrated after telling her no at least three times. Alverez finally became so angry when she asked him yet another time that he raised his voice at her and made it clear to Signo that he expected her to follow his instructions. He told her that the discussion was over. Signo testified that it was "out of character the one time he yelled at me."
After the incident, Alverez reported the incident to human resources where Alverez admitted losing his temper and
raising his voice. Signo admitted in the meeting with Brent Woodham ("Woodham") from Human Resources and Alverez that she had repeatedly brought up the piping issue after her supervisor had made the decision. Woodham advised Signo not to question her supervisor over and over once a decision was made and to follow the supervisor's decision. Alverez apologized for raising his voice. During the meeting, Signo also reported to Woodham that she had felt threatened by Marlin when she started her employment with the company and he was showing her around.
After the major capital improvement special projects were finished, remaining employees in the Planning Department were transferred to various departments based on their suitability. Around 2007, Rodriguez, a chemical engineer, was assigned non-construction project duties and transferred to the Operations Department. Rodriguez became responsible for developing and maintaining a facility and equipment classification system. He gathered information about all the equipment throughout the mill, classified it, and recorded it in the computer classification system. Because of Rodriguez's chemical engineering degree, more than 20 years of professional experience in related industry operations, including being superintendant of a sugar cane plant, and being actively involved with the operations of the water plant, while still maintaining the facilities and equipment inventory
classifications system, the Cooperative made him supervisor over the operation of the reverse osmosis potable water plant.
Rodriguez's expertise in sugar production was still needed after the reduction of projects for the for the Planning Department.
Alverez hired Miguel Llama ("Llama") to correct the problem with the fabrication centrifugal station that separates the crystals from the molasses.4 Alverez made him supervisor of maintenance for the station under the Operations Department because he had extensive expertise in sugar plant management. Llama performed 80 percent of his job duties under the Operations Department. Llama's educational background included a degree in sugar technology and a master's in chemistry. He had more than 30 years' experience in sugar mill operations including Chief of Fabrication for another Florida sugar mill. Even though he was assigned to the planning group, his primary duties were working with the repair, maintenance, and operations of the fabrication area, not project engineering.
Around 2007, Signo complained to Alverez that someone was tampering with her computer and deleting files and making changes to existing files. Alverez took Signo's complaint about her computer to the information technology ("IT") person.
Daniel Herrara ("Herrara") from IT checked it out and determined that no one had tampered with Signo's computer. Herrara
discovered that it was not working properly because Signo had too many applications running at one time.
By November 2007, the last major project that Signo was assigned was operational and supplying water to the boilers. However, the potable water phase was delayed pending the granting of construction and operation permits by the Palm Beach County Health Department.
The Cooperative did not undertake any more capital projects because the Board did not approve any. Only small projects requested by supervisors were approved by the Board. By early 2008, there was very little work for Signo.
In the spring of 2008, Alverez decided to eliminate Signo's position with the Cooperative because there were no projects for her to oversee. The Cooperative no longer needed a project coordinator, and no work was available for a mechanical engineer. Alverez met with President George Wentworth and they decided that if no work surfaced by the summer, then Signo's position would be eliminated.
In May 2008, Signo couldn't open her office door because it was locked.5
On June 19, 2008, Signo attended the American Society of Sugar Cane Technology ("ACSSCT) Conference that Alverez and Dr. Vadim Kochergin were attending.6 James Shine also attended the conference and sat with his wife and another male co-worker,
Island, during the banquet. Shine saw Dr. Kochergin in passing but did not have a conversation with him.7
On July 7, 2008, Signo attended a retirement luncheon with her co-workers.8
After the retirement luncheon, Alverez called Signo to the office. Signo met with Alverez and Woodham.
During the meeting, Signo was laid off because the Cooperative eliminated her position since the Planning Department had completed all of its major projects. No one replaced Signo in her position.
The Cooperative chose to eliminate Signo's position instead of another Planning Department employee because she did not have experience in sugar plant operations, no longer had any job duties to perform, and her degree was in mechanical engineering, which was more suitable for major construction projects that the mill did not have.
Woodham offered a severance agreement that included a clause:
In consideration of the severance package, you acknowledge that you have no further claims against Sugar Cane Growers Cooperative of Florida and there are no further obligations owed to you arising out of your employment. You discharge and release Sugar Cane Growers Cooperative of Florida of any further claims or liability of any nature whatsoever, except of course for unemployment compensation.
Woodham explained the packet to Signo during the meeting. He informed Signo of the offer of seven weeks of pay, three weeks of COBRA assistance, and three weeks of vacation pay.9 Signo's severance package was consistent with what was being offered to all employees.
Signo took the agreement to an attorney and provided the Cooperative several changes that the attorney suggested.
The Cooperative made most of Signo's requested changes to the Severance Agreement including extending the period that health insurance would continue from October 30, 2008, to October 31, 2008.10 Also, the following language was added at Signo's request:
Sugar Cane Growers Cooperative of Florida acknowledges that it has no claims to the Cooperative arising out of your employment and discharges and releases Barbara Signo of any further claims or liability of any nature whatsoever. Sugar Cane Growers Cooperative acknowledges that you are fully vested in both the Pension Plan and the 401K Savings Plan.
After the Cooperative incorporated the changes, Signo took the severance package of $14,555.23 and signed the Severance Agreement on July 15, 2008, which included the general release.
At the time of Signo's termination, there were nine women in salaried positions with the Cooperative, and at age 47 Signo was the second youngest. Some women were married and some were single or divorced. Out of all the Cooperative employees,
231 were older and 158 were younger. There were also a total of
391 people employed and 373 were year-round employees and the remaining 18 were seasonal employees working during the summer off season.
While Signo was employed with the Cooperative she never complained about discrimination.11
On June 22, 2009, Signo filed a charge of discrimination against the Cooperative alleging the Cooperative violated Chapter 760 of the Florida Civil Rights Act by subjecting her to harassment and disparate treatment based on her gender, age (47), and marital status (divorced), and that her termination was the Cooperative's retaliation because of her previous complaints about discrimination.
The Commission issued a no cause determination and Signo filed a Petition for Relief, which is the matter before the undersigned.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010).
Signo alleged in her Employment Charge of Discrimination filed with the Florida Commission of Human Relations that the Cooperative violated Chapter 760 of the Florida Civil Rights Act by terminating her in retaliation for
her complaints about harassment regarding gender, age, and marital status during her employment.
Unlawful Discrimination
The Florida Civil Rights Act of 1992(the "Florida Civil Rights Act" of the "Act"), chapter 760, Florida Statutes, prohibits discrimination in the workplace, and prohibits retaliation against an employee for engaging in protected activity such as complaining about discrimination.
Section 760.10, Florida Statutes, provides:
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.
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(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
The Florida Civil Rights Act of 1992, section 760.01, et seq., Florida Statutes, is modeled after Title VII of the
Civil Rights Act of 1964, 42 U.S.C. section 2000, et seq.; therefore, case law interpreting Title VII is also relevant to cases brought under the Florida Civil Rights Act. Florida Dep't of Cmty. Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
In a discrimination case, the Petitioner has the initial burden of establishing a prima facie case of unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under the McDonnell
analysis to establish a prima facie case of discrimination, Signo must establish the following: (1) she is a member of a protected class; (2) she suffered an adverse employment action;
(3) she is qualified for the job at issue; and (4) the Cooperative treated a similarly-situated employees outside the protected class more favorably. Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002); Gossard v. JP Morgan Chase & Co., 612 F. Supp. 2d 1242 (S.D. Fla. 2009). Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA 1996).
Although Signo established that she could fall within three of the protected classes, female, age, and marital status; that she suffered an adverse employment action, termination; that she was qualified for the job as a Project Engineer in the Planning Department; and she failed to bring forward any
evidence showing that similarly-situated employees outside the protected class were treated more favorably than her.
"To show that employees are similarly-situated the Petitioner must show that the 'employees are similarly-situated in all relevant aspects.'" Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316. "The comparator must be nearly identical to the petitioner, to prevent courts from second- guessing a reasonable decision by the employer." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). In other words, Petitioner must be "matched with persons having similar job-related characteristics who were similarly situated" to Petitioner. MacPherson v Univ. of Montevello, 922 F.2d 766, 775 (11th Cir. 1991).
Petitioner failed to produce evidence that Respondent treated the other employees more favorable than Petitioner. At the time of her termination Signo was the only employee that served solely as a project engineer. Sellers was a male engineer still in the Planning Department when Signo left, but he had an electrical engineering degree unlike Signo's mechanical and nuclear degrees, for which the Cooperative didn't have a need. Seller was solely responsible for developing and implementing various automations throughout the Cooperative, a job Signo refused to do. Rodriguez was assigned to non- construction projects including maintaining classification
system and supervising the day-to-day operations of the water plant. And Llama, a non-engineer, was responsible for maintenance and fabrication. Therefore, none of the male employees meet the similarly-situated employee test, and Petitioner fails to demonstrate favorable treatment in any respect. Having failed to establish this element, Petitioner has not established a prima facie case of employment discrimination.
Grounds for termination
If Signo had met the burden of demonstrating a prima facie case of unlawful discrimination, the burden would shift to the Cooperative to rebut the preliminary showing of unlawful discrimination by producing evidence that the adverse action was taken for some legitimate, no-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that the employer's offered reasons for its adverse employment decision were pretextual. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 201 (1981).
In this case, the Cooperative presented evidence of legitimate, non-discriminatory reasons for its business decisions. Given the economic downturn experienced by the Cooperative after the hurricanes, it was necessary for the Cooperative to cut its costs and expenses, and employee
reductions were the most obvious place to make such cuts. The decision to lay off Petitioner had nothing to do with her gender, age, or marital status. She was simply the next employee to be terminated with the staff reductions. The evidence at hearing showed that the Cooperative provided a legitimate, non-discriminatory reason for ultimately terminating Signo's employment when no work was available because the projects were completed. The question of gender, age, or marital status was never an issue until Signo made her allegations of discrimination and retaliation after-the-fact to the Commission. At hearing, Signo failed to demonstrate the reason given by the Cooperative for her termination was unworthy of belief.
It is clear that the Cooperative provided a legitimate, non-discriminatory reason for its employment action against Signo. Therefore, Signo did not prove by a preponderance of the evidence that the Cooperative's grounds for her termination were pretexual.
Retaliation
Signo claimed that her termination was retaliation by the Cooperative for her complaints of discrimination during her employment. Retaliation allows the undersigned to evaluate alleged discriminatory acts beyond the 365-day limitation imposed pursuant to section 760.11, Florida Statutes.12
For an employee to succeed on a Title VII of the Civil Rights Act of 1964 unlawful retaliation claim, she must show that: (1) she engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) there is some causal relation between the two events. See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). The plaintiff need not prove the underlying claim of harassment in order to succeed on her unlawful retaliation claim. The plaintiff need only show that she believed in good faith that the employer's employment practices were unlawful and that such a belief was objectively reasonable. Little v. United Tech., Carrier Transicold Div. 103 F.3d 956, 960 (11 Cir. 1997).
The burden-shifting analysis that must be applied to the causal link requirement of a Title VII of the Civil Rights Act of 1964 unlawful retaliation claim is as follows: Once the prima facie case is established, the employer must proffer a legitimate, nonretaliatory reason for the adverse employment action. The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct.
The causal link requirement for a Title VII of the Civil Rights Act of 1964 retaliation claim is construed broadly; a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1457 (11th Cir. 1998).
At the hearing, Signo brought up incidents that occurred during her employment that she did not like and felt were discriminatory. However, Signo failed to establish that she even complained about discrimination during her employment.13 No evidence was produced by Petitioner that she expressly complained about gender, age, or marital discrimination. Courts have consistently required that an employee's complaints must clearly put an employer on notice of a violation of the law.
See Johnson v Fla. Dep't of Elder Affairs, No. 4: 09-CV- 306/RS/WCS, 2010 U.S. Dist. LEXIS 42784, at 6 (N.D. Fla. Mar 20,
2010).
Further, the record is clear that Signo both received the employee handbook with the grievance procedures for the company, and knew how to complain because she did so regarding her dissatisfaction with the change of the health care benefits. Since Signo never put the Cooperative on notice that she was opposing gender, age, or marital discrimination incidents or that she was making a formal complaint, Petitioner fails to establish any protected activity. Therefore, no causal connection exits to Signo's termination and there is no need to apply the burden-shifting analysis. Signo fails to demonstrate retaliation in this matter.
Severance Agreement
Signo also has the burden to prove she has a claim that is cognizable under the Florida Civil Rights Act of 1992, as amended.
It is settled law that a person may waive his or her rights to pursue an employment discrimination claim pursuant to Title VII in a settlement agreement if the waiver of these rights is knowing and voluntary. The court in Puentes v. UPS,
86 F.3d 196, 198 (11th Cir. 1996), explained the requirements for a knowing and voluntary waiver as follows:
When an employee knowingly and voluntarily releases an employer from liability for Title VII . . . claims with a full understanding of the terms of the agreement, he is bound by that agreement.
E.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 & n. 15, 94 S. Ct. 1011, 1021 &
n. 15, 39 L. Ed. 2d 147 (1974); Freeman v.
Motor Convoy, Inc., 700 F.2d 1339, 1352 (11th Cir. 1983). However, the waiver of such remedial rights must be closely scrutinized. Freeman, 700 F.2d at 1352; see also Coventry v. United States Steel Corp., 856 F.2d 514, 522-23 (3d Cir. 1988) ("In
light of the strong policy concerns to eradicate discrimination in employment, a review of the totality of the circumstances, considerate of the particular individual who has executed the release, is also necessary.").
In determining whether a release was knowingly and voluntarily executed, courts look to the totality of the circumstances. Factors that guide a court include:
the plaintiff's education and business experience; the amount of time the plaintiff considered the agreement before signing it; the clarity of the agreement; the plaintiff's opportunity to consult with an attorney; the employer's encouragement or discouragement of consultation with an attorney; and the consideration given in exchange for the waiver when compared with the benefits to which the employee was already entitled.
Beadle v. City of Tampa, 42 F.3d 633, 635 (11th Cir. 1995); See also Gormin v. Brown- Forman Corp., 963 F.2d 323, 327 (11th Cir.
1992).
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There is no bright-line test for determining what is a sufficient amount of time for an employee to consider a release and consult with an attorney before the employee is considered to have signed the release knowingly and voluntarily.
Based on the findings of fact herein and a consideration of the totality of the circumstances surrounding Signo's execution of the settlement agreement in light of the six factors set forth in Puentes, Signo has failed to carry her burden of proving that her release of all claims against the Cooperative was unknowing or involuntary. The release was clearly written, Signo got both the advice of an attorney and the changes she wanted to the agreement. Accordingly, it is concluded, based on the findings of fact herein, that Signo
knowingly and voluntarily released the Cooperative from all claims she might have against them in the Severance Agreement she executed July 15, 2008. Signo, therefore, has no claim cognizable under the Florida Civil Rights Act of 1992, as amended, and the Commission has no jurisdiction in this matter.
Even if the Petitioner had not released all claims against Respondent, Signo still did not meet her burden to demonstrate that the Cooperative committed an unlawful employment practice or retaliated against Petitioner as alleged by Petitioner in her Petition for Relief. Therefore, Signo's Petition should be dismissed.
enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 18th day of January, 2011, in Tallahassee, Leon County, Florida.
JUNE C. MCKINNEY
Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2011.
1 The undersigned is persuaded that Sharon Leah Roberts's testimony regarding the 2004 minutes of the Board of Directors and the Task Force requesting that the managers cut costs by reducing employees supports Respondent's position that Alverez was charged with reducing the employees in the Planning Department.
2 The record has conflicting testimony regarding whether Signo refused to do automation. Alverez's testimony is found to be more credible.
3 Vieja is the Spanish word for old lady.
4 Fabrication includes the filtration and clarification of the raw sugar juice, the growth of the sugar crystals, and the separation of the sugar crystals form the molasses by centrifugals.
5 Signo claimed that her office was in a disarray and had been broken into, and that items had been taken. Robert Orr, the Safety & Security Supervisor, is found to be credible in his testimony that a break in was never reported. Additionally, the
testimony of Alverez that Signo was locked out of her office once but that he had no knowledge of a break-in is found to be credible. Therefore, the undersigned finds Signo's testimony regarding a break in and it being part of her alleged harassment unpersuasive.
6 Signo claimed that she overheard Alvarez and Dr. Kochergin discussing what they "would do with her" as she was approaching a "woman's age of change." The undersigned is not persuaded that such comments took place and accepts the testimony of Respondent's witnesses Alverez and Shine as more credible.
7 Signo claimed that Shine overheard the "coming of change" conversation between Vadim and Alverez. Shine's testimony is found to be more credible.
8 There is conflicting testimony regarding whether a comment was made at the retirement luncheon relating to Signo being past an age to bear children. The undersigned is not persuaded such a conversation took place based on the credible testimony of Kathy Moore.
9 Woodham's testimony that he explained the severance package to Signo is found to be credible.
10 Signo's assertion that she requested an extension to continue reviewing the Severance Agreement is not found to be persuasive. Alverez's testimony that she never asked for more time is found to be more credible.
11 Signo asserted several other incidents, including her supervisor Alverez raping her, and Alverez commenting about "a mattress" at work which triggered the rape memory. The undersigned is not persuaded such incidents occurred and will not be considering such in this matter. Signo presented Clinical Psychologist and expert witness Dr. Paul Layden to testify that his evaluation found Petitioner to be truthful about the aforementioned incidents and other incidents while she was working for the Cooperative. The undersigned is not persuaded by Dr. Layden, who Petitioner purports to be an expert. Therefore, the undersigned rejects the aforementioned opinion. In Thompson v. Dep't of Children & Families, 835
So. 2d 357, 360 (Fla. 5th DCA 2003), the court held that the trier of fact may accept or reject all or any part of an expert's testimony and is in no way bound by uncontroverted expert opinion testimony.
12 When evaluating the unlawful discrimination issue in this matter, the undersigned was barred from considering many of the alleged incidents because the allegations fell outside of the time parameters for assertions required pursuant to §760.11, Fla. Stat.
13 If the 2007 incident with Rodriguez touching Petitioner were to be considered, it would be the only incident. And, the undersigned would find it too remote in time to be considered a causal link to a 2008 termination. Additionally, Alverez properly handled the incident by addressing it with Rodriguez and stopping further occurrences.
Robert A. Bogdan, Esquire Robert Anthony Bogdan, P.A.
Margaret L. Cooper, Esquire
Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475
Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
