vs.
Respondent.
) Case No. 12-0885
Pursuant to notice to all parties, a final hearing was conducted in this case on May 10, 2012, in Orlando, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings. The parties were represented as set forth below.
For Respondent: Aisha S. Sanchez, Esquire
William S. Reese, Esquire Lane, Reese, Summers, Ennis
and Perdomo, P.A.
The issue in this case is whether Respondent, Publix Super Markets, discriminated against Petitioner, Babak Sharifzadeh, on the basis of his national origin (Iranian), religion (Muslim), and/or in retaliation, in violation of the Florida Civil Rights Act.
On or about August 29, 2011, Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations ("Commission"). The Commission entered a Determination: No Cause, dated February 16, 2012. Petitioner timely filed a Petition for Relief which was forwarded to the Division of Administrative Hearings ("DOAH") on March 12, 2012.
At the final hearing, Petitioner testified on his own behalf and called three other witnesses: Felix Rosa; Jennifer Gerini; and Christina Jimenez. Petitioner's Exhibits 1, 2, and 37 were admitted into evidence. Respondent called five
witnesses: Ted Reese; David Van Den Berg; Andrew Houk; Leighton Hall; and Robert Bechtel. Respondent offered 65 exhibits into evidence, each of which was admitted.
A transcript of the final hearing was ordered by the parties. By rule, the parties are allowed ten days from the date the transcript is filed at DOAH to submit proposed recommended orders (PROs). Petitioner filed a PRO on May 25,
2012; the Transcript was filed on June 1, 2012. Respondent filed its PRO on June 11, 2012. Each of the parties' PROs was duly considered in the preparation of this Recommended Order.
Petitioner is an Iranian-born male who is Muslim (or, as he refers to it in his complaint, a Moslem). He has worked for Respondent since being hired as a part-time front service clerk (historically known as a "bag boy") at Publix Store 0133 in Orlando, Florida. Petitioner, thereafter, went to full-time employment and was promoted several times before becoming a store manager in April 2006 at Store 1024 in Montgomery, Alabama.
In March 2007, Petitioner agreed to step down to the position of assistant store manager in exchange for a transfer back to Florida. He was transferred to Store 0758 in Poinciana, Florida. On July 13, 2008, Petitioner was transferred to
Store 1181 (the "Store") in Kissimmee, Florida, and promoted to store manager.1/
Until his transfer to the Store, Petitioner had not received any disciplinary actions from Respondent. However, in late January 2009, Petitioner was accused of sending several sexually explicit messages to a female employee. The messages contained graphic and crude language that made the recipient uncomfortable. The employee said that in addition to the
messages, Petitioner had hugged her a few times when she worked at the Store. Petitioner admitted hugging the employee and giving her a ride home on occasion. He denies sending the messages to her, even though the messages apparently were traced to Petitioner's computer. Petitioner speculated that his son may have used his (Petitioner's) password and sent the messages or perhaps someone hacked into the employee's computer.
Petitioner's testimony in that regard lacks credibility.
Petitioner was counseled about the need for appropriate behavior at all times and warned that any further incidents could result in loss of his position. Respondent did not feel Petitioner was being honest about the incident with the employee, but decided to give Petitioner the benefit of the doubt. Petitioner was therefore warned, an associate counseling statement was issued, and the matter was resolved.
Before long there were new allegations against Petitioner related to sexually inappropriate comments to employees and store customers. Petitioner allegedly discussed the appearance of an employee's breast with another employee, a produce manager. He was also said to have made inappropriate comments about customers to that same produce manager. Petitioner admitted making comments about customers, but denied making any comments about the employee, Ms. Ramos. The produce manager, however, confirmed that he and Petitioner had made the
comments. Ramos refused to corroborate the produce manager's statement, but she appeared to be protecting herself, rather than being forthright with Publix investigators. Ultimately, Publix decided that the allegations had merit.
Petitioner was counseled by Respondent about the Ramos issue on May 3, 2010. He was warned that further incidents would not be tolerated. During the counseling for the Ramos matter, Petitioner became angry with his supervisors and accused them of harassing him. He did not express at that time that the reason for their harassment was his religion and national origin.2/ Petitioner accused the district manager, Hall, of giving him inferior department managers in an effort to make him fail. He also said neither the district manager nor the retail associate relations specialist, Houk, provided him any support. He did not, however, equate the alleged treatment he was receiving to discriminatory behavior based on religion or national origin. In her report dated November 1, 2011, Susan Brose, human relations legal specialist, wrote that during the May 3, 2010, counseling session, Petitioner said his treatment by Houk and Hall was due to his religion and national origin. That hearsay statement was not corroborated or confirmed by Houk and Hall. No complaint was filed against Houk and Hall despite Petitioner's remonstrations that he would file such complaints.
Petitioner testified that his store was excellent and operated above average. Petitioner always received an annual raise and received more than the minimum salary for a person in his position. As late as March 25, 2011, Petitioner wrote in his performance review session that "I appreciate all Mr. Hall has done for me and my team." By all accounts, Petitioner continued to operate without any sanctions or discipline throughout his employment at Publix.3/
Petitioner was issued two Associate Counseling Statements after the Ramos incident: One statement was for his comment to Ramos; one statement was for his belligerence during the counseling session. No sanctions were imposed as a result of the incident.
In October 2010, Publix received an email from someone identifying himself as Craig Bancoff (which was apparently an alias for the writer). According to the email, Bancoff had seen Jennifer Gerini and her manager, referred to as "Bob," kissing and drinking alcohol while at work.4/ Bancoff alleged that Gerini and Bob were having an affair. Publix took the email to mean that Petitioner and Gerini, another Publix employee, were having a personal relationship in derogation of Publix policies. Gerini at that time was going through a divorce. It was later pointed out to Publix that the email from Bancoff contained a physical address that was the same as Gerini's address before
she separated from her husband. It is likely--but not proven-- that the email came from Gerini's estranged husband.
Petitioner denied any relationship with Gerini and acknowledged that it would be against company policy for him to be romantically involved with an employee. He did say that he had tried to give Gerini comfort and support during the time of her divorce. Six months later, however, Petitioner told Hall that he would be unable to attend an event scheduled for store managers because his girlfriend was pregnant and needed care. When questioned, Petitioner told Hall that his pregnant girlfriend was Gerini. However, Petitioner maintains that no relationship existed between him and Gerini while she was an employee at his store.
Gerini left the Store in November 2010. She claims to have moved in with Petitioner in December 2010 and gotten pregnant by Petitioner in January 2011. In February 2011, she resigned from Publix. Petitioner and Gerini's child was born September 22, 2011--just over ten months from the Bancoff email.5/
Bancoff's email, coupled with the fact that Gerini gave birth to Petitioner's child seven months after resigning from Publix, strongly suggests that Petitioner and Gerini were involved in an intimate relationship while both were Store employees. If so, then Petitioner was not truthful to his
employers and was in violation of the rules of conduct for Publix employees. It is also possible that Petitioner and Gerini only started their relationship after Gerini was transferred from the Store in November 2010. Petitioner stated in a document dated July 14, 2011, that any one of the ten people he disclosed therein could confirm that no relationship existed between him and Gerini. Only one of those persons (Rosa) testified at the final hearing. Rosa did not address the Gerini-Petitioner relationship in his testimony.
Another employee who worked at the Store with Petitioner and Gerini (Jimenez) wrote statements to management saying that Gerini had admitted to her that there was a sexual relationship between Gerini and Petitioner. Jimenez said she saw Petitioner's name come up on Gerini's home telephone screen and that Gerini said she had performed oral sex on Petitioner a number of times at the Store. Jimenez testified that "[Petitioner and Gerini] acted very friendly [and] took frequent smoke breaks together. At that point, Jennifer was taken off cash and she was put on some other miscellaneous jobs and every time you couldn't find Jennifer, she was usually with Bob." She had a strong suspicion that there was something going on between Petitioner and Gerini, even though she never witnessed any physical or sexual contact. It was not until later that her suspicions were confirmed.
Gerini said that Jimenez never came into her house and that she never told Jimenez she was in a relationship with Petitioner. Petitioner suggested that Jimenez was not an honest person and that her testimony could not be believed. However, from observation, Jimenez appeared truthful and honest. She was no longer an employee at Publix and, thus, had nothing to gain from her testimony. Although Gerini said she and Jimenez were never really friends, Petitioner offered into evidence a document indicating fairly personal Facebook messages between Jimenez and Gerini, an indication of some sort of friendship, at least. In total, Jimenez' testimony was more believable that Gerini's.6/
Publix's perception of the alleged relationship between Petitioner and Gerini was sufficient to warrant termination of Petitioner's employment. Publix scheduled a Discharge Review on July 18, 2011, to inform Petitioner of its intent to discharge him from employment and to give him an opportunity to respond. At the Discharge Review meeting, Petitioner, for the first time, accused Hall of referring to him as "Bin Laden" and making derogatory comments concerning September 11, 2011, and shoe bombers. Again, there is no documented evidence that Petitioner ever made such complaints prior to being notified of his impending termination from employment.
According to his district manager (Hall), Petitioner had never made a complaint about any discriminatory actions against him based on his national origin or religion. One of Petitioner's assistant managers, Rosa, testified as to one incident of alleged discriminatory language, to wit: Rosa said that Hall told Petitioner that he (Petitioner) did not understand a reference to the television show Six Million Dollar Man because that show was not shown in Iran. Hall denied ever making the comment. Of the two witnesses, Rosa was least credible. He had recently been discharged from his position at Publix and was planning to file a legal action against Publix. In fact, Rosa's attorney accompanied him to the final hearing in this matter.
There is no documented evidence that Petitioner ever complained to his superiors about discrimination until after a decision had been made to terminate his employment with Publix. Petitioner states that he made several complaints, but none of his supervisors recall ever receiving such a complaint. One of Petitioner's alleged complaints was that a store manager,
Van Der Berg, called him a shoe bomber and other such derogatory things. However, on the day that Petitioner was called to the district office to be discharged from employment, he called
Van Der Berg to say he was being called to the office. It does
not seem congruent for Petitioner to call to chat with a person who had maligned him.
Upon review of all the evidence, including the fact that Petitioner received positive annual evaluations and raises, there is no basis for a finding of fact that Petitioner raised discrimination claims prior to July 12, 2011 (the date a Notice of Discharge was issued). It is counterintuitive to believe that Publix hired, promoted, and rewarded Petitioner for years and, then, suddenly decided to discriminate against him because of his place of national origin and religion.7/
Publix has a long-standing policy against employees at a single store being romantically involved. The so-called No Conflict Policy prohibits employees who are romantically, emotionally, or sexually involved from working together. Every employee is made aware that such fraternization can result in termination of employment. Publix, if it failed to take appropriate action against an employee, could be liable should a subsequent event occur. Thus, it was incumbent upon Publix to strictly enforce its policies.
Under Publix's rules of unacceptable conduct, being dishonest is the first and most important rule. Publix gave Petitioner numerous opportunities to comply with the rules and policies governing its employees. Instead of sanctioning Petitioner or imposing a disciplinary action against him, Publix
issued counseling statements. Such statements are not considered discipline by Publix. Ultimately, when Publix concluded that Petitioner engaged in a relationship with an employee and then was untruthful about his actions, he was terminated from his position.8/
Publix has discharged a number of managers for violating the rules relating to inappropriate behavior and untruthfulness. Publix provided a list of five Caucasian men and one woman who were found to have engaged in improper sexual relationships with employees and were terminated. Although the facts of each of their cases were different, and each case had its own individual issues, it is clear Publix treats all its employees similarly. Petitioner's treatment was no more or less severe than that afforded to other managers.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter pursuant to sections 120.57 and 120.569, Florida Statutes.9/
Petitioner claims discrimination under the Florida Civil Rights Act, sections 760.01 through 760.11, Florida Statutes. Section 760.10(1) states that it is unlawful for an employer to discharge or otherwise discriminate against an employee on the basis of his or her place of national origin or religion.
Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of section 760.10. See Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 21 (Fla. 3rd DCA 2009); Fla. State Univ. v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
Petitioner has the burden of proving by a preponderance of the evidence that Publix committed an unlawful employment practice. Fla. Dep't of Transp. v. J.W.C. Co., Inc.,
396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner is claiming intentional discrimination by Publix.
Discriminatory intent can be established through direct or circumstantial evidence. Schoenfeld v. Babbitt,
168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence of discrimination is evidence that, if believed, establishes the existence of discriminatory intent behind an employment decision without inference or presumption. Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
"'Direct evidence' is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor." Schoenfeld v. Babbitt, supra. Although Petitioner alleged some such remarks by Publix employees, the evidence offered to support his claims was not credible or persuasive.
Absent direct evidence, a person who claims to be a victim of intentional discrimination may "establish their case through inferential and circumstantial evidence." Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). When attempting to prove a case through circumstantial evidence, the shifting burden analysis set forth in McDonnell Douglas v.
Green, 411 U.S. 792 (1973), should be applied. Under this analysis, the charging party bears the initial burden of establishing a prima facie case of discrimination. If proven, then the burden would shift to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Dep't of Corr. v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991). The employer has a burden of production, not persuasion, and need only present evidence that the decision was non-discriminatory. Id.
It is up to the employee to then present evidence to demonstrate that the reasons given by the employer for its actions are a pretext for discrimination. Schoenfeld v. Babbitt, supra, at 1267. The employee must directly show that a discriminatory reason more likely than not motivated the decision or, in the alternative, show that the proffered reason for the employment decision is not worthy of belief. Dep't of Corr. v. Chandler, supra, at 1186; Alexander v. Fulton Cnty., 207 F.3d 1303 (11th Cir. 2000).
This shifting burden of proof and production does not change the fact that the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains with the employee. EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002).
In order for Petitioner in this action to establish his prima facie case, he must show that: (1) He is a member of a protected class; (2) He was qualified for his position; (3) He was subjected to an adverse employment action; and (4) His employer treated similarly situated employees, outside of his protected class, more favorably than he was treated. See McDonnell, supra; Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2204); Maynard v. Bd. of Regents of the Div. of
Univs. of the Fla. Dep't of Educ., 342 F.3d 1281 (11th Cir. 2003); Dep't of Child. and Fams. v. Garcia, 911 So. 2d 171 (Fla. 3d DCA 2005).
Clearly Petitioner in the instant action is a member of a protected class, specifically his Iranian national origin and his Muslim/Moslem faith. He was also qualified for his position, having served several years as a store manager. The adverse employment action taken by the employer was discharge of Petitioner from his position. However, there is no showing whatsoever that Publix treated similarly situated employees outside Petitioner's protected class more favorably than he was
treated. In fact, Publix went out of its way to counsel Petitioner and give him, on numerous occasions, the benefit of the doubt. That same accommodation was not given to other employees.
Petitioner also raised a retaliation claim. The court in Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009), described the analysis for a retaliation claim. The Court said:
To establish a prima facie case of retaliation under section 760.10(7), a plaintiff must demonstrate: (1) that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action; and (3) that the adverse employment action was causally related to the protected activity. See Harper v. Blockbuster Entm't Corp., 139 F.3d 1385 (11th Cir.), cert. denied, 525 U.S.
1000, 119 S.Ct. 509, 142 L.Ed. 2d 422
(1998). Once the plaintiff makes a prima facie showing, the burden shifts and the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Wells v. Colorado Dep't of Transp., 325 F.3d 1205, 1212 (10th Cir. 2003). The plaintiff must then respond by demonstrating that defendant's asserted reasons for the adverse action are pretextual. Id.
Petitioner, in this action, claims that Publix retaliated against him because he complained about discrimination, i.e., a statutorily protected activity. He was able to show an adverse employment action--his termination from employment. However, he could show no causal connection between
his complaints about discrimination and his discharge from employment. Publix articulated--by persuasive evidence--the nondiscriminatory reason for its action, i.e., it believed Petitioner had violated policies and been untruthful.
Petitioner's claim for retaliation is not supported by the evidence. See, e.g., Drago v. Jenne, 453 F.3d 1301 (11th Cir. 2006).
The Findings of Fact and Conclusions of Law herein do not confirm that Petitioner did or did not engage in inappropriate behavior. Rather, the undersigned finds that Publix reasonably relied on the evidence it had to conclude that Petitioner had violated policies and rules, thereby, warranting termination of Petitioner's employment. No discrimination was
proven by Petitioner.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the Petition for Relief.
DONE AND ENTERED this 15th day of June, 2012, in Tallahassee, Leon County, Florida.
R. BRUCE MCKIBBEN Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2012.
1/ Respondent was of the opinion that Petitioner wished to return to Florida because of marital troubles. Specifically, Petitioner allegedly had an affair in Alabama, and his wife and children returned to Florida. He wished to reunite with them and so accepted a lesser position within the company to accomplish the move to Florida. However, there was no credible or competent evidence to support Respondent's speculation as to whether those were the reasons for Respondent's return to this state.
NOTE: In its PRO, Respondent cited to statements made by Petitioner during his deposition taken prior to final hearing. However, the transcript of that deposition was not offered into evidence, so no statements made therein can be used to make a Finding of Fact in this Recommended Order, unless such statements were repeated at final hearing.
2/ Petitioner did state during the counseling that, "You're only asking me this because I'm Muslim," but did not elaborate on that statement. Petitioner had not previously made any allegations about discrimination based on his religion.
3/ Although he was counseled on numerous occasions and those sessions were documented in an Associate Counseling Statement, such counseling was not considered discipline by Publix.
4/ Petitioner was often referred to by Publix employees as Bob, a derivative of Babak.
5/ Gerini testified the baby was born two weeks early.
6/ During the final hearing, Petitioner asked a store manager (Van Der Berg) if he knew that Petitioner was dating Jimenez while they were both employed at the manager's store. (Transcript, pg. 129). That self-incriminating statement by Petitioner was never pursued, but gives further credence to Jimenez' testimony.
7/ Petitioner also claims retaliation by Publix, but the only act for which retaliation could have occurred was Petitioner's challenge to his Notice of Discharge. Therefore, the alleged "retaliation" would have had to occur prior to the act warranting retaliation.
8/ This Recommended Order does not conclude whether all the allegations relied upon by Publix to terminate Petitioner's employment were true and substantiated. Rather, it is most important for purposes of this Order that the allegations were not based on discriminatory actions.
9/ Unless specifically stated otherwise herein, all references to the Florida Statutes will be to the 2011 version.
Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Aisha S. Sanchez, Esquire Ford and Harrison, LLP Suite 900
William S. Reese, Esquire Lane, Reese, Summers, Ennis,
and Perdomo, P.A.
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.
