JANET D. MAYES,
vs.
Case No. 14-4578
Respondent.
Pursuant to notice, a hearing was held before the Honorable Diane Cleavinger, Administrative Law Judge, Division of Administrative Hearings, on February 24, 2015, in Panama City, Florida.
The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
On December 18, 2013, Petitioner filed a Complaint of Employment Discrimination against Respondent, Great Southern Café (Respondent or Great Southern), with the Florida Commission on Human Relations (FCHR). The Complaint alleged that Respondent discriminated against Petitioner on the basis of age, sex, and disability when Respondent terminated her as an employee.
FCHR investigated the Complaint. On August 25, 2014, it issued a Notice of Determination finding cause to believe that an unlawful employment practice had occurred based on disability discrimination. The Notice also advised Petitioner of her right to file a Petition for Relief.
On September 29, 2014, Petitioner filed a Petition for Relief with FCHR. Thereafter, the Petition for Relief was forwarded to the Division of Administrative Hearings (DOAH) for formal hearing. Neither the Petition for Relief nor the underlying complaint of Employment Discrimination alleged facts to support a claim of discrimination based on age and failed to place Respondent on notice of such a claim. Therefore, this action proceeded on the appropriately pled claims of discrimination based on sex and disability.
At the hearing, Petitioner testified on her own behalf and presented the testimony of two witnesses. Respondent presented
the testimony of four witnesses. Neither party offered any exhibits into evidence.
After the hearing and for unknown reasons, all parties received copies of the hearing transcript by April 9, 2015, at the latest, without the original transcript being filed with the Division. The parties’ receipt of the transcript permitted sufficient time for each party to prepare and file proposed recommended orders by the deadline originally established in this case. Respondent had earlier filed a Proposed Recommended Order on April 1, 2015. However, Petitioner did not file a proposed recommended order after the transcript was received by her attorney. During the process of preparing this Recommended Order and again without explanation for the delayed filing, the original Transcript of the hearing was filed with the Division on May 12, 2015, by the court reporting company.
Respondent Great Southern Café is a restaurant located in Seaside, Florida. The restaurant is owned by James Shirley. As owner, Mr. Shirley did not generally involve himself in personnel decisions at the Café. Such decisions and the day-to- day management of the restaurant were the responsibility of the general manager, who at the time period relevant to this case was William “Billy” McConnell.
Petitioner Janet D. Mayes is female. Petitioner has ADD, ADHD, OCD, and general anxiety disorder. She has been diagnosed with these conditions for 20 years and they are all controlled through medication. More importantly, the evidence did not demonstrate that Petitioner’s disorders interfered with her ability to work or significantly impacted any other major life activity. Indeed, Petitioner has worked in the restaurant business for about 30 years and has held a variety of different positions during that time, often working long hours. Since her disorders did not interfere with any of Petitioner’s major life activities, the evidence did not demonstrate that such disorders were disabilities or handicaps for purposes of employment discrimination.
Sometime around March 2012, Petitioner interviewed for employment with Respondent. She was initially hired as a hostess for the restaurant by the then general manager,
Jim Ruby. Shortly thereafter, Mr. McConnell, who was then assistant manager, replaced Mr. Ruby as general manager. At the time, Mr. McConnell had 35-40 years of experience as a restaurant manager in Alabama and Florida and had managed the predecessor restaurant to Great Southern Café known as “Shades.”
Mr. McConnell’s management philosophy was to be patient with employees, to train them in the right way, and to ask employees to do their best. He would give employees the benefit
of the doubt, and when disciplinary action was necessary, would sit down and talk with the employee to build confidence in them. Mr. McConnell’s disciplinary style was informal and it was not his general practice to issue formal written discipline to employees.
Mr. McConnell liked Petitioner’s work ethic and thought she did a good job as hostess. Under Mr. McConnell’s management, Petitioner was promoted by Mr. McConnell to relief manager in May of 2012. In August 2012, she was again promoted by Mr. McConnell to full manager.
Mr. McConnell did not know about, nor was he provided with any documentation regarding, Petitioner’s disorders. Indeed, the evidence showed that Petitioner’s disorders were not so obvious that anyone who encountered her necessarily would have known about those disorders. There was no evidence that Petitioner ever sought any kind of accommodation from Respondent for her disorders.
Since Mr. McConnell worked only the day shift and Petitioner usually worked nights, their paths did not often cross at work. However, the evidence demonstrated that
Mr. McConnell occasionally used the term “bitch” to refer to Petitioner. The evidence also demonstrated that he did so not in a malicious or discriminatory way, but in a joking manner because of Petitioner’s actions that he witnessed or that were
described to him. Petitioner conceded that it was “like it was a joke” when Mr. McConnell referred to her as a “bitch.” There was no testimony that Mr. McConnell used this term on repeated occasions so that its use rose to the level of harassment or that he used it to belittle or demean Petitioner.
Sometime in April 2013, the Café catered a very large event known as “JazzFest.” Petitioner assisted Mr. McConnell in the planning and execution of this event for the Café. Her husband, William, who had been unemployed, was hired to help in food preparation at the event.
In general, JazzFest was stressful for all those who worked the event. Both Mr. McConnell and Petitioner worked many extra hours at the festival.
During the course of JazzFest, Mr. McConnell, as manager, permitted the employees to get food from the banquet line since they had been working all day without breaks for nutrition. Petitioner and her husband loudly and inappropriately berated Mr. McConnell in public and in front of other employees about allowing employees to get food from the banquet line. Mr. Shirley witnessed the confrontation and considered the display to be an inappropriate method by Petitioner to communicate her disagreement regarding
Mr. McConnell’s management decision. Mr. McConnell also observed that during JazzFest, Petitioner was “too pushy” and
“too bossy” with the staff without having any good reason for such treatment of employees.
Additionally, Mr. McConnell observed that Petitioner was “not herself” and “wound up a little too tight” during JazzFest. Further, Mr. McConnell was aware that Petitioner had some recent personal stressors, such as her husband having issues with unemployment and one of her sons being arrested and incarcerated. He believed Petitioner’s behavior was due to the pressures in her family life combined with the pressure from working Jazzfest. Therefore, Mr. McConnell decided to give Petitioner a week off, with pay, for rest and relaxation. He hoped that Petitioner would come back refreshed and ready for the busy beach season after her break.
Mr. Shirley knew of and supported the time off for Petitioner and hoped that Petitioner’s time away from work would ease some of the undercurrent of negative feelings that had built up between Petitioner and some of the employees.
After Petitioner returned from her week off,
Mr. McConnell received reports from some of his employees that Petitioner was being unreasonable, raising her voice and losing her temper “numerous” times. He also received reports that Petitioner was “hard to work for,” and “a bully.” In addition, owner James Shirley received some complaints from employees that Petitioner was “going off on people.” Indeed, her treatment of
the employees had gotten to the point that several employees no longer wished to work with her. These employees were considered good employees and were part of the restaurant team. The evidence showed that it is very important for restaurant staff to function as a team and that maintaining good working relationships among team members is one important component of a good functioning restaurant.
Mr. McConnell spoke to Petitioner about the subject of the complaints and asked why she was pushing the staff so hard and creating a bad environment. Petitioner said she would try to do better.
During this conversation, Mr. McConnell did not remember asking Petitioner whether her meds were “out of whack,” but he has stated this to other people as a figure of speech in the manner of “get your act together.” The evidence did not show that Mr. McConnell’s use of the phrase was discriminatory, harassing or demonstrative of any knowledge of Petitioner’s alleged disability or perception of the same.
After his talk with Petitioner, things improved for a couple of days. However, Mr. McConnell received more and similar complaints about Petitioner from the same employees who previously complained about her, with some indicating they would quit if Petitioner continued to work at the restaurant.
Mr. McConnell feared that if something was not done about Petitioner some of his good team employees would leave and he would not be able to run the restaurant.
The better evidence demonstrated that Mr. McConnell met with Petitioner and offered her two weeks’ severance pay. He spoke with her about her inability to get along with the employees and function as a team member at the restaurant. The meeting lasted about 20-30 minutes. Ultimately, Petitioner refused the severance pay, handed over her keys, and left. There was no credible or substantial evidence that Petitioner’s termination was based on disability, perceived or otherwise. Similarly, there was no credible or substantial evidence that Petitioner’s termination was based on her sex.
Although Petitioner asserted harassment from
Mr. McConnell, no evidence to support this claim was adduced at the hearing. Respondent hired and promoted Petitioner to a manager position, allowed Petitioner to hire her husband and son (and at least one of her son’s friends), and gave her a paid week off after JazzFest to refresh and relax from a stressful event. The evidence showed that Mr. McConnell gave Petitioner the benefit of the doubt, as he did with all his employees, and only decided to terminate her after talking with Petitioner and determining that giving her time off did nothing to eliminate the negative energy Petitioner was bringing to the job. Based
on these facts, Petitioner failed to establish that Respondent discriminated against her based on sex or disability when it terminated her from employment. As such, the Petition for Relief should be dismissed.
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(1), Fla. Stat. (2014).
The Florida Civil Rights Act (FCRA) in section 760.10, Florida Statutes, states in pertinent part as follows:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire an 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.
The Florida Civil Rights Act was patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.
As such, FCHR and Florida courts have determined federal case law interpreting Title VII is applicable to cases arising under FCRA. See Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17
(Fla. 3d DCA 2009); Green v. Burger King Corp., 728 So. 2d 369, 370-371 (Fla. 3d DCA 1999); Fla. State Univ. v. Sondel, 685 So.
2d 923 (Fla. 1st DCA 1996); Brand v. Fla. Power Corp., 633 So.
2d 504 (Fla. 1st DCA 1994).
Under FCRA, Petitioner has the burden to establish by a preponderance of the evidence that she was the subject of discrimination by Respondent. In order to carry her burden of proof, Petitioner can establish a case of discrimination through direct or circumstantial evidence. See Holifield v. Reno, 115
F.3d 1555, 1562 (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. Evidence that only suggests discrimination, or that is subject to more than one interpretation, is not direct evidence. See Schoenfeld v.
Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999), supra and Carter v. Three Springs Residential Treatment, 132 F.3d 635, 462 (11th
Cir. 1998). Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption and must in some way relate to the adverse actions of the employer. Denney v. City of
Albany, 247 F.3d 1172, 1183 (11th Cir. 2001); see Jones v. BE&K
Eng’g, Inc., 146 Fed. Appx. 356, 358-359 (11th Cir. 2005) (“In
order to constitute direct evidence, the evidence must directly relate in time and subject to the adverse employment action at issue.”); see also Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318 (11th Cir. 2002) (concluding that the statement “we’ll burn his black a**" was not direct evidence where it was made two- and-a-half years prior to the employee’s termination).
Herein, Petitioner presented no direct evidence of discriminatory intent on the part of the Respondent. Therefore, Petitioner must establish her case through inferential and circumstantial proof. Shealy v. City of Albany, 89 F.3d 804, 806 (11th Cir. 1996); Kline v. Tenn. Valley Auth., 128 F.3d 337,
348 (6th Cir. 1997); Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002).
Where a complainant attempts to prove intentional discrimination using circumstantial evidence, the shifting burden analysis established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981),
is applied. Under this well-established model of proof, the complainant bears the initial burden of establishing a prima facie case of discrimination. When the charging party, i.e., Petitioner, is able to make out a prima facie case, the burden to go forward with the evidence shifts 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). Importantly, the employer has the burden of production, not persuasion, and need only present the finder of fact with evidence that the decision was non- discriminatory. Id. See also Alexander v. Fulton Cnty., 207 F.3d 1303 (11th Cir. 2000). The employee must then come forward with specific evidence demonstrating that the reasons given by the employer are pretexts for discrimination. Schoenfeld v.
Babbitt, supra at 1267. The employee must satisfy this burden
by showing that a discriminatory reason more likely than not motivated the decision, or indirectly by showing 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., supra.
Notably, “although the intermediate burdens of production shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the [Petitioner] remains at all times with the [Petitioner].” EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002); see also Byrd v. RT Foods, Inc.,
948 So. 2d 921, 927 (Fla. 4th DCA 2007) (“The ultimate burden of proving intentional discrimination against the plaintiff remains
with the plaintiff at all times.”). Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 148 (2000).
On the other hand, this proceeding was not halted based on a summary judgment, but was fully tried before the Division of Administrative Hearings. Where the administrative law judge does not halt the proceedings for “lack of a prima facie case and the action has been fully tried, it is no longer relevant whether the [Petitioner] actually established a prima facie case. At that point, the only relevant inquiry is the ultimate, factual issue of intentional discrimination . . . .
[W]hether or not [the Petitioner] actually established a prima facie case is relevant only in the sense that a prima facie case constitutes some circumstantial evidence of intentional discrimination.” Green v. Sch. Bd. Of Hillsborough Cnty., 25
F.3d 974, 978 (11th Cir. 1994); Beaver v. Rayonier, Inc., 200
F. 3d 723, 727 (11th Cir. 1999). See also U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-715:
Because this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question of whether Aikens made out a prima facie case. We think that by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non [W]hen
the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection,
the fact-finder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption “drops from the case,” and “the factual inquiry proceeds to a new level of specificity.”
In this case, Petitioner alleged that Respondent discriminated against her on the basis of sex and disability in violation of the Florida Civil Rights Acts.
In order to establish a prima facie case of disability discrimination under FCRA, Petitioner must show: 1) that she was subject to an adverse employment action; 2) that she was qualified for the job at the time; 3) that her employer knew at the time of the action that she had a disability; and 4) that the adverse action took place in circumstances raising a reasonable inference that the disability was a determining factor in the decision. Luna v. Walgreen Co., 347 Fed. Appx. 469, 471 (11th Cir. 2009); Nadler v. Harvey, No. 06-12692, 2007
U.S. App. LEXIS 20272, at *17 (11th Cir. 2007).
As a first step in any discrimination claim based on disability, Petitioner must establish that she has a disability or that the employer regards her as having a disability.
The ADA defines “disability” as either “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). An employer’s mere knowledge that the Petitioner is suffering or has suffered from a medical condition of some kind, without more, does not establish Petitioner had an impairment that substantially limited a major life activity, had a record of such an impairment, or that Respondent considered her to be impaired.
See Hilburn v. Murata Electronics, Inc., 181 F.3d 1220 (11th
Cir. 1999) (employer’s approval of four leaves of absence after employee suffered heart attack did not establish “record of” disability); Carruthers v. BSA Advertising, Inc., 357 F.3d 1213
(11th Cir. 2004) (employer’s knowledge of the diagnosis and work restrictions did not prove that it perceived the plaintiff as substantially limited in her ability to work).
In this case, Petitioner failed to establish that her OCD and other disorders significantly impaired a major life activity or that her employer regarded her OCD and other disorders as a disability. Petitioner worked in the restaurant industry for 30 years despite being on medication for a good part of that period. Additionally, her disorders were not so obvious that a person would conclude she had a disability. Further, there was no substantive evidence that Respondent’s termination of Petitioner had any connection to her alleged disabilities, or that the reason given for such termination was a pretext for discrimination. Given these facts, the portions
of the Petition for Relief that relate to disability discrimination should be dismissed.
In order to establish a prima facie case of discrimination based on sex under FCRA, Petitioner must establish that: 1) she is a member of a protected class;
2) she is qualified for the position; 3) she suffered an adverse employment action; and 4) similarly-situated employees outside the employee’s protected class were treated more favorably. Valenzuela, 18 So. 3d at 22.
While Petitioner was a member of a protected class (female) and suffered an adverse employment action (termination), Petitioner presented no evidence that she was treated differently than males who did not meet Respondent’s expectations. Further, Petitioner presented no evidence as to how she was treated differently than other male employees.
More importantly, Respondent had a legitimate, non- discriminatory reason for ending her employment. Petitioner engaged in conduct that threatened to drive employees away and did not match the team management strategy that Mr. McConnell or Mr. Shirley wanted for the Restaurant.
As in other discrimination settings, once the employer has offered a legitimate, nondiscriminatory reason for its action, the charging party must demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could find [all of those reasons] unworthy of credence.” See Standard v. A.B.E.L.
Servs, Inc., 161 F.3d 1318, 1333 (11th Cir. 1998). In
evaluating the plausibility of the employer’s explanation, “the relevant inquiry is not whether [the employer’s] proffered reasons were wise, fair, or correct, but whether [the employer] honestly believed those reasons and acted in good faith upon those beliefs.” Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004). See also Valenzuela, 18 So. 3d at 26 (“The inquiry
into pretext centers upon the employer’s beliefs, and not the employee’s own perception of [her] performance.”)
As the court said in Chapman v. A1 Transport, 229 F.3d 1012, 1030 (11th Cir. 2000)(en banc):
A plaintiff is not allowed to recast an employer’s proffered nondiscriminatory reasons or substitute his business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.
Moreover, absent evidence of intentional discrimination, it is not the role of administrative agencies or the courts to micro-manage internal business decisions. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.
1991) (federal courts do not sit as “super-personnel department”
to reexamine an entity’s business decisions); Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984) (“[t]he employer may fire an employee 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.”)
In this case, Respondent promoted Petitioner to a management position. Petitioner was terminated only after she had a very loud and public argument with her boss and after numerous complaints from other employees. Mr. McConnell terminated Petitioner because she was alienating good employees, some of whom were threatening to leave if something was not done about Petitioner. Her management strategy and tactics simply did not match what Respondent wanted for the Café. Given these facts, Petitioner has failed to establish that she was discriminated against on the basis of her sex by Respondent. Therefore, the Petition for Relief should be dismissed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief.
DONE AND ENTERED this 2nd day of June, 2015, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2015.
Robert L. Thirston, II, Esquire Thirston Law Firm
Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
