15-003836 Estella Magri vs. Ams Aviation Status: Closed Recommended Order on Monday, February 29, 2016.

Summary: FCHR has jurisdiction to investigate claim of unlawful discrimination filed within 365 days of when the charging party knew, or should have known, of the adverse action. No sanctions for spoliation of evidence warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESTELLA MAGRI,

Petitioner,

vs. Case No. 15 - 3836

AMS AVIATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted before Administ rative Law Judge Mary Li Creasy by video

teleconference at sites in Tallahassee and Miami , Florida, on

December 1 , 2015.

APPEARANCES

For Petitioner: Jason S. Remer, Esquire

Remer and Georges - Pierre, PLLC

Suite 2200

44 West Flagler Street

Miami, Florida 33130

For Respondent: David Edward Block, Esquire

Jackson, Lewis, Schnitzler and Krupman

First Union Financial Center, Suite 2600

200 South Biscayne Boulevard

Miami, Florida 33131 - 2374

Naveen Paul, Esquire

Jackson Lewis, PC

Suite 3500

2 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether the Florida Commission on Human Relations (FCHR)

correctly determined that it lacks subject matter jurisdiction

over PetitionerÓs claim of unlawful employm ent discrimination

because the complaint wa s received more than 365 days after th e

date of the alleged violation?

PRELIMINARY STATEMENT

On October 16 , 2014, Petitioner Estella Magri (Magri or

Petitioner) f iled a Charge of Discrimination (C harge) with the

FCHR alleging that Respondent Aviation Maint enance Staffing,

Inc., d/b/a AMS Aviation (AMS or Respondent) discriminated

against her based on h er sex and in retaliat ion for reporting

sexual harassment .

On April 30, 2015, the FCHR issued a Notice of Determination

to Magri indicating that the FCHR lack ed jurisdiction to

investigate Magri's claims because her C harge was untimely filed,

more than 365 days after the alleged adverse employment action.

Magri elected to contest the decision and pursue administrative

remedies by filing a Petition for Relief w ith the FCHR. The FCHR

transmitted the Petition to the Division of Admin istrative

Hearings (DOAH) on July 6, 2015, and the undersigned was assigned

to hear the case. The final hearing was held as scheduled on

December 1, 2015.

At the formal hearing, Magr i presented the testimony of

Vicki Sokolowski, Director , Field Human Resources for AMS, and

testified on her own behalf. Respondent present ed the testimony

of three witnesses : Luis Gonzalez, Shift Manager ; Ramses Perez,

Vice President of Operations; and P lamen Ilonov , Man a ger of the

Interior Department . Petitioner's Exhibit 4 (pages 161, 162,

166 , and 167) was admitted into evidence. Respondent's Exhibits

1 through 3 , 4 (pages 1 through 17) , 6 through 10, 12, 13, 16, 17

and 22 and were received into evid ence.

The parties filed a Joint Pre - hearing Stipulation, and the

facts stipulated therein are accepted and made a part of the

Findings of Fact below. The two - volume Transcript of t he final

hearing was filed December 16 , 2015, and the Respondent timely

fil ed a proposed order that ha s been carefully considered by the

undersigned in the preparation of this Recommended Order. 1 /

FINDING S OF FACT

1. AAR Corp. (AAR ) is an aviation support company which

provides maintenance, repair, and overhaul services to air

c arriers at various facilities through the United States.

2. AAR uses its own employees in addition to utilizing

employees from its temporary staffing company, AMS . When AARÓs

business increases, it increases its workforce b y adding workers

from AMS . Whe n AAR experiences a downturn in business, it

similarly reduces its workforce, typically, by reducing workers

from AMS through layoffs .

3. Business is usually slow for AAR and AMS during the peak

airline travel times, including summer and the winter holi days.

Business of AAR and AMS is also affected by AAR's contracts with

major airline carriers for scheduled and non - scheduled

maintenance to aircraft.

4. Magri was hired by AMS on October 27, 2011, as a S heet

M etal mechanic at the AAR Miami International Airport facility.

She began work January 16, 2012 , and at all times material

hereto, worked as an Interior Mechanic for AMS.

5. Magri's last day physically working for AMS was

October 10, 2013.

6. In 2013, Pedro Estrada (Estrada) became Magri's

immedi ate supervisor. According to M a gri, Estrada frequently

subjected Magri to sexual jokes, graphic comments about her bo dy,

and requests for sexual favors. 2 / At the end of September or

beginning of October 2013, Estrada came up behind Magri and

placed his p enis against her buttocks in a sexual manner.

7. Shortly after making a sexual harassment complaint about

her supervisor in September 2013, Magri was given a disciplinary

memo for poor performance on October 4, 2013. Although there is

no prior record of w ritten discipline against Magri, t his memo

notified her that this was a " final warning " and any future

violations could result in termination.

8. On October 10, 2013, Magri was sent home by her then

immediate supervisor, Plamen Ilonov (Ilonov) , Manager of

Interior, allegedly due to a lack of work. Approximately eight

other AMS workers were laid off for the same reason on that date.

9. AMS employees were aware of a likely work slowdown at

that time because US Airways cancelled its contract with AAR in

the fall of 2013 due to US Airways impending merger with American

Airlines. However, neither Magri , nor her co - workers , were told

by Human Resources or their supervisors , the anticipated duration

of the layoff.

10. In fact, it was common practice for AMS em ployees to be

laid off and then returned to work within a week to a month due

to the work flow fluctuations. This happened to Magri for a month

in 2012. Laid off e mployees, including Magri, were directed to

regularly call or text their su pervisor to see w hen work was

available. AMS had no system of no tifying employees whether a

lay off would be long or short term.

11. When a lay off was anticipated to be long term, the AMS

worker was removed from the Human Resources payroll system and

internal paperwork wa s generated indicating termination, however,

the employee was not notified of their status other than "lay

off."

12. At the time of an anticipated long - term la y off, the AMS

Human Resources D epartment also deactivate d the worker ' s security

badge that would provide access to the facility. However, the

employee was not asked to return the badge , nor was the employee

advised that the badge was inactive.

13. When she was sent home on October 10, Magri was

instructed by Ilonov to check with him regarding when she might

be returned to the work schedule. At this time she was not aware

a decision was made that she would likely be laid off more than a

month . For the next two weeks, Magri called and sent text

messages to Ilonov looking for clarification as to when she might

be returned to work.

14. Magri sent a text message to Ilonov on October 11

asking "Why me." Ilonov responded that 10 pe ople were affected,

not just Magri . Magri asked, "Plamen do you think its [ sic ]

layoff will take long time?"

15. On Octobe r 12, after receivi ng no response, Magri

texted Ilo nov, "Good morning , Plamen, do you think I have to take

out my tool box?" Ilonov replied, "Good morning, it is possible.

I don't see much next 2 - 3 months. "

16. In a telephone conversation this same week , Ilonov

indicated to Magri that work might be available October 21 if

United Airlines planes arrived for service. Based on this, M a gri

ha d a legitimate expectation that she would be returned to the

schedule.

17. On Oc t obe r 20, Magri sent a text to Ilon o v stating, "Do

you don't [ sic ] know how long? I'm very scared without work."

Ilonov did not reply.

18. During this week, several employees were called to

return to work. Ilonov did not return Magri to work because he

only called back those he considere d his "best" workers.

19. On October 24, Magri sent several text messages to

Ilonov seeking an explanation of when she might return to work or

why she wasn't called back. Ilo nov responded that he was calling

whoever he thought he needed , and "We are real ly slowing down,

and soon more changes."

20. On October 25, Magri went to the facility to speak

directly with Ilonov. During this meeting he made it clear to

Magri for the first time that it was not his decision whether to

put her back on the schedule, a nd that he did not think the

"higher ups" wanted her to return. He told her he could n o t tell

her anything further and that she would need to contact the

Mai n t e nance Man a ger, Luiz Gonzalez (Gonzalez) . This was the

first time Magri realized that this woul d not be a short - term

layoff.

21. At some point shortly thereafter, Magri spoke to

Gonzalez by telephone , who told her she needed to look for

alternative employment.

22. Respondent maintains two conflicting factual assertions.

Responde n t contends the dec ision to terminate Magri's employment

was made on October 10, 2013 , as evidenced by its internal

removal of Magri from the payroll system and the deactivation of

her employee security badge (nei ther of which Magri was aware ) .

Alternatively, Respondent cla ims there was no decision to

terminate Magri and that she remains eligible for rehire .

23 . Regardless of whether Magri's separation from

employment was a termination or long - term layoff, t he earliest

Magri knew or should have known that she suffered adv erse action

was October 24, 2013, when she be c ame aware that although some of

her co - workers were being immediately called back to work, she

was not.

24. Accordingly, Magri's charge, filed on October 16, 2014,

which is 357 days from the alleged violatio n, was timely with

regard to her claim of sex discrimination and retaliation arising

from her termination.

CONCLUSIONS OF LAW

25 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.5 7(1), Florida Statutes.

26 . "As a jurisdictional prerequisite to filing an FCRA

action, a plaintiff must exhaust her administrative remedies by

filing a timely charge with the appropriate agency." Jones v.

Bank of America , 2013 U.S. Dist. LEXIS 16473 0, *7 - 8 (M.D. Fla.

2013) (citations omitted). "To exhaust administrative remedies

under the FCRA, a plaintiff must satisfy the requirements of Fla.

Stat. § 760.11." Id., at *8 citing Maggio v. Fla. Dep't of Labor

& Emp. Sec. , 899 So. 2d 1074, 1079 (Fla. 20 05); Woodham v. Blue

Cross & Blue Shield of Florida, Inc. , 829 So. 2d 891, 894 (2002).

27 . Section 760.11(1), Florida Statutes, provides, in

pertinent part, as follows:

(1) Any person aggrieved by a violation of

ss. 760.01 - 760.10 may file a complain t with

the commission within 365 days of the alleged

violation, naming the employer, employment

agency, labor organization, or joint

labor - management committee, or, in the case

of an alleged violation of s. 760.10(5), the

person responsible for the violat ion and

describing the violation . . . .

28 . Respondent alleges that Magri ' s Charge was untimely

because it was filed on October 16, 2014, which is more than 365

days after October 10, 2013, the last date on which Magri

physically worked for Respon dent and the date Respondent contends

Petitioner knew or should have known of her layoff.

Magri's Charge , as to Discrimination and Retaliation Arising from

Her Termination, Was Timely.

29 . Determining the timeliness of Magri's charge requires

precisely identifying the "alleged violation" of which she

complains. Magri alleges not only that she was subjected to

unwelcome sexual harassment , but that sex discrimination also

motivated her separation from employment .

30 . In Delaware State C ollege v. Ricks , 4 49 U.S. 250, 259

(1980), the court held that the limitations period for filing a

charge began to run when the adverse employment decision was made

and the charging party was notified. Ricks, a college professor,

alleged that he received a notice of denial of tenure and a

one - year terminal employment contract. Ricks asserted that his

limitations period did not begin to run until the actual end of

his employment. The C ourt disagreed and reasoned that the

termination of employment a delayed, but inevitable , consequence

of denial of tenure.

31 . Due to the nature of Magri's employment, her situation

is very different from that of Ricks. Termination is not an

inevitable consequence of a layoff from Respondent . As discussed

above, short - term layoffs and call backs are a routine part of

the job for those who work for Respondent. In fact, Respondent's

business model is based on the premise that a flexible workforce

is the most conducive to its highly unpredic table work flow.

32 . Respondent's witnesses consist ently testified that a

decision to terminate Magri's employment was not made and that

laid - off employees are not told when to anticipate rehire because

the company its elf does not know what its work flow needs will

be. 3/ O ctober 24 was the first date Ilo no v communicated to Magri

that this might be something other than a short - term layoff.

33 . Respondent cites to Pearson v. Macon - Bibb County

Hospital Authority , 952 F. 2d 1274 (11th Cir. 1992), for the

proposition that ev en when an employer's adverse employm ent

decision is "equivocal," the operative date on which the statute

of limitations begins to run is the date on which the adverse

action is communicated to the plaintiff. Pearson was given the

option of resigning, transferring to an alternative position

internally, or being fired. Ultimately , Pearson was

administratively terminated when she failed to return from a

medical leave and had not secured another position with the

hospital. The court held that the equivocal character of the

adverse empl oym ent de cision did not deprive that decision of its

status as the operative act for the running of the statu t e of

limitations. Id. at 1297.

Equitable Tolling Applies to Magri's Charge .

34 . Importantly, the court reversed summary judgme n t

against the plainti ff and remanded on the issue of equit abl e

tolling finding:

W hile the employer is actively trying to find

a posit i on within the company for the

emplo yee, the . . . filing period . . . is

equitably tolled until such time as it is or

should be apparent to an employee with a

reasonably prudent regard for his rights that

the employer has ceased to actively pursue

such a positon.

* * *

It is too much for the law to expect an

employee to sue his employer for age

discrimination at the same time he is l ed to

believe the employer is trying to place him

in another job.

Id. at 1280, citing Cocke v. Merrill Lynch & Co. , 817

F.2d 1 559, 1561 - 1562 (11th Cir.1987) .

35 . Again, Magri's situation is distinguishable from that

of the Plaintiff in Pearson . Mag ri was told on October 10 that

she was being laid off, to call back for work, and that

additional work was possible. Magri had no reason to believe

this was an " adverse employment action " because short - term

layoffs for her job were the norm , she was being told there might

be work on October 21, and others being laid off were being

returned to work. Contrary to Respondent's assertions, the

evidence does not support a conclusion that Magri knew or should

have known on October 10 , 2013, that she was facing a long - term

layoff or termination.

36 . Magri demonstrated a "reasonably prudent regard" for

her rights. She continued to push Ilonov for any information

regarding an imminent return to work. On October 24 , she was

given the first indication by Ilono v that while some were being

called back, she was not. It was not until their conversation on

October 25 that for the first time Magri was told the " higher

ups " did not want her back.

37 . There is conflicting authority regarding whether th e

jurisdic tional prerequisite of section 760.11 can be equitably

tolled or estopped. The grounds for tolling limitations periods

are set forth in section 95.051, Florida Statutes. Notably the

grounds for tolling do not include either misle ading conduct by

the resp ondent or claimant's objectively reasonable ignorance of

the charge - filing deadline. See , Cunningham v. Pinellas Cnty .

Sherriff's Dep't , 2000 U.S. Dist. LEXIS 3825 (M .D. Fla. , Feb. 29,

2000); Greene v. Seminole Electric Cooperative , 701 So. 2d 646

(Fla 5 th DCA 1997)(the only acts or circumstances that will toll

the statute of limitations period are those enumerate d in Fla.

Stat. Ann. § 95.051).

38 . However, in Machules v. Dept. of Admin. , 523 So. 2d

1132 (Fla. 1988), a limitations period was tolle d in an

administrative proceeding on grounds not listed in § 95.051 .

The tolling doctrine is used in the interests

of justice to accommodate both a defendant's

right not to be called upon to defend a stale

claim and a plaintiff's right to assert a

meritor ious claim when equitable

circumstances have prevented a timely filing.

Equitable tolling is a type o f equitable

modification which 'focuses on the

plaintiff's excusable ignorance of the

limitations period and on [the] lack of

prejudice to the defendant.' Cocke v. Merrill

Lynch & Co. , 817 F.2d 1559, 1561 (11th Cir.

1987) (quoting Naton v. Bank of California ,

649 F.2d 691, 696 (9th Cir. 1981)). Contrary

to the analysis of the majority below,

equitable tolling, unlike estoppel, does not

require active decepti on or employer

misconduct, but focuses rather on the

employee with a reasonably prudent regard for

his rights.

Id. at 1134 (citations omitted).

39 . In this case, Magri reasonably believed, due to the

misrepresentations of her supervisor, that work would be

forthcoming. Given the remedial nature of the FCRA , and the need

to construe the administrative preconditions on an individual's

right of access to court s to seek redress for unlawful

discrimination narrowly, 4/ even if Magri knew as of October 10

that she was suffering an adverse personnel action , the statute

of limitation s period should be tolled until October 24, when she

had reason to believe that this was something other than a

routine short - term job occurrence , and that she was being treated

differently than her co - workers .

40 . Here , the prejudice to the Respondent is minimal. The

parties stipulated that " the FCHR lacks jurisdiction over any sex

discrimination or harassment claim which occurred more than one

year prior to the filing of the Charge. " Magri admitted at

deposition and at hearing that the last possible date of any

sexual harassment was Oc t o ber 10, 2013, the last date that she

physically worked for the Respondent , and more than 365 days

prior to the filing of her charge on Oc tober 1 6, 2014. As such,

Magri's claim for sexual harassment is time barred.

41 . Magri's claims for sex discrimination and retaliation ,

arising from her separation from employment , remain. The

restricted time frame within which to file a charge of

discrimination is to protect employers from "stale" claims.

However, extending the charge filing deadline for a mere two

weeks to encompass the time when Magri reasonably believed she

would be returned to work , due to her employer ' s actions, does

not prej udice Respondent.

The Doctrine of Spoliation of Evidence Does Not Bar Magri's

Claim s .

42 . Respondent argues in its proposed recommended order 5/

that Magri's claim s should be dismissed in their entirety because

she failed to maintain records that wou ld support her claims or

Respondent's defenses. Specifically, Re s pondent points to the

fact that Magri did not maintain a computer calendar that might

show when she had conversations with Ilonov or others regarding

T he alleged reporting of sexual discrimi nation and harassment .

Magri also did not maintain a copy of the telephone records or

text messages between Ilonov and herself regarding her potential

return to work after October 10, 2013.

43 . Sanctions for spoliation of evidence may be imposed

whe n a party fails to preserve evidence in its cu s tody. Fleury

v. Biomet , 865 So. 2d 537 ( Fla. 2nd DCA 2003). Regarding the

appropriate level of sanction, the Fleury court explained :

Even when it is clear that evidence has been

lost while in the custody of a party, the

appropriate sanction varies according to the

willfulness or bad faith, if any, of the

party who lost the evidence, the extent of

the prejudice suffered by the other party,

and what is required to cure the prejudice.

Harrell v. Mayberry , 754 So . 2d 742, 745

(Fla. 2d DCA 2000); Sponco Mfg., Inc. v.

Alcover , 656 So. 2d 629, 630 (Fla. 3d DCA

1995). Dismissal or default, the harshest of

all sanctions, are reserved for cases in

which one party's loss of evidence renders

the opposing party completely unable to

proceed with its case or defense. Harrell ,

754 So. 2d at 745.

Id. at 539.

44 . Magri's failure to maintain the records at issue do

more to impair her credibility than to harm Respondent's

defenses. While it would be ideal to have Magri's c omputer and

cell phone records to corroborate or disprove her alleged

communications with Respondent regarding alleged sexual

harassment, that part of her claim s is untimely and not going

forward. Accordingly, there is no prejudice to Respondent

regarding its defense of the sexual harassment allegations.

45 . The computer and cell phone records could have

corroborated Magri's recollection of her conversations with

Ilonov and Gonzalez or been used to impeach her testimony in this

regard. However, Magr i's purported conversation with Gonzalez is

not at issue due to the finding that the adverse action was first

communicated to Magri by Ilonov on October 24 (rather than

sometime after October 25, the date Magri claims to have

discussed it with Gonzalez) . Magri's text communications were

sav ed by Ilonov and presented as E xhibit 22 by Respondent at the

final hearing. Accordingly, any prejudice to Respondent is

negligible.

46 . Further, there was no showing of willfulness or bad

faith on the part of Mag ri. The records which were lost went

primarily to the issue of timeliness of Magri's charge. Magri,

not Respondent, appears to be the party harmed by the loss of the

records. Accordingly, the undersigned recommends no sanction for

the alleged spoliation of evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations decline jurisdiction of Petitioner's charge of sexual

harassment , which allegedly occurred prior t o October 10, 2013,

and take jurisdiction of Petitioner's charge of sex

discrimination and retaliation arising from her separation from

employment on October 2 4 , 2013.

DONE AND ENTERED this 29th day of February , 2016 , in

Tallahassee, Leon County, Florida .

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Fi led with the Clerk of the

Division of Administrative Hearings

this 29th day of February , 2016 .

ENDNOTE S

1 / On January 19, 2016, four days after the due date fo r filin g

proposed recommended orders, Petitioner untimely requested an

extension of time to f ile a proposed recommended order. This

request was denied by Order dated January 20, 2016. Despite this

ruling, on January 22, 2016, Petitioner filed a proposed

recommended order . Due to its untimeliness, it was stricken on

February 10, 2016, and not co nsidered by the undersigned in

preparation of this Recommended Order.

2 / The parties stipulated prior to the hearing that the only

issue presented was that of the timeliness of the filing of

Magri's charge of discrimination with the FCHR. The undersigne d

is making no finding regarding whether the conduct of Estrada, as

alleged by Magri, constituted unlawful sexual harassment.

3/ Respondent's Human Resources representative , Vicki Sokolowski ,

testif i ed that Magri was never terminated and is still eligibl e

for rehire.

4/ For a recent discussion on the remedial nature of the FCRA and

its construction, see , Sheridan v. State of Florida, Dep't of

Health , 2016 Fla.App. LEXIS 54 (Fla. 1st DCA Jan. 6, 2016).

5/ Respondent did not identify spoliation of evide nce or its

ramifications as a factual or legal issue for determination in

the Joint Pre - Hearing Stipulation submitted on November 20, 2015.

Nor did Respondent file a motion to compel to recover Magri's

cellular telephone records. However, this issue is be ing

addressed because it was extensi vely discussed in Respondent's

p roposed r ecommended o rder.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Andre w Oppenheimer, Esquire

Vedder Price, P.C.

222 North LaSalle Street

Chicago, Illinois 60601

(eServed)

Jason S. Remer, Esquire

Remer and Georges - Pierre, PLLC

Suite 2200

44 West Flagler Street

Miami, Florida 33130

(eServed)

Naveen Paul, Esquire

Jackson Le wis, PC

Suite 3500

2 South Biscayne Boulevard

Miami, Florida 33131

(eServed)

David Edward Block, Esquire

Jackson, Lewis, Schnitzler and Krupman

First Union Financial Center, Suite 2600

200 South Biscayne Boulevard

Miami, Florida 33131 - 2374

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.