00-003866 Gloria J. Holloway vs. Rollins College Status: Closed Recommended Order on Tuesday, December 26, 2000.

Summary: Petitioner failed to prove that her termination as a custodial worker was based on an unlawful employment practice; improper touching and harsh management practices are not discriminating reasons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA J. HOLLOWAY, )

)

Petitioner, )

)

vs. ) Case No. 00-3866

)

ROLLINS COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before the Division of

Administrative Hearings by Daniel M. Kilbride, Administrative

Law Judge, on November 21, 2000, in Orlando, Florida. The

following appearances were entered:

APPEARANCES

For Petitioner: Gloria J. Holloway, pro se

397 Chaucer Lane, South

Lake Mary, Florida 32746

For Respondent: Mark Van Valkenburgh, Esquire

Winderweedle, Haines, Ward & Woodham

250 Park Avenue South, 5th Floor

Winter Park, Florida 32789

STATEMENT OF ISSUE

Whether Petitioner was wrongfully terminated from her

position as a custodial worker with Respondent because of her

race, in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner timely filed a Charge of Discrimination with the

Orlando Human Relations Department on November 20, 1995. The

file was transferred to the Florida Commission on Human

Relations (Commission) on December 6, 1995. Following an

investigation by the Commission, a Determination: No Cause was

issued by the Commission on August 7, 2000. Petitioner timely

filed a Petition for Relief. Thereafter, on September 19, 2000,

this matter was transmitted to the Division of Administrative

Hearings for hearing. Following discovery, the hearing was held

on November 21, 2000.

At the hearing, Petitioner testified in her own behalf,

offered the testimony of two witnesses, and did not offer any

exhibits in evidence. Respondent offered the testimony of one

witness and entered eight exhibits in evidence. The proceedings

were recorded but not transcribed. Petitioner filed her

proposals on December 12, 2000. Respondent filed a Proposed

Findings of Facts and Conclusions of Law on December 6, 2000.

Each party's proposals has been given careful consideration in

the preparation of this order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. Petitioner, an African-American female, was hired by

Respondent in the fall of 1994, as a custodial worker and she

continued in that position until October 17, 1995, when she was

terminated.

2. On or about October 12, 1995, Rollins College

(Respondent) received two letters of complaint regarding

Petitioner's conduct and work performance.

3. One of these was from a group of students living in a

dorm which Petitioner was assigned to clean. The other letter

was from the parent of a student living in another dorm assigned

to Petitioner.

4. These letters were not the first complaints Respondent

had received regarding Petitioner's work performance.

5. After receiving the letters, Petitioner was placed on a

three-day suspension by Tom Waters, Director of Respondent's

Facilities Management Department.

6. After investigating the complaints, Respondent, on

October 17, 1995, terminated Petitioner's employment.

7. Prior to the termination of her employment, Petitioner

attended a training and safety meeting of custodial workers.

8. During that meeting, Petitioner's immediate supervisor,

Frank Pravdik placed his hand on Petitioner's uniform shirt and

stated words to the effect that the shirt was "nasty."

9. Pravdik was generally known to be a difficult person to

work under. He was eventually terminated by Respondent because

of his abrasive management style.

10. Fredrick Wooden, called as Petitioner's witness,

assisted with the management of the custodial workers prior to

his retirement. He often disagreed with Pravdik's style of

management.

11. In the case of Petitioner, he did not believe that any

disciplinary actions taken against her were unwarranted, and

Respondent had legitimate grounds to terminate her employment.

12. Wooden further believed that Pravdik treated all

subordinate employees equally, if not with respect.

13. On November 20, 1995, Petitioner filed a Charge of

Discrimination with the Orlando Human Relations Department.

14. The Charge of Discrimination indicated that Petitioner

believed that Respondent discriminated against her because of

her race.

15. Petitioner testified that the Charge of Discrimination

was incorrect. Petitioner did not actually believe that the

termination of her employment was related to her race.

16. However, she permitted a representative of the Orlando

Human Relations Commission to complete for her the Charge of

Discrimination.

17. The Charge does not allege a claim of retaliation nor

does it allege that Petitioner ever complained about Pravdik's

behavior to Respondent.

18. While Petitioner testified that she first visited the

Orlando Human Relations Department prior to the date of her

termination, the Charge is signed, dated and notarized on

November 20, 1995, three days after the effective date of her

termination.

19. After the Commission issued a No Cause Determination

in this matter, Petitioner filed a Petition for Relief. The

Petition for Relief alleges that Respondent terminated her

employment in retaliation for complaining about Pravdik.

20. Petitioner again testified that the Petition for

Relief was also incorrect stating her case was not about whether

Respondent had a right to terminate her employment, but instead

was about whether Pravdik violated her civil rights for

impermissibly touching her person and calling her shirt "nasty."

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding, and the

parties thereto, pursuant to Subsections 120.569 and 120.57(1),

Florida Statutes.

22. Petitioner originally contended that she was

unlawfully discharged by Respondent because it discriminated

against her due to her race. Petitioner relies on the Florida

Civil Rights Act of 1992, Section 760.10, et seq. , Florida

Statutes (1994). The Civil Rights Act prohibits certain

specified unlawful employment practices and provides remedies

for such violations.

23. That statute provides, in pertinent part, as follows:

760.01 PURPOSES, CONSTRUCTION; TITLE

* * *

(2) The general purposes of the Florida

Civil Rights Act of 1992 are to secure for

all individuals within the State freedom

from discrimination because of race, color,

religion, sex, national origin, age,

handicap, or marital status and thereby to

protect their interest in personal dignity,

to make available to the state their full

productive capacities, to secure the state

against domestic strife and unrest, to

preserve the public safety, health and

general welfare, and to promote the

interests, rights, and privileges of

individuals within the state.

(3) The Florida Civil Rights Act of 1992

shall be construed according to the fair

import of its terms and shall be liberally

construed to further the general purposes

stated in this section and the special

purposes of the particular provisions

involved.

* * *

760.10 Unlawful employment practices.

(1) It is an unlawful employment practice

for an employer:

(a) 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.

* * *

24. The Florida Civil Rights Act is patterned after Title

VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2.

School Board of Leon County v. Weaver , 556 So. 2d 443 (Fla. 1st

DCA 1990). In Florida, there is a long-standing rule of

statutory construction which recognizes that if a state law is

patterned after a federal law on the same subject, the Florida

law will be accorded the same construction as in the federal

courts to the extent the construction is harmonious with the

spirit of the Florida legislation. O'Loughlin v. Pinchback , 579

So. 2d 788 (Fla. 1st DCA, 1991).

25. In Department of Corrections v. Chandler , 581 So. 2d

1183 (Fla. 1st DCA 1991), the court analyzed the types of claims

under the Florida Civil Rights Act. In that case, the court

noted as follows:

Pertinent federal case law discloses two

means by which a discriminatory employment

claim may be tried. The first, . . ., by

showing disparate treatment, and the second,

by showing discriminatory impact. When

employing the former, a claimant must

establish an employer's intentional

discrimination, however, as to the latter,

intentional discrimination is not required,

and the claimant essentially challenges

practices which are fair in form but

discriminatory in operation. (Citations

omitted) Id. at 1821 n.2

26. Section 760.10, Florida Statutes, prohibits an

employer from taking any adverse employment action against an

employee due to that employee's race.

27. The statute also prohibits an employer from

retaliating against an employee for complaining of an unlawful

practice.

28. Failure to allege or indicate particular grounds for

discrimination in a petitioner's charge of discrimination

prohibits Petitioner from arguing that discrimination occurred

based on those grounds in later proceedings. See , e.g. , Haynes

vs. State of Florida , 1998 W.L. 271462 (U.S.D.C. So. Dist. Fla.

1998). See also Abeta vsansamerica Mailings, Inc. ,

159 F.3rd 246, 254 (6th Cir. 1998) (Plaintiff's failure to check

the retaliation box and describe anything indicating that she

might have a retaliation claim prevented her from pursuing

retaliation claim); and Auston vs. Schubnell , 116 F.3rd 251, 254

(7th Cir. 1997).

29. Petitioner's Petition for Relief is fatally flawed on

its face in that it is based on grounds not alleged in

Petitioner's Charge of Discrimination. Haynes , supra .

30. At the hearing on this matter, however, Petitioner

agreed that her complaint was limited to those facts set forth

in her initial Charge of Discrimination. Those facts allege a

claim of discrimination based on race. Any allegations of

retaliation, therefore, are waived by Petitioner.

31. At the hearing, Petitioner specifically stated that

she did not believe that race was a factor in the decision to

terminate her employment.

32. While the actions of Petitioner's supervisor in

touching her shirt and insulting her in front of her co-workers

at the training and safety meeting were unwarranted and

inappropriate, they did not violate Chapter 760, Florida

Statutes.

33. Petitioner at all times relevant to this action, has

failed to prove that she was discriminated for any of the

reasons specified within the meaning of the Florida Civil Rights

Act.

34. Petition er produced no credible evidence that any

supervisor or other employee of Respondent made the decision to

terminate her based upon an unlawful employment practice. Nix

vs. WLCY Radio , 738 F.2nd 1183, reh. denied 747 F.2nd 710 (11th

Cir. 1984).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Petitioner's Petition for Relief

with prejudice.

DONE AND ENTERED this 26th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of December, 2000.

COPIES FURNISHED :

Gloria J. Holloway

397 Chaucer Lane, South

Lake Mary, Florida 32746

Sharon Moultry, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Suite 240, Building F

Tallahassee, Florida 32303-4149

Mark Van Valkenburgh, Esquire

Winderweedle, Haines, Ward & Woodham

250 Park Avenue South, 5th Floor

Winter Park, Florida 32789

Dana A. Baird, General Counsel

Florida Commission on Human Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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.