00-004433 Zoraida M. Olivera vs. City Of Hallandale Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, June 25, 2001.

Summary: Petitioner failed to prove, by a preponderance of the evidence, that Respondent, her former employer, had unlawfully discriminated against her on the bases of national origin, gender, and pregnancy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZORAIDA M. OLIVERA, )

)

Petitioner, )

)

vs. ) Case No. 00-4433

)

CITY OF HALLANDALE, )

)

Respondent. )

)

RECOMMENDED ORDER

The parties having been provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings convened a formal hearing of this

matter by video teleconference on April 23, 2001. The parties,

counsel, and witnesses appeared in Fort Lauderdale, and the

Administrative Law Judge presided in Tallahassee.

APPEARANCES

For Petitioner : Mark J. Berkowitz, Esquire

The Justice Building

524 South Andrews Avenue, Suite 200N

Fort Lauderdale, Florida 33301

For Respondent : Mark A. Goldstein, Esquire

City of Hallandale

400 South Federal Highway

Hallandale Beach, Florida 33009

STATEMENT OF THE ISSUES

The issues in this case are: (1) Whether Petitioner filed

her charge of discrimination with the Florida Commission on

Human Relations within 365 days after the alleged discriminatory

act; and (2) Whether Respondent unlawfully discriminated against

Petitioner in connection with Petitioner’s employment by

Respondent on the basis of her national origin, gender, or

pregnancy.

PRELIMINARY STATEMENT

On May 6, 1996, Petitioner Zoraida Olivera (“Olivera”), a

Cuban-American female, filed a charge of discrimination with the

Florida Commission on Human Relations (“FCHR”) that accused her

former employer, Respondent City of Hallandale (the “City”), of

having forced her to resign the position of Office Manager,

effective April 24, 1995, for unlawful reasons. Specifically,

Olivera claimed that the City had terminated her employment,

which had begun in March 1993, because of her national origin.

The FCHR investigated Olivera's allegations and, in August

and September 2000, issued letters stating that it could find no

reasonable cause to believe that an unlawful employment practice

had occurred. Thereafter, Olivera timely filed a Petition for

Relief with the FCHR contending that the City had discriminated

against her on the bases of national origin, gender, and

pregnancy. On October 27, 2000, the FCHR transferred the matter

to the Division of Administrative Hearings for further

proceedings. The City filed an Answer on November 14, 2000, in

which it denied having discriminated in any manner against

Olivera. The City also asserted the statute of limitation as an

affirmative defense.

At the final hearing on April 23, 2001, Olivera testified

on her own behalf and called no other witnesses. The City

presented the testimony of Jill Silverboard (formerly known as

Jill Scroggs), who is presently the Assistant City Manager for

the City of Destin and was, at all times material to this case,

the Deputy City Manager for the City of Hallandale; together

with that of the following City employees : R.J. Intindola, City

Manager; Christy Dominguez, Assistant Director of Growth

Management; Baloidi Albornoz, Office Manager; and Dania

Melendez, a secretary in the City Manager’s office.

In addition to the testimony of these witnesses, the

parties stipulated to the admission in evidence of all exhibits

that were disclosed by both sides on their respective pre-

hearing exhibit lists and submitted to the administrative law

judge. Accordingly, Petitioner's Exhibits 1, 2, 4-6, 8-17, and

20-23 were received into evidence, as were Respondent's Exhibits

1-15. 1

The final hearing transcript was filed with the Division of

Administrative Hearings on May 2, 2001. The City timely filed a

Proposed Recommended Order, and the Administrative Law Judge

considered this submission carefully in the preparation of this

Recommended Order. Olivera's Proposed Recommended Order was

filed late, without leave, after this Recommended Order had been

written. Nevertheless, the Administrative Law Judge reviewed

Olivera's post-hearing papers and ascertained that no issues of

material fact or pertinent points of law had been overlooked.

FINDINGS OF FACT

The evidence presented at final hearing established the

facts that follow.

1. Olivera is a Cuban-American female. The City hired

her, effective March 8, 1993, to work as a secretary in the City

Manager’s office. After one week, Olivera was promoted to the

position of Office Manager, a more demanding job that entailed

much greater responsibilities.

2. The evidence regarding Olivera’s performance as Office

Manager is in conflict. Her supervisors believed that Olivera

was a marginal employee who failed to discharge her duties

satisfactorily. The City has placed in evidence a number of

contemporaneous memorandums and other documents that memorialize

one or another of Olivera’s perceived performance deficiencies.

3. In contrast, Olivera believed she was performing well,

and that her supervisors’ complaints about her were, for the

most part, false, exaggerated, or unfair — and worse, a pretext

for unlawful discrimination. (Olivera admitted that she had had

problems with tardiness during her first year of employment, but

all agreed that Olivera had corrected this particular

deficiency.) In short, Olivera perceived that she had been

singled out for disproportionately harsh treatment and had been

made the scapegoat when others failed to do their jobs.

4. More ominously, Olivera accused the City Manager,

R.J. Intindola, of constantly having made racist comments about

Blacks and Cubans. She claimed that Mr. Intindola uttered

racial slurs with such frequency that the workplace became

hostile. Further, Olivera asserted that her complaints about

Mr. Intindola’s behavior fell on deaf ears.

5. As with the issues pertaining to Olivera’s job

performance, the evidence regarding Mr. Intindola’s conduct is

in conflict. Mr. Intindola himself denied having uttered the

slurs that Olivera put on his lips, yet he admitted that “one

time,” in Olivera’s presence, he had referred to another

employee, Christy Dominguez, as a “crazy Cuban.” Mr. Intindola

claimed that everyone present knew that he was kidding and

laughed at the repartee between him and Ms. Dominguez.

6. No one who testified at hearing corroborated Olivera’s

account of Mr. Intindola’s conduct. Indeed, Ms. Dominguez, who

has been employed with the City since May 1974, disclaimed

having witnessed any discriminatory behavior in the workplace

there, despite having been the subject of the one possibly

derogatory comment that Mr. Intindola indisputably made.

7. On or around April 24, 1995, Olivera was asked to

resign her employment with the City to avoid being fired, which

would be the consequence of her refusal. Faced with this

choice, Olivera submitted a letter of resignation dated

April 24, 1995. Thereafter, she received severance pay equal to

two-months’ salary.

8. Some time later, most likely during the first few weeks

of March 1996, Olivera filed both a Charge Questionnaire and an

Affidavit (collectively, the "Federal Forms") with the United

States Equal Employment Opportunity Commission ("EEOC"). In the

Federal Forms, Olivera alleged that the City had discriminated

against her, primarily on the basis of her national origin.

9. The EEOC notified Olivera by letter dated March 22,

1996, that, because her charge had not been timely filed under

Title VII of the Civil Rights Act of 1964, the commission had

forwarded the Federal Forms to the FCHR.

10. On May 6, 1996, according to a date stamp on the face

of the document, the FCHR received a Charge of Discrimination

that appears to have been signed by Olivera on April 14, 1996.

In this Charge of Discrimination, Olivera again alleged that the

City had discriminated against her on the basis of national

origin, in violation of her rights under the Florida Human

Rights Act.

Ultimate Factual Determinations

11. The evidence in this record is not sufficient for the

trier to ascertain whether, as a matter of objective historical

fact, Olivera adequately performed on the job or not. Suffice

it say that a preponderance of evidence fails to establish

anything except that Olivera, on the one hand, and her

supervisors, on the other, sincerely believed the opinions they

expressed on this subject.

12. In other words, Olivera honestly believes that she

performed competently and was discriminated against. Her

supervisors at the City, in turn, honestly believe that Olivera

did not measure up to the Office Manager’s position and needed

to be let go for that legitimate reason and no others.

13. The upshot of this inconclusiveness is that Olivera

has failed to demonstrate, by a preponderance of evidence, that

the City violated her civil rights. Olivera’s conviction that

she was the victim of unlawful discrimination, no matter how

sincerely and firmly held, is not proof of the fact, at least

not without more than the evidence in this record establishes.

14. By the same token, the evidence does not exactly

exonerate the City, in the sense of proving that its hands were

completely clean or that it acted honorably in respect of

Olivera. Rather, more likely than not, Mr. Intindola did on

occasion make offhand comments about Cubans at which some

persons could take offense. A preponderance of evidence fails

to show, however, that he uttered these remarks with a

discriminatory intent; that Olivera (or anyone else) suffered

any material harm or humiliation as a result of hearing them; or

that he did so with such frequency or in such fashion that his

conduct could be called extreme.

15. In sum, while it is fair to infer, and the trier so

finds, that Mr. Intindola was not always as sensitive to the

feelings of others as, in hindsight, he probably should have

been, there is nevertheless insufficient evidence to support a

finding that he acted willfully or that Mr. Intindola’s

occasionally insensitive behavior was so consistently and

frequently repeated as to become a condition of Olivera’s

employment with the City.

16. Likewise, the greater weight of evidence fails to

establish that the environment in which Olivera worked was a

hostile or abusive one. On this record the trier cannot say

that, more likely than not, the workplace was permeated with

discriminatory intimidation, insult, and ridicule. Further, the

evidence does not establish that Olivera was treated differently

than similarly situated employees who were neither Cuban-

American, female, nor pregnant.

17. In the final analysis, then, considering the totality

of the circumstances, the evidence presented at hearing

demonstrates no more than that the City terminated the

employment of an at-will employee for performance-related

reasons unrelated to her national origin, gender, or medical

condition (pregnancy).

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

Statute of Limitation

19. Under Section 760.11(1), Florida Statutes, any person

aggrieved by an unlawful employment practice may file a

complaint with the FCHR within 365 days after the alleged

violation. Failure to do so bars the claim under state law.

See Kourtis v. Eastern Airlines , 409 So. 2d 139, 140 (Fla. 4th

DCA 1982). The statute directs, further, that "[o ]n the same

day [a] complaint is filed with the [FCHR], the [FCHR] shall

clearly stamp on the face of the complaint the date the

complaint was filed with the [FCHR]." See Section 760.11(1),

Florida Statutes. 2

20. Becau se the latest act of discrimination about which

Olivera complains occurred on April 24, 1995, and because her

Charge of Discrimination was received by the FCHR on May 6, 1996

— nearly two weeks after the 365-day period had run — there is a

serious question whether Olivera’s claim is time-barred.

21. The rule that governs complaints alleging violations

of Sections 760.01 through 760.10, Florida Statutes, provides

that a "complaint may be filed at the office of the [FCHR]. The

date of filing shall be the date of actual receipt of the

complaint by the Clerk or other agent of the [FCHR] ." Rule 60Y-

5.001(3), Florida Administrative Code (emphasis added). Thus,

Olivera's complaint would have been timely brought if it were

received by an agent of the FCHR on or before April 24, 1996.

22. The Federal Forms that Olivera filed with the EEOC

before April 24, 1996, complied, in form and content, with the

requirements prescribed in Rules 60Y-5.001(5) and 60Y-5.001(6),

Florida Administrative Code, for complaints under the Florida

Civil Rights Act. Therefore, if the EEOC were an agent of the

FCHR for the purpose of receiving complaints brought by persons

aggrieved by alleged employment discrimination — which is a

question of fact 3 — then Olivera’s claim would have been timely

filed. 4

23. At hearing, Olivera argued, as she had previously in

opposition to a motion to dismiss, that under a work-sharing

agreement between the EEOC and the FCHR, her filing a charge of

discrimination with the EEOC constituted filing with the FCHR.

Olivera did not attempt at hearing to introduce the work-sharing

agreement in evidence, however, so its terms and conditions

cannot be considered. 5 Further, Olivera failed to adduce any

other substantial competent evidence upon which a finding of

agency might have been made. As a result, there is no factual

foundation in this record to support a conclusion that Olivera's

complaint was timely filed with the FCHR by virtue of the EEOC's

having received the document within the 365-day limitation

period.

24. As an additional consideration, the evidence shows

that Olivera did not comply strictly with the rule announced in

Desai v. Tire Kingdom, Inc. , 944 F.Supp. 876 (M.D.Fla. 1996).

In that case, the court held that a charge of discrimination

filed with the EEOC will be deemed to have been simultaneously

filed with the FCHR if the complainant indicates on the filing

form that she wants her charge to be dually filed with the state

agency. Id. at 880; see also Gillis v. Sports Authority, Inc. ,

123 F.Supp.2d 611, 615-616 (S.D.Fla. 2000), and 2000 WL 1772520

(S.D.Fla. July 7, 2000)(related subsequent order in Gillis );

Dawkins v. Bellsouth Telecommunications, Inc. , 53 F.Supp.2d

1356, 1359-60 (M.D.Fla. 1999), aff'd , 247 F.3d 245 (11th Cir.

2001).

25. Olivera did not initially manifest an intent, on the

Federal Forms, that her charge be dual-filed with the FCHR.

Despite that, however, the EEOC forwarded Olivera's Federal

Forms to the FCHR and notified her of that fact by letter dated

March 22, 1996. Therefore, even though the EEOC apparently

acted on its own initiative, Olivera did have reason to believe,

before time ran out, that her complaint ( i.e. the Federal Forms)

had been or would be filed with the FCHR. Perhaps within the

limitation period, in some manner, she objectively manifested an

intent that this dual-filing be accomplished on her behalf.

26. While the undersigned might be inclined, if the legal

slate were clean, to conclude that a complainant's demonstrable,

timely intent to dual-file, rather than merely whether she

initially checked a box on a form, should be determinative of

whether the charge is deemed dually filed, a rigid rule to the

contrary seeming to elevate form over substance, there appears

presently to be no law supporting flexibility in this regard.

Moreover, in any event, Olivera failed to establish at hearing

either that, in March 1996, she affirmatively had expressed an

intent that the EEOC file her Federal Forms with the FCHR, or

that she had formed — and objectively manifested — this intent

at any time prior to the expiration of the one-year limitation

period.

27. Thus, Olivera’s claim of discrimination against the

City, being barred by the statute of limitation, must fail.

The Merits of Olivera’s Claim

28. Additionally, and in the alternative, as set forth in

the preceding Findings of Fact, the trier has determined as

matter of ultimate fact that Olivera failed to establish by a

preponderance of evidence any form of actionable, unlawful

discrimination. These factual findings, however, were

necessarily informed by the administrative law judge's

application of the law. An examination of the pertinent legal

principles, therefore, will illuminate the dispositive findings

of ultimate fact.

29. It is unlawful for an e mployer to discharge or

otherwise discriminate against an employee with respect to

compensation, terms, conditions, or privileges of employment,

based on the employee’s race, gender, or national origin.

Section 760.10(1)(a), Florida Statutes.

30. Fede ral discrimination law may properly be used for

guidance in evaluating the merits of claims arising under

Section 760.10, Florida Statutes. See Brand v. Florida Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994) ; Florida Dept. of

Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA

1991).

31. In McDonnell Douglas Corp. v. Green , 4ll U.S. 792,

802-03 (1973), the Supreme Court of the United States

articulated a burden of proof scheme for cases involving

allegations of discrimination under Title VII. That decision is

persuasive in this case, as is St. Mary’s Honor Center v. Hicks ,

509 U.S. 502, 506-07 (1993), in which the Court reiterated and

refined the McDonnell Douglas analysis.

32. Pursuant to this analysis, the plaintiff (Petitioner

here) has the initial burden of establishing by a preponderance

of the evidence a prima facie case of unlawful discrimination.

If the plaintiff succeeds in making a prima facie case, then the

burden shifts to the defendant (Respondent here) to articulate

some legitimate, non-discriminatory reason for its complained-of

conduct. If the defendant carries this burden of rebutting the

plaintiff's prima facie case, then the plaintiff must

demonstrate that the proffered reason was not the true reason

but merely a pretext for discrimination. McDonnell Douglas , 411

U.S. at 802-03; Hicks , 509 U.S. at 506-07.

33. In Hicks , the Court stressed that even if the trier of

fact were to reject as incredible the reason put forward by the

defendant in justification for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question whether the defendant intentionally had

discriminated against her. Hicks , 509 U.S. at 511. "It is not

enough, in other words, to dis believe the employer; the

factfinder must believe the plaintiff's explanation of

intentional discrimination." Id. at 519.

34. In this case, Olivera failed to establish a prima

facie case of unlawful, intentional discrimination.

35. Olivera's claims that she was subjected to a hostile

work environment, was constructively discharged, and suffered

from disparate treatment are also not supported by either the

evidence or the law.

36. A discriminatorily hostile work environment occurs

when the workplace is permeated with discriminatory

intimidation, ridicule, and insult that are sufficiently severe

or pervasive to alter the conditions of employment and create an

abusive working environment. Harris v. Forklift Systems, Inc. ,

510 U.S. 17, 21 (1993).

37. The civil rights laws are not intended to serve as a

general civility code. Therefore, simple teasing, offhand

comments, and isolated incidents (unless extremely serious) will

not satisfy the requirement that the alleged harassment, as

judged from the perspective of a reasonable person in the

plaintiff's position and taking account of all the

circumstances, be severe or pervasive to be actionable. Oncale

v. Sundowner Offshore Services, Inc. , 523 U.S. 75, 80-81 (1998).

To be actionable, in short, the conduct complained of must be

"extreme." Faragher v. City of Boca Raton , 524 U.S. 775, 788

(1998); see also Clark County School District v. Breeden , ___

U.S. ___, 121 S.Ct. 1508, 1510 (2001).

38. Olivera simply failed to prove any conduct that was so

severe or pervasive as to create a hostile work environment.

39. To succeed on a claim of constructive discharge, the

employee must establish that her working conditions were so

intolerable that a reasonable person in the same position would

be compelled to resign. Kilgore v. Thompson & Brock Management,

Inc. , 93 F.3d 752, 754 (11th Cir. 1996).

40. Where, as here, a plaintiff has failed to show the

severe or pervasive conduct necessary to support a hostile work

environment claim, it follows necessarily that her proof falls

short of the higher mark for constructive discharge. Brooks v.

City of San Mateo , 229 F.3d 917, 930 (9th Cir. 2000). Because

Olivera failed to establish that she was subjected to a hostile

work environment, her claim that she was constructively

discharged also must fail.

41. Finally, Olivera offered no persuasive evidence ,

either direct or circumstantial, sufficient to demonstrate that

the City had a discriminatory intent, thereby dooming her

disparate treatment claim. See Denney v. The City of Albany ,

247 F.3d 1172, 1182 (11th Cir. 2001).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order

dismissing Olivera's Petition for Relief.

DONE AND ENTERED this 12th day of June, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of June, 2001.

ENDNOTES

1 / The Administrative Law Judge had some difficulty matching up

the documents that Olivera submitted, which were not marked with

identifying numbers prior to being tendered to the undersigned,

with the descriptions set forth in Petitioner's Exhibit List.

As well, some documents appeared to be missing from the set of

Petitioner's Exhibits supplied at the time of hearing.

Consequently, the Administrative Law Judge convened a post-

hearing telephone conference on June 6, 2001, to notify the

parties of these problems. Following that conference call,

pursuant to the undersigned's instructions, Olivera submitted

several documents (Petitioner's Exhibits 6, 8, 13, and 14) which

have been admitted in evidence and considered by the fact-

finder. She also withdrew two other exhibits (Petitioner's

Exhibits 18 and 19) and informed the undersigned that

Petitioner's Exhibits 3 and 7 do not exist as described in

Petitioner's Exhibit List.

2 / While the requirement that complaints be contemporaneously

date-stamped clearly is intended to facilitate the resolution of

disputes over timeliness, the statute pointedly does not provide

that the FCHR's date stamp conclusively establishes the filing

date.

3 / The existence of an agency relationship is generally a

question of fact to be determined by the trier of fact. See

Noel v. North Broward Hospital District , 664 So. 2d 989, 991

(Fla. 4th DCA 1995).

4 / The City urged that the decision of the United States

District Court in Weaver v. Florida Power & Light , 1996 WL

479117 (S.D.Fla. July 16, 1996), aff'd without op. , 124 F.3d 221

(11th Cir. 1997), be followed. That case is factually analogous

on the statute of limitation issue but ultimately is

unpersuasive because the court failed to account for Rule 60Y-

5.001(3), Florida Administrative Code. Instead, in finding that

the plaintiff there had failed to exhaust her administrative

remedies because she had not timely filed a complaint with the

FCHR, the court relied heavily on Rule 60Y-4.004(1), which

provides that "'[f ]iling' or 'file' with the [FCHR], means

actual receipt of a document by the Clerk of the Commission at

its office. . . ." Rule 60Y-4.004(1) supported the court's

conclusion, but it expressly does not apply to complaints filed

pursuant to Section 760.11(1), Florida Statutes. See Rule 60Y-

4.001(2), Florida Administrative Code ("This chapter [ i.e.

Chapter 60Y-4] shall not apply to Complaints. . . .").

Further, in granting the defendant's motion for summary

judgment, the court in Weaver found that even if the plaintiff's

administrative complaint had been timely filed with the FCHR,

summary judgment still would lie because she had failed to show

the existence of a genuine fact dispute concerning each element

of her state-law sex discrimination claim. Id. at *12-*13.

Thus, the Eleventh Circuit's affirmance, without published

opinion, does not necessarily constitute approval of the trial

court's decision that the plaintiff's administrative complaint

was untimely.

5 / Olivera attached to her late-filed Proposed Recommended Order

a document that purports to be the Worksharing Agreement between

the FCHR and the EEOC for fiscal year 1996. At a post-hearing

telephone conference on June 6, 2001, see note 1, supra , Olivera

suggested that the Administrative Law Judge could take official

recognition of the purported contract between the FCHR and the

EEOC. Olivera's request, however, was neither timely nor

properly made, see 120.569(2)(i), Florida Statutes, and in any

event the request is declined because the agreement is not an

appropriate subject of official recognition. Accordingly, being

outside the evidentiary record, this instrument cannot be the

basis of any findings of fact.

COPIES FURNISHED:

Mark J. Berkowitz, Esquire

The Justice Building

524 South Andrews Avenue, Suite 200N

Fort Lauderdale, Florida 33301

Mark A. Goldstein, Esquire

City of Hallandale

400 South Federal Highway

Hallandale, Florida 33009

Azizi M. Dixon, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Suite 240, Building F

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Suite 240, Building F

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 R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.