01-002693 Thomas E. Hall vs. Mex Of Santa Rosa, Inc. Status: Closed Recommended Order on Monday, February 11, 2002.

Summary: Petitioner failed to show hostile work environment of racial discrimination; did not show non-black workers promoted ahead with less experience; no credible evidence of discrimination due to interracial relationship.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS E. HALL, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2693

)

MEX OF SANTA ROSA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing

before P. Michael Ruff, duly - designated Administrative Law Judge

of the Division of Administrative Hearings, on September 27,

2001, in Milton, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Bruce Committe, Esquire

17 South Palafox Place, Suite 322

Pensacola, Florida 32501

For Respondent: Jennifer Byrom, Esquire

Post Office Box 685

Milton, Florida 32572

STATEMENT OF THE ISSUES

The Petitioner has alleged, in essence , that he has been

discriminated against because of his race by a racially hostile

work environment during his employment with the Respondent and

by direct discrimination by being denied employment advancement

and by being given more and broader job duties , with no

additional compensation, as compared to less experienced co -

workers of other races. Specifically the Petitioner contends a

racially hostile work environment caused his constructive

termination; that he completed training books which should have

advanced him to a higher position; and that less experienced

white workers were advanced ahead of him.

PRELIMINARY STATEMENT

The Petitioner filed his charge of discrimination for

racial reasons on December 3, 1996. Ultimately a Determination

of No Cause was entered by the Florida Commission on Human

Relations (Commission) on June 4, 2001. The Petitioner filed

his Petition for Relief on July 3, 2001, raising the above -

referenced issues.

The cause ultimately was assigned to the Administrative Law

Judge and came on for hearing as noticed. The Petitioner

presented four witnesses, Thomas Hall, Willie D. Smith, Tonya

Mullins and Lori Wilson. Five witnesses were presented by the

Respondent: Eileen McRae, John Bond, Dawn Young, Jennifer Day

and Dave Carpent er. No exhibits were offered into evidence.

Upon conclusion of the hearing the parties elected to order

a transcript of the proceedings and accepted the opportunity to

file Proposed Recommended Orders. The Proposed Recommended

Orders were timely filed and have been considered in the

rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner Thomas Hall, was hired as a crew member

by the Respondent Mex of Santa Rosa d/b/a as Taco Bell on

March 9, 1996. He began working at a Taco Bell res taurant owned

by the Respondent in Milton, Florida. The Petitioner maintains

that while he worked at the Taco Bell restaurant he was

subjected to racially negative comments concerning his

relationship with a white woman, his fiancé, and regarding the

fact that they were about to have a child together. He

maintained that the racially derogatory comments were made by

the General Manager, Dawn Young and the Assistant Manager Eileen

McRae. Dawn Young is White. Eileen McRae is Black. The

Petitioner maintain s that the racially negative comments were so

frequent, so hostile and hurtful that he suffered by being

employed in a racially hostile environment because of these

actions by his superiors in management. He maintains, in

effect, that it caused his constr uctive discharge because he

could no longer tolerate the racially derogatory comments

concerning him, his fiancé and his family.

2. The Petitioner left his employment after giving two

weeks notice on May 29, 1996. Thus, he worked approximately two

months and twenty days.

3. The Petitioner maintains that he attempted to complete

several employee workbooks and the tests on those workbooks,

which were designed to help employees earn promotions. He

maintains that he got no help completing the workbooks wh ile

White employees did get help from management in completing the

workbooks. He maintains that White employees were promoted

sooner than he or Black employees and within their 90 - day

probation period. He also contends he was given extra job

duties which were beyond his job description and for which he

was given no extra compensation.

4. The Petitioner's child was born on June 2, 1996,

immediately after his leaving employment. The Petitioner had

given a two - week notice on May 29, 1996, but the General

Manager, Dawn Young, told him that it would not be required that

he work out the remainder of his two - week notice, so he quit on

May 29, 1996. He left his employment after he had been to a job

interview during his employment, on a day when he reported th at

he was sick as the reason for his absence from his employment.

That interview resulted in his getting a job at the

"convalescent center" at a higher rate of pay, which was his

reason for leaving of his employment at Taco Bell.

5. The Respondent had a consistent policy of requiring all

employees to complete a 90 - day probationary period when first

hired. This policy was applied to all new employees regardless

of race and no person of any race hired after the Petitioner was

promoted or advanced ahead of the Petitioner. In fact, Josh

Bond, the example that the Petitioner used in his testimony of a

White employee, who had allegedly been promoted ahead of him and

sooner than he was, did not actually get any promotion (to crew

leader) until he had worked fo r the Respondent for one and one -

half years. Josh Bond had to complete several training manuals

and request a promotion, which he did not receive initially.

Later, he was promoted to shift manager after he had worked for

Taco Bell for almost four years. He was employed on January 2,

1996, and thus had worked at Taco Bell about two months before

the Petitioner was employed.

6. No employee ever got raises until after the 90 - day

probationary period elapsed and then an employee would get a

standard raise, ten - cents per hour. Later it was fifteen - cents

per hour.

7. The Petitioner, Mr. Hall, worked on Josh Bond's shift

but never told Bond of any problems involving racial

discrimination or criticism of his inter - racial relationship.

8. Mr. Bond establi shed that an employee's promotion speed

depended on his work habits and the quality of his performance

including the completion of the training manuals or workbooks.

Even so, no employee got a promotion merely by completing the

training manuals and servin g a 90 - day probationary period. It

depended on the employee's performance, as well as completing

the training manuals. Mr. Bond also established that the part -

owner of the store, Mr. Carpenter, was at the store one or two

hours every day, that he was ope n to employees talking with him

and employees were encouraged to bring their problems to him.

9. Dawn Young worked for Taco Bell for four or five years.

She is the daughter of Mr. Carpenter, part - owner of the

Respondent corporation at times pertinent h ereto. Dawn Young

started working as a crew member, received training and did

shift work at first. She became a general manager after working

for Taco Bell for three years. Shalinda McRae, who is Black,

was the Manager who trained Dawn Young as did Shal inda's sister

Eileen McRae. When Dawn Young was made Manager of the Milton,

Florida store, involved in this case, Eileen McRae was first

offered the job as General Manager. She turned it down for

family - related reasons. Shalinda McRae, was given the job of

General Manager of the Taco Bell store in Pace, Florida, nearby.

Dawn Young and Eileen McRae interviewed the Petitioner and

decided to hire him when he first came to work. During his

tenure, however, they had problems with his being absent from

work and not wearing his uniform properly. The testimony of

Dawn Young and Eileen McRae establishes that the Petitioner

never completed his training manuals; nor did he complete the

required 90 - day probationary period.

10. Rather, the Petitioner voluntarily left employment to

take a job at the local convalescent center, which could pay him

more money than the Respondent could. He never indicated to

anyone in management nor to co - worker Bond that he had any

racial or other issue upon which he disagreed with the

Respondent's management. Neither Dawn Young or Eileen McRae

ever heard the Petitioner make any racially - related complaints.

The company and that store had a consistent racial and sexual

harassment policy which requires that they conduct weekly

meetin gs to discuss such matters and to advise employees of how

to avoid them. Racial discrimination was not tolerated at any

of the Taco Bell stores owned by the Respondent, including the

one where the Petitioner worked. In fact, Mr. Carpenter once

fired an e mployee summarily, on the first offense, for

purportedly making a racially derogatory joke.

11. Eileen McRae has worked for Taco Bell for 10 years,

seven years as an Assistant Manager or Manager. The Petitioner

worked on her shift. She and her sister Shalinda, now the

Manager of another store, helped to train the Petitioner.

Eileen McRae, like Dawn Young, never heard the Petitioner

complain of any racial statements and never heard any racially

derogatory comments made concerning who the Petitioner, or any

other person, was in a personal relationship with. The

Petitioner never complained to her or other supervisors of any

racial issues in either a verbal or written complaint. She has

never heard anyone, Dawn Young included, speak in a negative way

con cerning the Petitioner being involved with a woman of another

race or any woman working for the company being involved with a

man of another race, nor make disparaging comments concerning

the race of any child of such a couple, including the child of

the P etitioner.

12. Eileen McRae established that all Black employees are

treated with respect at the Taco Bell store and by the

Respondent corporation. Ms. McRae knows of no instance

concerning any staff member where an issue was raised or

derogatory state ments made concerning inter - racial dating,

inter - racial marriage or people having children of mixed race,

during the course of her employment for the Respondent

corporation. Eileen McRae's daughter dates a person of another

race herself and Eileen McRae t estified that as far as she is

concerned it is a matter of "to each his own."

13. The testimony of both Josh Bond and Dave Carpenter,

the part - owner of the store and the Respondent corporation,

established that all employees are required to train in eac h

phase of the employment at a Taco Bell store. This was what the

Petitioner was doing during the course of his duties there. He

was not merely given extra duties for which he was not

compensated; all employees, of all races, have to learn to

perform eve ry job at the Taco Bell store, as part of their

training preparatory to the possibility of being promoted. In

fact, the 90 - day probationary period was considered a 90 - day

training period in which new crew members would learn every job

in the store.

14. Dave Carpenter, the part - owner of the Respondent

corporation and the ultimate supervisor of the subject Taco Bell

store, is a retired Master Chief in the U.S. Navy. Much of his

naval duties involved working in the personnel branch. He thus

has extensive experience teaching training courses in race

relations. Using this experience, he developed a policy, as a

corporate officer of the Respondent, of tolerating no form of

racial discrimination at any of the Respondent's stores. He and

the corporation had frequent training sessions in racial

relations, on almost a weekly basis. He has had no reports from

employees, his managers, or through his own observation, of any

problem involving racial discrimination or racially - related

derogatory comments as alleged , or of any other nature, at the

subject Taco Bell store during the Petitioner's tenure there or

before or after.

15. In summary, it is not found that any employees of any

race were promoted who were less entitled to it than the

Petitioner, in terms of tenure, training or performance. It is

determined that the Petitioner was not required to do extra

duties for which he was not compensated, since all employees

were required to be trained and therefore work in all functions

required of any employee at the Taco Bell store. It is also

found that the Petitioner was not eligible for promotion because

he had not finished his 90 - day probationary period and did not

finish the training manuals and testing required to be

completed.

16. Moreover, it is found tha t preponderant evidence has

not been presented that the purported racially derogatory

statements were made concerning the Petitioner his fiancé and

their child, or concerning Lori Wilson, who testified for the

Petitioner, about her inter - racial relationshi p and her mixed -

race child (Wilson is White).

17. Both the Petitioner and Wilson have litigation pending

against the Respondent corporation and it is deemed that their

testimony may be colored by that adversarial relationship. The

witnesses and testimo ny presented by the Respondent (Eileen

McRae, Dawn Young, Josh Bond and Jennifer Day in particular) are

deemed more creditable.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to t his

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

19. It is unlawful to discriminate against an employee on

the basis of the race of that employee's spouse or fiancé.

Vuyanich v. Republic Nat. Bank , 409 F.Supp. 1083, (1976 DC Tex);

Farac a v. Clements , 506 F.2d 956 (CA 5 1975).

20. When an employer causes an employee's working

conditions to be so difficult or unpleasant that a reasonable

person would feel compelled to resign, in other words when

working conditions are objectively intole rable because of

aggravating factors, an employee who quits is considered to have

been constructively discharged and would be treated as if he

were fired. Young v. Southwestern Sav. & Loan Asso. , 509 F.2d

140 (CA 5 1975). In order to make a case of unlaw ful

constructive discharge a plaintiff in a job discrimination case

must show by a preponderance of the evidence that he or she was

forced to quit as a result of intolerable working conditions

imposed by the employer, which were motivated by racial or othe r

unlawful bias. Saltzman v. Fullerton Metals Co. , 661 F. 2d 647

(CA 7 1981).

21. The general rule is that if the employer deliberately

makes an employee's working conditions so intolerable that the

employee is forced into involuntary resignation the employer has

constructively discharged the employee. To demonstrate

constructive discharge, a plaintiff must prove two elements

(1) Deliberateness of the employer's actions and (2)

intolerability of the working conditions. See Martin v.

Cavalier Hotel C orp. , 48 F.3d 1343 (CA 4 1995).

22. Race discrimination laws prohibit racial harassment in

the form of an employer's failure to maintain a working

atmosphere free of unlawful racial or other unlawful

discrimination, which is commonly referred to as a "h ostile work

environment." Two types of harassment are unlawful: (1)

Situations in which tangible job benefits are granted or

withheld based on submissions to or rejection of unwelcomed

requests or conduct, based on a statutorily protected

characteristic, such as sex. Tompkins v. Public Serv. Elec. &

Gas. Co. , 568 F.2d 1044 (CA 3 1977), and (2) Situations in which

the working environment is oppressive to members of a protected

group because of the actions of co - workers, supervisors or

customers, Meritor S av. Bank. FSB v. Vinson , 477 U.S. 57 (1986).

23. The overwhelming weight of the credible, preponderant

evidence shows that there was no hostile work environment at the

Respondent's facility where the Petitioner was employed during

times pertinent hereto. There were no actions or racially

derogatory statements of co - workers or supervisors (or

customers) which combined to make a racially oppressive, hostile

working environment. There is no evidence of constructive

discharge in the manner delineated by the court opinions

referenced and discussed above. There is no deliberate action

on the part of this employer designed to cause the employee to

quit his employment nor were there conditions imposed, including

that of a racially hostile environment, which coul d be said to

have resulted in intolerable working conditions. Moreover, the

preponderant evidence of record indicates that it is obvious

that the employee, the Petitioner, simply left his employment

because he found a better paying job.

24. There is no preponderant, credible evidence to show

that the Petitioner was required to do any additional job duties

beyond his job description for which he was not compensated.

All employees are supposed to learn each function of the Taco

Bell store as part of thei r training. No employees of any race

were promoted or given raises ahead of the Petitioner who had

been there the same or less time than the Petitioner, or who had

performed in a way inferior to the Petitioner. The Petitioner

had not completed his traini ng manuals and related testing and

had not completed his 90 - day probationary period; therefore, he

had not even reached the minimum level at which he could be

considered for a promotion or a raise. Typically, no employee

of any race ever got a promotion a s soon as he completed his or

her 90 - day probationary period in any event. In summary, the

witnesses presented by the Respondent were simply more candid

and credible and their testimony is accepted over that adduced

by the Petitioner. It is determined th at the alleged incidents

and claim of discrimination in the work place alleged by the

Petitioner simply did not occur.

Accordingly, it is, therefore,

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Pe tition in its

entirety.

DONE AND ENTERED this 11th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 11th day of February, 2002.

COPIES FURNISHED :

Jennifer Byrom, Esquire

Post Office Box 685

Milton, Florida 32572

Bruce Committe, Esquire

17 South Palafox Place, Suite 322

Pensacola, Florida 32501

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Dick Sturman

Jean Sturma n

1318 Thomas Drive, Suite No. 7

Panama City Beach, Florida 32408

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.