01-003751 Lori Wilson vs. Mex Of Santa Rosa, Inc. Status: Closed Recommended Order on Tuesday, December 18, 2001.

Summary: Petitioner did not prove that she was constructively discharged after being subjected to a hostile work environment because she was involved in an interracial personal relationship.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORI WILSON, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3751

)

MEX OF SANTA ROSA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was cond ucted in this case on November 27,

2001, in Milton, Florida, before the Division of Administrative

Hearings by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Bruce Committee, Esquire

17 South Palafox Plac e, Suite 306

Pensacola, Florida 32501

For Respondent: Jennifer Byrom, Esquire

Byron and Hilliard

Post Office Box 685

Milton, Florida 32572

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner based on her interracial personal relationships by

creating a racially hostile work environment and causing her

constructive termination.

PRELIMINARY STATEMENT

On December 9, 1998, Petiti oner Lori Wilson (Petitioner)

filed a Charge of Discrimination with the Florida Commission on

Human Relations (FCHR). Petitioner alleged that Respondent Mex

of Santa Rosa, Inc. (Respondent), created a racially hostile

work environment due to Petitioner's interracial personal

relationships and Petitioner's interracial child, causing

Petitioner's constructive discharge.

On June 15, 2001, Petitioner filed a letter with FCHR.

Said letter advised FCHR that Petitioner desired to have her

case transferred to the Division of Administrative Hearings.

Petitioner filed a Petition for Relief with FCHR on

September 17, 2001. FCHR transmitted the Petition for Relief to

the Division of Administrative Hearings on September 21, 2001.

The Division of Administrative Hearings issued an Initial

Order on September 24, 2001. The parties did not file a

response.

On September 27, 2001, Respondent filed its Answer in this

case. Respondent denied that it had committed an unlawful

employment action.

On October 11, 2001, the undersigned issued a Notice of

Hearing scheduling this matter for hearing on November 27, 2001.

That same day, the undersigned also issued an Order of

Pre - hearing Instructions.

On October 17, 2001, the undersigned issued an Amended

Notice of Hearing . This notice identified the correct time zone

for the previously scheduled hearing.

On November 16, 2001, the parties filed a Pre - Hearing

Stipulation.

During the hearing, Petitioner testified on her own behalf

and presented the testimony of two additio nal witnesses.

Petitioner offered one exhibit which was accepted into evidence.

Respondent presented the testimony of five witnesses.

Respondent offered two exhibits which were accepted into

evidence.

Neither party ordered a copy of the transcript. Ther efore,

the transcript was not filed with the Division of Administrative

Hearings.

Respondent filed its Proposed Recommended Order on

December 6, 2001. Petitioner filed its Proposed Recommended

Order and a brief on hearsay on December 7, 2001.

FINDING S OF FACT

1. Petitioner is a white female. At all times relevant to

this proceeding, Petitioner was involved in an interracial

personal relationship with a black man who was the father of

Petitioner's child.

2. At all times relevant to this proceeding , Respondent

owned and operated several Taco Bell franchise restaurants in

and around Santa Rosa County, Florida. Respondent employed

approximately 190 people.

3. Respondent hired Petitioner as a crew member in its

Milton, Florida, restaurant on January 7, 1998. Petitioner's

duties included operating the cash register and cleaning the

dining room and restrooms.

4. Respondent trained Petitioner to perform her

assignments. Respondent showed Petitioner how to operate the

cash register, wipe the tables, mop the floors, restock the

condiments, clean the toilets, and replace paper supplies in the

restroom. Respondent provided Petitioner with the necessary

cleaning supplies, including but not limited to mop, broom,

wiping cloths, cleaning solutions, disposa ble gloves, toilet

brush, etc. Petitioner knew where Respondent stored these

supplies. She knew it was her job to clean the bathroom before

her shift ended so that the facilities would be clean for the

next crew.

5. Respondent also informed Petitioner a bout Respondent's

policy against discrimination in the workplace. This policy,

which tracked the language of Florida law and Taco Bell

operating manuals, was posted on a bulletin board. Telephone

numbers of the general manager, the district manager, and the

operating officer/owner were also posted next to the telephone

in the event that an employee needed to complain about working

conditions. These numbers were visible from the door of the

office. Additionally, the toll free number of the national

franc hise company was posted through out the store so that the

public or employees could call in complaints.

6. Respondent informed Petitioner that she would be on

probation for three months. After three months, employees were

eligible for a small raise if they were performing their jobs

successfully.

7. Respondent gave Petitioner the first of a series of

training booklets that employees could study to learn more about

the business. The first booklet contained the basic information

that a food service wo rker needed to know, including the

company's policy against discrimination.

8. After studying each booklet, the employee would take a

test. If the employee passed the test, he or she could progress

to the next booklet. The training booklets were desig ned to

prepare employees for supervisory and management positions.

Petitioner never took the test for the first booklet.

9. Petitioner rode to and from work every day with her

shift supervisor, Ms. Ileane McCray, a black female. Petitioner

and Ms. McC ray lived in the same housing complex and worked the

morning shift together. Ms. McCray was not prejudiced against

interracial personal relationships; her own daughter was

involved in an interracial personal relationship with a white

man.

10. Ms. McCr ay was responsible, in part, for introducing

Petitioner to Dawn Young, the general manager of the Milton

restaurant and the daughter of the owner/operator. Ms. McCray

told Ms. Young that Petitioner's boyfriend was in jail and that

Petitioner needed a job. Ms. Young interviewed Petitioner and

made the decision to hire her.

11. On July 18, 1998, Ms. McCray directed Petitioner to

clean a restroom that had been vandalized by smearing feces on

the walls. Petitioner refused to clean the restroom and left

t he premises without telling anyone. She never returned to

work.

12. After Petitioner walked off the job, she took a trip

to visit family in the State of Washington. Upon her return,

Petitioner visited Ms. McCray's home and showed her family

pictures from the trip to the northwest.

13. There is no persuasive evidence that Ms. McCray or

Ms. Young ever made derogatory comments to Petitioner regarding

her interracial personal relationship or her interracial child.

Petitioner's testimony in that regar d is not credible. On the

other hand, Ms. McCray's testimony that she did not make

derogatory remarks about interracial couples was persuasive.

14. Under Respondent's chain of command, an employee who

had a problem with a supervisor could contact the g eneral

manager and so forth up the line. Employees also could approach

the owner/operating officer directly because he visited the

Milton restaurant almost every day.

15. Before Petitioner quit her job, Petitioner never

complained to Ms. Young or anyon e else about Ms. McCray's making

racially hostile comments. Petitioner never called the district

manager or the operating officer/owner to complain. The latter

visited in the store almost everyday that it was open.

Petitioner never called the national t oll - free number.

16. Petitioner worked for Respondent approximately six

months. During that time, Respondent failed to call or show up

for work on one occasion. Ms. Young and Petitioner signed an

employee consultation memorandum on April 30, 1998, ind icating

that Petitioner would be terminated if she failed to call or

show up for work again.

17. Respondent was paying Petitioner $5.15 per hour in

wages when she quit her job in July 1998. Petitioner did not

return to work until November 1998.

CONCL USIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

matter. Sections 120.569, 120.57(1), and 760.11(4), Florida

Statutes.

19. Section 760.10(1), Florida Statutes, makes it unlawf ul

for an employer to discriminate against an employee because of

the employee's race, color, religion, sex, national origin, age,

handicap, or marital status.

20. In this case, the greater weight of the evidence

indicates that Ms. McCray never made derog atory about

Petitioner's interracial child or interracial personal

relationship. The evidence clearly shows that Petitioner quit

her job because she did not want to clean the restroom. There

is no persuasive evidence that Petitioner was working in a

host ile work environment.

21. Petitioner was not constructively discharged. She

voluntarily quit and left the premises without telling anyone

that she was leaving.

22. Petitioner's job required her to clean the restrooms

every day. Requiring Petitioner to clean the restroom when it

was especially filthy was not a deliberate act by Ms. McCray to

create an intolerable working condition.

23. Petitioner never complained to her general manager,

Ms. Young, the district manager, or the operating officer/own er

about the alleged derogatory comments by Ms. McCray. She made

no effort to call the local or national telephone numbers that

were available for employees to call concerning work - related

complaints. It is inconceivable that Petitioner worked in the

sma ll restaurant for approximately six months without seeing the

telephone numbers and without knowing that Ms. Young's father

was the owner/operating officer.

24. To the extent that Petitioner proved a prima facie

case of constructive discharge and hostil e work environment due

to discrimination based on her interracial personal

relationship, Respondent has provided a legitimate reason to

explain Petitioner's voluntary termination: She did not want to

clean the restroom. More importantly, Petitioner prese nted no

evidence to show that this reason was pretextural.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED

That the Florida Commission on Human Relations deny the

Petition for Relief.

DONE AND ENTER ED this 18th day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of December, 2001.

COPIES FURNISHED :

Jennifer Byrom, Esquire

Byrom, Miller & Coleman

Po st Office Box 685

Milton, Florida 32572

Bruce Committe, Esquire

17 South Palafox Place, Suite 306

Pensacola, Florida 32501

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions w ithin

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.