01-003893 Martha J. Freeman vs. Phoenix Transport &Amp; Services, Inc. Status: Closed Recommended Order on Thursday, September 5, 2002.

Summary: Petitioner failed to show a prima facie case because did not show male employees received more lenient discipline in policy infractions. Respondent showed legitimate business, non-discriminatory reason for firing her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTHA J. FREEMAN, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3893

)

PHOENIX TRANSPORT & SERVICES, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cau se came on for formal proceeding and hearing before

P. Michael Ruff, duly - designated Administrative Law Judge of the

Division of Administrative Hearings, pursuant to notice setting

the cause for hearing on June 17, 2002, in Orlando, Florida.

The appearanc es were as follows:

APPEARANCES

For Petitioner: Martha J. Freeman, pro se

9337 South Starfish Avenue

Floral City, Florida 34436

For Respondent: William J. Denius, Esquire

Killgore, Pearlman, Stamp,

Ornstein & Squires, P. A.

Post Office Box 1913

Orlando, Florida 32802 - 1913

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner was unlawfully discriminated against on

the basis of her sex in violation of the provisio ns of Chapter

760, Florida Statutes, cited below.

PRELIMINARY STATEMENT

This cause arose upon the filing of a charge of

discrimination by the Petitioner with the Florida Commission on

Human Relations (Commission). The charges were filed

November 25, 199 8, and after more than 180 days elapsed the

Petitioner filed an Election to Withdraw the Charge and file a

Petition for Relief to proceed with an administrative hearing,

as provided for in Section 760.11(4)(b), and (8), Florida

Statutes, thus electing to p roceed to the Division of

Administrative Hearings to advance her cause.

The case was transmitted to the Division of Administrative

Hearings and ultimately assigned to the undersigned

Administrative Law Judge. The cause came on for hearing as

noticed and at the hearing the Petitioner called witness Gary

Green and herself as her witnesses. She moved 11 exhibits and

had 11 exhibits admitted into evidence at the hearing. The

Respondent, Phoenix Transport and Services, Inc. (Phoenix)

called as witnesses And rea H. White, Gary Green and Ernest D.

English. Phoenix moved and had admitted 16 exhibits into

evidence. Upon conclusion of the proceedings the parties

ordered a transcript thereof which was duly filed with the

Division of Administrative Hearings and th e parties timely

submitted Proposed Recommended Orders which have been considered

in the rendition of this Recommended Order.

FINDINGS OF FACT

1. Phoenix is a female - owned and managed company, engaged

solely in contract carriage of mail for the United S tates Postal

Service (USPS). Phoenix contracts with the USPS based upon a

schedule. Phoenix guarantees the operation of the contract in

accordance with the published schedule, including a time

schedule. All drivers are required to meet the scheduled

req uirements of the portion of the contract they are operating.

It is considered a "loss of service" under this contract if a

driver fails to arrive and pick - up the mail shipment for a

particular day or time on the schedule. A loss of service is

extremely c ritical to the company because it can result in a

loss of the contract which would be potentially fatal to the

company's continued existence. Consequently, under the

company's written policy, distributed in a handbook to the

employees, including the Petit ioner, a loss of service due to

driver error or negligence is considered grounds for immediate

dismissal.

2. The Petitioner, Martha Freeman, was employed by Phoenix

as a USPS mail transporter or truck driver from February 4,

1997, through December 18, 1 997. Shortly after beginning

employment with Phoenix, the Petitioner hit a stationary object

while operating one of Phoenix's vehicles in a terminal area.

On April 17, 1997, in accordance with its written policy,

Phoenix sent the Petitioner a letter encl osing invoices for

damage to her truck, number 1539. The damage had been caused by

the Petitioner and the letter informed the Petitioner that the

Phoenix company policy provides that in cases of driver error

the driver is responsible for the cost of repai r. The letter

informed the Petitioner that the total cost of the damages was

$405.23. Phoenix requested that the Petitioner execute an

authorization form allowing Phoenix to deduct $50.00 per pay

period for the purpose of reimbursing Phoenix for the dama ges to

the truck. The Petitioner executed that authorization.

3. The authorization was executed in accordance with

Phoenix's policy handbook which states: "Damage to Phoenix

vehicles due to the inefficiency, negligence or deliberate

intentions of the d river will be the driver's financial

responsibility," and that Phoenix "will not tolerate such

actions as hitting a stationary object."

4. On March 20, 1997, the Petitioner signed a policy

handbook receipt verification in which the Petitioner states

tha t she received, read and understands the policy set forth in

the policy handbook.

5. The policy set forth in the policy handbook, including

the policy for damages caused to company vehicles by company

employees, have always been enforced equally among m ale and

female employees. The Petitioner, in fact, was treated no

differently than male co - workers in instances involving damage

to company vehicles. Specifically, on June 12, 1997,

November 13, 1997, and May 4, 1998, Phoenix sent letters to the

Petitio ner's male co - workers Ron Austin, James Long, and Lewis

Rabun, citing those employees for damages caused to company

vehicles by those employees and informing them that they would

be held accountable and responsible for such damages.

6. On August 12, 199 7, the Petitioner was placed on a two -

day suspension without pay and on a 30 - day probation period for

failure to follow company maintenance procedures. Specifically,

she failed to maintain the company vehicle she was using to

transport mail. The policy h andbook provides that failure to

have a vehicle repaired or serviced as instructed is an

infraction subject to three days' suspension without pay.

7. On December 16 and 17, 1997, the Petitioner failed to

make scheduled mail runs resulting in a loss of s ervice under

the terms of the contract. Because of this the Petitioner was

terminated from employment.

8. The Phoenix policy handbook provides that a failure to

make a scheduled run, resulting in a loss of service, is an

infraction subjecting an employe e to immediate dismissal. The

policy handbook specifically provides:

A loss of service occurs when the scheduled

contractor does not make the scheduled run

and the mail is either moved by another

contractor, or by the USPS. This infraction

is highly detr imental to the integrity of

the contract and may, in fact, cause the

contract to be pulled. Phoenix employees

are expected to do everything within their

power to avoid a loss of service. A loss of

service due to driver error or negligence is

subject to i mmediate dismissal.

9. The Petitioner did not present any evidence that the

misconduct for which she was terminated, specifically her

failure to make scheduled runs on the days in question, which

resulted in losses of service, was similar too or identica l to

conduct engaged in by any other employee who had not been

discharged.

10. On November 25, 1998, the Petitioner filed a Charge of

Discrimination with the Commission. In the charge, the

Petitioner alleged that (1) she was not treated the same as mal e

co - workers by her Supervisor, Ernie Craig; (2) that she was

asked sexually related questions by Ernie Craig; (3) that Ernie

Craig made her pay for things that happened under normal

circumstances for which he did not make male employees make

payment; (4) that Ernie Craig spoke to her in a hateful, angry

manner and did not talk to male employees in the same manner;

(5) that Ernie Craig was told about a co - worker who "stalked"

her and that he made fun of her, made light of the incident, and

never reported th e incident; (6) that Ernie Craig made her lose

two days of work and put her on 30 days' probation concerning a

phone conversation; and (7) that she was fired when she asked

Ernie Craig to stop yelling at her.

11. The Petitioner claims that her Supervisor, Ernie

Craig, asked her on one occasion if she was celibate and also

attempted to kiss her on one occasion. She also claims that a

co - worker, James King, used an expletive and made an offensive

gesture toward her on one occasion and that Ernie Craig and c o -

workers Gary Green and Ernie English joked about the incident in

the Petitioner's presence.

12. The testimony of Gary Green, Ernie English, and Andrea

White (owner), shows that Ernie Craig did not treat the

Petitioner any differently than he did othe r employees, in terms

of discipline, nor by making her pay for things that he did not

make male employees pay for. The evidence does not show that

Ernie Craig was ever told about any co - worker who allegedly

stalked the Petitioner and none of the employees who testified

were aware of any stalking incident involving the Petitioner.

Indeed, the Petitioner did not have a great deal of contact with

Mr. Craig at work. The Petitioner did not see him very much on

a day - to - day basis nor speak to him on the phone on frequent

occasions either. The evidence shows that the Petitioner was

able to perform her job properly during the entire time she was

employed by Phoenix.

13. Ernie Craig never physically touched the Petitioner

according to the preponderant weight o f the evidence. The

alleged conduct constituting the Petitioner's claim of

discrimination was related to a hostile work environment even

according to the Petitioner's testimony, just verbal in nature.

The Petitioner never reported any of her discriminati on claims,

later contained within the Charge of Discrimination, to anyone

at Phoenix.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Section 120.57(1), Flori da Statutes (2001).

15. The claims of discrimination filed in this case can be

categorized as hostile work environment; disparate treatment; or

discriminatory discharge claims. Specifically the Petitioner's

claim that Mr. Craig asked her sexual questions and that he was

told about a co - worker who stalked her appear to be hostile work

environment claims. Further the Petitioner's claim that she was

not treated in the same manner as her male co - workers and that

Mr. Craig made her pay for things that he did not make the men

pay for and talked to the Petitioner in a hateful manner, appear

to constitute disparate treatment claims. Finally, although the

Petitioner claimed that she was fired because she asked Mr.

Craig to stop yelling at her, the Petitioner appe ars to make a

claim for discriminatory discharge. These claims must fail,

however, for the reasons delineated below.

Hostile Work Environment

16. Sexual harassment involving a "hostile work

environment" is based on "bothersome attentions or sexual

rem arks that are sufficiently severe or pervasive so as to

create a hostile work environment." Colon v. Environmental

Technologies, Inc. , 15 Fla. L. Weekly Fed. D34 (M.D. Fla.

November 5, 2001)(citing Burlington Industries, Inc. v. Ellerth ,

524 U.S. 742, 751 (1998)). In order to establish a prima facie

showing of a hostile environment involving sexual harassment, a

plaintiff must show: (1) that she belongs to a protected group;

(2) that she has been subject to unwelcome sexual harassment,

such as sexual adva nces, requests for sexual favors and other

conduct of a sexual nature; (3) that the harassment complained

of was based upon sex; (4) that the harassment was sufficiently

severe or pervasive as to alter the terms and conditions of

employment and create a di scriminatorily abusive working

environment; and (5) that the employer knew or should have known

of the harassment in question and failed to take prompt remedial

action. Colon ; Gupta v. Board of Regents , 212 F.2d 571, 582

(11th Cir. 2000)(citing Mendoza v. Borden, Inc. , 195 F.3d 1238,

1245 (11th Cir. 1999)).

17. In order to prevail in a sexual harassment action of

this nature the Eleventh Circuit requires a Petitioner to

demonstrate that "but for the fact of her sex, she would not

have been the object of harassment." Colon (citing Henson v.

City of Dundee , 682 F.2d 897, 904 (11th Cir. 1982)). Further,

"personal animosity is not the equivalent of sexual

discrimination and is not proscribed by Title VII . . .[T]he

plaintiff cannot turn a personal feud int o a sex discrimination

case." Colon (citing McCollum v. Bolger , 794 F.2d 602, 610

(11th Cir. 1986)). In short, Title VII is not a shield against

harsh treatment in the work place. Id.

18. In order to prevail on a hostile work environment

claim a plaint iff (petitioner) must also show that any abuse she

allegedly suffered was so severe and pervasive as to alter the

terms, conditions, or privileges of employment. Colon . Conduct

must be extreme to amount to a change in terms and conditions of

employment, within the context of the anti - discrimination

provisions of Title VII. Faragher v. City of Boca Raton , 524

U.S. 775, 118 S. Ct. 2275 (1998). The court must assess whether

the alleged harassment is offensive on both subjective and

objective levels. Colon . Harassment is subjectively offensive

when the victim in fact perceived the harassment to be hostile

or abusive. Id. Harassment is objectively offensive when a

reasonable person would have found the alleged harassment

hostile and abusive. Id. In deter mining whether the conduct at

issue is objectively severe and pervasive, the court must look

at the "totality of the circumstances." Id. The Supreme Court

has established the following factors for evaluating the

totality of the circumstances: (1) the fr equency of

discriminatory conduct; (2) the severity of the discrimination;

(3) whether the conduct is physically threatening or humiliating

or a mere utterance; and (4) whether the conduct unreasonably

interferes with the plaintiff's performance at work. Id.

(Citing Faragher v. City of Boca Raton , 524 U.S. 775 (1998)).

These standards for judging hostility are sufficiently demanding

to ensure that Title VII does not become a general civility

code. Faragher . Properly applied, these standards filter out

complaints attacking the ordinary tribulations of the work

place, such as the sporadic use of abusive language, gender -

related jokes and occasional teasing. Faragher . In this case,

the evidence demonstrates that Phoenix's conduct, or that of its

supervis or and co - employees, was not so objectively offensive

that a reasonable person would have found the alleged harassment

hostile and abusive.

19. First, the Petitioner can point to only isolated

incidents in support of her claims of discrimination. Even if

the Petitioner were to claim that the conduct constituting her

claims of discrimination occurred frequently, the Eleventh

Circuit has held that such frequent conduct does not constitute

actionable sexual harassment. Colon (offensive utterances

occurring on a daily basis for three months was not objectively

severe and pervasive)(citing Mendoza v. Borden, Inc. , 195 F.3d

1238 (11th Cir. 1999)).

20. Additionally, the Petitioner concedes that the conduct

of Ernie Craig did not actually involve physical cond uct or

overt physical threats, if it occurred. Specifically, the

Petitioner admits that Ernie Craig never physically touched her.

She also admits, with respect to the claims contained within the

charge of discrimination, that all of the conduct constitut ing

those claims were verbal acts or words. Courts have rejected

sexual harassment claims under circumstances where the

harassment or alleged harassment involved a much greater degree

of physical harm or intimidation. See , e.g. , Colon (conduct not

severe or pervasive where a co - work made offensive gestures and

comments, called another co - worker a Mexican expletive that

translates to "bitch," "whore," or "person paid for sex," called

her stupid, grabbed his crotch, made an offensive hand gesture

that signi fied the "f - word" and spit on the floor); Mendoza , 195

Fed.3d at 1245 - 52 (conduct not physically threatening nor severe

where supervisor followed plaintiff constantly, staring her up

and down, froze his gaze on the plaintiff's genital area and

made a sniff ing motion to two occasions and rubbed his right hip

against plaintiff's left hip and touched her shoulder); Shepard

v. Comptroller of Public Accounts of Texas , 168 F.3d 871 (5th

Cir. 1999), cert. d enied , 120 S. Ct. 395 (1999)(holding that a

series of "boo rish and offensive" sexual remarks and attempts to

look down the plaintiff's dress, coupled with repeated touching

of plaintiff's arms over a period of more than a year, were

insufficient to establish severe and pervasive element); Scott

v. Pizza Hut of Am erica, Inc. , 92 F.Supp.2d 1320 (M.D. Fla.

2000)(granting summary judgment for employer in part because

there was no evidence of physical contact with the

plaintiff)(conduct not severe and pervasive where comments were

made involving homosexual experiences and jokes implying that

the plaintiff was a prostitute, co - workers used expletives

throughout plaintiff's employment, and two co - workers called the

plaintiff a "bitch" and told her that she was being bitchy

because she does not get enough sex). In Weiss v . Coca - Cola

Bottling Company , 990 F.2d 333 (7th Cir. 1993) the court held

that a plaintiff's claims that a supervisor put his hand on her

shoulder at least six times, placed "I Love You" signs in her

work area, and tried to kiss her once at a bar and twice at work

were not sufficient for actionable sexual harassment. In the

instant situation the Petitioner has admitted that Phoenix's

employees or supervisors' conduct did not involve actual

physical contact or overt physical threats. There is no

evidence i n this case that the conduct of Ernie Craig or other

employees, if it occurred as described by the Petitioner,

involved any actual physical contact or physical threats of a

sexual nature or otherwise and there is no evidence from which

this trier of fact c ould conclude that a reasonable person would

believe that any such conduct created a threat of physical harm

or intimidation.

21. Finally, the Petitioner admits that she was able to

perform her job for the entire time that she was employed by

Phoenix and that she never reported any of the claims contained

in her Charge of Discrimination to anyone at Phoenix. There is

no evidence to show that the management of Phoenix learned of

them otherwise. Further, the Petitioner rarely ever saw Ernie

Craig during th e regular course of her duties at work. She did

not speak to him on the phone with any frequency and recalled

only three or four occasions when she talked to him by phone. A

reasonable person, therefore, could not conclude that Phoenix

unreasonably inter fered with the Petitioner's work performance.

22. Accordingly, for the reasons delineated above a

reasonable person simply could not conclude that the

Respondent's conduct was sufficiently severe and pervasive so as

to affect a term or condition of the Petitioner's employment.

(Weighing all of the Petitioner's evidence against the four

factors of the totality of the circumstances analysis referenced

above, a reasonable person could not conclude that the

employer's conduct, if it occurred as described by Petitioner,

was sufficiently severe and pervasive so as to affect a term or

condition or her employment). Therefore, the claim for sexual

harassment related to a hostile work environment must fail.

Disparate Treatment

23. In order to established a prima facie case involving

disparate treatment, a female employee/petitioner must show:

(1) that she is a member of a protected class; (2) that she was

subjected to an adverse employment action; (3) that the employer

treated similarly - situated male employees o utside of the

plaintiff's classification more favorably; and (4) that the

plaintiff was qualified to perform her job. See Maniccia v.

Brown , 171 F.3d 1364 (11th Cir. 1999). In this case, the

Petitioner failed to present any evidence that Phoenix treated

similarly - situated employees outside the Petitioner's

classification more favorably. Contrarily, the evidence

demonstrates that during the entire time the Petitioner was

employed by the Respondent, she was treated exactly the same as

her male co - workers b y Ernie Craig and by all other Phoenix

employees. Further, the policy set forth in the policy

handbook, including Phoenix's policy for damages caused to

company vehicles by company employees, have always been enforced

equally among all Phoenix's employees . The Petitioner was

treated no differently than her male co - workers for damages

caused to company vehicles and Phoenix never made the Petitioner

pay for any damages that it did not make male employees pay for.

Because the evidence demonstrates that Phoe nix treated

similarly - situated employees outside of the Petitioner's

classification no differently than the Petitioner herself, the

Petitioner's claims of disparate treatment must fail.

24. Further, in order to establish a prima facie case of

disparate treatment based on wrongful termination, a petitioner

must show that she was replaced by a person outside of the

protected class. Delandro v. Jackson Memorial Hospital ,

15 Fla. L. Weekly Fed. D14 (S.D. Fla. October 16, 2001). In

this case the Petitioner did not present evidence that she was

replaced by a person outside of her protected class.

Therefore, the Petitioner's disparate treatment claims must fail

for this reason as well.

Discriminatory Discharge

25. To establish a prima facie of discriminato ry

discharge, a petitioner must show: (1) that she was a member of

a protected class; (2) that she was qualified for the job from

which she was fired; and (3) the misconduct for which she was

discharged was nearly identical to that engaged in by an

employ ee outside the protected class who was retained. See Nix

v. WCLY Radio/Rahall Communications , 738 F.2d 1181 (11th Cir.

1984). In this case, the Petitioner failed to present any

evidence that the misconduct for which she was discharged was

nearly identica l to that engaged in by an employee outside the

protected class who was retained. This is especially true in

light of the fact that the Petitioner was terminated for her

failure to make two scheduled runs resulting in losses of

service, an infraction subj ect to immediate dismissal. For

these reasons, the Petitioner's discriminatory discharge claim

fails.

26. Moreover, the Petitioner not only failed to establish

the elements of a prima facie case of discrimination, but the

Respondent articulated legitim ate, non - discriminatory reasons

for its challenged actions, as shown by the above Findings of

Fact concerning the Petitioner's violating the employment

policies referenced in the above Findings of Fact which

justified discipline and termination, of which e mployment policy

she had advance notice by receipt, and acknowledgment of

receipt, of the employee policy manual. Specifically, the

evidence shows that the Petitioner was treated no differently

than any other Phoenix employees, including the Petitioner's

male co - workers, and that the Petitioner was properly discharged

for failing to show up for work on two consecutive occasions

resulting in losses of service. Having articulated legitimate,

non - discriminatory reasons for its challenged actions, the

burden then shifted to the Petitioner to demonstrate that the

employers' proffered reasons for taking actions were actually a

pretext for discrimination. Thomas v. Dade County Public Health

Trust , 15 Fla.L. Weekly Fed. D1 (S.D. Fla. September 20, 2001).

Further , the ultimate burden of persuasion remains with the

Petitioner at all times. Texas Department of Community Affairs

v. Burdine , 450 U.S. 278 (1981). Here the Petitioner failed to

present any evidence that the adverse employment actions taken

were pretext ual. Indeed, the legitimate, non - discriminatory

reason for the challenged employment action tends to be borne

out as to its legitimacy when one considers that this employer

actually employed female supervisory employees who supervised

male employees, most notably in its Fort Myers operation, and,

indeed, Debbie Baird was in a supervisory position from 1997 to

2001. Significantly, Ernie Craig recommended Debbie Baird for

her promotion to "Regional Coordinator" for the company. Since

there is a dearth of e vidence that the alleged adverse

employment actions taken against the Petitioner were pretextual

then the Petitioner's claims must fail.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that the Petitioner's Charge of Discrimination

and Petition against the Respondent Phoenix Transport &

Services, Inc., be dismissed in its entiret y.

DONE AND ENTERED this 5th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 5th day of September, 2 002.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

William J. Denius, Esquire

Killgore, Pearlman, Stamp,

Ornstein & Squires, P.A.

Post Office Box 19 13

Orlando, Florida 32802 - 1913

Martha J. Freeman

9337 South Starfish Avenue

Floral City, Florida 34436

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

N OTICE 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.