02-000690 Anita J. Beaty vs. Publix Supermarkets, Inc. Status: Closed Recommended Order on Thursday, July 18, 2002.

Summary: Petitioner failed to rebut employer`s non-discriminatory reasons. Proximate cause of stillbirth; appropriate recovery; and ambiguous, sporadic, and non-interfering managerial comments are discussed. Recommend dismissal of charge and petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANITA J. BEATY, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0690

)

PUBLIX SUPERMARKETS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed - fact

hearing May 8 - 9, 2002, in Tallahassee, Florida, before Ella Jane

P. Davis, a duly - assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: John P. Contini, Esquire

Marlon E. Bryan, Esquire

Law Office of John P. Contini

950 South Pine Island Avenue

Suite 1003

Plantation, Florida 33324

For Respondent: Tammie L. Rattray, Esquire

Kevin M. Smith, Esquire

Ford & Harrison, LLP

101 East Kennedy Boulevard, Suite 900

Tampa, Florida 33602 - 5133

STATEMENT OF THE ISSUES

Whether Respondent Employer committed an unfair employment

practice against Petitioner Employee by discriminating against

her on the basis of her sex (pregnant female) or by a hostile

work environment.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the Florida

Commission on Human Relations on or about February 16, 1999,

alleging that she was denied a job class code c hange from bakery

clerk to cashier while pregnant in October 1998.

On January 14, 2002, the Commission entered its

Determination: No Cause.

On February 19, 2002, Petitioner filed a Petition for Relief

with the Commission, adding additional concerns abo ut "a hostile

work environment." 1 On February 19, 2002, the case was referred

to the Division of Administrative Hearings.

At the commencement of final hearing, rulings were made on

the record in response to several motions filed less than five

days befor e hearing or made orally on the record. Petitioner

presented the oral testimony of Shirley Poling, Tami Glover,

Jennie Daniels Sammons, and Scott Beaty, and testified on her own

behalf. Petitioner had Exhibits P - 1, P - 2, and P - 3 admitted in

evidence. Exh ibits P - 4 and P - 5 were objected - to and not

admitted. Respondent presented the oral testimony of Rosalind

Williams, Kim Wilkinson, Pam Walls, and Barry Long, and had

Exhibits R - 1 through R - 3 and R - 5 through R - 7 admitted in

evidence. Joint Exhibits A - C wer e admitted in evidence. Exhibit

R - 4 was withdrawn as cumulative since it was included within

Joint Exhibit C.

At the close of hearing, the parties waived their right to

file a transcript of proceedings and agreed to a time frame for

filing their respec tive Proposed Recommended Orders.

Rather than providing a full transcript as contemplated by

Chapter 120, Florida Statutes, the parties attached different

transcribed "excerpts" and "excerpts of excerpts" of testimony to

their respective Proposed Recomm ended Orders. These bits and

pieces of testimony were struck by an Order entered June 18,

2002, because the omissions made the excerpts inherently

unreliable. However, the parties may provide the Commission with

a complete official transcript attested - to by the court reporter

present at the hearing, if they wish.

On June 17, 2002, Respondent had moved to strike

Petitioner's late - filed Proposed Recommended Order. The time

provided by Rule 28 - 106.204, Florida Administrative Code , for

Petitioner to respo nd in writing in opposition to that Motion ran

on July 1, 2002. No response in opposition has been filed with

the Division. Therefore, the Motion is granted, and Petitioner's

Proposed Recommended Order is hereby struck.

FINDINGS OF FACTS

1. Petitioner g ave birth to a stillborn child after an on -

the - job accident on November 25, 1998, while in Respondent's

employ. She believes she would not have fallen if she had been

transferred to another department and that, but for the failure

to transfer her to a fro nt office (line cashier) position, her

baby would be alive.

2. In making the following Findings of Fact, every effort

has been made to reconcile testimony and exhibits so that each

witness may be found to speak the truth, but where these Findings

of Fac t diverge from the construction of events related by any

witness(es), or omit testimony or parts thereof, it is because

the witness or witnesses were not found entirely credible or the

information was irrelevant or immaterial. Where there is an

equipoise of evidence, that also is indicated.

3. Respondent is a supermarket chain with stores and

employees throughout Florida and several states. It constitutes

an "employer" as statutorily defined by the Florida Civil Rights

Act, Chapter 760, Florida Statutes .

4. Petitioner's family has a history of successful

employment with Respondent. She began working for Respondent in

1995, at the age of 16, as a part - time front end clerk (bagger)

in Respondent's Store No. 231. Over approximately two years, she

success fully held positions there as a bagger, stock crewman, and

bakery clerk. During all of her employment, she got regular

quarterly raises in her hourly wage.

5. Respondent issues an Associate Information and Benefits

Handbook to all employees a/k/a "associ ates."

6. The Handbook contains an Open Door Policy which states,

in pertinent part:

If something bothers you, or if you need

clarification of a Publix policy or

procedure, please talk to a manager about it.

Always remember, as a Publix associate, you

ca n talk to anyone in management. . . . Just

remember -- you can discuss your problem with

anyone in management all the way to the top

level. Also, your Retail Associate Relations

Specialist is available to assist you with

any matter at any time. We hope y ou will use

our Open Door policy whenever needed and as

often as necessary -- it's there to work for

you ! (Emphasis in original). (Joint

Exhibit C).

7. The Handbook also contains an Equal Employment

Opportunity Policy, Policy Statement on Harassment I ncluding

Sexual Harassment, and information regarding the Employer's

Formal Complaint Procedure, which provides in pertinent part,

Equal Employment Opportunity: Publix

prohibits discrimination based on . . .

pregnancy. . . . If any associate

experiences, or is otherwise made aware of, a

violation of Publix's policy prohibiting

discrimination, he or she is strongly

encouraged to use the Open Door Policy.

Associates may also file a formal complaint

under the Formal Complaint Procedure.

Policy Statement on Harassment,

Including Sexual Harassment: We at Publix

Super Markets share the belief that each of

us should be able to work in an environment

free of discrimination and any form of

harassment, including harassment based on . .

. pregnancy. . . . [I]n order for the Company

to deal with the problem [of discrimination],

offensive conduct or situations must be

reported to the Store Manager, District

Manager, Support Department Manager or your

Regional Associate Relations Specialist.

Formal complaints may also be lodged with the

Manager of Equal Employment Opportunity

through the Formal Complaint Procedure . Any

person electing to utilize these complaint

resolution procedures will be treated

courteously. The complaint will be handled

as swiftly and as conf identially as practical

in light of the need to remedy the problem,

and registering the complaint will in no way

be used against the associate nor will it

have adverse effect on the individual's

employment status.

Formal Complaint Procedure : If an

associa te believes that he or she has not

been treated properly, he or she should bring

this to the attention of the appropriate

persons in Publix Management. There are

several avenues associates can use to voice

their concerns, including the Open Door

policy an d the Formal Complaint procedure.

The Formal Complaint Procedure is a formal

method of having your concerns addressed and

documented. (Emphasis in the original).

(Joint Exhibit C).

8. Petitioner received a copy of the Handbook when she was

hired, and again when she transferred into the Bakery Department.

Petitioner signed and initialed a document indicating she had

read and understood the Handbook.

9. Store 231 is divided into distinct departments: Grocery,

Bakery, Deli, Meat, Produce, and the Commo n Area. In descending

order of scope and authority, there is a Store Manager, several

Assistant Store Managers, a Common Area Manager, and a Department

Manager for each department.

10. At all times material, Barry Long was the Common Area

Manager and Ani ta Blanchard was the Bakery Manager of Store 231.

11. Some of the jobs in the Common Area include line

cashier, bagger, and office staff. In addition to supervising

these associates, Mr. Long's job includes oversight of the flow

of money throughout the s tore, cash accounting, handling of

customer complaints, cleanliness of the front of the store

(including the public restrooms), and overall appearance and

safety of the parking lot.

12. The duties of a bakery clerk, the position Petitioner

filled at all t imes material, are set out in its job description

as follows:

•Finishes products such as filling or

icing doughnuts and/or pastries.

•Takes and/or fills special orders for

customers.

•Packages, labels, and prices products

for self - service.

•Maintains and fills bakery trays,

display cases, and ingredient bins.

•Operates the scale and bread slicer.

•Unloads, organizes, and restocks

supplies.

•Follows sanitation and safety

guidelines.

•Assists in cleaning duties.

•Assists in other duties as assigned.

Duties a re performed primarily in the

Bakery department. A Bakery Clerk may be

exposed to various temperature changes and

work environments. Work includes walking,

standing, repetitive arm and hand movements,

eye - hand coordination, walking, lifting of

product we ighing up to 60 lb., bending, and

working with hands in hot water or [sic]

extended periods of time, along with frequent

interaction with customers and associates.

(P - 1)

13. A butter cream (cake icing) bowl was used in the

bakery. Bakery clerks had to l ift it from a waist - high table and

place it in a freezer or place it on a "wheely cart," roll the

wheely cart to the dishwasher, and lift the bowl into the

dishwasher. This bowl weighed 60 pounds and was awkward to

maneuver. When there was more than one bakery clerk on the same

shift, they could, and did, help each other with the butter cream

bowl, but because Petitioner often worked the closing shift

alone, she sometimes had to do the dishes alone, including

handling the butter cream bowl.

14. Bakery cl erks also had to go to another part of the

store at approximately 3:00 - 3:30 p.m., each day, when frozen

bakery goods were unloaded from delivery trucks. The bakery

clerks then transferred such goods to "birds" (eight - foot - high

narrow shelves) and rolled t he birds on pallets or floats to the

bakery. In the foregoing tasks, bakery clerks were sometimes

assisted by "after - school kids" or stock crewmen, but when the

goods arrived in the bakery, all the bakery clerks had to get the

pies, cream cakes, etc., int o a freezer quickly so they would not

melt. This involved lifting trays of three cream cakes or trays

of six pies at a time. The average weight per filled tray was

10 - 12 pounds. The bakery clerks then stretched upward, reached

in, and "threw" the trays onto high freezer shelves.

15. For all reaching activities, bakery clerks were

instructed to use one of two ladders provided. Many bakery

clerks broke this rule and climbed on a table to place goods on

shelves or in the freezer. Whenever she saw a clerk climb on the

table, Anita Blanchard ordered her down and told her to use a

ladder. Petitioner knew this before she fell from the table in

October 1998. (See Findings of Fact 1 and 37)

16. Whenever a bakery clerk became pregnant, Ms. Blanchard

followed the Employer's policy and allowed the bakery clerk to

keep working, without any change of duties, until the pregnant

employee brought in a medical excuse specifying what

accommodations she might need. When a medical note was presented

for restrictions due to pregnancy or for any other reason,

Ms. Blanchard adjusted the employee's workload accordingly. If a

note from a doctor was not presented, however, Ms. Blanchard did

not grant any bakery clerk any accommodations, except on one

occasion, when, at Baker y Clerk Shirley Poling's request, Ms.

Blanchard spoke to Ms. Poling's doctor on the phone and then let

Ms. Poling go home early without presenting a written medical

excuse.

17. When Petitioner was 18, she became engaged to Scott

Beaty, a 28 - year - old who h ad a criminal record for drugs.

Mr. Long irritated Petitioner by repeatedly asking her if she

really wanted to get married. She answered him a few times and

then ignored him and would not respond. She did not complain to

him or to anyone up the chain o f command about these comments.

18. Petitioner married Mr. Beaty on December 20, 1997. In

June, 1998, she became pregnant. She immediately told Mr. Long.

He repeatedly asked her if she really wanted to bring a child

into "this" (presumably into the w orld), and this annoyed her.

However, she ignored these remarks and did not complain to

Mr. Long or to anyone up the chain of command about them.

19. Petitioner had a heavy schedule in that she was working

and going to college at the same time. When he r pregnancy was

approximately eight weeks along, she slipped, coming out of the

bakery freezer and fell on her tailbone. She accepted her

doctor's representations that this made little difference so

early in a pregnancy. She continued to work, but she re ported

the incident, and it was written - up by Chris Green, the male

Assistant Bakery Manager, within 48 hours as required by the

Employer.

20. According to Petitioner, "common sense told [her]" that

the bakery clerk position was not good for her baby, bu t she "did

not want to use [her] pregnancy as an excuse," because she had

heard derogatory remarks about Shirley Poling's doing so. (See

Findings of Fact 21 and 45). At some point, she sent two letters

to Anita Blanchard and Chris Greene, asking that she not have to

close the bakery out or wash dishes anymore, but she admitted

that she did not get a medical excuse requesting these or any

accommodations. Therefore, she never, at any time, presented a

doctor's excuse to anyone in the Employer's chain of co mmand. 2

21. Petitioner's view that the bakery clerk job was

dangerous to a child in utero was not shared by other female

bakery clerks or former bakery clerks, Kim Wilkinson, Rosalind

Williams, or Pamela Walls, all of whom had been pregnant at some

time w hile working in Store 231's Bakery Department under Anita

Blanchard. Shirley Poling considered lifting the butter cream

bowl and handling the birds and floats too strenuous for her

during her pregnancy, but conceded all she needed to avoid these

tasks or get help with them was to present a suitable medical

excuse to Ms. Blanchard. This was confirmed by the other bakery

clerks, some of whom testified that Ms. Blanchard was solicitous

and particularly kind in minor ways during their pregnancies,

with or wit hout a medical note, but that Ms. Poling was regarded

as a slacker or whiner by themselves and Ms. Blanchard.

22. Petitioner testified that "first," she asked Barry Long

for a transfer out of the Bakery Department, but what precisely

she said or when she made this first request is disputed. Since

she had told him that she was pregnant, she may have assumed he

knew that was the reason she wanted to transfer, but Petitioner

was less than clear in her testimony as to what she asked

Mr. Long for the first t ime. The second time she approached him,

she said, "Barry, I have got to get out of here; this job is

killing me." Petitioner admits that she said this only once, and

Mr. Long does not remember that language being used.

23. Petitioner accepted as true s tore gossip that Assistant

Manager Larry Rosignol had gotten an underage employee pregnant

and married her and that Bagger Tami Glover became pregnant from

an affair with a different Assistant Manager and had a dispute

with Mr. Long about her employment du ties during that pregnancy.

(See Findings of Fact 46 - 52). Petitioner was also aware from

conversations with Jennie Daniels Sammons, a former employee,

that Jennie had used the Employer's "Confidential Hotline" to

complain about Barry Long's treatment of her during her pregnancy

and that nothing substantial had come of the Employer's Human

Resources investigation of Ms. Sammons' "anonymous" complaint.

(See Finding of Fact 54). Petitioner did not personally witness

any interaction between any of these pre gnant women and Mr. Long

or Mr. Rosignol. All the grapevine accounts were prejudicial to

the assistant managers and to Mr. Long and contained elements

beyond those proven at hearing as set forth in Findings of Fact

46 - 58. Nonetheless, Petitioner relied on the gossip.

24. Petitioner further testified that Larry Rosignol always

winked at her when he spoke to her and one time he said something

like, "I'll tell you what I'd like to do." She did not recall

the context of this comment but described Mr. Ro signol as a

notorious flirt. She also related that two times she saw

Mr. Long "looking [lustfully] at me."

25. Petitioner also expected the Store Manager to back up

his under - managers' business decisions.

26. Accordingly, Petitioner elected not to "use her

pregnancy" or call the Confidential Hotline when she did not

immediately get a transfer out of the Bakery Department. She

chose to use what she called "a different approach." In October

1998, she put in a "Register an Interest" form for an Offi ce

Staff Associate position in the office. She was specifically

interested in an office cashier position because it was a

promotion track to management positions. Petitioner also

testified that upon Ms. Blanchard's recommendation, she

registered an inter est for a cake decorator position in the

Bakery Department, a position which has lighter duty than a

bakery clerk position, but a cake decorator is not on a promotion

track. Apparently, Ms. Blanchard would be the one to determine

if Petitioner were latera lly transferred to a cake decorator

position. Petitioner provided no further direct information as

to why she did not get this position, but from her stated belief

that one "could not get ahead in the Bakery Department unless

someone died," it is inferred that there were no available cake

decorator positions when she registered that interest.

27. The job description for Office Staff Associate is

almost exclusively devoted to bookkeeping, banking, and

accounting functions and responsibilities. These posit ions

handle and account for all cash in the store. The minimum

qualifications for Office Staff positions provide in pertinent

part:

• must be at least 18 years of age

• experience as an office cashier and

• must not have received a positive test

res ult on a company - sponsored drug

test within the last six months. (R - 5)

28. Barry Long informed Petitioner she was not qualified by

experience for the office staff openings soon to occur due to two

female office staff members taking maternity leave. H e

ultimately filled these positions with qualified persons during

the regular employees' maternity leaves.

29. Petitioner testified that she next told Mr. Long that

she would work as a line cashier for six months so as to get

promoted to Office Staff, and that although she repeatedly asked

him for a transfer to a line cashier position, for which she was

qualified, Mr. Long did not grant the transfer. Mr. Long denies

that this request was ever made.

30. The foregoing minimum requirements for Office Staf f do

not specify six months' experience as a line cashier; they

specify experience as an office cashier. If there is a separate

job description for office cashier that requires six months'

service as a line cashier, it was not presented at hearing.

There fore, Petitioner's reasoning as to why the line cashier

position would have helped her reach an Office Staff management

track position is flawed, and her testimony concerning this

conversation with Mr. Long thereby becomes less credible than

his.

31. Pe titioner also maintained that she wanted to transfer

to line cashier if only to protect her unborn child. She

testified that for that purpose, she arranged with non - pregnant

line cashier Rose Texera (phonetic spelling), to "swap"

positions. Petitioner te stified that she did not tell Bakery

Manager Anita Blanchard that she wanted to "swap" because of her

pregnancy, but she did present Ms. Blanchard with the "swap"

idea, and Ms. Blanchard did not oppose it. Petitioner did not

present the "swap" idea direct ly to Mr. Long, who was Ms.

Texera's immediate superior, but she believes that Anita

Blanchard did. Petitioner testified Ms. Blanchard told her that

Mr. Long said Petitioner did not have enough available working

hours because Petitioner was a part - time em ployee. Petitioner

did not verify with Mr. Long that the foregoing conversation ever

took place. Ms. Blanchard was not called to testify, and no

witness corroborated Petitioner. Mr. Long denied any such

arrangement was presented to him.

32. Petitione r tested out of college algebra and announced

to Mr. Long that she had become available to work anytime on

Mondays, Wednesdays, and Fridays and to do the closing shift on

Tuesdays and Thursdays. This would have made her available for

30 - 35 hours per week, which was virtually full - time availability.

She maintains that Mr. Long then said that he had made up his

schedule for the week and he would see about next week. She

assumed Mr. Long knew she was talking about a line cashier

position and that Mr. Long w as talking about a line cashier

schedule. Mr. Long was not examined at hearing about this

version of events.

33. Petitioner testified that in October 1998, after months

of requesting a transfer to line cashier, she went to the office

and said to Mr. Long , referring to her request to transfer to

line cashier, "So what's up, Barry, are we going to do this or

what?" and he replied, "You need to wait until after you have

that young'un." Petitioner claims that three other women

employees overheard this exchan ge. None of these women were

called to corroborate her version of this event.

34. Petitioner complained about the "young'un" comment to

Anita Blanchard. Ms. Blanchard told Petitioner that if it

bothered her, she should report it to the Store Manager h imself.

Petitioner told a male Assistant Manager (not Mr. Rosignol) who

replied, "He's not allowed to do that. If [Barry] said that, he

s -- t in his hat." Petitioner still did not feel she would get a

fair deal from any of the male managers in Store 231. The

Handbook said she could talk to anyone at any level of

management, inside or outside the store, but Petitioner

misinterpreted the instructions, and believed she

could not skip any levels of management and still be heard by the

next highest manager.

35. It is not clear from Petitioner's testimony whether she

reported the "young'un" comment to the Employer's Confidential

Hotline at this point in October 1998, or after she returned to

work in 1999. From the evidence as a whole, however, it is

probabl e she waited until 1999. (See Finding of Fact 44). The

Employer's Human Resources Investigator then came from

Jacksonville and interviewed Mr. Long. Mr. Long told the

investigator he never made the alleged "young'un" comment. At

hearing, Mr. Long again denied making the alleged "young'un"

comment.

36. The alleged "young'un" comment and the questions

related to why Petitioner would want to have a child (see Finding

of Fact 18), are the only comments Petitioner claims were related

to her pregnancy, althou gh she also testified that Mr. Long asked

her one time, "Are you ready?" and then laughed when she said she

was. She thought he was referring to her transfer request when

she answered, but in retrospect, she thinks he was just teasing

her.

37. On Novem ber 25, 1998, while still a bakery clerk, and

knowing it was contrary to the Employer's safety policy,

Petitioner climbed up on a table to put cream cake packages away

overhead in the freezer. Getting down, her foot slipped, and she

fell on the table, lan ding on her buttocks.

38. Petitioner did not report the fall at that time

because, by experience, she believed she had 48 hours in which to

report it. Over the next 48 hours, while she was on regularly

scheduled leave at her home, she had cramping and th en the baby

ceased to move. She was admitted to the hospital and delivered a

stillborn child. It is unclear when Petitioner got around to

reporting the fall to her Employer. (See Finding of Fact 44.)

39. A line cashier's job description is as follows:

• Weighs and scans customer product.

• Greets customers and responds to their

questions.

•Accepts payment and counts back the

change.

•Handles cash and other media

accurately.

•Utilizes strong interpersonal skills.

• Packages groceries as needed.

•Keeps th e checkstand area neat and

clean.

•Assists in other duties as assigned.

Duties are performed primarily at the

front - end area of the store with exposure to

outside weather conditions at times. Work

includes standing at checkstand for prolonged

periods, re petitive arm and hand movements,

and moving and lifting of product at

checkstand, along with continuous interaction

with customers and associates. (P - 2)

40. Petitioner testified that, regardless of the job

description, she knew that as a line cashier sh e would be

required to lift 50 - pound sacks of dog food, but that she thought

that she could get help with these items from the baggers.

41. Bakery clerk and line cashier are each entry - level,

wages - per - hour positions, with substantially the same benefit s.

It is undisputed that they could be considered "lateral."

42. Mr. Long testified that in approximately August 1998, a

Super WalMart had opened down the street and had a $50,000, per

week, adverse impact on sales at Store 231. Mr. Long's Common

Area w as heavily affected. With the precipitous drop in customer

and revenue numbers, Store 231 had more line cashiers than were

really needed. Mr. Long did not need to schedule as many hours

or as many people after August 1998, as he did before that date.

He addressed the problem by slowly tapering schedules down and

not filling line cashier positions. Due to the crucial financial

nature of Office Staff positions, he did fill the Office Cashier

positions as described above.

43. Petitioner did not demonst rate that there were any line

cashier vacancies during the period that she was allegedly

requesting to transfer into such a position. Petitioner did not

prove that anyone else similarly situated to herself who was not

pregnant, was granted such a transfer between June and November

1998. She also did not prove that Mr. Long hired anyone new as a

line cashier during that period when she was requesting the

transfer. Her only evidence that a line cashier position could

have been created for her relates to th e "swap" arrangement with

Rose Texera. (See Finding of Fact 31.)

44. Petitioner did not formally complain to higher levels

of management about the failure to transfer her to line cashier

until after she returned from Family Medical Leave, sometime in

Ja nuary 1999, following the tragic stillbirth and funeral of her

child. It is unclear whether she was given a line cashier

position immediately after her return because she wrote a letter

accusing the Employer of causing the death of her child, or if

the Em ployer offered her a line cashier position as a proposed

resolution to the instant February 9, 1999, Charge of

Discrimination filed with the Florida Commission on Human

Relations on or about February 16, 1999. (Joint Exhibit A).

Petitioner has been servi ng as a line cashier ever since.

45. Shirley Poling, Rosalind Williams, Kim Wilkinson, and

Pam Walls experienced no discriminatory treatment or commentary

from Barry Long related to their pregnancies. Shirley Poling

overheard comments by co - workers that she was a "wuss" because

she did not work normally through her pregnancy.

46. Tami Glover worked as a bagger at Store 231. The work

done by a bagger is to put the customer's product in bags, put

the bags in a cart, wheel the cart to the customer's car, load

the bags into the customer's car, and bring back the cart used

and other stray carts anyone else has left in the parking lot.

Sometimes, customers buy heavy water bottles and 50 - pound bags of

dog food, which baggers have to lift in and out of the car ts.

47. Tami Glover testified that Barry Long put her on "cart

duty." Assignment to "cart duty" meant she had primary

accountability for returning carts from the parking lot during a

one - hour time slot during each shift that she worked as a bagger.

S he maintained that Mr. Long made this assignment within the same

conversation during which she told him she was pregnant by one of

the Assistant Managers (not Larry Rosignol). 3 She considered

Mr. Long's putting her on "cart duty" to be discrimination

aga inst her as a pregnant female. However, she admitted that she

never provided Mr. Long with a medical excuse stating she could

not, or should not, do this task or any of the other tasks

involved in being a bagger.

48. Mr. Long was entirely credible that one of his office

staff subordinates, using a blind rotation system, put Ms. Glover

first on the cart list, the first day he instituted the cart

list; that the cart list was instituted to ensure that someone

was accountable each hour for the carts that we re not otherwise

being brought into the store; that each bagger would take an

hour's turn at this task each shift (a fact Ms. Glover admitted

was true); that the Employer had a written policy against any

associate moving more than five carts at a time; and that,

therefore, he had no reason to believe cart duty would be bad for

the pregnant Ms. Glover.

49. Ms. Glover asked Mr. Long for a transfer to avoid heavy

lifting, but she presented no medical excuse. Mr. Long told her,

"We aren't training cashiers n ow." How this conversation relates

to the time frame when Petitioner was requesting a transfer is

unclear.

50. Ms. Glover orally complained to Mr. Long about the cart

list, about having to lift heavy dog food bags and water bottles,

and about having to go into the parking lot at all during her

pregnancy. She also claims Mr. Long told her she looked like "a

cow" when she was pregnant, a comment he adamantly denied. She

never filed a formal complaint with the Employer against

Mr. Long.

51. If Mr. L ong had acquiesced in all Ms. Glover's

accommodation requests, the only part of a bagger's duties she

would have been performing would have been putting some of the

customers' product into bags. Since Ms. Glover produced no

written medical restrictions, M r. Long had no reason to grant her

requests.

52. Accordingly, Ms. Glover's testimony does not support

any discrimination or hostile work environment emanating from

Mr. Long or the Employer.

53. Jennie Daniels Sammons had worked successfully for

Stor e 231 as a bagger, line cashier, and produce clerk. When

Barry Long transferred into Store 231 in October 1997, she was

again a line cashier and pregnant. When she was less than 12

weeks pregnant and not in the store, she began to bleed. Her

doctor oral ly ordered her to a week of bed rest. At 10:30 p.m.,

the night before she was to report for her 11:00 a.m. shift at

the store, she realized she should tell the Employer she would

not be in for a week. She telephoned the store, and Mr. Long

answered. At that point, they did not know each other or

anything about each other. Ms. Sammons testified that she told

Mr. Long the equivalent of "I am bleeding and cannot leave the

bed for a week." He testified she gave him no details beyond the

equivalent of "I'm sick and can't come in for a week." He told

her to provide him with a written medical excuse before her

regularly scheduled shift the next day at 11:00 a.m., or he would

write her up. This was the Employer's usual policy and

procedure. Ms. Sammons manag ed to timely present the written

medical excuse to Mr. Long, but at great inconvenience to her

mother who took off work to deliver it. Accordingly, Mr. Long

did not write her up.

54. Ms. Sammons did not respect Mr. Long due to their

acrimonious first encounter. For that event, and because she

felt Mr. Long was not treating her properly, either due to her

pregnancy or because she was not "available," Ms. Sammons

reported him to the Employer's Confidential Hotline. She

believes that the Employer's Huma n Resources Office either

telephoned the Store Manager or sent someone to Store 231 to

investigate her complaint and that her identity was revealed,

because all the managers "treated [her] like a queen" for a few

days and then went back to business as usua l. However, aside

from her vague testimony that the cute, flirtatious girls got

more attention and time from all the managers, including

Mr. Long, than did the pregnant and/or unavailable women, she

could describe no "discrimination."

55. Thereafter, o n or about December 19, 1997, Mr. Long

wrote - up a counseling sheet on Ms. Sammons, as required by the

Employer's policy, because her till was short. Ms. Sammons

conjectured that Mr. Long deliberately took the money from her

till to make her look bad or g et rid of her.

56. Five - and - a - half weeks before her expected delivery

date, Ms. Sammons began labor. The labor was not extreme, and in

an effort to stop or delay it, her doctor ordered her home to

rest. She went to Store 231 on her way home from her doctor's

office and told the women in the office she was "standing here in

labor." Mr. Long came out of the inner office and she handed him

the note. The note is not in evidence, and Ms. Sammons could not

remember how explicit it was. Mr. Long read the note and asked

if Ms. Sammons could finish out the week. She knew he asked this

because he did not want to be left short - handed or have his shift

schedule disrupted. She testified that she was offended at what

she perceived as Mr. Long's insensitivity an d felt she had to go

on shift because of his comment. Later that day, she went on

early maternity leave because Mr. Long said something more that

offended her, the substance of which she did not recall when

testifying. She chose to stay home with her bab y after her

maternity leave ran out.

57. Ms. Sammons left on maternity leave around Easter

(Spring) 1998. This was well before the Super WalMart drained

away much of Store 231's business, making line cashiers

plentiful, and well before Petitioner became pregnant.

58. Accordingly, Ms. Sammons' testimony does not establish

any specific hardship in working conditions or discrimination due

to her pregnancy.

CONCLUSIONS OF LAW

59. The Division of Administrative Hearings has

jurisdiction over the parti es and subject matter of this cause,

pursuant to Section 120.57(1) and Chapter 760, Florida Statutes.

60. The threshold issue is one of the scope of the

foregoing jurisdiction. When Petitioner filed her February 9,

1999, Charge of Discrimination on or a bout February 16, 1999, she

claimed:

In October, 1998, I was denied a job class

code change in my position as Bakery Clerk to

Cashier . . . . I believe I was

discriminated against because of my sex,

Female, Pregnancy . . .. (Joint Exhibit A)

That limited issue is all the Commission had reviewed at the time

it entered its proposed final agency action of "Determination: No

Cause," on February 19, 2002.

61. When Petitioner timely filed her Petition for Relief,

however, her allegations had expanded to:

Beat y was the subject of a hostile work

environment created by certain managers and

supervisors . . .. Beaty and numerous other

female employees were compelled to endure a

hostile working environment on a daily basis

. . .. Beaty and numerous other female

emp loyees were subject to constant sexual

verbal abuse, sexual verbal disdain, and

repeated comments by Assistant Store Manager

Larry Rosignol and Common Area Manager, Barry

Long . . .. The pattern of conduct on the

part of Mr. Rosignol and Mr. Long was

dire cted exclusively at female employees and

pregnant female employees who were forced to

endure constant sexual assaults on a daily

basis. (Joint Exhibit B).

The Commission never had an opportunity to consider the charge of

"hostile work environment" whic h was raised more than 365 days

after it allegedly occurred.

62. The Recommended Order in Schwartz v. Guy M. Tunnell,

Bay County Sheriff's Office , DOAH Case No. 99 - 4043 (June 29,

2001) held:

A precondition to the jurisdiction of

discrimination actions und er Chapter 760,

Florida Statutes, before the Division is that

a charge of discrimination must be filed

before the Florida Commission on Human

Relations within 365 days of the last act of

alleged discrimination. If a particular type

of discrimination is no t timely claimed, it

cannot be added by the Petition for Relief or

other means over objection after the 365 days

have passed. Miller v. Levy County , DOAH

Case No. 97 - 3732 (Recommended Order

November 26, 1997; Final Order adopting in

toto August 4, 1998); Lannon v. Barnett

Banks, Inc. , DOAH Case No. 93 - 5465

(Recommended Order February 23, 1995; no

Final Order); Luke v. Pic 'N' Save Drug

Company, Inc. , DOAH Case No. 94 - 0294

(Recommended Order August 25, 1994; Final

Order adopting in toto December 8, 1995);

Austin v. Florida Power Corp. , DOAH Case

No. 90 - 5137 (Recommended Order June 20, 1991;

Final Order adopting in toto October 24,

1991.

63. In its Final Order in Schwartz , entered April 17, 2002,

the Commission rejected that paragraph of the Recommen ded Order,

as applied to the facts of that case, in view of the extensive

Charge of Discrimination filed in that case, and stated that the

paragraph quoted from the Recommended Order is not precedent for

the decision of future cases. However, the Commissi on has not

overruled the cases cited therein.

64. Due to the ambiguity of the Final Order in Schwartz and

the concept that "hostile work environment" can be a continuing

pattern, Petitioner was permitted to present any evidence which

might fall within the four corners of the Petition for Relief.

Petitioner was precluded from presenting any evidence or mere

gossip/hearsay about managers who were not named in the Petition

for Relief or about the named managers' (Long's and Rosignol's)

sexual relations with anyone other than an employee.

65. However, this is by no stretch of the imagination a

"handicap" discrimination case. Pregnancy is not viewed at law

as a handicap. Petitioner requested no accommodation for a

handicap, for pregnancy, or for a medical condition (symptom)

associated with either. Indeed, Petitioner brought to the

Employer no medical excuse to support any of her requests.

66. The shifting burdens of proof in disparate treatment

cases are set out most cogently in Department of Correctio ns v.

Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991):

The United States Supreme Court set forth the

procedure essential for establishing such

claims in McDonnell Douglas Corp v. Green ,

411 U.S. 792 (93 S.CT. 1817, 36 L.Ed. 2d 668

(1973), which was then revi sited in detail in

Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67

L.Ed. 2d 207 (1981). Pursuant to the Burdine

formula, the employee has the initial burden

of establishing a prima facie case of

intentional discriminati on, which once

established raises a presumption that the

employer discriminated against the employee.

If the presumption arises, the burden shifts

to the employer to present sufficient

evidence to raise a genuine issue of fact as

to whether the employer d iscriminated against

the employee. The employer may do this by

stating a legitimate, nondiscriminatory

reason for the employment decision; a reason

which is clear, reasonably specific, and

worthy of credence. Because the employer has

the burden of produc tion, not one of

persuasion, which remains with the employee,

it is not required to persuade the trier of

fact that its decision was actually motivated

by the reason given. If the employer

satisfies its burden, the employee must then

persuade the fact fin der that the proffered

reason for the employment decision was

pretext for intentional discrimination. The

employee may satisfy this burden by showing

directly that a discriminatory reason more

likely than not motivated the decision, or

indirectly by showi ng that the proffered

reasons for the employment decision is not

worthy of belief. If such proof is

adequately presented, the employee satisfies

his other ultimate burden of demonstrating by

a preponderance of evidence that he or she

has been the victim o f intentional

discrimination. (Citations omitted).

Id. at 1185 - 1186.

67. Petitioner is female. She was pregnant, a condition

exclusive to females. If she can establish discrimination on the

basis of pregnancy, it constitutes discrimination on the ba sis of

her sex (gender). Pinchback v. St. John's County Sheriff's

Department , 7 FALR 5369 (August 12, 1985). 4

68. Petitioner's, Ms. Poling's, Ms. Glover's and

Ms. Sammons's claims of disparate treatment on the basis of

pregnancy arise more from being t reated all the same with each

other and with every other employee, until and unless they

presented a medical excuse, rather than from any disparate

treatment on the basis of their pregnancies.

69. Although Mr. Long denied making the comment, I conclude

Pe titioner to be credible when she testified that Mr. Long said

"You need to wait until after you have that young'un." However,

having observed the candor and demeanor of both Petitioner and

Mr. Long, and having heard all the testimony, I cannot conclude

th at Mr. Long understood they were talking about a requested

transfer to line cashier. Based on Petitioner's testimony that

she "did not want to use [her] pregnancy," her failure to bring

him a medical excuse, and the vagueness of her single "this job

is ki lling me," comment, I also am not satisfied that Mr. Long

understood Petitioner was asking to transfer on the basis of her

pregnancy. Under these circumstances, Mr. Long was not lacking

in veracity on other matters simply because he testified that the

"yo ung'un" comment never took place. Admittedly, Mr. Long's

credibility is not enhanced by his telling Petitioner that he

might schedule her next week in response to her telling him she

could work more hours, or by his not telling her she could not

have the line cashier transfer because he had more line cashiers

than he needed, but Mr. Long is credible that he was not aware at

any time that Petitioner wanted a line cashier position rather

than an office cashier position.

70. Assuming arguendo that Petitioner , through the

foregoing conversations, established a prima facie case, that

does not end the legal analysis.

71. There is no statutory or case law requirement that an

employee be transferred just because s/he wants to be.

Petitioner does not dispute that the WalMart opening had hurt the

Employer's business. Mr. Long is believable that he did not need

more cashiers.

72. Respondent Employer is not required to do more than

present its non - discriminatory reasons. It is not required to

persuade. The stan dards of proof still require that Petitioner

show the employer's evidence is merely a pretext for

discrimination. See , generally Bass v. Bd. Of County

Commissioners of Orange County , 242 F.3d 996, 1014 (11th Cir.

2001); Simmons v. Camden County Bd. Of Edu c. , 757 F. 2d 1187

(11th Cir. 1985) cert. den. 474 U.S. 981, 106 S. Ct. 385 (1985).

The employer's burden of proof is "merely one of production, not

persuasion, and is exceedingly light," Buzzi v. Gomez , 62 F.

Supp. 2d 1344, 1356 (S.D. Fla. 1999) (interna l citations

omitted.) Even mixed discriminatory and non - discriminatory

reasons will not defeat the employer's case.

73. Petitioner has no real knowledge that her idea to

"swap" positions with Rose Texera was presented to Mr. Long by

Ms. Blanchard. He sa ys it was not. 5 Nor do employees

unilaterally get to decide who works in what department within an

employer's operation. Therefore, Petitioner did not demonstrate

that any non - pregnant person, male or female, was placed in a

line cashier position when sh e was not. She has not met the

shifting burden of proof for proving disparate treatment.

74. Also, in purely legal terms, the proximate cause of

Petitioner's fall from the table was not Mr. Long's failure to

transfer her, or her working in the bakery, but her working in

the bakery in a manner contrary to Respondent Employer's safety

policy requiring use of a ladder and contrary to her immediate

supervisor's specific instructions.

75. Sexual harassment is a form of gender discrimination

prohibited by Ti tle VII and the Florida Civil Rights Act. When

making a claim of sexual harassment, there are two possible forms

that can be alleged: hostile work environment and quid pro quo

Scelta v. Delicatessen Support Services, Inc. , 57 F. Supp. 2d

1327, 1339 (M.D. Fla. 1999).

76. To prove a claim of "hostile work environment," which

is the type of sexual harassment this Petition for Relief

alleges, an employee must prove five elements: (1) that the

employee belongs to a protected class; (2) that the employee was

subjected to unwelcome harassment; (3) that the harassment was

based on the employee's sex; (4) that the harassment affected a

"term, condition, or privilege of employment;" and, (5) that the

employer knew or should have known of harassment and failed to

intervene. Succar v. Dade County School Board , 229 F.3d 1343,

1344 - 1345 (11th Cir. 2000); Henson v. City of Dundee , 682 F.2d

897, 903 - 905 (11th Cir. 1982).

77. Four factors are considered in determining whether

harassment objectively altered an employee' s terms or conditions

of employment: (1) the frequency of the conduct; (2) the severity

of the conduct; (3) whether the conduct is physically threatening

or humiliating, or a mere offensive utterance; and (4) whether

the conduct unreasonably interferes wit h the employee's job

performance. Harris v. Forklift Systems, Inc. , 510 U.S. 17, 23,

114 S. Ct. 367, 126 L.Ed. 2d 295, (1993); Mendoza v Borden, Inc. ,

195 F.3d 1238, 1246 (11th Cir. 1999). The environment must be

one that a "reasonable person would find hostile or abusive" and

that "the victim . . . subjectively perceive[s] . . . to be

abusive." Harris v. Forklift Systems, Inc. , supra , at page 21.

Furthermore, the objective severity of the harassment should be

judged from the perspective of a reasonable person in the

Petitioner's position, considering all the circumstances. Harris

v Forklift Systems, Inc. , at page 23.

78. I accept Ms. Glover's direct testimony of being extra -

maritally impregnated by a manager not named in the Petition.

The gossip abou t Mr. Rosignol's premarital sexual relations with

the underage female employee who became his wife was not proven

as fact. Both situations would be contrary to the Employer's

Policy. Given one's value system, such activities also may be

viewed as unwise, immoral, or irresponsible, but they remain a

fact of life in modern times. No evidence of a quid pro quo

situation was presented. The proven comments of the managers

were ambiguous, sporadic, and did not demonstrably interfere with

any complaining witne ss's job performance. Petitioner was able

to ignore most of the comments. She continued to get quarterly

raises.

79. The assertion that hers was a "hostile work

environment" has not been proven.

RECOMMENDATION

Upon the foregoing findings of fact and conc lusions of law,

it is

RECOMMENDED that the Florida Commission on Human Relations

enter a Final Order dismissing the Petition for Relief and the

Charge of Discrimination.

DONE AND ENTERED this 18th day of July, 2002, in

Tallahassee, Leon County, Flor ida.

___________________________________

ELLA JANE P. DAVIS

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of July, 2002.

ENDNOTES

1/ See the Conclusions of Law as to jurisdictional limits of the

Charge of Discrimination and Petition for Relief.

2/ Exhibit P - 3, a note written by Petitioner's obstetrician six

months after the stillbirth, does not constitute a "medical

records" exception to Chapter 90, Florida Statutes' prohibition

against hearsay. It was admitted in evidence, over objection,

pursuant to Sect ion 120.57(1)(c), for the limited purpose of

"explaining or supplementing" Petitioner's direct testimony as to

her state of mind, related in Finding of Fact 1, that the fall

killed her healthy child in utero and her further testimony that

she did not provi de a medical excuse to the employer during the

material period of time. However, P - 3's recitation that

Petitioner was "told" not to lift over 20 pounds and to go on

light duty immediately before the fall, that a pathology report,

not in evidence, showed s pecific medical damage which lead to the

stillbirth, and the opinion that this damage was induced by the

fall, may not be used for findings of fact, over objection,

because these recitations constitute opinions of an expert who

was not subject to cross - exa mination.

3/ Tami Glover was 18, and separated from her husband, when she

claimed to have had consensual sexual relations with an Assistant

Manager (not Mr. Long or Mr. Rosignol) and became pregnant. She

was outraged because she believed her lover had described her to

other managers as "a good lay." This type of relationship is

forbidden by the Employer's "no - conflict" policy, which, if

brought to the attention of any higher manager would result in

one of the employees being terminated or transferred.

Apparently, no one, including Ms. Glover, notified any higher

manager.

4/ Peripherally, it is noted that Petitioner seeks "back pay."

Precisely what "back pay" she seeks is problematic since she was

on Family Medical Leave for the stillbirth from appro ximately

November 25, 1998, to sometime in January 1999. She had begun to

work 30 - 35 hours per week in the Bakery Department at the time of

the accident, and if, as she contends, she was only seeking a

lateral transfer to a position with identical or subs tantially

similar benefits, the only relief available, if she were to

prevail in this forum, would be to award her the lateral transfer

and admonish the Employer against past discrimination and against

any future similar acts. Since Petitioner was placed in a line

cashier position as of January or February 1999, no relief is now

indicated beyond an admonition.

5/ Petitioner's testimony that Ms. Blanchard told her what

Mr. Long said is second degree hearsay and not probative of

anything that occurred bet ween Ms. Blanchard and Mr. Long.

COPIES FURNISHED :

John P. Contini, Esquire

Marlon E. Bryan, Esquire

Law Office of John P. Contini

950 South Pine Island Avenue

Suite 1003

Plantation, Florida 33324

Tammie L. Rattray, Esquire

Kevin M. Smith, Esquire

For d & Harrison, LLP

101 East Kennedy Boulevard, Suite 900

Tampa, Florida 33602 - 5133

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

2009 Apalachee Parkway

Suite 100

Tallahassee, Florida 32301

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.