04-001569 Ethel Rials vs. Bankatlantic Status: Closed Recommended Order on Friday, August 27, 2004.

Summary: Without personal testimony or eye witness testimony it is impossible to conclude alleged acts occurred or were intended to harass Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ETHEL RIALS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1569

)

BANKATLANTIC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on June 21, 2004, by video teleconference with the parties

appearing from Fort Lauderdale, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ethel Rials, pro se

3832 Baymeadows Road, No. 211

Jacksonville, Florida 32217

For Respondent: Angelo Filippi, Esquire

Stearns, Weaver, Miller, Weissler,

Alhadeff & Sitterson, P. A.

200 East Broward Boulevard,Suite 1900

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the Respondent, BankAtlantic, committed an act of

discrimination in violation of Chapter 760, Florida Statutes, in

relation to its treatment of the Petitioner, Ethel Rials.

PRELIMINARY STATEMENT

This case began on October 21, 2003, when the Petitioner,

Ethel Rials, filed an Amended Employment Charge of

Discrimination with the Florida Commis sion on Human Relations

(FCHR) against the Respondent, BankAtlantic. The Petitioner

alleged the Respondent discriminated against her in violation of

Chapter 760, Florida Statutes, by harassing her and subjecting

her to a hostile work environment. The Pet itioner maintained

she was constructively discharged from her employment as a

result of such conduct on November 27, 2002.

On March 25, 2004, the FCHR issued a Determination: No

Cause that found there was no reasonable cause to believe that

an unlawful e mployment act had occurred. The Notice of

Determination: No Cause afforded the Petitioner with 35 days

within which to file a Petition for Relief. Thereafter, the

Petitioner timely filed the Petition for Relief that outlined

the basis for her claim for relief. The claim was transferred

to the Division of Administrative Hearings for formal

proceedings on April 27, 2004.

The hearing was scheduled for June 21, 2004. On June 17,

2004, the Respondent filed a Motion for Summary Final Order that

represented the Petitioner's claim should be dismissed as a

matter of law. That motion was not resolved prior to hearing.

As it was filed so near the hearing time and presented issues of

fact that required resolution, the questions of law were

deferred until the ent ry of this Order.

At the hearing, the Petitioner presented testimony from

Barbara Halprin, Sue Ann Cass, Edgardo Cardona, Alice Moore,

Coleen Bacchus, and Victoria Bloomenfeld. The Petitioner's

Exhibit 1 was received in evidence. The Respondent adopted the

evidence presented during the Petitioner's case and the

Respondent's Exhibits 1 - 4 were admitted into evidence.

The transcript of the proceedings was filed on July 9,

2004. By Order entered July 16, 2004, the Respondent's Motion

for Extension of Time to File Findings of Fact and Conclusions

of Law was granted. The parties were granted leave until

5:00 p.m., July 30, 2004, to file proposed recommended orders.

Both parties timely filed Proposed Recommended Orders that have

been fully considered in the preparation of this order.

FINDINGS OF FACT

1. At all times material to allegations of this case, the

Petitioner, Ethel Rials, was an employee of BankAtlantic. The

Petitioner worked in the Loan Servicing Department and was

responsible for monitoring ou tstanding loans. She is black.

2. The Loan Servicing Department was comprised of two

divisions: standard loans and complex loans. Alice Moore

supervised the standard loan division.

3. Barbara Halprin was the Senior Vice President and

Manager of the entire Loan Servicing Department. She evaluated

the employees and, in August 2000, gave the Petitioner an

excellent evaluation. At that time, the Petitioner exceeded the

performance expectations of her employer.

4. Subsequently, the Petitioner was prom oted to the

position of lead complex loan servicing specialist. Again, when

the Petitioner was evaluated, her work exceeded the performance

expectations of the employer. The Petitioner continued to

perform her work responsibilities in an excellent fashio n

through September 2001.

5. Sometime in 2002 it was announced that Alice Moore

intended to retire at the end of the year. Although Ms. Moore

did not recommend the Petitioner to assume her role as the

supervisor in standard loan servicing, other BankAtla ntic

employees did. In fact, Ms. Halprin determined the Petitioner

to be the most qualified and intended to promote the Petitioner

to the Moore position. She advised the Petitioner accordingly.

Petitioner acknowledged that she would be interested in the

promotion and, until the fall of 2002, Ms. Halprin presumed the

promotion would follow as planned.

6. In November 2002, the Petitioner took sick days on

November 20 - 21. She was scheduled for vacation days and was off

November 22 and 25. When the Petiti oner returned to work

November 26, 2002, she alleged she had been the victim of racial

discrimination and hostilities.

7. On November 26, 2002, the Petitioner told Ms. Halprin

of incidents that she claimed evidenced a hostile work

environment. For exam ple, the Petitioner claimed that on one

occasion someone had spilled coffee in front of her desk (a

large volume) such that the mess made her work area difficult to

use. Second, the Petitioner claimed that on one occasion

someone had left a note for her w ith "KKK" written on it.

Third, the Petitioner claimed that someone had spit on her desk.

And, fourth, the Petitioner claimed that an employee (Ms. Cass)

had attempted to publicly humiliate and harass the Petitioner by

implying work errors were attributa ble to the Petitioner.

8. It is undisputed a large quantity of coffee was spilled

in front of the Petitioner's desk on one occasion. Who spilled

the coffee is unknown.

9. The alleged "KKK" note was not produced or offered into

evidence. If written, i t is unknown who wrote the "KKK," when

it was written, or what it was intended to mean.

10. There is no evidence that anyone spit on the

Petitioner's desk.

11. There is no evidence that Ms. Cass intended to

humiliate or embarrass the Petitioner when er rors were

identified. Unknown persons in the Loan Department committed

errors that the Loan Servicing Department was required to

identify and correct. Although generally found and corrected

without issue, Ms. Cass did not like to deal with errors. The

P etitioner misapprehended her comments. The comments complained

of occurred on one occasion.

12. On November 27, 2002, the Petitioner resigned her

position with BankAtlantic and claimed she could not continue in

the hostile work environment.

13. The Resp ondent timely submitted all of the

Petitioner's claims to its personnel office for investigation,

but the Petitioner terminated employment without waiting for the

conclusion of the review.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

15. The Petitioner bears the burden of proof in this case

to establish that the Respondent committed an act of

discrimination in violation of Florida law. More specifically,

the Petitioner maintains that the Respondent created such a

hostile work environment that she was constructively discharged

on November 27, 2002.

16. Section 760.10(1), Florida Statutes (2003), provides:

It is an unla wful employment practice for an

employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

indi vidual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportuniti es, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

17. The Respondent's response to the allegations maintains

that the Petitioner is barred as a matter of law as she did not

raise a claim within 365 days of the alleged act of

discrimination or, if timely filed, the Petitioner's claims do

not support a conclusion of harassment or hostile work

environment.

18. Inasmuch as Chapter 760, Florida Statutes, is

patterned after the federal law prohibiting discriminatory acts

in employment, courts in Florida look to the wealth of federal

court precedent in construing provisions of Florida law.

Accordingly, the case of Lawrence v. Wal - Mart Sto res, Inc. , 236

F. Supp. 2d 1314 (M.D. Fla. 2002) is instructive in resolving

the instant matter. Lawrence , supra , holds that in order to

establish a hostile work environment the employee must prove he

belongs to a protected group (it is undisputed the Pet itioner is

black and is, therefore, within a protected group); he has been

the subject of unwelcome harassment; the harassment was based on

a protected characteristic; the workplace was permeated with

discriminatory intimidation, ridicule, or insult; and t he

employer was responsible for the conduct or failed to correct

the environment. Aside from establishing her membership within

a protected group, the Petitioner failed to establish any of the

other criteria.

19. The Petitioner did not testify. She di d not establish

how spilled coffee, an allegation of a "KKK" note, or an

allegation of spit on her desk were made known to her employer

and ignored. There is no evidence the employer fostered or

supported any of the acts, if true. Additionally, she did n ot

establish when or how the employer was to have become aware of

her concerns. When she did complain to the employer (who

promptly began an investigation of the allegations), the

Petitioner had already determined to leave employment.

20. Again, as set forth in Lawrence , supra , in order to

support a claim of discrimination, harassment of an employee

must be real, it must appear to a reasonable person to be

physically intimidating or humiliating, and it must be related

to the race of the complaining part y. In this case, the

Petitioner has failed to establish that the "harassment" was

real. She did not testify. The Respondent's acknowledgment of

a spilled pot of coffee does not mean it was spilled for the

purpose of harassing the Petitioner. How a reas onable person

could make that conclusion absent additional facts (not in

evidence in this case) is unknown. There is no evidence the

Respondent directed someone to spill coffee knowing it would be

particularly offensive to the Petitioner. Similarly, the other

allegations raised by Petitioner are either not supported by the

evidence in this cause or so remotely tied to the Respondent

that they cannot support a claim of harassment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

La w, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petitioner's claim.

DONE AND ENTERED this 27th day of August 2004, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

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.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of August, 2004.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Angelo M. Filippi, Esquire

Stearns, Weaver, Miller, Weissler,

Alhadeff & Sitterson, P. A.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301

Ethel Rials

3832 Baymeadows Road, No. 211

Jacksonville, Florida 32217

Victoria Bloomenfeld

Bankatlantic

1750 East Sunrise Boulevard

Fort Laude rdale, Florida 33304

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.