05-000632 Bernard Southwell vs. Carrabba`s Italian Grill Status: Closed Recommended Order on Thursday, November 10, 2005.

Summary: Petitioners were called offensive names, but failed to prove a hostile environment of sexual harassment, and there was no proof that the any harassment was based upon the gender of the employees. Recommend the petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JASEN BAKER, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0623

)

CARRABBA'S ITALIAN GRILL, )

)

Respondent. )

)

BERNARD SOUTHWELL, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0632

)

CARRAB BA'S ITALIAN GRILL, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in th ese case s before

Daniel M. Kilbride, Administrative Law Judge of the Division of

Administr ative Hearings , on July 27, 2005, in Orlando, Florida.

APPEARANCES

For Petitioner s : Jason M. Gordon, Esquire

Gordon & Cornell

103 North Atlantic Avenue

Cocoa Beach, Florida 32 931

For Respondent: Ke vin D. Johnson, Esquire

Th ompson, Sizemore & Gonzalez, P.A.

501 East Kennedy Boulevard, Suite 1400

Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether Respondent, Carrabba's Italian Grill, Inc.,

subjected Petitioners, Jasen Baker and Bernard Southwell, to a

host ile work environment and retaliation in violation of

Subsection 760.10(1)(a), Florida Statutes (2004).

PRELIMINARY STATEMENT

Petitioners, Jasen Baker and Bernard Southwell (referred to

individually as "Baker" and "Southwell," and collectively as

"Petitio ners") , filed a Charge of Discrimination with the

Florida Commission on Human Relations (FCHR) charging

Respondent , Carrabba's Italian Grill, Inc. ("Respondent"), with

employment discrimination on or about August 29, 2003, alleging

sex discrimination and r etaliation. On or about January 26,

2005, an amended "No Cause" determination was issued by FCHR as

to Baker . On January 19, 2005, a "Cause" determination was

issued by FCHR, as to Southwell . Petitioners each timely filed

a Petition for Relief with FCHR , alleging that they had been

subjected to a hostile work environment and retaliation and

requested a formal hearing. These matters were , subsequently ,

referred by FCHR to the Division of Administrative Hearings for

a final hearing de novo on February 22 and 23, 2005,

respectively, consolidated for hearing, and these matters w ere

set for hearing. Following discovery and the granting of the

parties' Motion for Continuance, a final h e aring commenced on

July 27, 2005.

At the hearing, Petitioners testified i n their own behalf

and presented the testimony of one witness, Ben See. Five

exhibits were admitted into evidence. Respondent presented the

testimony of eight witnesses , and seven exhibits were admitted

into evidence.

A four - volume Transcript was file d on September 14, 2005.

The parties were allowed 15 days from the date of the Transcript

in which to file proposed findings of fact and conclusions of

law. On October 3, 2005, Petitioners filed a joint Motion for

Extension of Time to file their proposal s. Respondent did not

object , and the motion was granted. The parties filed their

proposed F indings of F act, C onclusions of L aw and C losing

A rguments on October 31, 2005. Respondent filed a notice of

supplemental filing on November 1, 2005. Both partie s'

proposals have been given careful consideration in the

preparation of this Recommended Order .

FINDINGS OF FACT

1. Respondent operates a chain of casual Italian

restaurants.

2. Respondent has adopted a policy against discrimination

and harassment. In addition to prohibiting harassment, the

policy instructs employees whom to contact if they experience

harassment. The policy is contained in an employee handbook

that is distributed to all employees during the initial

orientation process. During orien tation, Respondent's manager

reviews the employee handbook with the new employee, including

the policy on sexual harassment. During the orientation

process, Respondent also requires employees to view a video that

explains that Respondent will not tolerate harassment. The

video familiarizes the employees with the company's expectations

regarding the reporting of harassment in the workplace.

3. During the orientation process, the employees are

required to sign an acknowledgment on the exterior of their

em ployee folder s indicating that they have received and read the

policy against harassment. The critical sections of the policy

are reprinted on the folder s immediately above the signature

line s .

4. All of Respondent's restaurants are required to display

a poster known as the "Carrabbamico Info" poster in the kitchen

area. This poster reprints the harassment policy and provides

employees with a list of names to call if they feel that they

have been harassed.

5. Respondent has implemented reasonable prec autions to

prevent harassment from occurring in its restaurants.

6. In the Central Florida market, Respondent's restaurants

are overseen by a joint venture partner named Dick Meyer. Meyer

is responsible for hiring and firing the managers of the

restaura nts that he oversees.

7. In March 2000, Lawton DePriest became the managing

partner at Respondent's Palm Bay location. DePriest reported to

Meyer. DePriest remained in that capacity until September 2003,

when he became the managing partner of Responden t's restaurant

located in Formosa Gardens. It was DePriest's management style

to frequently yell at employees in order to motivate them. It

is also possible that he had favorites on the staff of the Palm

Bay restaurant.

8. Baker was hired by Respondent 's Palm Bay restaurant in

January 2002. At the time that Baker began working for

Respondent, he attended an orientation session conducted by

DePriest. It was DePriest's practice during orientation to

discuss harassment issues and instruct employees to co me to him

directly if they experience any problems with sexual harassment.

If for some reason an employee is not comfortable with him,

DePriest would encourage the employee to contact any other

person listed on the poster.

9. Baker was given a copy of R espondent's handbook, which

contains the company's policy against harassment. On that same

date, January 19, 2002, Baker signed his employee folder on the

blank line under the harassment policy indicating that he had

read and received the policy. Whether he reviewed the employee

handbook further after that date is irrelevant.

10. Baker "vividly remembers" that during his orientation ,

he watched the videotape that included instructions on what he

should do if he felt harassed. However, during the hearing ,

Baker denied ever seeing the Carrabbamico I nfo poster. However,

Baker admitted on cross - examination that during his deposition ,

he had acknowledged seeing the Carrabbamico Info poster pos t ed

in the store. During the deposition, Baker specifically

remem bered that there were business cards with contact

information for Meyer and Cheri Ashe attached to the bottom of

the poster. Despite Baker 's attempt to deny seeing the poster,

his earlier answers in deposition w ere more credible in view of

his specific re collection of the attached business cards and the

lack of any persuasive explanation for the discrepancy.

11. After completing his orientation, Baker initially

worked as a dishwasher. Later, he was shown how to do food

preparation work.

12. Before comin g to work for Respondent, Baker had

previously worked for a restaurant by the name of Golden Corral.

During the time that he worked with Golden Corral, he became

acquainted with a co - worker named Bernard Southwell.

13 . In the summer of 2002, Petitioners discussed the

possibility of Southwell coming to work for Respondent. Baker

spoke favorably of the restaurant and recommended that Southwell

submit an application. At the time , Baker had worked for

Respondent for six or seven months.

14. Baker did not express to Southwell that he had

observed or experienced any problems with unwelcome harassment.

15. Southwell submitted an application and was hired by

Respondent's Palm Bay restaurant in August 2002 as a dishwasher .

16. At the time he began employment with Respondent,

Southwell was living with a friend of his named Joe Corbett.

17. At the time, Baker was living in a one - bedroom

apartment with his girlfriend. Several weeks later, Baker 's

girlfriend decided to move out. According to Petitioners , she

su ggested to Southwell that he move into Baker 's apartment to

replace her.

18. Around October 2002, Southwell moved out of the

Corbett residence and moved in with Baker . A third employee

named Chris Germana also moved into the residence around the

same tim e.

19. Because the apartment only had one bedroom, Germana

slept on the couch. Petitioners slept in the bedroom.

20. When employees at the restaurant learned of these

arrangements, speculation began about whether the two men were

homosexual.

21. Accord ing to Petitioners , sometime after Southwell

started to room with Baker, co - workers at the restaurant started

referring to Petitioners by nicknames. The co - workers referred

to Baker as "powder," "crack pipe," and "crack head." Baker

knew that "powder" wa s a reference to a character from the movie

"Powder" and that the name had not h ing to do with his sexuality.

22. The co - workers also referred to Petitioners as "butt

buddies." Southwell testified that a male co - worker,

Christopher Bouley , told him, "I kn ow you guys are lovers."

23. Bouley, Arnold Samuel and DePriest all used these

nicknames on occasion to refer to both Petitioners , according to

Baker .

24. After several months, Southwell eventually went to

DePriest and complained about the "powder," "cra ck pipe," and

"butt buddies" nicknames. Southwell told DePriest that the

nicknames were funny at first, but that they started getting

old. DePriest then told Samuel and Bouley to stop using the

nicknames. Thereafter, the use of the nicknames stopped.

2 5. Southwell claimed that Bouley would gyrate his hips

behind other employees as they were be nding down. However,

Petitioners both admitted that Bouley would do these hip motions

to both male and female employees.

26. During the hearing, Petitioners clai med that Bouley

subjected them to unwelcome touching.

27. Baker claimed that Bouley had touched his buttocks

once. However, Baker acknowledged that when his deposition was

taken prior to the final hearing, he did not mention that Bouley

touched his butto cks. In fact, when asked during his deposition

whether he had been sexually harassed, Baker testified that he

had not and that he had only been verbally harassed.

Furthermore, Baker made no mention of any physical touching in

the A ffidavit that he submit ted to FCHR at the time he filed his

charge of discrimination.

28. Southwell never saw Bouley touch or grab Baker's

buttocks. And despite their close relationship, Baker never

told Southwell that Bouley had grabbed his buttocks.

29. Accordingly, Baker 's allegation that he was touched

inappropriately by Bouley or any other of Respondent's employees

is not credible.

30. Southwell claimed that Bouley had touched his buttocks

on two or three occasions and touched h is nipples twice.

31. Southwell also claim ed that Bouley had touched his

penis on one occasion. According to Southwell , he was bending

down to pick up saut é pans when Bouley, who was supposedly

standing behind him, reached between Southwell's legs from

behind and clutched Southwell's genital area through his

trousers. This incident supposedly occurred during the

restaurant's hours of operation while customers were in the

restaurant. The alleged grabbing supposedly took place in front

of a stove that sat in full view of customers seated at the

re staurant's bar. Bouley flatly denied ever touching

Southwell's genitals or pri v ate area.

32. In the A ffidavit that Southwell submitted to FCHR at

the time he filed his charge of discrimination, Southwell made

no mention of Bouley touching Southwell's pen is. At the time

that he submitted this A ffidavit, Southwell was represented by

counsel. Southwell did not offer any convincing reason for the

omission of any description of his genitals being grabbed.

33. Accordingly, Southwell 's allegation that Bouley

touched Southwell's genitals is not credible.

34. Although Petitioners testified that they spoke to

DePriest on several occasions, they admit that they never spoke

to any of the other individuals listed on the harassment poster

to complain about sexual ha rassment.

35. DePriest testified that the only complaint he ever

received had to do with the nicknames and that he took prompt

action to resolve this problem.

36. Annually, Respondent submits an employee experience

survey to its employees that is complet ed anonymously and

forwarded to an outside company for analysis. After the survey

is completed , employees participate in a small group feedback

session to discuss the results of the survey. On March 11,

2003, DePriest held the feedback session for his st ore, which

was attended by Petitioners . During the session, Southwell

commented about the situation with the nicknames. He indicated

that the situation was resolved when it was brought to

DePriest's attention.

37. This was the sole extent to which eithe r employee

complained of unwelcome behavior. Respondent was not on notice

of any problems with regard to touching or more serious

inappropriate behavior.

38. On March 12, 2003, Petitioner s ' last day of work,

Southwell approached DePriest to complain abou t scheduling for a

special event at the convention center. Southwell stated that

he and Baker had signed up to participate in this event .

Southwell was scheduled for the event, but Baker was not.

DePriest explained that he needed Baker to float , because there

were not enough people schedule d to work a t the restaurant that

night. DePriest later talked to Baker, who indicated that he

was not disappointed that he was not participating in the event.

That conversation, however, was the last time that DePrie st saw

Baker. DePriest learned that Petitioners had left before the

end of their shift , when the plates in the restaurant were

getting low and the saut é pans were getting stacked up.

DePriest asked about the whereabouts of Petitioners and learned

that th ey were seen riding their bicycles away from the

restaurant. DePriest could not contact them because they did

not have a telephone. DePriest eventually terminated their

employment for voluntarily walking off the job.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2005), and Florida Administrative Code Rule

60Y - 4.016(1) .

40. The State of F lorida, under the legislative scheme

contained in Chapter 760, Florida Statutes (200 3 ), incorporates

and adopts the legal principles and precedents established in

the federal anti - discrimination laws specifically set forth

under Title VII of the Civil Righ ts Act of 1964, as amended.

42 U.S.C. § 2000e, et seq. The Florida law prohibiting unlawful

employment practices is found in Section 760.10, Florida

Statutes (2004). This section prohibits discrimination against

any individual with respect to compensati on, terms, conditions,

or privileges of employment because of such individual's sex.

§ 760.10(1)(a), Fla. Stat. (2004). FCHR and the Florida courts

interpreting the provisions of the Florida Civil Rights Act of

1964 have determined that federal discrimin ation laws should be

used as guidance when cons t ruing provisions of the Act. See

Brand v. Florida Power Corp. , 633 So. 2d 504, 50 6 (Fla. 1st DCA

1994); Florida Department of Community Affairs v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakel and Regional

Medical Center , 16 F . A . L . R . 567, 574 (FCHR 1993). The United

States Supreme Court has held that sexual harassment is a form

of sex discrimination. See Me rit or Savings Bank v. Vinson , 477

U.S. 57, 64 (1986).

41. Petitioners have the ultimate burden to prove

discrimination either by direct or indirect evidence. Direct

evidence is evidence which, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 578, 581 - 82 (11th Cir. 1989).

Blatant remarks, whose intent could be nothing other than to

discriminate, constitute direct evidence of discrimination. See

E arley v. Champion International Corporation , 907 F.2d 1077,

1081 (11th Cir. 1990). Petitioners have not presented any

ev idence which would constitute direct evidence of

discrimination.

42. Absent any direct evidence of discrimination, the

Supreme Court established, and later clarified, the burden of

proof in disparate treatment cases in McDonnell Douglas v.

Green , 411 U.S. 792 (1973) and T exas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981) , and again , in the case

of St. Mary's Honor Center v. Hicks , 509 U.S. 502, 113 S. Ct.

2742 (1993).

43. To support a claim of hostile environment sexual

harassment , a p etitioner must establish :

(1) that he or she belongs to a protected

group; (2) that the employee has been

subject to unwelcome sexual harassment, such

as sexual advances, requests for sexual

favors, and other conduct of a sexual

nature; (3) that the har assment must have

been based on the sex of the employee;

(4) that the harassment was sufficiently

severe or pervasive to alter the terms and

conditions of employment and create a

discriminatorily abusive working

environment; and (5) a basis for holding the

employer liable.

Gupta v. Florida Board of Regents , 212 F.3d 571, 582 (11th Cir.

2000).

44. Petitioners have failed to establish that they were

subjected to harassment that was sufficiently severe or

pervasive to support their claim of hostile environme nt sexual

harassment . The severe or pervasive element tests the mettle of

most sexual harassment claims. Gupta , 212 F.3d at 583. By

requiring the petitioner to prove that the harassment is severe

or pervasive , ensures that Title VII does not become a me re

"general civility code." Id. (citing Faragher v. City of Boca

Raton , 524 U.S. 775, 788 (1998). This requirement is regarded

"as crucial, and as sufficient to ensure that courts and juries

do not mistake ordinary socializing in the workplace -- such as

male - on - male horseplay or intersexual flirtation -- for

discriminatory 'conditions of employment.'" Id. (quoting Oncale

v. Sundowner Offshore Services, Inc. , 523 U.S. 75, 8 1 (1998).

Thus, a petitioner must establish not only that they

subjectively perce ived the environment as hostile and abusive,

but also that a ny reasonable person would perceive the

environment to be hostile and abusive. Id. (citing Mendoza v.

Borden, Inc. , 195 F.3d 1238, 1246 (11th Cir. 1999). The Supreme

Court has recognized that un der the severe and pervasive

requirement, ordinary tribulations of the workplace, such as the

sporadic use of abusive language, gender - related jokes and

occasional teasing, fall outside the broad protections of Title

VII. Faragher , 524 U.S. at 788.

45. I n Gupta , the petitioner claimed that the harasser had

touched her knee and raised the hem of her dress, touched her

jewelry, commented that she looked very beautiful, and called

her at home two to three times per week, often suggesting that

he would like t o come over and spend the night. Gupta , 212 F.3d

at 584 - 58 5. The Eleventh Circuit found that this conduct was

not sufficiently severe and pervasive to qualify as harassment.

46. In Speedway Super America , LLC v. Dupont , 2005 WL

1537247 ( Fla. 5th DCA 200 5), the Fifth District Court of Appeal

reversed a jury verdict in favor of a sexual harassment

plaintiff , because the plaintiff failed to show that the conduct

she experienced was sufficiently severe and pervasive. Although

the plaintiff claimed that the harasser had touched her buttocks

and rubbed her shoulders in a sexual manner, the court found

that this conduct was not so severe and pervasive as to qualify

as a hostile environment under the Florida Civil Rights Act.

47. The evidence is not persuasive that the touching

incidents described by Petitioners even occurred. Southwell

claimed that Bouley grabbed his nipples on two occasions,

grabbed his buttocks on two or three occasions, and grabbed his

penis once. With the exception of Baker, Southwell did not

identify any witnesses who could verify his story with respect

to the alleged touching incidents. Furthermore, because

Southwell's story was improbable and inconsistent with respect

to the allegation that his penis was touched by Bouley, it is

found, as a matter of fact, that Bouley did not grab Southwell's

penis.

48. Assuming that Bouley may have slapped Southwell 's

backside two or three times and twisted his nipples on two

occasions, this amount of touching is not so severe or pervasive

as to alter the conditions of work and create a hostile and

abusive environment.

49. Even assuming Southwell's account of his genitals

being grabbed did occur, the sum total of the behavior that

Southwell claims to have experienced does not exceed that which

the Ele venth Circuit rejected as insufficient in Gupta or that

which the Fifth District Court of Appeal found to be

insufficient in Speedway Super America .

50. Similarly, Baker claimed during the hearing that

Bouley had grabbed his buttocks on one occasion , b ut Baker did

not mention this alleged touching at any point during his

deposition , n or did Baker tell his close friend Southwell

anything about this alleged touching. Furthermore, Petitioners

attended a feedback session in which the subject of workplace

hara ssment was discussed. While the subject of nicknames was

raised by Southwell, neither Petitioners mentioned any touching

incidents. During this session, Southwell indicated that the

situation with the nicknames had been resolved.

51. Because the alleged touching incidents were few in

number and not sufficiently serious, Petitioners have failed to

establish that they were subjected to severe or pervasive sexual

harassment.

52. Petitioners also cannot establish claims for hostile

work environment sexual h arassment because they cannot show that

any of the alleged harassment occurred because of their sex.

See Oncale v. Sundower Offshore Services, Inc. , 523 U.S. 75

(1998). The Supreme Court has noted that a same - sex harassment

plaintiff may attempt to estab lish that the conduct was "because

of . . . sex" by evidence that the harasser was a homosexual,

was hostile towards members of one sex, or treated members of

one sex less favorably than members of the other sex. Id. at

80 - 81. The Supreme Court has state d that "whatever evidentiary

route the plaintiff chooses to follow, h e or she must always

prove that th e conduct at issue was not merely tinged with

offensive connotations, but actually cons t ituted "discrimination

because of . . . sex." Id.

53. Petitione rs failed to present any evidence that

Bouley, the alleged harasser, was himself a homosexual , or held

animus toward others who might be homosexual . Southwell

testified that Bou l e y would gyrate his hips whenever an employee

would bend over. Southwell fur ther admitted that Bouley could

conduct these hip motions with both male and female employees.

This information reveals that Bouley did not act in a manner

motivated by sexual desire for male employees or hostility

toward males in the workplace. See E . E . O . C . v. Harbert - Yeargin,

Inc. , 266 F.3d 498 (6th Cir. 2001).

54. The alleged touching that was raised by Petitioners

falls in the category of male horseplay . This conduct falls

outside of the protection of Title VII. See Oncale , 523 U.S.

at 81. In Onca le , the Supreme Court noted that Title VII does

not reach genuine, but innocuous differences in the ways men and

women routinely interact with members of the same sex and of the

opposite sex. Id. The Court added that the prohibition of

harassment on the basis of sex requires neither asexuality nor

androgyny in the workplace; "it forbids only behavior so

objectively offensive as to alter the 'conditions' of the

victim's employment." Id. ; see also E . E . O . C . v. Harbert -

Yeargin , 266 F.3d at 522 (noting that g ross and vulgar male

horseplay (i.e., goosing) did not constitute discrimination

based on sex); McCown v. St. John's Health System, Inc. , 349

F.3d 540, 544 (8th Cir. 2003) (ruling that male employee

grabbing another male by the waist, chest, and buttocks a nd

making lewd comments did not constitute discrimination based on

sex).

55. To the extent that Petitioners claim that they were

discriminated against because they were perceived to be

homosexual, their allegations are insufficient to establish that

they faced discrimination based on sex. Title VII does not

proscribe discrimination based on sexual orientation. Thus,

where a harassment plaintiff faces unwelcome conduct because he

or she is perceived to be gay, this unwelcome conduct will not

suffice to sh ow that the plaintiff was discriminated against

"based on sex." Kay v. Independence Blue Cross , 2005 WL 1678816

(3rd Cir. July 19, 2005).

56. Petitioners further cannot support their claims for

sexual harassment based on the alleged nicknames. Some of t he

nicknames that they complain ed about, that is, "powder," "crack

pipe," and "crack head , " were not sexual in nature. Therefore,

the use of these names can not be considered with respect to

their claims for harassment. The other nickname, "butt

buddies," while offensive , falls in the category of male

horseplay. When Baker complained to DePriest about the

nicknames, he stated that they were funny at first, but started

getting old. After Baker's complaint, DePriest made everyone

stop using the nicknames. Later, at the employee feedback

session, Southwell brought up the subject of the nicknames,

indicating that he was satisfied with the resolution.

57. Petitioners ' sexual harassment claims also fail

because Respondent exercised reasonable care to prevent

harassment in the workplace and to correct harassing behavior

that Petitioners could have encountered in the workplace.

Petitioners cannot recover on their claims because they failed

to take advantage of Respondent's preventive and corrective

opportunitie s. Respondent has a policy against sexual

harassment that is stated in its employee manual. Respondent

reviews this policy with all new employees during their

orientation. New employees also watch a video about sexual

harassment during their orientation . After the video, a manager

will address the new employees' questions regarding sexual

harassment. Respondent also has a poster hanging in the

restaurant defining its policy against sexual harassment. The

poster provided information to employees to con tact the joint

venture partner, Dick Meyer , or the service technician

assistant, Cherie Ash, if they were subjected to sexual

harassment.

58. Petitioners never contacted Meyer or Ash. Therefore,

they cannot overcome the defense that Respondent exercised

reasonable care to prevent harassment in the workplace. See

Walton v. Johnson & Johnson Services, Inc. , 347 F.3d 1272 (11th

Cir. 2003). Moreover, their subjective fears of reprisal do not

justify their failure to complain in accordance with the policy.

Id.

59. To the extent that Petitioners attempted to complain

to lower - level managers not named in the policy or to DePriest

himself, whom they alleged to be involved in the harassment,

their complaints are not sufficient to put Respondent on notice

of the supposed problems. See Madray v. Publix Supermarkets ,

208 F.3d 1290 (11th Cir. 2000).

60. Petitioners also attempt to pursue retaliation claims

against Respondent. To establish a prima facie case of

retaliation under Title VII, a petitioner must prove that:

(1) he participated in an activity protected by Title VII;

(2) he suffered an adverse employment action; and (3) there is a

causal connection between the participation in the protected

activity and the adverse employment action. Gupta , 212 F.3d at

587.

61. Petitioners cannot satisfy the second and third prongs

of their retaliation claims because they cannot show that they

suffered an adverse employment action. See Gupta , 212 F.3d at

587 (noting that adverse employment action includes an ultimate

e mployment decision, such as discharge or failure to hire, or

other conduct that "alters the employee's compensation, terms,

conditions, or privileges of employment, deprives him or her of

employment opportunities, or adversely affects his or her status

as an employee"). Specifically, they walked off their jobs in

the middle of their shift. Neither man was ever disciplined by

Respondent, neither suffered any cut in pay, and neither man

suffered any other action that affected his compensation, terms,

or pri vileges of employment.

62. The doctrine of constructive discharge does not serve

to excuse Petitioners' departure. As noted above, neither man

has established that he faced discriminatory harassment. Even

if Petitioners had made such a showing, construc tive discharge

requires a showing that working conditions had become so

intolerable that no reasonable person would have remained

employed. Merely facing harassment or discrimination is not

enough, as an employee is expected to remain employed and either

take advantage of available internal remedies or file a charge

of discrimination with EEOC or FCHR. Only when all reasonable

avenues have been exhausted is a plaintiff justified in leaving

employment. Because Petitioners did not complain to Meyer or

othe r corporate officials and did not file a charge of

discrimination prior to leaving, they cannot show that they were

subjected to a constructive discharge.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order that :

1. Dismiss es the Petition for Relief filed by Petitioner,

Jasen Baker, in DOAH Case No. 05 - 0623, FCHR No. 23 - 03891; and

2. Dismiss es the Petition for Relief filed by Petitioner,

B ernard Southwell, DOAH Case No. 05 - 0632, FCHR No. 23 - 03892.

DONE AND ENT ERED this 10th day of November , 2005 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 10th day of November , 2005 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jason M. Gordon, Esquire

Gordon & Cornell

103 North Atlantic Avenue

Cocoa Beach, Florida 32931

Kevin D. Johnson, Esquire

Thompson, Sizemore & Gonzalez, P.A.

501 East Kennedy Boulevard, Suite 1400

Tampa, Florida 33602

Cecil Howard, General Counsel

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 these cases .