06-003664 Mildred Spears vs. C. J. Gayfers And Company, D/B/A Dillards Status: Closed Recommended Order on Thursday, February 8, 2007.

Summary: Petitioner did not prove that Respondent discriminated against her based on her race and age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILDRED SPEARS, )

)

Petitioner , )

)

vs. )

) Case No. 06 - 3664

C. J. GAYFERS AND COMPANY, )

d/b/a DILLARDS , )

)

Respondent . )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on November 20,

2006, by video teleconference between Pensacola, Florida, and

Tallahassee, Florida, before Suzanne F. Hood, Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christopher E. Varner, Esquire

Christopher E. Varner, P.A.

6056 Doctor's Park Road

Milton, Florida 32570

For Respondent: Lori R. Benton, Esquire

Ford & Harrison LLP

300 Sou th Orange Avenue, Suite 1300

Post Office Box 60

Orlando, Florida 32802 - 0060

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner based on her race and/or age in violation of Section

760.10, Florida Statutes(2005).

PRELIMINARY STATEMENT

On October 26, 2005, Petitioner Mildred Spears (Petitioner)

filed an Employment Charge of Discrimination with the Florida

Commission on Human Relations (FCHR). The charge alleged that

Re spondent C. J. Gayfers and Company d/b/a Dillard’s

(Respondent) had discriminated against her based on her race and

age.

On August 24, 2006, FCHR issued a Determination: No Cause.

On September 19, 2006, Petitioner filed a Petition for Relief

and Reques t for Administrative Hearing with FCHR. On

September 25, 2006, FCHR referred the petition to the Division

of Administrative Hearings.

On October 6, 2006, the undersigned issued a Notice of

Hearing by Video Teleconference. The notice scheduled the

hear ing for November 20, 2006.

During the hearing, the parties filed five pre - filed joint

exhibits (JE4, JE8, JE12, JE14, and JE15) that were accepted as

evidence.

Petitioner testified on her own behalf and presented the

testimony of three additional witn esses. Petitioner offered

three exhibits (P1 - P3) that were accepted as evidence. Exhibit

No. P1 is Exhibit No. 1 in Respondent’s pre - filed exhibits.

Exhibit Nos. P2 - P3 are attached to the hearing transcript.

Respondent presented the testimony of two witnesses.

Respondent offered four pre - filed exhibits (R3, R21, R10, and

R11) that were accepted as evidence.

On November 29, 2006, Respondent filed an Unopposed Motion

for Extension of Time to File Findings of Fact and Conclusions

of Law. On November 30, 2006, the undersigned issued an Order

Granting Extension of Time.

The Transcript was filed on December 20, 2006. On

January 2, 2007, Petitioner filed Proposed Findings of Fact and

Proposed Recommended Order. On January 3, 2007, Respondent

filed P roposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Petitioner is an African American female. She was over

the age of 4 0 when Respondent hired her and when she resigned

her position as Respondent’s sales associate.

2. Respondent i s an employer as defined by the Florida

Civil Rights Act of 1992, as amended, Sections 760.01 - 760.11 and

509.092, Florida Statutes (2005)(FCRA).

3. Dillard’s Inc. , purchased numerous department stores

owned by C. J. Gayfer and Company in 1998. Responde nt, which is

located in the Cordova Mall, Pensacola, Florida, is one of those

stores.

4. Respondent employs 200 to 250 sales associates.

Approximately 48 percent of Respondent’s employees are over the

age of 40. About 90 percent of Respondent’s employ ees are older

than Petitioner. Additionally, 28 percent of Respondent’s

employees are African American.

5. Respondent hired Petitioner on May 11, 1999, as a sales

associate in the Cordova Mall Store. Because Petitioner did not

apply for a specific pos ition, Respondent assigned her to the

men’s fragrance department/work center with a sta r ting rate of

pay at $8.00 per hour. Respondent also provided Petitioner with

health insurance benefits.

6. Petitioner was an experienced retail salesperson when

Res pondent hired her. However Petitioner had no experience or

training in selling men’s fragrances.

7. Throughout Petitioner’s employment with Respondent,

Beth Winter was the store manager. Ms. Winter is responsible

for the store’s profitability and merc handise. She also manages

the area sales managers (ASM) of the various work centers.

8. Ms. Winter reports directly to Linda Sholtis,

Respondent’s District Manager. Ms. Sholtis is responsible for

18 of Respondent’s stores.

9. In December 2004, Resp ondent was in the process of

preparing its payroll budgets for the following year.

Respondent’s executive management made a business decision to

reorganize some of its work centers. Specifically, Respondent

decided to use its smaller work centers to trai n new sales

associates, to keep the lower pay rates in the smaller work

centers, and to move the sales associates in the smaller work

centers, who were earning higher rates, to other work centers

that could support their higher rates.

10. High rates in a small work center means that

Respondent has less hours to allocate to the department,

resulting in less hours available for customer service.

Respondent made a business decision to move the higher rates

into the larger work centers that could support th ose rates.

11. As a non - commissioned sales associate, Petitioner was

subject to Respondent’s Sales - Per - Hour (SPH) program.

Respondent applies the SPH program to all non - commissioned sales

associates and to some commissioned sales associates working in

ladies shoes. The SPH program is based on objective criteria

described below.

12. The SPH program has “standard goals” and “raise goals”

that are based upon an employee’s hourly rate. The standard

goal is the dollar volume of sales an employee is requ ired to

average for each hour worked to support his/her pay. The raise

goal represents the dollar volume of sales an employee should

average per hour during a review period to justify a pay

increase.

13. To determine the goals, each work center is assi gned a

“selling cost” (SC). Respondent’s executive management

determines the SC for each work center in each store. The SC

for a work center reflects the percentage of sales that

Respondent determines should be the maximum amount budgeted for

payroll exp ense for a particular work center.

14. SC calculations are based on historical sales and

marketing data. The SC and the SPH goals for sales associates

vary among work centers based on sales history. For example, in

the Cordova Mall store, the men’s fr agrance work center has a SC

of 12 percent , meaning that Respondent does not want the payroll

budget in that department to exceed 12 percent of the dollars

earned from its sales.

15. The men’s fragrances department is a very small work

center. It has a higher SC because it does not have as much

sales volume as the larger work centers.

16. To derive an employee’s SPH goals, an employee’s

hourly wage is divided by the SC percentage for the employee’s

work center. Accordingly, as an employee’s hourly w age

increases, the employee’s SPH goal increases. Further, as the

work center’s SC percentage increases, an employee’s SPH goals

decrease.

17. An employee’s age and race are not factored into the

sales goals derived under Respondent’s SPH program. The program

is a mathematical formula centered around an employee’s hourly

rate and the SC of the employee’s assigned work center.

18. Before the above - referenced reorganization took place,

there were four sales associates assigned to men’s fragrances.

Pe titioner was the only Africa American. Lois Thomas and Cathy

Carlisle were Caucasian. Marie Aceval was Hispanic. All four

associates were over the age of 40 .

19. In December 2004, Petitioner was one of Respondent’s

top sales associates. She was the be st sales person in men’s

fragrances and received the highest rate of pay. She was a very

aggressive salesperson.

20. Over the course of Petitioner’s employment, her salary

increased substantially from $8.00 to $17.00 per hour as a

result of her ability to sell men’s fragrances and merchandise

outside of her work center in men’s clothing. Men’s fragrances

was a small work center that was not budgeted for a sales

associate to earn $17.00 per hour.

21. As of December 2004, Petitioner had a pay rate of

$17.00 per hour and men’s fragrances had a 12 percent SC.

Therefore, Petitioner’s individualized SPH standard was $142.00.

On the other hand, a sales associate assigned to men’s clothing

would have a SC of 6 percent and an SPH of $283.00 if paid

$17.00 p er hour.

22. When assigned to men’s fragrances, Petitioner’s

substantially increased her productivity by selling goods from

the men’s clothing work center. This significantly inflated

Petitioner’s performance because she received double - credit for

the sales outside of her assigned area.

23. Petitioner had less volume to sell in men’s fragrances

(with a SC of 12 percent ) to meet her SPH, whereas, employees in

men’s clothing (with a 6 percent SC) had a larger volume of

merchandize to sell. When Petiti oner sold merchandize in men’s

clothing, she would still get the men’s fragrances 12 percent SC

credit. Petitioner sold more merchandize outside her area than

any other employee in men’s fragrances.

24. Petitioner understood that her primary duty was t o

sell goods in men’s fragrances. However, about 25 percent of

Petitioner’s sales were from the men’s clothing work center.

25. In December 2004, Respondent did not have a policy

prohibiting sales associates from selling goods from other work

center. Respondent did not write employees up for such sales.

Respondent understood that a certain amount of such sales were

necessary for customer convenience. However, Respondent

discouraged out - of - area sales.

26. Respondent continued to give Petitioner ann ual raises

because there was no specific prohibition against her selling

merchandize from men’s clothing. Petitioner actively went out

of her work center to get customers, knowing such sales would

inflate her rate. On several occasions, Lisa Bell, the AS M for

cosmetics and the direct supervisor for men’s fragrances,

advised Petitioner and other associates about the need to limit

sales outside of men’s fragrances.

27. Early in December 2004, Ms. Sholtis visited the

Cordova Mall store. Ms. Sholtis met M s. Winter and Ms. Bell in

Ms. Bell’s office.

28. During the meeting, Ms. Sholtis explained that

employees in the smaller work centers, who are earning more than

their assigned work center’s support rate, would be moved to

better areas in the store that could support their pay rates.

Ms. Sholtis also explained that some of the smaller work centers

would be used as training areas. Specifically, men’s and

ladies’ fragrances, junior’s clothing, ladies’ accessories, and

children’s clothing would become trai ning grounds for new

associates. The company - wide plan for all stores included

moving associates to better areas in the store after a training

period.

29. Ms. Sholtis reviewed a computer screen that identified

employees by last name and pay rate. The screen did not

disclose the employees’ race and age. Ms. Sholtis, without any

knowledge of Petitioner’s race and age, selected her as the

first employee to be reassigned from men’s fragrances.

Ms. Sholtis selected Petitioner solely because her pay rate w as

the highest at $17.00 per hour.

30. The men’s fragrances work center could support a rate

of $10.00 or $11.00 per hour. All of the employees in men’s

fragrances earned more than that amount. Therefore, all four

sales associates had to transfer out to another area.

Respondent transferred them in rank order from highest to least

paid. The same reorganization involving Caucasian employees

took place in the children’s work center and the ladies’

accessories area.

31. When Ms. Bell questioned the ti ming of the transfers,

Ms. Sholtis explained that the reorganization was a corporate -

wide decision. Respondent was transferring associates in

ladies’ and men’s fragrances in other stores. The transfers

were affecting associates with up to 15 years of exp erience. In

some cases, all of the employees in a work center would be

transferred.

32. Ms. Sholtis informed Ms. Bell that transfers should

not be delayed until after the holidays. According to

Ms. Sholtis, Petitioner’s immediate transfer would give h er

first choice of the best available positions in the store.

Moreover, Petitioner’s compensation would not be affected by

transferring before Christmas.

33. At the time that Respondent made its decision to

reorganize, the company could have instituted a policy that

allowed Petitioner and other employees to remain in men’s

fragrances and limit the credit they received for sales outside

their work center. However, Respondent decided instead to

transfer its most experienced associates to larger areas whe re

they could maintain their high rates of pay.

34. In any event, Petitioner would have considered it a

demotion to have her pay reduced to $8.00 per hour , even if she

had been allowed to stay in men’s fragrances. By the time of

the hearing, Respondent had adopted a policy that limits the

credit employees receive on sales outside their work center.

35. In December 2004, Ms. Winter met with Petitioner to

explain the decision to move her out of men’s fragrances due to

her high rate of pay. Ms. Winter explained that the best areas

in the store to support her pay rate would be the shoe

department and cosmetics.

36. Over a period of about two weeks, Ms. Winter provided

Petitioner with several options for reassignment. Ms. Winter

explained the benefits of each area, but specifically and

repeatedly recommended ladies’ shoes and cosmetics, especially

the Estee Lauder makeup counter. Respondent had associates

making the highest rates of pay in those areas.

37. At the time of the hearing, Respondent had four people

in ladies’ shoes making $17.00 per hour or higher. One employee

made $21.53 per hour.

38. An employee in ladies’ shoes does not need years of

experience to develop a client base in order to achieve a high

rate of pay. One employee in ladi es’ shoes was able to earn

$ 15.81 per hour after seven months. Respondent transferred this

employee from the junior department to shoes with no special

knowledge about shoes and no customers.

39. Another example of not needing time in ladies’ shoes

to be successful involved an employee hired two weeks before

Petitioner resigned in September 2005. The employee achieved an

hourly pay of $18.46 after 15 months in ladies’ shoes.

40. The record indicates that African American and other

minority employees earn rates of pay as high or higher than

$17.00 in ladies’ shoes. It is undisputed that some of the

minority employees earning these high rates are older than

Petitioner.

41. Employees in the shoe department may earn a commission

in addition to their SPH pay rate. They have a support rate but

can earn higher raises if they support their rate. They can

also request to raise their rates. Therefore, all associates in

shoes may not have the same base rates, but they all earn 9.5

percent as commissions. The SC in shoes is also 9.5 percent .

The average SPH goal for employees in shoes i s $120.00.

Employees earn the commission on sales made after they reach

their SPH goal.

42. Petitioner rejected the opportunity to transfer to

shoes. She did not want to perform the work required to sell

shoes.

43. Petitioner was aware that one employee in her late 40s

or early 50s earned approximately $17.00 in cosmetics. Ms. Bell

wanted Petitioner to work in cosmetics because it would mean

that she stayed in Ms. B ell’s work center. Nevertheless,

Petitioner rejected the opportunity to work in cosmetics because

she did not want to put make - up on people.

44. After refusing a job in cosmetics or shoes, and not

being permitted to transfer to a training work center,

Petitioner’s remaining choices were in men’s clothing or women’s

clothing. Petitioner elected to work in the ladies’

designer/bridge work center where Respondent sold women’s better

clothes. Petitioner believed that she had a chance to support

her pay ra te in that area.

45. Ms. Winter advised Petitioner not to transfer to the

ladies’ designer area because it would be difficult for her to

support her rate. Petitioner did not take Ms. Winter’s advice.

46. Ms. Winter informed Petitioner that her trans fer would

not result in an immediate reduction in pay rate to the minimum

rate paid to new hires. Rather, Petitioner would be paid her

$17.00 rate regardless of her sales performance for six months.

After that time, Petitioner’s rate, as well as the othe r

transferees’ rates, would be adjusted based upon sales

performance during the second three - month period and the new

work center’s SC.

47. Respondent required every transferring employee to

sign a conditional transfer agreement setting forth the paymen t

terms. The only option besides signing the conditional transfer

agreement was to resign.

48. In accordance with Respondent’s reorganization plan,

Respondent used men’s fragrances to train new associates. Some

of the new employees were younger than P etitioner. For example,

Ms. Bell hired Renee McCurley, a Caucasian female to fill

Petitioner’s position at $8.00 per hour. Ms. McCurley was 19 or

20 years old. Ms. McCurley trained in men’s fragrances for four

or five months before transferring to ladie s’ fragrances.

Respondent subsequently fired Ms. McCurley because she was

unable to meet her hourly goals after her transfer.

49. On or about December 21, 2004, Respondent transferred

Petitioner to ladies’ designer clothes. She was aware that the

wome n’s work center had a SC of 6 percent .

50. Brenda Maldon was the ASM over women’s clothing.

Ms. Maldon became Petitioner’s direct supervisor. Ms. Maldon is

African American and older than Petitioner.

51. Petitioner’s annual review period ended in J une 2005.

However, Respondent gave Petitioner a review in December 2004

pursuant to policy that requires a review when any employee

leaves his or her assigned area. The December 2004 monthly

report indicated that Petitioner had not satisfied her SPH

stan dard goal at that time.

52. After several months, Petitioner was fourth in sales

among about 30 people in the entire women’s clothing work

center. She ranked number one in sales in the ladies’ designer

area.

53. Petitioner’s successful performance i n the ladies’

designer area was not simply the result of the holiday season,

which ended in January 2005. Petitioner ranked number one in

her area, and number four in the entire work center, during the

time between December 2004 and February 2005. Januar y and

February usually are slow retail months.

54. Respondent reviewed Petitioner performance again in

April 2005. As set forth in the conditional transfer agreement,

employees who have transferred to another area receive a three -

month review.

55. D uring the second three - month period of her

reassignment, Petitioner’s sales decreased. She took long

weekends off from work, thereby missing the busiest sales time

of the week. She ranked number 18 in sales in the entire

women’s clothing work center. Ho wever, she still ranked number

one in sales in the ladies’ designer area.

56. Petitioner’s sales performance during the second three

months after the transfer could not support her $17.00 pay rate.

Instead, her sales performance supported a pay rate of $7.95 per

hour.

57. At that time, due to the impact of a hurricane, no one

in the ladies’ designer area supported their rates. Everyone

was off their sales goals.

58. Although Petitioner ranked number one in sales in her

area, the decision that she was unable to support her $17.00 pay

rate was based on the mathematical formula set forth in the

conditional transfer agreement. Petitioner’s $7.95 pay rate was

derived by dividing her actual SPH of $136.00 by her SHP goal of

$291.00 and multiplying the product by her pay rate of $17.00.

59. Petitioner’s $7.95 pay rate became effective July 31,

2005. Of all the employees transferred out of men’s fragrances,

Petitioner received the largest pay reduction after six months

because she had the highest pay rate before the transfer.

60. Respondent applied the same formula and calculations

to every employee who transferred out of a work center. For

example, Ms. Thomas, who continued to work for Respondent at the

time of the hearing, received a reduction in her pay rate after

transferring from men’s fragrances to another work center from

$13.45 to $8.60 per hour.

61. There is no persuasive evidence that Respondent denied

Petitioner training in the ladies’ designer area. Additionally,

Petitioner never com plained to Respondent’s management that she

was experiencing a hostile work environment because of her race

and/or age.

62. Petitioner requested and received a leave of absence

on August 8, 2005. She resigned on September 1, 2005.

63. Petitioner adv ised Respondent’s staff that she was

resigning due to the stress and anxiety related to her

“demotion” and her resulting financial problems. Petitioner

implied that she had another job that she did not want to

discuss. During the hearing, Petitioner test ified that she

resigned because she “could no longer afford to drive 90 miles

per day.”

64. After leaving her job with Respondent, Petitioner

received about $6,000.00 in unemployment compensation. Six

months after her resignation, Petitioner began workin g for

another employer, earning $9.00 per hour without any medical or

other benefits. Two months later, Petitioner quit her job

again; she was unemployed for approximately three months without

unemployment compensation. In August 2006, Petitioner accepte d

employment with Wal - Mart.

CONCLUSIONS OF LAW

65. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Section s 120.569, 120.57(1), and 760.11,

Florida Statutes (2006).

66. The F CRA makes it unlawful for an employer to make an

employment decision that is motivated by an employee’s race or

age. See § 760.10, Fla. Stat. (2005).

67. The FCRA is patterned after Title VII, the Age

Discrimination in Employment Act (ADEA), and the fed eral case

law interpreting Title VII and ADEA. Therefore, federal case

law interpreting Title VII and the ADEA is applicable to cases

arising under the FCRA. See Green v. Burger King Corp. , 728 So.

2d 369, 370 - 371 (Fla. 3 r d DCA 1999).

68. This case pr esents no direct evidence of intentional

discrimination under the FCRA. Ms. Sholtis had no knowledge of

Petitioner’s race or age when she selected Petitioner for

reassignment. If a decision maker has no actual knowledge

regarding an employee’s protected status, there can be no

adverse employment action based on that status. See Silvera v.

Orange County Sch. Bd. , 244 F.3d 1253, 1262 (11 th Cir. 2001).

69. In the absence of direct evidence of intentional

discrimination, an employee in a discrimination ca se has the

initial burden of proving a prima facie case of discrimination.

See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. ED. 2d 668 (1973). If the employee proves a prima

facie case, the burden shifts to the employer to proffe r a

legitimate non - discriminatory reason for the action it took.

See Texas Department of Community Aff a irs v. Burdine , 450 U.S.

248, 101 S. Ct. 1089, 67 L. ED. 2d 207 (1981). The employer’s

burden is one of production, not persuasion, as it always

remain s the employee’s burden to persuade the fact - finder that

the proffered reason is a pretext and that the employer is

guilty of intentional discrimination. See Burdine , 450 U.S. at

252 - 256.

70. In order to prove a prima facie case of age

discrimination, Petitioner must show the following: (a) she is

a member of a protected group; (b) she was qualified for the

job; (c) she was subjected to an adverse employment action; and

(d) Respondent treated similarly situated employees of a

different age more favorab ly. See Turlington v. Atlanta Gas

Light Company , 135 F.3d 1428, 1432 (11 th Cir. 1998).

71. To prove a prima facie case of race discrimination,

Petitioner must show the following: (a) she is a member of a

protected group; (b) she was qualified for the job; (c) she was

subjected to an adverse employment action; and (d) Respondent

treated similarly situated employees outside the protected group

more favorably.

72. Petitioner has not met her initial burden as to age or

race discrimination for two reason s. First, Petitioner did not

suffer an adverse employment action when she transferred from

men’s fragrances to ladies’ designer at the same rate of pay for

six months.

73. Based on an objective corporation - wide business

decision, Respondent required al l experienced employees to

transfer out of training areas into work centers that would

support their higher rates of pay. Petitioner elected to

transfer to the ladies’ designer area with the understanding

that she would be subject to an objective mathemat ical formula

to determine her rate of pay at the end of the six - month period.

Petitioner’s pay rate was reduced due to her poor sales

performance during the second three - month period and not because

she was demoted.

74. Second, Petitioner did not show that similarly

situated employees of a different age or race were treated more

favorably. To the contrary, Respondent transferred Petitioner,

several Caucasians, and one Hispanic associate in the Cordova

store based on the same objective business decision . Further,

undisputed evidence shows that Respondent paid Petitioner and

all other transferred employees based on their sales performance

at the end of the second three - month period after reassignment.

Respondent’s employee compensation policy does not t ake an

employee’s age or race into account.

75. To the extent that Petitioner proved a prima facie

case of age or race discrimination, Respondent had a legitimate

non - discriminatory reason for reassigning Petitioner to a larger

work center and subsequen tly reducing her pay rate based on

decreased sales. The purpose of the policy was to establish

training areas for new employees in small work centers and to

move the more experienced and higher paid associates to larger

work centers that could support a h igher rate of pay. The

policy was race and age neutral on its face and as applied in

this case.

76. Respondent’s objective business decisions and

compensation policy was not a pretext for discrimination.

Petitioner did not meet her ultimate burden of s howing that

Respondent intentionally discriminated against her based on her

age or race.

77. Petitioner alleges that Respondent constructively

discharged her when it reassigned her and reduced her pay rate

after six months. To meet her burden on this issue, Petitioner

must prove that Respondent deliberately made the terms or

conditions of her employment so intolerable that a reasonable

person in her position would have been compelled to resign. See

Rowell v. BellSouth Corp. , 433 F.3d 794,806 - 807 (11 th Cir.

2005).

78. Petitioner claims she resigned due to emotional and

financial stress. However, Respondent is not responsible for

Petitioner’s emotional reaction to the lower pay rate.

Employees are not guaranteed stress - free working environments.

Di scrimination laws “ ' cannot be transformed into a palliative

for every workplace grievance, real or imagined, by the simple

expedient of quiting. ' ” See Gray v. York Newspapers, Inc. , 957

F.2d 1070, 1083 (3 r d Cir. 1992) , quoting Bristow v. Daily Press,

Inc. , 770 F.2d 1251, 1255 (4 th Cir. 1985) .

79. Petitioner chose to transfer to the ladies’ designer

area where her performance resulted in insufficient sales and a

reduction in pay rate. Being paid an hourly rate based upon

sales performance is not a condi tion that Respondent imposed

only on Petitioner. “ ' [N]o individual employee or employee

group may claim constructive discharge where all employees are

subject to the same working conditions. ' ” See Rowell , 433 F.3d

at 804 , quoting Bodnar v. Synpol, Inc. , 843 F.2d 190, 192 (5th

Cir. 1988).

80. Petitioner alleged but failed to present any evidence

showing she was subjected to a hostile work environment based on

her race or age. Petitioner did not show that her workplace was

“ ' permeated with discriminator y intimidation, ridicule, and/or

insult, ' that [was] ' sufficiently severe or pervasive to alter

the conditions of the [Petitioner’s] employment and create an

abusive working environment. ' ” See Harris v. Forklift Sys.,

Inc. , 510 U.S. 17, 21 (1993), quoting Meritor Sav. Bank, FSB v.

Vinson , 477 U.S. 57, 65, 67 (1986)(internal citations omitted).

81. Respondent requested attorney’s fees and costs for the

first time in its Proposed Findings of Fact and Conclusions of

Law but failed to cite any authority for the award.

Accordingly, Respondent’s request is denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That F lorida Commission on Human Relations enter a final

order dismissing the Petition for Relief.

DONE AND ENTERED this 8th day of February , 2007 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, 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 8th day of February , 2007 .

COPIES FURNISHED :

Christopher E. Varner, Esqui re

Christopher E. Varner, P.A.

6056 Doctor's Park Road

Milton, Florida 32570

Lori R. Benton, Esquire

Ford & Harrison LLP

300 South Orange Avenue, Suite 1300

Post Office Box 60

Orlando, Florida 32802 - 0060

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denis 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.