07-001973 Deborah Pate vs. Homes Of Merit Status: Closed Recommended Order on Monday, December 10, 2007.

Summary: Petitioner never complained that harassment was for reasons of protected status. There was no proof of a racially hostile work place. The reason for termination was performance, not race or sex. There was no prima facie case of discriminatory firing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH PATE, )

)

Petitioner, )

)

vs. ) Case No. 07 - 1973

)

HOMES OF MERIT, )

)

Respondent. )

)

RECOMMENDED ORDER

In accordance with notice this ca use came on for formal

administrative proceeding and hearing before P. Michael Ruff,

duly - designated Administrative Law Judge of the Division of

Administrative Hearings. The hearing was conducted in

Tallahassee, Florida, on August 15, 2007. The appearanc es were

as follows:

APPEARANCES

Petitioner: Deborah Pate, pro se

862 Northeast Coldwater Street

Lake City, Florida 32055

Respondent: Kevin E. Hyde, Esquire

Foley & Lardner LLP

One Independent Drive, Suite 13 00

Post Office Box 240

Jacksonville, Florida 32201 - 0240

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether, Respondent discriminated against the Petitioner based

upon her race or sex and whether she was subjected t o

retaliation after complaining to the Respondent concerning the

alleged harassment.

PRELIMINARY STATEMENT

This cause arose when a Charge of Discrimination was filed

with the Florida Commission on Human Relations (Commission) by

the Petitioner, Deborah Pa te. The charge alleged that the

Respondent, Homes of Merit (HOM); discriminated against the

Petitioner because of her race and sex and that when she

purportedly complained to HOM's management about the alleged

harassment, that the Petitioner was subjected to retaliation by

the Respondent.

The Charge of Discrimination was investigated by the

Commission and a finding of "No Cause" was entered by the

Commission on April 12, 2007. In essence, the Commission found

in its investigative report, supporting the finding of No Cause,

that any harassment which was perpetrated on the Petitioner did

not involve either race or sex, and that a prima facie case of

retaliation was not shown because the Petitioner was not engaged

in a protected activity at the time she wa s allegedly subjected

to retaliation by termination. This was evidenced by the fact,

according to the Commission, that the complaints made to

supervisors by the Petitioner did not relate to harassment

predicated on racism or gender.

The Petitioner elec ted to contest the Commission's decision

by filing a Petition for Relief. In due course the Petition for

Relief was transmitted to the Division of Administrative

Hearings and the undersigned Administrative Law Judge for formal

adjudication.

The cause cam e on for hearing as noticed. At the hearing

the Petitioner presented two witnesses and offered two exhibits,

both of which were admitted into evidence. The Respondent

presented three witnesses and offered twelve exhibits, all of

which were admitted into evidence. Upon conclusion of the

proceedings the hearing record was transcribed and the parties

were given a time period to submit proposed recommended orders.

The Respondent timely submitted its Proposed Recommended Order

which has been considered in th is rendition of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner became employed on October 10, 2005, at

HOM. She worked as a general laborer and finisher at times

pertinent to this case. HOM is a manufacturer of mobile and

modular homes at its Lake City, Florida, plant. It has in

excess of 15 employees and is therefore a statutory employer

with the meaning of Section 760.02(2), Florida Statutes (2006).

2. The Petitioner has a number of blemishes on her

employment record with the Responde nt. She had performance

problems prior to the events leading up to the termination of

her employment. She was disciplined for an incident occurring

on December 21, 2005, for failure to report to required overtime

work, as well as for insubordination. St eve Weeks, the

Respondent's Production Manager, deemed the failure to report

for required overtime work to be insubordination and a violation

of the company's attendance policy.

3. She received an employee warning notice on May 3, 2006,

regarding a per ceived need for her to "pickup the pace and for

her attendance." Mr. Weeks told Ms. Pate that she needed to

increase her production pace and needed to work on her

attendance and work quality. The Petitioner was given to

understand that her employment cou ld be terminated for further

violations.

4. The Petitioner maintains she has been subjected to

"harassment." Specifically, she complains that her co - workers

in the finishing department harassed her by "bumping into me and

playing threatening songs, th reatening, talking about they were

going to beat my behind, you know, just constantly threatening."

Her complaints concern Priscilla Berry, Katherine Belford, and

Melody Adkins. Melody Adkins is a white female, Priscilla Berry

and Katherine Belford are A frican - American females. Most of the

Petitioner's complaints concern Katherine Belford and Priscilla

Berry.

5. The Petitioner admits that these individuals never

indicated they were committing any alleged harassing acts

because of the Petitioner's race or gender. She further

acknowledges that the harassment "may not have been for my race"

and that the harassment "might have been because I was a female

and I was doing my job and I didn't hang with that certain

group" of females. No male employees are al leged to have

threatened or harassed the Petitioner and she never complained

to her direct supervisor, Tommy Smith, concerning any problems

related to her race or gender.

6. Ms. Pate spoke to Supervisors Weeks and Smith in an

effort to stop the harassmen t and threats. In response to her

complaints Mr. Weeks talked to the supervisors and employees

involved in the incidents Ms. Pate complained about and told

them they were not to bring personal problems to the work place.

Mr. Smith separated the Petitione r from Ms. Belford and

Ms. Berry because of the antagonism that had developed between

them. He directed her to perform her duties in a different

location in order to alleviate the hostilities.

7. The Petitioner called the HOM corporate office on

June 27, 2006, and spoke to Mr. Jeff Nugent. Mr. Nugent

directed the Regional Human Resources Director, William Allen,

to investigate the Petitioner's complaints. Mr. Allen spoke to

the Petitioner by phone on June 29, 2006, and arranged a meeting

with her for July 11, 2006. The Petitioner told Mr. Allen

during that phone conversation that she was being harassed and

threatened and that the supervisor was not doing anything to

alleviate the matter. She told him that "they" were

discriminating against her becau se she was a black woman and the

supervisors were still doing nothing to alleviate her

harassment, in her view.

8. The Petitioner met with Mr. Allen on July 11, 2006.

Mr. Allen also met with other employees. The plant had been

shut down during the fi rst week of July and immediately

thereafter on July 11, 2006, the Petitioner had the meeting with

Mr. Allen. She found him responsive to her complaints. He took

notes during the meeting with the Petitioner and with the other

employees he interviewed. Th e Petitioner complained that she

was being harassed and threatened by the above - referenced women

on the job, that she "went up the chain of command" to get the

harassment to stop but that it had not stopped. She did not

complain to Mr. Allen that she was being harassed based on her

gender or her race, however. Mr. Allen determined that the

problem between Ms. Pate and the other employees was based upon

difficulties in "getting along well" or, in effect, personality

differences. He also determined that th e Respondent had

responded to the prior complaints by separating Ms. Pate from

working with the employees about whom she had complained.

9. On July 13, 2006, Mr. Smith observed Ms. Pate out of

her assigned work area while using a cell phone. The use of a

cell phone during working hours, and in working areas, violates

company policy. Mr. Smith asked Ms. Pate to report to the plant

office to speak to Mr. Weeks. Upon arriving at the office, the

Petitioner told Mr. Smith and Mr. Weeks that she was leaving

because she did not feel well. Mr. Weeks told Ms. Pate that she

could leave the premises, but she would have to bring in a

physicians note to prevent the absence from being unexcused.

She returned to work the next scheduled work day and did not

bring in a physician's note as directed. The previous work

day's absence was thus an unexcused absence.

10. Mr. Weeks decided to terminate the Petitioner's

employment for her attendance problems and for her failure to

submit a doctor's note justifying her abs ence of July 13, 2006.

Her unexcused lack of attendance caused her to have excessive

absences in violation of the Respondent's adopted attendance

policy.

11. The Petitioner's employment was terminated on July 17,

2006. The Petitioner never told Mr. W eeks that she felt her

employment was being terminated in retaliation for her having

called the corporate office to complain, or that she was being

harassed because of her race and gender.

CONCLUSIONS OF LAW

12. The Division of Administrative Hear ings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

13. Section 760.10(1)(a), Florida Statutes (2006),

provides that:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or 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

individual's race, color, religion, sex,

national o rigin, age, handicap or marital

status.

14. Section 760.10(7), Florida Statutes (2006), provides

that:

It is an unlawful employment practice for an

employer . . . to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice . . .

15. Chapter 760, Florida Statutes, the "Florida Civil

Rights Act," is essentially a reflection of Title VII of the

Federal Civil Rights Act of 1964. The Florida courts have

therefore used the same analysis when consid ering claims under

the Florida Act as is used in decisions employed in resolving

claims under Federal Title VII. See Harper v. Blockbuster

Entertainment Corporation , 139 F.3d 1385, 1387 (11th Cir. 1998);

Castleberry v. Chadbourne, Inc. , 810 So. 2d 1028 (F la. 1st DCA

2002).

16. The Petitioner has not offered evidence that could

constitute direct evidence of discrimination. She has offered

no evidence of conduct or remarks made by others which blatantly

indicate discriminatory animus based upon race or sex . Only the

most blatant remarks or actions, whose intent could mean nothing

other than to discriminate on the basis of race or sex, or some

other impermissible discriminatory factor, can constitute direct

evidence of discrimination. See Rojas v. Florida , 285 F.3d

1339, 1342 n.2 (11th Cir. 2002).

17. The Petitioner's charge of discrimination and the

retaliation charge can thus be established only by

circumstantial evidence using the framework established in the

case of McDonnell - Douglas Corporation v. Gr een , 411 U.S. 792,

802 - 804 (1973).

18. Under the methodology laid down by that decision, a

prima facie case of race or gender discrimination must include a

demonstration that: (1) the Petitioner belongs to a racial

minority; (2) that she was subjected to an adverse employment

action; (3) that other employees outside her protected

classification, who were similarly situated in terms of their

conduct, were treated more favorably (or that she was replaced

by an employee outside of her protected classificatio n) and (4)

that she was qualified to perform her job. See Hollifield v.

Reno , 115 F.3d 1555, 1562 (11th Cir. 1997).

19. The first and second elements of the prima facie case

have been met by the Petitioner. She is female and African -

American. She was a lso terminated from her employment. She did

not establish, however, the third element of her prima facie

case by the fact that she did not identify any comparator

employees who were outside of her protected class and who were

treated more favorably by the Respondent with regard to its

response to any complaints of harassment, or with regard to any

discipline imposed for similar conduct in purported violation of

employer policy with regard to attendance and compliance with

required duties. She did not show that she was replaced after

she was terminated by an employee outside of her protected

class.

20. Since she did not show that any similarly situated

employees outside her protected class were treated more

favorably, she has not established a prima faci e case of race or

gender discrimination. Therefore, for that reason, her Petition

must be dismissed.

21. The Petitioner also claims that a "hostile work

environment" existed based upon her race or gender. A claim of

unlawful harassment based upon a sexu ally or racially hostile

work environment is established by a showing of discriminatory

conduct so severe or pervasive that it creates a hostile work

environment by altering the terms and conditions of the

complaining person's employment. See Snoke v. Sta ff Leasing,

Inc. , 43 F. Supp. 2d 1317, 1326 (M.D. Fla. 1998).

22. Specifically, the Petitioner must show that: (1) she

belongs to a protected group; (2) that she was subjected to un -

welcomed harassment; (3) that the harassment was based on a

protected ch aracteristic such as sex or race; (4) that the

harassment was so severe or pervasive that it altered the terms

and conditions of her employment; and (5) that there are grounds

to hold the employer liable either directly or indirectly. Id.

23. The first e lement of the prima facie case can be

established by the Petitioner in that she is a member of a

protected group and that the treatment that she received was un -

welcomed. The Petitioner, however, failed to adduce any

persuasive evidence to show that the t hird element of a hostile

work environment claim existed because she did not adduce

evidence that the conduct that she complained of amounted to

discrimination because of her protected status. The Petitioner

did not show that her co - workers treated her th e way they did

because she is female or because she is African - American. See

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

(a plaintiff claiming sexual harassment must prove that the

conduct at issue constituted discrimination because o f sex).

There was no persuasive evidence that any person harassed the

Petitioner because of her gender or her race. The Petitioner

never complained to the Respondent's management that the conduct

of the female co - workers toward the Petitioner was because of

her race or gender. The Petitioner vaguely testified that the

harassment might have been related to her gender, but admitted

that all of the alleged harassers were female and that their

conduct might had been related to Pate's "not hanging with that

c ertain group" of females. The Petitioner provided no evidence

from which a protected class can be discerned as the basis for

the conduct of Ms. Pate's alleged harassers. Her claim for a

hostile work environment thus must fail.

24. The claim regarding a hostile work environment must

also fail because the fourth element of her prima facie case

does not exist because the conduct complained of was not "severe

and pervasive" enough to constitute harassment. To be severe

and pervasive "[the] objectionable e nvironment must be both

objectively and subjectively offensive, one that a reasonable

person would find hostile or abusive, and one that the victim in

fact did perceive to be so." Id. at 1327 (quoting Faragher v.

City of Boca Raton , 524 U.S. 775, 786 (199 8)). The conduct the

Petitioner complains of, co - workers bumping into her,

threatening her, playing loud songs is more akin to "boorish

behavior" that, while it may be disagreeable, does not rise to

the level of harassment protected by Title VII. See Spe edway

Super America, LLC v. Dupont , 933 So. 2d 75, 84 (Fla. 5th DCA

2006) (". . . [F]ederal courts require that the

conduct/harassment be more than merely insulting or rude and

boorish behavior.") See also Mullis v. Brown and Williamson

Tobacco Corporatio n , not reported in F. Supp. 2nd, 2005 WL

1229720 at 11, (M.D. Ga. 2005) (order granting summary judgment)

("[t]here is little doubt that plaintiff was treated in a

boorish manner by several of her fellow employees. As the

Eleventh Circuit has made clear, however, boorish behavior does

not always equate with sexual harassment, and it is obvious that

it did not on this set of facts").

25. Even if the Petitioner had established a prima facie

case the Respondent adduced evidence of a legitimate business

reaso n for the employment action taken. See Burlington

Industries, Inc., v. Ellerth , 524 U.S. 742 (1998) and Faragher

supra . In order to avail itself of this defense the Respondent

must show that it exercised reasonable care to prevent and

correct promptly an y sexual or racial harassment type of

behavior. It must also show that the plaintiff "unreasonably

failed to take advantage of any preventative [sic] or corrective

opportunities provided by the employer or to avoid harm

otherwise." Ellerth , 524 U.S. at 7 65; Faragher , supra at 807.

26. The Respondent took reasonably appropriate steps to

prevent or alleviate the harassment, even had the harassment

been predicated on issues of race or sex discrimination. The

Respondent has a policy that forbids discriminat ion and

harassment and allows employees to complain to supervisors or

others above them in the chain of command. Even if the alleged

harassment had been based upon the protected status of race or

sex, it was committed, if at all, by co - employees, not by a ny

supervisory personnel of the Respondent. The Petitioner knew of

and utilized these procedures of the Respondent and made her

complaint up the chain of command in order to get the conduct to

stop.

27. She was not satisfied with the response and calle d

Mr. Nugent at the corporate office about the matter. He

immediately directed Mr. Allen, the Regional Human Resources

Director to investigate her complaints. Mr. Allen called

Ms. Pate and set - up a personal interview with her about the

matter on an exped ited schedule. He spent two days at the plant

site interviewing the Petitioner as well as other employees. He

determined that the complaints were related to personality

conflicts and not due to reasons of unlawful discriminatory

harassment. Mr. Allen al so found that the Respondent, through

Supervisor Weeks, had effectively responded to the complaints,

by separating the Petitioner and her alleged harassers so that

they would no longer work in close proximity to each other.

Mr. Weeks had directed all empl oyees "to leave their personal

problems at home" and to act in a professional manner while at

work.

28. Mr. Allen thus concluded that termination of the

harassers was unwarranted and not required to prevent further

incidents between the Petitioner and h er co - workers. In any

event, the preponderant evidence establishes that any harassment

which occurred was not based upon the protected status claimed

by the Petitioner, race or sex. The Respondent's action in

response to the Petitioner's complaints satis fies the first

element of the affirmative defense provided in the Faragher and

Ellerth decisions. See also Ritchie v. Stamler Corp. , 205 F.3d

1346 (6th Cir. 2000) 2000 U.S. App. Lexis 568 (full text)

(finding that an employer's policy contained clear dire ction for

employees to report harassment and stated that sexual harassment

would not be tolerated, therefore the employer had "exercised

reasonable care to prevent and correct sexually harassing

behavior").

29. The second part of the affirmative defense t o a claim

predicated upon a hostile work environment, supported by the

Faragher and Ellerth decisions, has been established by the

Respondent. That is, the preventive or corrective opportunities

to alleviate the harassment, or to prevent it, provided by t he

Respondent, were not reasonably taken advantage of by the

Petitioner. The Petitioner did complain "up the chain of

command" concerning the alleged harassment, but never complained

to the Respondent's management, including Mr. Allen, that any

harassment was based upon her race or sex. Nevertheless, she

now attempts to predicate her claim of discrimination, including

that based upon a hostile work environment, upon claims of

racial or sexual discrimination. She thus did not reasonably

take advantage of the preventive or corrective opportunities

provided by the employer. The failure to report the protected

basis upon which she now claims the alleged harassment was

predicated, quite reasonably may have prevented the Respondent

from undertaking further inv estigation or remedial action

because it was not timely informed of the racial or gender basis

for claimed discrimination.

30. This defense thus obviates establishment of the

Petitioner's claim based upon hostile working environment and

also tends to show that the employment action taken against her

was taken for non - discriminatory reasons, and was not based upon

a pretext for what amounted to gender or race - based

discrimination.

Retaliation Claim

31. The Petitioner's claim for retaliation must also fa il.

Retaliation can occur because of two forms of protected

activity: either opposition or participation. See Equal

Employment Opportunity Commission v. Total System Services,

Inc. , 221 F.3d 1171, 1174 (11th Cir. 2000). Under the

"opposition clause," a n employer may not retaliate against an

employee because the employee "has opposed any practice made an

unlawful employment practice by this subchapter." See 42 U.S.C.

§ 2000E - 3(a). Under the "participation clause," an employer may

not retaliate against an employee because the employee "has made

a charge, testified, assisted, or participated in any manner in

an investigation or proceeding, under this subchapter." See Id.

The participation clause does not protect an employee's

complaint or involvement wi th regard to an internal

investigation prior to the filing of a formal charge of

discrimination. EEOC v. Total Systems Services , 221 F.3d 1171

(11th Cir. 2000); Harris v. State of Florida, Department of

Financial Services , 2006 WL 354203 (N.D. of Fla. 200 6).

32. Since the Petitioner had not filed a charge of

discrimination at the time she made her complaints to the

Respondent's management the analysis must be limited to whether

the Petitioner established a prima facie case of retaliation

under the opposit ion clause. In order to so establish a prima

facie case of retaliation, the Petitioner must demonstrate: (1)

a statutorily protected expression; (2) an adverse employment

action; and (3) a causal connection between the protected

expression and the advers e action. Harper v. Blockbuster

Entertainment Corporation , supra . The Petitioner claims that

she was terminated because she complained to the Respondent

about the conduct of her co - workers toward her. However, her

complaints were not protected activity under the opposition

clause. "[A]n employee's statement or communication cannot be

deemed to be in opposition to an unlawful employment practice

unless it refers to a specific practice of the employer that is

allegedly unlawful. 'Vagueness as to the natu re of the

grievance . . . prevents a protest from qualifying as a

protected activity.'" Guess v. City of Miramar , 889 So. 2d 840,

847 (Fla. 4th DCA 2004) (quoting Dupont - Lauren v. Schneider

(USA), Inc. , 994 F. Supp. 802, 823 (S.D. Texas 1998).

33. The Pe titioner admitted that she never complained to

the Respondent's management that the conduct of the harassers

was based upon her sex or race. Such vague general complaints

are not the type that amount to protected conduct. "Title VII .

. . does not set fo rth 'a general civility code for the American

work place.'" Burlington Northern and Santa Fe Railroad Company

v. White , 126 S. Ct. 2405, 2415 (2006) (quotation omitted).

Thus, the Petitioner has not established the first element of

her prima facie case o f retaliation.

34. The other element of her prima facie case of

retaliation has not been established either, because she did not

demonstrate any connection between her complaint and the

decision to terminate her employment. There was an intervening

event that led to her termination. On July 13, 2006, the

Petitioner violated company policy by using a cell phone during

work hours and by being outside her work area when doing so.

She also failed to bring a physician's note justifying her

absence from work after leaving for the remainder of the day

when she was called to the office to speak to Mr. Weeks and

Mr. Smith concerning the violations of company policy. The

preponderant, persuasive evidence shows that her employment was

actually terminated for viola tion of the attendance policy and

the policy concerning cell phone use and for leaving her work

area. This was the intervening event which actually led to her

termination and her termination had nothing to do with

retaliation for any complaints she had ma de, which were not

complaints about protected activity in any event.

35. Further, the Respondent's efforts to maintain,

distribute, and enforce a policy preventing discriminatory

conduct and to provide a mechanism for employees to report a

complaint of any such conduct directly to its personnel

department, demonstrated an exercise of reasonable care to

prevent discriminatory conduct, including harassment. Faragher ,

supra at 807. The provision of this mechanism also tends to

establish that there was no retaliatory intent by the Respondent

directed at the Petitioner concerning any complaints she had

made, whether legally protected or otherwise. Therefore the

employment termination decision was not based upon retaliatory

reasons.

36. In summary, there ha s been no persuasive evidence to

establish that the Petitioner was terminated based upon reasons

of her race or her gender. Likewise, there has been no

persuasive, preponderant evidence to establish that she was

harassed or discriminated against during he r employment by the

maintenance or condonation of a hostile work place environment,

predicated on either race or sex/gender discrimination.

Moreover, for the reasons determined above, the Petitioner was

not shown to have engaged in any statutorily protect ed conduct

but, even if she had, an intervening cause, violation of company

policy, occurred which led to her termination, rather than her

termination being predicated on a retaliatory effort directed at

any protected conduct by the Petitioner. Consequent ly, for

these reasons, the Petitioner has failed to establish that her

termination was based upon reasons of race or gender

discrimination or retaliation.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

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

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Petition in its

entirety.

DONE AND ENT ERED this 10th day of December, 2007, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

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 December, 2007.

COPIES FURNISHED :

Deborah Pate

862 Northeast Coldwater Street

Lake City, Florida 32055

Kevin E. Hyde, Esquire

Foley & Lardner LLP

One Independent Drive, Suite 1300

Post Office Box 240

Jacksonville, Florida 32201 - 0240

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.