07-003118 Suhra Merdanovic vs. Omni Hotel Resort Status: Closed Recommended Order on Wednesday, March 26, 2008.

Summary: Petitioner failed to demonstrate that her dismissal from employment was due to her language or national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUHRA MERDANOVIC, )

)

Petitioner, )

)

vs. ) Case No. 07-3118

)

OMNI HOTEL RESORT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 18,

2008, in Orlando, Florida, before Lawrence P. Stevenson, a duly-

designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Suhra Merdanovic, pro se 1

318 June Avenue

Haines City, Florida 33844

For Respondent: Keith L. Hammond, Esquire

Jackson, Lewis LLP

390 North Orange Avenue, Suite 1285

Post Office Box 3389

Orlando, Florida 32802-3389

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice contrary to Section 760.10, Florida Statutes

(2007), 2 by discriminating against Petitioner based on her

national origin.

PRELIMINARY STATEMENT

On December 19, 2006, Petitioner Suhra Merdanovic

("Petitioner") filed an Employment Complaint of Discrimination

against Respondent, Omni Hotel Resort (the "Omni" or

"Respondent"). Petitioner alleged that the Omni discriminated

against her by terminating her employment based on her national

origin (Bosnian), in that she was harassed on a daily basis by

Hispanic co-workers, yelled at by the manager, and ultimately

badgered so intensely that she required hospitalization, after

which the Omni fired her.

On June 14, 2007, the Florida Commission on Human Relations

("FCHR") issued a Determination: No Cause, finding no

reasonable cause to believe that an unlawful employment practice

occurred. On July 9, 2007, Petitioner filed a Petition for

Relief with FCHR.

On July 11, 2007, FCHR referred the case to the Division of

Administrative Hearings. The hearing was initially scheduled to

be held on September 27, 2007. By Order dated September 24,

2007, the case was continued on Respondent's motion. The matter

was rescheduled for and held on January 18, 2008.

At the hearing, Petitioner testified on her own behalf,

with the assistance of her son, Jasmin Merdanovic.

Ms. Merdanovic's English was less than fluent and, without

objection, her son helped where translation from Bosnian to

English was necessary. Petitioner's Exhibits 1 and 2 were

admitted into evidence, over the objection of Respondent.

Respondent presented the testimony of Silvio Rosalen, who was

sous chef at a restaurant at the Omni during Petitioner's

employment; Lisa Borde-Christie, human relations manager for the

Omni; and the telephonic testimony of Robert Fohr, who was the

assistant food and beverage director at the Omni during

Petitioner's employment. Respondent's Exhibits 1 through 6 were

admitted into evidence.

On Respondent's motion, the record of the case was left

open to allow Respondent time to examine and possibly submit

rebuttal evidence to Petitioner's Exhibits 2, which had not been

provided to Respondent prior to the hearing. The exhibit was a

copy of Petitioner's medical bills. Respondent requested the

opportunity to contact the medical providers named in the bills.

On January 24, Respondent filed a status report notifying this

tribunal that it would forego contacting the medical providers.

An Order Closing the Record was entered on January 29, 2008.

No transcript of the hearing was ordered. Respondent filed

a proposed recommended order on February 13, 2008. Petitioner

did not file a proposed recommended order.

FINDINGS OF FACT

1. The Omni, advertised as "Omni Orlando Resort at

ChampionsGate," is a golf resort located in the Orlando tourist

corridor near Walt Disney World. The Omni is an employer as

that term is defined in Section 760.02, Florida Statutes.

2. Petitioner, Suhra Merdanovic, is a Bosnian female, and

her first language is Bosnian. She speaks and understands

English, but is more fluent and comfortable using her native

language.

3. Ms. Merdanovic was employed by the Omni from

approximately August 22, 2006, to October 9, 2006.

Ms. Merdanovic worked in the kitchen of the Broadway Deli, a

sandwich shop located in the resort. The Broadway Deli was one

of several restaurants in the Omni complex.

4. During the brief period of Ms. Merdanovic's employment,

the Broadway Deli did not have a full-time manager.

Ms. Merdanovic reported to Silvio Rosalen, the sous chef at

Teri's Restaurant, near the Broadway Deli in the Omni complex.

Mr. Rosalen reported to Robert Fohr, the assistant food and

beverage manager for the Omni.

5. The Omni has established a policy that prohibits

harassment in the workplace. The policy defines harassment as:

[A]ny unwelcome verbal, non-verbal, physical

or other conduct or behavior relating to an

individual's race, religion, color, sex,

national origin, age, disability or any

other categories protected by state, federal

or local law, that is made a term or

condition of employment, is used as the

basis for employment or advancement

decisions, or has the purpose or effect of

unreasonably interfering with work or

creating an intimidating, hostile or

offensive work environment.

6. The policy "strictly prohibit[s]" employees,

supervisors, and members of management from harassing other

employees, supervisors, or members of management. The policy

directs an employee who has a complaint of harassment to report

that complaint to any manager or supervisor, the human resources

director, the general manager, or the regional vice president of

operations. The complaint triggers a formal investigation,

usually conducted by the human resources director.

7. The Omni's harassment and equal employment opportunity

policies are set forth in the Omni's Associate Handbook, which

is provided to all employees. The handbook is reviewed during

an orientation session that all newly hired Omni employees must

attend. Ms. Merdanovic attended an orientation session on

August 26, 2006, and testified that she was familiar with the

harassment policy.

8. The Omni calls the first 90 days of employment an

"introductory period." The Associate Handbook describes the

introductory period as follows:

During this time you will have a chance to

see whether you like your job and Omni

Hotels will have an opportunity to evaluate

your performance and suitability for your

position. If Omni Hotels concludes that

your job performance and/or suitability have

been unsatisfactory, you may be dismissed at

any time during the introductory period at

Omni Hotels' complete discretion. You may

also be dismissed at any time after the

introductory period at the sole discretion

of Omni Hotels. Both during and after the

introductory period, all associates are

associates at will.

9. If an employee's manager determines within the first 90

days of employment that an employee's job performance and/or

"suitability" is unsatisfactory, the manager will meet with the

employee to review the manager's concerns. After this meeting,

the employee's job status is "suspended pending investigation"

while the manager confers with the human resources department to

review the issues. If the manager and the human resources

department agree that the employee should be terminated, then

human resources will advise the employee of the decision.

10. Ms. Merdanovic testified that two Hispanic co-workers,

Erica Torres and Charlotte Ruiz, harassed her because of her

nationality. Ms. Torres asked her what she was doing in America

and refused to go into the kitchen with her. Both women made

jokes and laughed about Ms. Merdanovic being from Bosnia.

11. Ms. Merdanovic testified that her co-workers also

disliked her, because she refused to give them free food from

the Broadway Deli's kitchen.

12. Ms. Merdanovic did not complain to a manager,

supervisor, or any other Omni employee about the harassment she

claimed to have experienced.

13. Mr. Rosalen testified that he received numerous

complaints about Ms. Merdanovic's job performance from her co-

workers. The co-workers told him that Ms. Merdanovic failed to

follow instructions, argued with guests and co-workers,

interrupted co-workers who were trying to explain how to

complete job tasks, gave guests the wrong order at least twice,

and failed to comply with the posted work schedule. Mr. Rosalen

personally observed Ms. Merdanovic's performance deficiencies on

several occasions.

14. The guest complaints were most significant to

Mr. Rosalen. On one occasion, the guest had ordered a turkey

sandwich, but was served a pastrami sandwich by Ms. Merdanovic.

Rather than correcting the order immediately, Ms. Merdanovic

attempted to convince the guest to keep the pastrami sandwich by

telling him it was good and he would like it. On a second

occasion, a guest ordered a milkshake and was served iced

coffee. 3

15. At the hearing, Ms. Merdanovic testified that she was

unaware of any complaints about sandwiches. She stated that she

has worked in kitchens for years and understands how to make

sandwiches in a deli. She did complain that she was never

trained to operate the "front of the store" equipment such as

the milkshake machine or coffee machine, yet was expected to

somehow be able to operate them.

16. Mr. Rosalen orally counseled Ms. Merdanovic on

multiple occasions regarding her performance deficiencies, but

he never observed any improvement.

17. Pursuant to the process for terminating employees

during their introductory period, Mr. Rosalen and Mr. Fohr

decided to meet with Ms. Merdanovic to discuss her performance

deficiencies and to advise her not to return to work until she

heard from human resources. After this meeting, Mr. Rosalen and

Mr. Fohr would meet with the human resources director to discuss

whether to terminate Ms. Merdanovic's employment.

18. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution

Notice" form, dated October 2, 2006, that set out the

performance deficiencies and possible corrective actions for

Ms. Merdanovic. This notice was intended to be the outline for

discussion during the meeting with Ms. Merdanovic. Under the

heading "Specific Nature of Problem" were various categories,

including absenteeism, tardiness, violation of company policies,

and unsafe actions. Ms. Merdanovic's problem was categorized as

"Performance Below Standards."

19. The specific performance problems were set out as

follows:

There have been numerous complaints about

Suhra Merdanovic's job performance from

several of her co-workers. These complaints

include:

* Does not follow training of food

preparation techniques and quantities.

* Does not follow food, coffee and drink

recipes.

* Does not know what all the ingredients

are to be able to make recipe.

* Looses [sic] tickets for orders.

* Has become argumentative with employees

and guests when told that the product is

wrong.

* Has tried to convince guests that

mistakenly prepared food is good and tried

to get them to take it.

* Does not understand the schedule after

repeatedly having it explained.

* Interrupts employees and does not let

people finish talking when trying to explain

how a task needs to be completed.

* Is not a team player.

20. The notice set forth the following under the heading,

"Expected performance or conduct/corrective action required":

Suhra must adhere to the following

guidelines:

* Must be receptive to and accept training

in all facets of Broadway Deli culinary

operations with a positive attitude.

* Must follow all standard recipes without

deviation to achieve a consistent product.

* Must produce orders in timely fashion in

accordance to [sic] the guest's

specifications.

* Must never become argumentative with a

guest and try to force a guest to take a

product they do not want.

* Must get along with and assist teammates

with all guest needs.

21. The notice concluded that the "disciplinary action

taken" would be "Suspension/Termination."

22. On October 2, 2006, Mr. Rosalen and Mr. Fohr met with

Ms. Merdanovic in Mr. Fohr's office to review the contents of

the Problem/Solution Notice.

23. When her supervisors began reviewing her performance

deficiencies, Ms. Merdanovic interrupted to argue with them.

Mr. Fohr pointed out that this was the same sort of conduct that

led to this counseling session in the first place.

24. Before Mr. Rosalen and Mr. Fohr could present her with

the notice and commence the formal suspension/termination

process, Ms. Merdanovic began to cry in a way that Mr. Rosalen

described as "almost hysterical" for several minutes.

25. Ms. Merdanovic then walked to the kitchen of the

Broadway Deli. Mr. Rosalen followed her, both to make sure she

was all right and to escort her off the Omni property.

Ms. Merdanovic again began crying and saying that she could not

breathe. She described her condition as "couldn't breathe,

couldn't think, couldn't stay."

26. Mr. Rosalen called in the Omni's security team, which

also acts as the resort's first responder in medical

emergencies. The entry of the security guards threw

Ms. Merdanovic into a greater panic. Eventually, at

Ms. Merdanovic's request, the Omni called an ambulance service,

which transported her to Florida Hospital in Orlando.

27. Ms. Merdanovic was diagnosed with high blood pressure

and discharged after an overnight stay in the hospital. 4

28. After the incident leading to Ms. Merdanovic's

hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde-

Christie, the Omni's human resources manager, to discuss their

meeting with Ms. Merdanovic, the complaints about her from

guests and co-workers, and Mr. Rosalen's observations of her

performance deficiencies and his previous attempts to correct

them.

29. Ms. Borde-Christie agreed that Ms. Merdanovic was not

meeting the Omni's performance expectations for her position.

In light of Ms. Merdanovic's failure to improve her performance

despite Mr. Rosalen's several attempts at verbal counseling,

Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was

unlikely that Ms. Merdanovic's performance would improve in the

future. They decided to terminate her employment.

30. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen

met with Ms. Merdanovic to tell her that her employment was

terminated and to review the performance deficiencies that

caused her termination.

31. When Ms. Borde-Christie attempted to review the

performance issues, Ms. Merdanovic became argumentative, stating

that these issues were all lies and that her co-workers did not

like her. Ms. Borde-Christie testified that Ms. Merdanovic said

nothing about her national origin being an issue in the

workplace.

32. Ms. Merdanovic produced no credible evidence that her

language or national origin played a role in the decision to

terminate her employment. The Omni's management did not become

aware of her allegations of harassment due to her national

origin by her co-workers until Ms. Merdanovic filed her

Employment Complaint of Discrimination, more than two months

after her dismissal. The evidence produced at hearing

demonstrated that the reasons for Petitioner's termination all

related to her job performance.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

34. The Florida Civil Rights Act of 1992 (the Florida

Civil Rights Act or the Act), Chapter 760, Florida Statutes,

prohibits discrimination in the workplace. The Act, among other

things, forbids the discriminatory firing of an employee.

35. Subsection 760.10(1)(a), Florida Statutes, states the

following:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

36. Respondent is an "employer" as defined in Subsection

760.02(7), Florida Statutes, which provides the following:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

37. Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under Section 760.10, Florida

Statutes. See Florida Dept. of Community Affairs v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

38. Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to Respondent, as the employer, to rebut this

preliminary showing by producing evidence that the adverse

action was taken for some legitimate, non-discriminatory reason.

If the employer rebuts the prima facie case, the burden shifts

back to Petitioner to show by a preponderance of evidence that

Respondent's offered reasons for its adverse employment decision

were pretextual. See Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

39. In order to prove a prima facie case of unlawful

employment discrimination under Chapter 760, Florida Statutes,

Petitioner must establish that: (1) she is a member of the

protected group; (2) she was subject to adverse employment

action; (3) she was qualified to do the job; and (4) her

employer treated similarly-situated employees of other national

origins more favorably. See , e.g. , Williams v. Vitro Services

Corporation , 144 F.3d 1438, 1441 (11th Cir. 1998); McKenzie v.

EAP Management Corp. , 40 F. Supp. 2d 1369, 1374-75 (S.D. Fla.

1999).

40. Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

41. Petitioner established that she is a member of a

protected group, in that she is a Bosnian female whose primary

language is Bosnian. Petitioner also established that she was

subject to adverse employment action in that she was terminated

from her job.

42. However, Petitioner presented no evidence that her

language or national origin played any role in her termination.

Having failed to establish this element, Petitioner has not

established a prima facie case of employment discrimination.

43. Even if Petitioner had met the burden, Respondent

presented evidence of legitimate, non-discriminatory reasons for

terminating Petitioner, thereby rebutting any presumption of

language or national origin discrimination. The evidence

presented by Respondent established that Petitioner was

terminated for poor job performance that continued despite

repeated efforts by management to counsel her and correct

specific deficiencies.

44. Petitioner failed to prove that Respondent's reasons

for firing her are pretextual.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that the Omni Hotel Resort did not

commit any unlawful employment practices and dismissing the

Petition for Relief.

DONE AND ENTERED this 26th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of March, 2008.

ENDNOTES

1/ Ms. Merdanovic's son, Jasmin Merdanovic, assisted in the

presentation of her case because of his better command of the

English language. Respondent did not object to Mr. Merdanovic's

participation.

2/ Citations, hereinafter, shall be to Florida Statutes (2007),

unless otherwise specified.

3/ Mr. Rosalen testified that he did not actually see the

pastrami sandwich or the iced coffee in question, but that he

did meet personally with the irate customers who received those

items.

4/ Ms. Merdanovic was eventually billed several thousand dollars

for the ambulance service, emergency room admission, hospital

stay, and cardiac testing. The sole relief Ms. Merdanovic seeks

in this proceeding is payment of these bills by the Omni.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Keith L. Hammond, Esquire

Jackson Lewis LLP

390 North Orange Avenue, Suite 1285

Post Office Box 3389

Orlando, Florida 32802-3389

Suhra Merdanovic

318 June Avenue

Haines City, Florida 33844

Cecil Howard, General Counsel

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.