07-003807 Susan Kirby vs. Appliance Direct, Inc. Status: Closed Recommended Order on Monday, November 26, 2007.

Summary: Petitioner failed to prove her employment discrimination claims based upon race, sexual harassment, and/or retaliation. Recommend dismissal of petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN KIRBY, )

)

Petitioner, )

)

vs. ) Case No. 07 - 3807

)

APPLIANCE DIRECT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A duly - noticed final hearin g was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on November 5,

2007, in Viera, Florida.

APPEARANCES

For Petitioner: Mauricio Arcadier, Esquire

Allen & Arcadier

700 N. Wickham Road, Suite 107

Melbourne, Florida 32935

Fo r Respondent: Christopher J. Coleman, Esquire

Richard W. Riehl, Esquire

Schillinger & Coleman, P.A.

1311 Bedford Drive, Suite 1

Melbourne, Florida 32940

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment pra ctice against Petitioner.

PRELIMINARY STATEMENT

On July 24, 2007, the Florida Commission on Human Relations

(Commission) issued a “no cause” determination on the employment

discrimination complaint filed by Petitioner against Respondent.

On August 21, 200 7, Petitioner timely filed a Petition for

Relief with the Commission.

On August 22, 2007, the Commission referred the petition to

the Division Administrative Hearings (D OAH) for the a ssignment

of an A dministrative L aw J udge to conduct a hearing on the

peti tion pursuant to Section 120.57(1), Florida Statutes. 1 The

referral was received by DOAH on August 24, 2007.

The final hearing was scheduled for and held on November 5,

2007. At the hearing, Petitioner testified in her own behalf

and presented the testim ony Neina Blizzard , Cynthia Stebbins,

and Sam Pak; and Respondent presented the testimony of Kit

Royal, Guy Ruscillo, Carissa Howard, and Jeffrey Rock.

Petitioner’s Exhibits 1 through 3 were received into evidence,

as was Respondent’s Exhibit 1.

No Transc ript of the final hearing was filed. The parties

were given 10 days from the date of the hearing to file proposed

recommended orders (PROs). Petitioner filed a PRO on

November 14, 2007. Respondent filed a PRO on November 16, 2007.

The PROs have been gi ven due consideration.

FINDINGS OF FACT

1. Petitioner is a white female.

2. Petitioner w orked as a salesperson at Respondent’s

Melbourne store from April 2006 to September 2006.

3. Petitioner’s primary j ob duty was selling appliances to

retail custo mers . She also performed ancillary duties, such as

tagging merchandise, cleaning and organizing the showroom floor,

scheduling deliveries, and making follow - up calls to customers.

4. Petitioner was not paid a salary. Her income was

solely commission - ba sed . She earned a total of $11,826.14 while

working for Respondent, which equates to an average weekly gross

pay of $537.55.

5. Petitioner had several managers during the term of her

employment. She did not have a problem with any of her

managers, exce pt for Jeffrey Rock.

6. Mr. Rock is a black male, and by all accounts, he was a

difficult manager to work for . He was “ strict ” ; he often yelled

at the salespersons to “get in the box” 2 and “answer the phones”;

and, unlike several of the prior managers a t the Melbourne

store, Mr. Rock held the salespersons accountable for doing

their job.

7. Petitioner testified that Mr. Rock " constantly " made

sexual comments in the store, including comments about the size

of his penis and his sexual prowess; comments a bout sex acts

that he wanted to perform on a female employee in Respondent’s

accounting office, Ms. Miho ; “stallion” noises directed at Ms.

Miho ; and a question to Petitioner about the type of underwear

that she was wearing.

8. Petitioner’s testimony rega rding the sexual comments

and noises made by Mr. Rock was corroborated by Neina Blizzard,

who worked with Petitioner as a salesperson for Respondent and

who has also filed a sexual harassment claim against Respondent.

9. Mr. Rock denied making any sexual ly inappropriate

comments or noises in the store. His testimony was corroborated

by Guy Ruscillo and Carissa Howard, who worked as salespersons

with Petitioner and Ms. Blizzard and who are still employed by

Respondent.

10. Petitioner and Ms. Blizzard te stified that M r. Rock

gave favorable treatment to Ms. Howard and two other female

salespersons with whom he had sexual relationships and/or who

found his sexual comments funny. Mr. Rock denied giving

favorable treatment to any salesperson, except for one time when

he gave a “house ticket” 3 to Ms. Howard because she took herself

off the sales floor for six hours one day to help him get

organized during his first week as manager at the Melbourne

store.

11. Ms. Howard is white. The record does not reflect the

race of the other two female salespersons -- Rebecca and Shann a

-- who Petitioner and Ms. Blizzard testified received favorable

treatment by Mr. Rock, and the anecdotal evidence of the

favorable treatment that they allegedly received was not

persuasive .

12. Petitioner did not have any complaints regarding her

schedule. Indeed, she testified that Mr. Rock changed her

schedule at one point during her employment to give her more

favorable hours.

13. Petitioner’s testimony about other salespersons having

sexual relationships with Mr. Rock and/or receiving favorable

treatment from Mr. Rock was based solely upon speculation and

rumor. Indeed, Rebecca, one of the salespersons with whom Mr.

Rock allegedly had a sexual relationship, was “let go” by Mr.

Rock b ecause of the problems with her job performance observed

by Petitioner and Ms. Blizzard.

14. Petitioner’s last day of work was Saturday,

September 30, 2006. On that day, Petitioner came into the store

with Ms. Blizzard at approximately 8:00 a.m. because, according

to Petitioner, another manager had changed her schedule for that

day from the closing shift to the opening shift.

15. Mr. Rock confronted Petitioner when she arrived,

asking her why she came in at 8:00 a.m. since he had put her on

the schedule for the closing shift. An argument ensued and

P etitioner went into the warehouse in the back of the store to

compose herself. When Petitioner returned to the showroom

several minutes later , Mr. Rock was engaged in an argument with

Ms. Blizzard.

16. Du ring the argument, Ms. Blizzard demanded a transfer

to another store, which Mr. Rock agreed to give her. Then, as a

“parting shot,” Ms. Blizzard told Mr. Rock that he was a

“ racist ” who was “ p rejudiced against white women. ”

17. Ms. Blizzard testified tha t Mr. Rock told her that she

was fired immediately after she called him a racist. Petitioner

testified that af ter Mr. Rock fired Ms. Blizzard, he asked her

whether s he wanted to be fired too. Petitioner testified that

even though she did not respond, Mr. Rock told her that “you are

fired too.” Then, according to Ms. Blizzard and Petitioner,

Mr. Rock escorted them both out of the store.

18. Mr. Rock denies telling Ms. Blizzard or Petitioner

that they wer e fired. He testified that they both walked out o f

the store on their own accord after the argument.

19. Mr. Rock’s version of the events was corroborated by

Mr. Ruscillo, who witnessed the argument. Mr. Ruscillo

testified that he heard a lot of yelling, but that he did not

hear Mr. Rock tell Ms. Blizz ard or Petitioner at any point that

they were fired.

20. Petitioner and Ms. Blizzard met wit h an attorney the

Monday after the incident. T he following day, Petitioner gave

Ms. Bliz zard a letter to deliver on her behalf to Res p o ndent ’s

human resources (HR ) Department.

21. The letter, which Petitioner testified that she wrote

on the day that she was fired by Mr. Rock, stated that

Petitioner “was sexually harassed and discriminated against

based on being a white female by my manager, Jeff Rock”; that

Petiti oner “previously reported numerous incidents of this

discrimination and sexual harassment to upper management”; and

that she was fired “as a result of this discrimination and the

refusal to put up with Mr. Rock’s sexual advancement.”

22. This letter was t he first notice that Respondent had

of Petitioner’s claims of sexual harassment or discrimination by

Mr. Rock.

23. P etitioner considers herself to be a very good

salesperson , but Mr. Rock d escribed her as an “average”

salesperson . Mr. Rock’s characteriz ation of Petitioner’s job

performance is corroborated by Petitioner’s acknowledgement that

her s a les figures were lower than those of at least Mr.

Ruscill o, Ms. Blizzard, and Ms. Howard.

24. Petitioner complained to another manager, Al Sierra ,

about Mr. R ock’s management style at some point in mid - September

2006 . She did not complain to Mr. Sierra or anyone else in

Respondent’s upper management about the sexual comments

allegedly made by Mr. Rock. Indeed, as noted above, the first

time that Petitioner co mplained about the sexual comments

allegedly made by Mr. Rock was in a letter that she provided to

Respondent’s HR D epartment several days after she was fired and

after she met with a lawyer.

25. Petitioner testified that she did not complain about

the se xual harassment by Mr. Rock because he threatened to fire

any salesperson who complained to upper management about the way

that he ran the store and because she did not know who to

complain to because she never received an employee handbook.

26. There is no evidence that Mr. Rock fired any

salesperson for complaining about how he ran the store, and he

denied making any such threats. He did, however, acknowledge

that he told the salespersons that they were all replaceable.

Mr. Rock’s testimony was corrobo rated by Mr. Ruscillo and Ms.

Howard , who were at the sales meetings where Petitioner and Ms.

Blizzard claim that the threats were made.

27. The training that Petitioner received when she started

with Respondent was supposed to include a discussion of

Res pondent’s policies and procedures, including its policy

against sexual harassment.

28. The trainer, Kit Royal, testified that he remembered

Petitioner attending the week - long training program and that the

program did include a discussion of the sexual h arassment policy

a nd other policies and procedures. P etitioner, however,

testified that no policies and procedures were discussed during

the training program.

29. Petitioner was supposed to have received and signed

for an employee handbook during the tra ining program . No signed

acknowledgement form could be located for Petitioner, which is

consistent with her testimony that she never received the

handbook.

30. The fact that Petitioner did not receive the employee

handbook does not mean that the training program did not include

discussion of Respondent’s sexual harassment policies. Indeed,

Petitioner’s testimony that the training program did not include

any discussion regarding salary and benefit policies (as

Mr. Royal testified that it did) and that she was never told

what she would be paid by Respondent despite having given up

another job to take the job with Respondent calls into question

her testimony that the sexual harassment polic y w as not

discussed at the training program .

31. Petitioner was awar e that Respondent had an HR

Department because she met with a woman in the HR Department

named Helen on several occasions re garding an issue that she had

with her hea lth insurance . She did not complain to Helen about

the allege d sexual harassment by Mr. R ock, but she did tell

Helen at some point that Mr. Rock “was being an ass ” and “riding

her,” which she testified were references to Mr. Rock’s

management style not the alleged sexual harassment.

32. Petitioner collected employment compensation of $272

per week after she left employment with Respondent .

33. Petitioner testified that she looked for jobs in

furniture sales and car sales while she was collecting

unemployment , but that she was unable to find another job for

approximately three months because o f the slow economy at the

time . She provided no documentation of those job - search efforts

at the final hearing .

34. Petitioner is currently employed by Art’s Shuttle.

She has held that job for approximately nine months. Petitioner

drives a van that tak es cruise ship passengers to and from the

airport.

35. The record does not reflect how many hours per week

Petitioner works at Art’s Shuttle, but she testified that she

works seven days a week and earns approximately $500 per week .

No written documenta tion of Petitioner’s current income was

provided at the final hearing.

36. Respondent has a “zero tolerance” policy against

sexual harassment according to it s president, Sam Pak . He

credibly testified that had he been aware of the allegations of

sexual h arassment by Mr. Rock that he would have conducted an

investigation and, if warranted, done something to fix the

problem.

37. The policy, which is contained in the employee

handbook, states that Respondent “will not, under any

circumstances, cond one or to lerate conduct that may constitute

sexual harassment on the part of its management, supervisors, or

non - management personnel.” The policy defines sexual harassment

to include “[c]reating an intimidating, hostile, or offensive

working environment or atmosp here by . . . [v]erbal actions,

including . . . using vulgar, kidding, or demeaning language . .

. .” Mr. Pak agreed that the allegations against Mr . Rock, if

true, would violate Respondent’s sexual harassment policy.

38. The employee handbook includes a “grievance procedure”

for reporting problems, including claims of sexual harassment.

The first step is to bring the problem to the attention of the

store manager, but the handbook states that the employee is

“encouraged and invited to discuss the problem in confidence

directly with Human Resources” if the problem involves the

manager. Additionally, the ha ndbook states in bold, underlined

type that “[a]nyone who feels that he or she . . . is the victim

of sexual or other harassment, must immediately repor t . . . .

all incidents of harassment in writing to your manager or the

store manager, or if either person is the subject of the

complaint, to the president.”

39. Mr. Pak had an office at the Melbourne store. He

testified that he had an “open door polic y” whereby employees

could bring complaints directly to him. The only complaint that

Mr. Pak ever received about Mr. Rock was from another

salesperson, Rod Sherman, who complained that Mr. Rock was a

“tough manager.” Mr. Pak did nothing in response to th e

complaint and simply told Mr. Sherman that different managers

have different management styles.

CONCLUSIONS OF LAW

40. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 760.11(7 ) , Florida Statutes .

41. The Florida Civil Rights Act (FCRA), Part I of Chapter

760, Florida Statutes, was patterned after Title VII of the

federal Civil Rights Act , and case law construing Title VII is

persuasive when construing the FCRA. See Castleberr y v. Edward

M. Chadbourne, Inc. , 810 So. 2d 1028, 1030 n.3 (Fla. 1st DCA

2002).

42. Petitioner has the ultimate burden to prove her

unlawful employment practice claims against Respondent. See St.

Mary's Honor Center v. Hicks , 509 U.S. 502, 5 11 (1993)

(re affirming the proposition that “the Title VII plaintiff at

all times bears the ‘ultimate burden of persuasion.’").

Racial Discrimination Claim

43. Section 760 .10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice to “discrimina te against

any individual with respect to comp ensation , terms, condition,

or privileges of employment, because of such individual’s race .

. . .”

44. To establish a prima facie c ase of racial

discrimination, Petitioner must prove that (1) she belongs to a

group protected by the FRCA; (2) she was qualified for the job

from which she was discharged; (3) she was discharged; and (4)

her former position was filled by a person outside of her

protected class or that she was disciplined differently than a

similar ly - situated employee outside of her protected class. See

Jones v. Lumberjack Meats, Inc. , 680 F.2d 98, 101 (11th Cir.

1982); Scholz v. RDV Sports, Inc. , 710 So. 2d 618, 623 (Fla. 5th

DCA 1998); Cesarin v. Dillards, Inc. , Order No. 03 - 037 (FCHR

Apr. 29, 20 03) (adopting the Recommended Order in DOAH Case No.

01 - 4805, but clarifying what must be established as the first

element of the prima facie case).

45. Petitioner failed to establish a prima facie case of

racial discrimination . 4 She presented no credibl e evidence that

she was treated differently than any similarly situated non -

white employee. Indeed, Ms. Howard, one of the employees who

Petitioner alleged was treated more favorably by Mr. Rock was

also white.

46. Because Petitioner failed to present a prima facie

case of racial discrimination, the burden never shifted to

Respondent to proffer a non - discriminatory reason for

Petitioner’s termination under the framework established in

McDonnell Douglass Corporation v. Green , 411 U.S. 792 (1973) .

See St. Mary’s Honor Center , 509 U.S. at 510 n.3 .

Sexual Harassment Claim

47. Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice to “discriminate against

any individual with respect to compensation, terms, conditions,

or p rivileges of employment, because of such individual's . . .

sex . . . .”

48. Although Title VII and the FCRA do not mention sexual

harassment, it is well - settled that both acts prohibit sexual

harassment. See Mendoza v. Borden, Inc. , 195 F.3d 1238, 1244 - 45

(11th Cir. 1999) (citing Harris v. Forklift Systems, Inc. , 510

U.S. 17, 21 (1993)); Maldonado v. Publix Supermarkets , 939 So.

2d 290 (Fla. 4th DCA 2006).

49. Petitioner alleges a hostile environment sexual

harassment claim, which is a claim that is ba sed on “bothersome

attentions or sexual remarks that are sufficiently severe or

pervasive to create a hostile work environment.” Burlington

Industries, Inc. v. Ellerth , 524 U.S. 742, 751 (1998)

(distinguishing hostile environment claims from quid pro quo

sexual harassment claims).

50. In order to establish a hostile environment sexual

harassment claim, Petitioner must prove:

(1) the employee is a member of a protected

group; (2) the employee was subjected to

unwelcome sexual harassment, such as sexual

adv ances, requests for sexual favors, and

other conduct of a sexual nature; (3) the

harassment was based on the sex of the

employee; (4) the harassment was

sufficiently severe or pervasive to alter

the terms and conditions of employment and

create a discrimin atorily abusive working

environment; and (5) that the employer knew

or should have known about the harassment

and took insufficient remedial action.

Maldonado , 939 So. 2d at 293 - 94. Accord Hadley v. McDonald’s

Corp. , Order No. 04 - 147 (FCHR Dec. 7, 2004).

51. T he requirement that Petitioner prove that the

harassment is sufficiently severe or pervasive ensures that the

anti - discrimination laws do not become “general civility codes.”

Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998). T his

requireme nt 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. ’ ”

Oncale v. Su ndowner Offshore Services, Inc. , 523 U.S. 75, 81

(1998).

52. The factors to be considered in determining whether

the harassment is sufficiently severe or pervasive include:

1) the frequency of the conduct; 2) severity of the

conduct; 3) whether the conduc t was physically

threatening or humiliating; and 4) whether the conduct

unreasonably interfered with the employee’s job

performance.

Maldonado , 939 So. 2d at 294. Accord Hadley , supra .

53. An employer can avoid liability for sexual harassment

if “ (1) it exercised reasonable care to prevent and correct

promptly any sexual harassing behavior; and (2) the employee

unreasonably failed to take advantage of any preventive or

corrective opportunities. ” Baldwin v. Blue Cross/Blue Shield of

Alabama , 480 F.3d 1 287, 1303 (11th Cir. 2007). See also

Maldanado , 939 So. 2d at 297 - 98 (employer could not be found

liable for sexual harassment where its “corrective action was

immediate, appropriate, and reasonably likely to stop the

harassment”).

54. Applying these sta ndards to the facts of this case, it

is determined that Petitioner failed to meet her burden to prove

her sexual harassment claim.

55. First, the evidence is not persuasive that Mr. Rock

made the sexually inappropriate comments attributed to him by

Peti tioner and Ms. Blizzard and, even if he did so, the fact

that none of the other salespersons who testified at the final

hearing ever heard him make such comments demonstrates that the

comments were not sufficiently severe or pervasive so as to

crea te a hos tile work environment.

56. Second, the evidence fails to establish that

Respondent knew or should have known about the sexual

harassment . T herefore, its failure to do anything about the

harassment was not unreasonable or inappropriate.

57. Third, Peti tioner unreasonably failed to take

advantage of corrective opportunities by not reporting the

alleged sexual harassment by Mr. Rock to the HR Department,

another manager, or Mr. Pak. Petitioner’s testimony that she

did not report the sexual harassment bec ause she was afraid of

retaliation by Mr. Rock is unpersuasive because that fear did

not stop her from complaining to Mr. Sierra and Helen in the HR

Department about Mr. Rock’s management style and the fact that

he “was being an ass.”

Retaliation Claim

58 . Section 760.10(7), Florida Statutes, provides that it

is an unlawful employment practice to “discriminate against any

person because that person has opposed any practice which is an

unlawful employment practice under [the FCRA] . . . .”

59. To establi sh a prima facie case for retaliation ,

Petitioner must demonstrate that (1) she engaged in a

statutorily protected activity; (2) she suffered an adverse

employment action; and (3) there is a causal relation between

the two events. See Hinton v. Supervisio n International, Inc. ,

942 So. 2d 986, 990 (Fla. 5th DCA 2006); Guess v. City of

Miramar , 889 So. 2d 840, 846 (Fla. 4th DCA 2004). With respect

to the third element, Petitioner must only prove that the

protective activity and the negative employment actio n “are not

completely unrelated.” See Rice - Lamar v. City of Ft.

Lauderdale , 853 So. 2d 1125, 1132 - 33 (Fla. 4th DCA 2003).

60. If Petitioner establishes a prima facie case, the

burden shifts to Respondent to proffer a legitimate, non -

retaliatory reason f or the adverse employment action. See Rice -

Lamar , 853 So. 2d at 1132 - 33. If Petitioner fails to establish

a prima facie case, the burden never shifts to Respondent. See

Barto lone v. Best Western Hotels , Case No. 07 - 0496, 2007 Fla.

Div. Adm. Hear LEXIS 3 38, at ¶ 59 (DOAH June 8, 2007), adopted ,

Order No. 07 - 045 (FCHR Aug. 24, 2007).

61. Petitioner failed to establish a prima facie case of

retaliation.

62. First, there is no evidence that Petitioner engaged in

any statutorily protected conduct (as dis tinguished from

complaints regarding Mr. Rock’s management style) prior to

September 30, 2007, when, accordin g to Petitioner, she was

fired. I ndeed, Petitioner acknowl edged that she did not

complain about the alleged sexual harassment until after she was

fired.

63. Second, even if Petitioner’s complaints to Mr. Sierra

or Helen in the HR D epartment regarding Mr. Rock’s management

style could somehow be considered statutorily protected conduct,

there is no evidence that Petitioner ’s firing was in any way

re lated to those complaints because Mr. Rock credibly te stified

that he was unaware of the complaints.

Summary

64. Petitioner is not entitled to any re lief in this

proceeding because, as discussed above, she failed to prove her

claims .

65. It is not nece ssary to reach the issue of damages

because Petitioner failed to prove her claims. See Barto lone ,

supra , FHCR Order No. 07 - 045, at 3.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Commission i ssue a final order

dismissing the Petition for Relief with prejudice .

DONE AND ENTERED this 26th day of November , 2007 , in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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

th is 26th d ay of November, 2007.

ENDNOTES

1 / All statutory references in this Recommended Order are to the

2007 version of the Florida Statutes.

2 / The “box” is an area at the front of the store where

salespersons were station ed to meet customers as they entered

the store.

3 / A “house ticket” is a sale that is supposed to be credited to

the store, rather than to a salesperson.

4 / Petitioner conceded this issue in her PRO, which states (at

page 1) that Petitioner “was unable to present evidence

concerning Race discrimination, and as such, Race discrimination

will not be addressed in this proposed finding submission.”

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkwa y, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mauricio Arcadier, Esquire

Allen & Arcadier

700 N. Wickham Road, Suite 107

Melbourn e, Florida 32935

Christopher J. Coleman, Esquire

Schillinger & Coleman, P.A.

1311 Bedford Drive, Suite 1

Melbourne, Florida 32940

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the dat e 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.