07-004588 Lorie J. Plegue vs. Save A Lot/Jerry`s Enterprises Status: Closed Recommended Order on Thursday, February 28, 2008.

Summary: White female voluntarily resigned employment and failed to establish a prima facie case of discrimination based on race or gender, retaliation, or sexual harassment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORIE J. PLEGUE , )

)

Petitioner , )

)

vs. ) Case No. 07 - 4588

)

SAVE A LOT/JERRY'S ENTERPRISES , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing in this proceeding for the Division of

Administrative Hearings (DOAH) on December 18, 2007, in

Sarasota, Florida.

APPEARANCES

For Petitioner: Lorie Plegue, pro se

2405 Ar lington Road

Columbus Township, M ichigan 48063

For Respondent: William B. deMeza, Esquire

Ann M. Hensler, Esquire

Holland & Knight, LLP

100 North Tampa Street, Suite 4100

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminat ed against

Petitioner on the basis of her race or gender, engaged in sexual

harassment, or retaliated against Petitioner in violation of the

Florida Civil Rights Act, Chapter 760, Florida Statutes (2006). 1

PRELIMINARY STATEMENT

On March 11, 2007, Petitioner filed a C harge of

D iscrimination with the Florida Commission on Human Relations

(the Commission). Petitioner also filed a complaint with the

Equal Employment Opportunity Commission (EEOC).

The EEOC investigated the complaint , and the investigation

did not establish a statutory violation. Pursuant to an

agreement between the EEOC and the Commission, the Commission

did not conduct an i ndependent investigation. On September 20,

2007, the Commission issued a Right to Sue letter. On

October 3, 2007, Petitioner filed a Petition for Relief, and the

Commission referred the matter to DOAH to cond uct an

administrative hearing.

At the hearing , Petitioner appeared and testified in her

own behalf, presented the testimony of four other witnesses, and

submitted 17 exhibits for admission into evidence. Respondent

presented the testimony of four witnesses and submitted eight

exhibit s for admission into evidence.

The identity of the witnesses and exhibits, and any

associated rulings, are set forth in the T ranscript of the

hearing filed with DOAH on January 22, 2008. Petitioner and

Respondent timely filed P roposed R ecommended O rders on

January 7 and January 24, 2008, respectively.

FINDINGS OF FACT

1. Petitioner is an "aggrieved person" within the meaning

of Subsections 760.02(6) and (10). Petitioner is a Caucasian

female and filed a complaint of race and gender discrimination,

sexual harassment, a nd r etaliation with the Commission.

2. Respondent is an "employer" within the meaning of

Subsection 760.02(7). Respondent operates retail grocery stores

in several states, including Florida.

3. The evidence, in its entirety, does not establish a

prima f acie showing of discrimination or retaliation. Nor does

the evidence prove that Petitioner was sexually harassed.

Finally, there is no evidence that Respondent engaged in an

unlawful employment practice within the meaning of

Section 760.10.

4. Responde nt first employed Petitioner sometime in

July 2003 as an "at - will" employee. No written employment

contract has eve r existed between the parties.

5. Respondent trained and promoted Petitioner to a ssistant

m anager of a grocery store. In April 2005, howe ver, Mr. William

Reners, Respondent's r egional d irector of o perations (RDO),

offered Petitioner an opportunity to become the administrative

assistant/secretary in Respondent's Regional Office without a

decrease in compensation. 2 Petitioner accepted the of fer.

6. Petitioner continued her employment as an

administrative assistant , and she voluntary resigned on

February 5, 2007. Petitioner earned positive performance

evaluations and regular raises during her employment.

7. Petitioner's claim of disparate treatment relates to

Mr. Cornelius Hicks, an African - American male, who was

compensated at a higher level than the compensation Petitioner

received. However, Respondent employed Mr. Hicks as a store

manager, and Mr. Hicks never voluntarily transferred to a

positi on of administrative assistant.

8. Respondent gave Mr. Hicks an extraordinary raise

sometime in late 2006 or early 2007. Mr. Hicks' job performance

was "tremendous." Respondent intended the raise as recognition

of the duties Mr. Hicks performed as a "floater" manager. The

job required Mr. Hicks to manage a number of different stores

and to commute long distances, on short notice, and to perform

the duties of a floater manager for extended periods.

9. Petitioner first learned of the alleged disp arate

treatment when Petitioner entered Mr. Reners' office without

permission while he was on vacation sometime in January 2007.

Petitioner learned of the raise when she discovered relevant

paperwork in Mr. Reners' office.

10. Disparate treatment is not evidenced by Respondent's

refusal to give Petitioner a merit pay increase after Petitioner

earned a M aster's of B usiness A dministration (MBA) degree.

Mr. David Gerdes, Respondent's v ice p resident for Human

Resources, told Petitioner at the time that Resp ondent did not

give raises to employees when they earned college degrees that

do not improve an employee's ability to do his/her job. The MBA

did not improve Petitioner's ability to carry out her clerical

duties as an administrative assistant.

11. Petiti oner was aware that Respondent maintains a

uniform, written non - discrimination policy and a "zero

tolerance" sexual harassment policy. Petitioner knew the

policies were posted in all stores and included in annual

training sessions. Petitioner knew the co mpany had an "open

door" policy by which employees who are not satisfied with

answers to their inquiries at the local level are encouraged to

contact corporate headquarters in Minnesota. Finally,

Petitioner knew that Respondent promptly investigates emplo yees'

complaints of discrimination , retaliation, and harassment.

12. Mr. Reners is the individual who allegedly

discriminated and retaliated against Petitioner. As the RDO,

Mr. Reners is responsible for overall management and operation

of the 11 grocery stores in Florida. However, Mr. Reners did

not have the authority to discharge full - time employees,

including Petitioner.

13. The so - called whistle - blower evidence pertains to

various memoranda about store conditions that Petitioner wrote

during her em ployment as an administrative assistant. When

Petitioner discussed the issue with Mr. Reners in

September 2006, Mr. Reners invited Petitioner to send the

memoranda to Mr. John Boogren, Corporate Director of Operations.

Mr. Boogren is Mr. Ren ers' supervi sor.

14. Petitioner sent the memoranda to Mr. Boogren. The

memoranda discussed what Petitioner thought were poor conditions

and operating proc edures in Respondent's stores.

15. The evidence of sexual harassment involves

uncorroborated allegations by Pet itioner that Mr. Tom DeGovanni,

a co - worker, patted Petitioner on her head and shoulders, or

back, on October 6, 2006. Petitioner complained of the

incident, but qualified her complaint by saying that "it was no

big deal" and by saying that she did not wa nt the company to

take any action. Several days after the alleged incident,

however, Petitioner delivered a memorandum to Mr. Reners

compl aining of the alleged conduct.

16. Respondent investigated the claim of sexual harassment

by Mr. DeGovanni in accord ance with Respondent's long - standing

"zero tolerance" sexual harassment policy. The investigation

did not substantiate Petitioner's allegations. Mr. DeGovanni

adamantly denied touching Petitioner, there were no witnesses to

the alleged event , and, even t hough Petitioner and DeGovanni

were in front of a security video camera at the time of the

alleged event, the touc hing was not on the videotape.

17. Respondent reminded Mr. DeGovanni of the company's

policy against sexual harassment, gave Mr. DeGovanni a written

warning, and transferred him to another store location so

Petitioner would not have contact with him. Mr. Reners notified

corporate headquarters of the complaint, the investigation

resu lts, and the corrective action.

18. Petitioner received a sat isfactory performance

evaluation, a wage increase , and a bonus in December 2006, after

her complaint about DeGovanni. Mr. Reners knew of and approved

the evaluation, raise, and bonus and could have stopped t hem if

he had wished to do so.

19. Petitioner r esigned her employment as Respondent's

administrative assistant/secretary on two occasions prior to

February 5, 2007. Although Mr. Reners could have accepted both

of the prior resignations, he telephoned Petitioner and

persuaded her to resume her employme nt without penalty.

However, Mr. Reners warned Petitioner after the second

resignation that, if she resigned again, h e would accept the

resignation.

20. Mr. Reners was on vacation during the week of

January 29, 2007. Petitioner had no communication wit h

Mr. Reners during that week. On Saturday, February 3, 2007,

Petitioner prepared a letter of resignation and resigned on

February 5, 2007.

21. The psychic that Petitioner consults had previously

told Petitioner of an impending job termination. Mr. Ren ers

returned from vacation on Monday, February 5, 2007, and

commenced a meeting with two other employees to discuss

renovations at Respondent's store in Labelle, Florida.

Petitioner thought she should be included in the meeting and

knocked on the door to the meeting room.

22. Petitioner mistakenly thought the meeting was a staff

meeting that often occurred after Mr. Reners returned from a

vacation. Mr. Reners explained to Petitioner that there would

be a staff meeting afterwards.

23. Petitioner was upse t at not being included in the

first meeting and viewed her exclusion from the meeting as the

job termination predicted by her psychic. Shortly after the

first meeting ended, Petitioner walked up to Mr. Reners, handed

her store keys to him, said "You win! " and left the building.

24. Petitioner performed her job duties well. Respondent

would not have discharged Petitioner on February 5, 2007.

Petitioner volun tarily resigned on that day.

CONCLUSIONS OF LAW

25. DOAH has jurisdiction over the parties and t he subject

matter of this proceeding. §§ 120.569, 120.57(1). The parties

received adequate notice of the administrative hearing.

26. Petitioner bears the burden of proof in this

proceeding. Petitioner must show by a preponderance of the

evidence that R espondent intentionally discriminated against her

on the basis of her race or sex or retaliated against her

because of activity protected by the discrimination statutes.

Reeves v. Sanderson Plumbing Products., Inc. , 530 U.S. 133, 142,

120 S. Ct. 2097, 210 6 (2000).

27. The burden of proving retaliation follows the general

rules enunciated for proving discrimination. Reed v. A.W.

Lawrence & Co. , 95 F.3d 1170, 1178 (2d Cir. 1996). Federal

discrimination law may be used for guidance in evaluating the

merits of claims arising under Chapter 760. Tourville v.

Securex, Inc., Inc. , 769 So. 2d 491 (Fla. 4 th DCA 2000); Greene

v. Seminole Elec. Co - op. Inc. , 701 So. 2d 646 (Fla. 5 th DCA

1997); Brand v. Florida Power Corp. , 633 So. 2d 504 (Fla. 1 st

DCA 1994).

28. Pe titioner can meet her burden of proof with either

direct or circumstantial evidence. Damon v. Fleming

Supermarkets of Florida, Inc. , 196 F.3d 1354, 1358 (11th Cir.

1999), cert. denied , 529 U.S. 1109 (2000). Direct evidence must

evince discrimination or r etaliation without the need for

inference or presumption. Standard v. A.B.E.L. Services., Inc. ,

161 F.3d 1318, 1330 (11th Cir. 1998). In other words, direct

evidence consists of "only the most blatant remarks, whose

intent could be nothing other than to discriminate," Earley v.

Champion Int'l Corp. , 907 F.2d 1077, 1081 (11th Cir. 1990). By

analogy, direct evidence of retalia tion must be equally

egregious.

29. There is no direct evidence of discrimination or

retaliation in this case. In the absence of direct evidence,

Petitioner must meet her burden of proof by circumstantial

evidence.

30. Circumstantial evidence of discrimination or

retaliation is subject to the burden - shifting framework of proof

established in McDonnell Douglas Corp. v. Green , 411 U. S. 792,

93 S. Ct. 1817 (1973); Reed , 95 F.3d at 1178. Petitioner must

first establish a prima facie case of discrimination or

retaliation. McDonnell Douglas , 411 U.S. at 802; Munoz v.

Oceanside Resorts, Inc. , 223 F.3d 1340, 1345 (11th Cir. 2000),

and her failure to do so ends the inquiry. See Ratliff v.

State , 666 So. 2d 1008, 101 3 n.6 (Fla. 1 st DCA 1996), aff'd ,

679 So. 2d 1183 (1996) ( citing Arnold v. Burger Queen Sys. ,

509 So. 2d 958 (Fla. 2d DCA 1987)). If Petitioner establishes a

prima facie case , the burden shifts to Respondent to articulate

a legitimate, non - discriminatory, non - retaliatory reason for the

challenged action. Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 257, 101 S. Ct. 1089, 1096 (1981); Munoz ,

223 F.3d at 1345; Turlington v. Atlanta Gas Light Co. , 135 F.3d

1428, 1432 (11th Cir. 1998), cert. denied , 119 S. Ct. 405

(1998). Petitioner must then prove by a preponderance of

evidence that the reasons offered by Respondent for its actions

are mere pretexts. Id.

31. In order to establish a prima facie case of race

discrimination, a preponderance of the evidence must show that

Petitioner is a member of a protected class, that she suffered

an adverse employment action, that she received disparate

treatment compared to s imilarly - situated individuals in a non -

protected class, and that there is sufficient evidence of bias

to infer a causal connection between her race or sex and the

disparate treatment. Rosenbaum v. Southern Manatee Fire and

Rescue Dist. , 980 F. Supp. 1469 (M.D. Fla. 1997); Andrade v.

Morse Operations, Inc. , 946 F. Supp. 979, 984 (M.D. Fla. 1996).

A preponderance of the evidence does not show that Petitioner

received disparate treatment compared to similarly situated

individuals or that the alleged disparat e treatment is causally

connected to Petitioner's race or sex. Failure to establish the

last prong of the conjunctive test is fatal to a claim of

discrimination. Mayfield v. Patterson Pump Co. , 101 F.3d 1371

(11th Cir. 1996); Earley , supra . See also Hol ifield v. Reno ,

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

32. A preponderance of the evidence does not establish a

prima facie case of sexual harassment. The alleged one - time

contact by Mr. DeGovanni was not "sexual" and was not

sufficiently severe or pervas ive to constitute "sexual

harassment" as a matter of law. See , e.g. , Mendoza v. Borden,

Inc. , 195 F.3d 1238, 1245 (11th Cir. 1999), cert. denied ,

529 U.S. 1068 (2000) (actionable harassment must be

“sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive

working environment”); Gupta v. Florida Board of Regents ,

212 F.3d 571, 583 (11th Cir. 2000), cert. denied , 531 U.S. 1076

(2001) (“Innocuous statements or conduct, or boorish ones that

do not relate to the sex of the actor or of the offended party

are not counted”).

33. Respondent maintained an effective and well - known

"zero tolerance" sexual harassment policy. When Petitioner

complained of the alleged offensive behavior, Respondent reacted

quickly and effectively. Respondent cannot be held liable for

the alleged conduct of Mr. DeGovanni. Burlington Industries v.

Ellerth , 542 U.S. 742, 118 S. Ct. 2257 (1998); Faragher v. City

of Boca Raton , 524 U.S. 775, 118 S. Ct. 2275 (1998).

34. Petitio ner did not establish a prima facie case of

retaliation. A preponderance of evidence does not show that

Petitioner suffered an adverse employment action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order finding

Respondent not guilty of the allegations against Respondent and

dismissing the Charge of Discrimination and Petition for Relief.

DONE AND ENTERED this 2 8 th day of February , 2008 , in

Tallahassee, Leon County, Flor ida.

S

DANIEL MANRY

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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 8 th day of February , 2008 .

ENDNOTES

1/ References to c hapters, s ections, and s ubsections are to

Florida Statutes ( 2006) unless stated otherwise.

2/ An administrati ve assistant makes approximately 50 percen t

less than a store manager.

COPIES FURNISHED :

Lorie Plegue

3548 Coronado Drive, Apartment 611

Sarasota, Florida 34231

William B. deMeza, Esquire

Ann M. Hensler, Esquire

Holland & Knight, LLP

100 North Tampa Str eet, Suite 4100

Tampa, Florida 33602

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Lorie Plegue

2405 Arlington Road

Columbus Township, Michigan 48063

Cecil Howard, Gen eral 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 Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.