07-004785 Gloria J. Bias-Gibbs vs. Jupiter Medical Center Status: Closed Recommended Order on Thursday, April 24, 2008.

Summary: Respondent hospital did not unlawfully discriminate against Petitioner when Petitioner was an employee of Respondent, on the basis of her race, in violation of the Florida Civil Rights Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA J. BIAS-GIBBS, )

)

Petitioner, )

)

vs. ) Case No. 07-4785

)

JUPITER MEDICAL CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

December 11, 2007, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Gloria Jean Bias-Gibbs, pro se

570 West 5th Street

Riviera Beach, Florida 33401

For Respondent: Gregory D. Cook, Esquire

FitzGerald Mayans & Cook, P.A.

515 North Flagler Drive, Suite 900

West Palm Beach, Florida 33402

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent unlawfully

discriminated against Petitioner on the basis of her race in

violation of the Florida Civil Rights Act, when Petitioner was

an employee of Respondent.

PRELIMINARY STATEMENT

On or before September 22, 2006, Petitioner Gloria J. Bias-

Gibbs filed a Charge of Discrimination, which made it way to

the Florida Commission on Human Relations ("FCHR") for

investigation. In her Charge, Ms. Bias-Gibbs claimed that

Respondent Jupiter Medical Center had committed numerous acts of

unlawful racial discrimination against her during her time as an

employee of the hospital.

On September 13, 2007, after conducting an investigation

into Ms. Bias-Gibbs' allegations, the FCHR issued a "no cause"

determination, finding the accusations of racial discrimination

to be without merit. Ms. Bias-Gibbs elected to pursue

administrative remedies, timely filing a Petition for Relief

with the FCHR on or about October 15, 2007. The FCHR

transmitted the Petition for Relief to the Division of

Administrative Hearings on October 16, 2007, and an

administrative law judge ("ALJ") was assigned to the case. The

ALJ scheduled the final hearing for December 11, 2007.

At the hearing, Ms. Bias-Gibbs testified on her own behalf

and presented Gina Daher, a former employee of Respondent, as a

supporting witness. In addition, Petitioner's Exhibit 1 was

admitted into evidence.

During its case, Respondent called as witnesses Beth

Suriano, Joyce Stokes, and Gail O'Day, each of whom was, as of

the hearing, a current employee of Respondent. Respondent also

introduced (as Respondent's Exhibits 8 and 9, respectively) the

depositions of Ms. Bias-Gibbs and Janet Sparks, the latter being

another former employee of Respondent. Respondent's Exhibits 1

through 7 were received in evidence as well.

The final hearing transcript was filed on February 12,

2008. Respondent timely filed a Proposed Recommended Order

before the deadline established at hearing, which was March 28,

2008. Ms. Bias-Gibbs did not file a Proposed Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2007 Florida Statutes.

FINDINGS OF FACT

1. From 1991 until she resigned in November 2005,

Petitioner Gloria J. Bias-Gibbs ("Bias-Gibbs") worked for

Respondent Jupiter Medical Center ("JMC") in several different

positions, which were mostly clerical in nature. Starting in

2001, and continuing throughout the time period relevant to this

case, Bias-Gibbs' job was to perform "chart prep" in the Same

Day Surgery unit, which is within JMC's Surgical Services

Department.

2. As a chart prep employee, Bias-Gibbs' task was to

assemble patients' charts for the medical personnel. During the

time she held the chart prep position, Bias-Gibbs was the only

person who occupied it. Volunteers had performed the chart prep

duties before Bias-Gibbs assumed them, and, after she resigned,

volunteers once again were given the chart prep duties to

perform.

3. Bias-Gibbs' immediate supervisor in Same Day Surgery

was Janet Sparks, the Clinical Manager. Ms. Sparks, in turn,

reported to Beth Suriano, the Director of Surgical Services.

Ms. Sparks and Ms. Suriano are white women; Bias-Gibbs is a

black woman.

4. Not long after she began her tenure as a chart prep,

Bias-Gibbs began to believe that she was a victim of racial

discrimination at work. In particular, she felt that Ms. Sparks

was a racist who repeatedly took adverse action against her

solely because she is black.

5. The many allegedly discriminatory acts about which

Bias-Gibbs presently complains can be divided into three main

categories: (a) denials of her requests for promotion or

transfer to another position; (b) Ms. Sparks' conduct; and (c)

refusals to provide training, most notably in relation to a

computer program known as "Fast Forms," about which Bias-Gibbs

alleges she received inadequate instruction.

6. The Requests for Transfer.

Between April 16, 2001, and February 22, 2005, Bias-Gibbs

submitted sixteen job transfer applications, seeking positions

at JMC that she believed were more in keeping with her

qualifications than chart prep. None of these applications was

approved. Bias-Gibbs does not know the identities, racial

characteristics, or qualifications of any of the persons whom

JMC hired for the sixteen positions Bias-Gibbs sought. Because

she applied for these positions and did not get them, however,

Bias-Gibbs feels that she was discriminated against.

7. In addition, Bias-Gibbs once sought to transfer to

another position in the Surgical Services Department. The job

of Patient Access Specialist was given, however, to another

employee of JMC, Joyce Stokes, who assumed the position some

time in 2004. Unlike Bias-Gibbs, Ms. Stokes (who happens to be

white) had taken a medical terminology course and examination.

Because proficiency in medical and surgical terminology is

desirable for the position in question, Ms. Stokes was more

qualified than Bias-Gibbs to be a Patient Access Specialist.

8. Ms. Sparks' Conduct.

Bias-Gibbs' complaints about Janet Sparks, whom she calls a

"racist," revolve around allegations that Ms. Sparks forced

Bias-Gibbs to sit in a back room while on the job; made racially

insensitive remarks concerning Bias-Gibbs' appearance

(specifically, her hair); refused to transfer Bias-Gibbs to a

different position in the Surgical Services Department (the

incident discussed above); kept an overly watchful eye on Bias-

Gibbs while she was working; and generally declined to give

Bias-Gibbs more challenging assignments in addition to chart

prep.

9. Work Station. Bias-Gibbs worked in a room apart from

the secretaries in the unit. Her work area was neither "on the

floor" nor in public view. While she believes that this

"back room" placement was discriminatory, Bias-Gibbs' job as a

chart prep employee did not require her to sit "out front."

There is no evidence that Bias-Gibbs was singled-out for

different treatment regarding her work station. To the

contrary, after Bias-Gibbs resigned, the chart prep work

continued to be done in the same room where Bias-Gibbs had

labored, with the same supplies that were available to Bias-

Gibbs while she was employed.

10. Insensitive Remarks. Bias-Gibbs does not believe that

she was harassed because of her race. She does complain,

however, about derogatory remarks she attributes to Ms. Sparks.

According to Bias-Gibbs, when Bias-Gibbs wore her hair in braids

to work, Ms. Sparks made comments to the effect that she (Bias-

Gibbs) looked like Whoopi Goldberg. In addition, Ms. Sparks

once told Bias-Gibbs that she wished she (Ms. Sparks) were black

because, if she were black, then it would be easier to take care

of her hair. The undersigned takes Bias-Gibbs at her word that

these quips were offensive and hurtful to her (although she

never told Ms. Sparks that the comments at issue made her

uncomfortable).

11. To infer, however, that racial animus motivated these

comments (there being no direct evidence of discriminatory

intent) would require that the words be given a very mean

connotation (and the speaker absolutely no benefit of the doubt)

because, viewed objectively, the statements appear to be, at

worst, inconsiderate, unkind, or rude. Ultimately, there is

insufficient evidence upon which to base a finding (or to infer)

that these remarks were anything but workplace banter of the

sort that anti-discrimination laws are not designed to reach.

12. "Excessive" Supervision. Bias-Gibbs believes that

Ms. Sparks was hypervigilant about watching her work, which made

Bias-Gibbs nervous or uncomfortable. Although she attributes

this watchfulness to racism, Bias-Gibbs conceded, when pressed,

that it was not discriminatory for her supervisor to keep an eye

on her at work. There is no evidence, in any event, that

Ms. Sparks subjected Bias-Gibbs to closer scrutiny than other

employees, much less that she treated Bias-Gibbs differently in

this regard based on her race.

13. Underutilization. As an overarching complaint about

Ms. Sparks, Bias-Gibbs believes that her supervisor generally

refused to allow Bias-Gibbs to perform the kind of work that

would make full use of her skills. At most, however, the

evidence shows that Ms. Sparks and Bias-Gibbs had different

opinions about Bias-Gibbs' potential for taking on other

responsibilities. There is no evidence that Ms. Sparks'

opinion, which was that Bias-Gibbs should continue working in

chart prep, was racially based.

14. Inadequate Training.

Bias-Gibbs felt that she was discriminated against because

other individuals were given more training than she was on using

the Fast Forms computer program. Bias-Gibbs did receive

instructions on using Fast Forms, however, which were sufficient

to enable her to look up patients' names in the database——the

only function of the program that was relevant to, and helpful

in the performance of, her duties. The secretaries who used

Fast Forms were provided more training in the use of the

program, it is true, but their duties were different than Bias-

Gibbs's duties, and hence they used Fast Forms for reasons in

addition to retrieving names. The secretaries, in short, were

provided more training than Bias-Gibbs, not because the latter

is black, but because, as secretaries, they needed more training

than Bias-Gibbs. The bottom line: there is no persuasive

evidence that Bias-Gibbs was given inadequate training——period.

15. At all times during Bias-Gibbs' tenure as an employee

of JMC, the hospital had an anti-discrimination policy, an anti-

harassment policy, an equal employment policy, and a grievance

policy, which were available to all employees. Bias-Gibbs was

aware of these policies, yet she never made any allegations of

racial discrimination or harassment, disparate racial treatment,

or racial comments to Ms. Sparks, Ms. Suriano, or anyone else.

Similarly, she never used the grievance procedure to complain

that she had been denied a promotion or transfer because of her

race.

16. Bias-Gibbs resigned her position at JMC in November of

2005. Although she now maintains that she felt compelled to

resign her position because she was denied opportunities to

advance at the hospital (and because she needed a job that paid

more money), at the time Bias-Gibbs informed others that she was

leaving her position in Same Day Surgery because she had gotten

a better-paying job at the post office.

17. Bias-Gibbs filed a Charge of Discrimination against

JMC at some point on or after July 19, 2006. (She signed the

charging document on September 22, 2006, but there is an

inscription on the instrument indicating that it was filed on

July 19, 2006. There is no evidence explaining this

discrepancy.)

Ultimate Factual Determinations

18. Taken as a whole, the evidence in this case is either

insufficient to establish that JMC discriminated unlawfully

against Bias-Gibbs on the basis of her race; or it proves,

affirmatively, that JMC did not , in all likelihood, unlawfully

discriminate against her. Either way, it is determined, as a

matter of ultimate fact, that JMC did not violate the civil

rights laws in its treatment of Bias-Gibbs while she was an

employee of JMC.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

20. The Florida Civil Rights Act of 1992 ("FCRA") is

codified in Sections 760.01 through 760.11, Florida Statutes.

When "a Florida statute [such as the FCRA] is modeled after a

federal law on the same subject, the Florida statute will take

on the same constructions as placed on its federal prototype."

Brand v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994). Therefore, t he FCRA should be interpreted, where

possible, to conform to Title VII of the Civil Rights Act of

1964, which contains the principal federal anti-discrimination

laws.

21. Section 760.10, Florida Statutes, provides, in

relevant part:

(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.

22. Under Section 760.11(1), Florida Statutes, any person

aggrieved by an unlawful employment practice may file a

complaint with the FCHR within 365 days after the alleged

violation. Failure to do so bars the claim under state law.

See Greene v. Seminole Elec. Co-op, Inc. , 701 So. 2d 646, 648

(Fla. 5th DCA 1997)(As a statute of limitations, Section

760.11(1) bars claims arising from acts that occurred more than

one year before the charge was filed.); see also St. Petersburg

Motor Club v. Cook , 567 So. 2d 488, 489 (Fla. 2d DCA 1990). 1

23. The charge-filing period for a claim arising from a

discrete act of alleged discrimination—— e.g. termination,

failure to promote, demotion, or refusal to hire——begins to run

at the moment the act occurs, which is on the day it happens.

See Maggio v. Dep't of Labor & Empl. Sec. , 910 So. 2d 876, 879

(Fla. 2d DCA 2005); see also National R.R. Passenger Corp. v.

Morgan , 536 U.S. 101, 110, 122 S. Ct. 2061, 2070-71, 153 L. Ed.

2d 106, 120 (2002)("A discrete retaliatory or discriminatory act

'occurred' on the day it 'happened.' A party, therefore, must

file a charge within [the specified number of days after] the

date of the act or lose the ability to recover for it."). Pre-

limitation acts can be used, where relevant, "as background

evidence in support of a timely claim," but they cannot

themselves form the basis for liability. Morgan , 536 U.S. at

113, 122 S. Ct. at 2072, 153 L. Ed. 2d at 122 ; see also , Clarke

v. Winn Dixie Stores, Inc. , 2007 U.S. Dist. LEXIS 75980 at *9

(S.D. Fla. 2007)(failure to promote claims that involve events

which occurred more than 365 days prior to the filing of the

complaint with the FCHR dismissed as untimely).

24. Here, the conclusion is inescapable that any action of

JMC that could have constituted the discrete act of refusing to

promote or transfer Bias-Gibbs happened more than 365 days prior

to July 19, 2006. Her last request for transfer was made, after

all, on February 22, 2005, some 17 months before the earliest

possible date her Charge of Discrimination was filed. Thus, it

is concluded that, to the extent she is alleging discrimination

based on JMC's alleged refusals to transfer or promote her,

Bias-Gibbs' claim is time-barred and must be dismissed with

prejudice for that reason.

25. Even if Bias-Gibbs' Charge of Discrimination were

timely filed in all respects, she still would not be entitled to

relief because her claim is without merit, for the alternative,

and independently dispositive, reasons set forth below.

26. A complainant alleging unlawful discrimination may, of

course, prove her case using direct evidence of discriminatory

intent. Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). Courts have held that "only the most

blatant remarks, whose intent could be nothing other than to

discriminate," satisfy this definition. See Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358-59 (11th Cir.

1999)(internal quotations omitted) , cert. denied , 529 U.S. 1109,

120 S. Ct. 1962, 146 L. Ed. 2d 793 (2000). Often, such evidence

is unavailable, and in this case, Bias-Gibbs presented none.

27. A s an alternative to relying exclusively upon direct

evidence, the law permits a complainant to profit from an

inference of discriminatory intent, if she can adduce sufficient

circumstantial evidence of discriminatory animus——such as proof

that the charged party treated persons outside of the protected

class, who were otherwise similarly situated, more favorably

than the complainant was treated. Such circumstantial evidence,

when presented, constitutes a prima facie case.

28. In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802-803 (1973), the U.S. Supreme Court articulated a scheme for

analyzing employment discrimination claims where, as here, the

complainant relies upon circumstantial evidence of

discriminatory intent. Pursuant to this analysis, the

complainant has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1st DCA), aff'd , 679 So. 2d 1183 (Fla.

1996)( citing Arnold v. Burger Queen Systems , 509 So. 2d 958

(Fla. 2d DCA 1987)). If, however, the complainant succeeds in

making a prima facie case, then the burden shifts to the accused

employer to articulate a legitimate, non-discriminatory reason

for its complained-of conduct. This intermediate burden of

production, not persuasion, is "exceedingly light." Turnes v.

Amsouth Bank, N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994). If the

employer carries this burden, then the complainant must

establish that the proffered reason was not the true reason but

merely a pretext for discrimination. St. Mary's Honor Center v.

Hicks , 509 U.S. 502, 516-518, 113 S. Ct. 2742, 2752-53, 125 L.

Ed. 2d 407, 422-23 (1993). At all times, the "ultimate burden

of persuading the trier of fact that the [charged party]

intentionally discriminated against [her]" remains with the

complainant. Silvera v. Orange County Sch. Bd. , 244 F.3d 1253,

1258 (11th Cir. 2001), cert. denied , 534 U.S. 976, 122 S. Ct.

402, 151 L. Ed. 2d 305 (2001), reh'g denied , 535 U.S. 1013, 122

S. Ct. 1598, 152 L. Ed. 2d 513 (2002).

29. To establish a prima facie case of discrimination on

failure-to-promote (or transfer) grounds, Bias-Gibbs needed to

show that: (1) she is a member of a protected class; (2) she

was qualified for and applied for the promotion; (3) she was

rejected despite these qualifications; and (4) other equally or

less qualified employees who were not members of the protected

class were promoted. See Mathis v. Wachovia Bank , 255 Fed.

Appx. 425, 429 (11th Cir. 2007); Wu v. Thomas , 847 F.2d 1480,

1483 (11th Cir. 1988), cert. denied , 490 U.S. 1006, 109 S. Ct.

1641, 104 L. Ed. 2d 156 (1989).

30. While there is no dispute that Bias-Gibbs belongs to a

protected class and that she was rejected for the positions for

which she applied, there is also no persuasive evidence that

Bias-Gibbs was qualified for any of the positions. 2 Moreover,

Bias-Gibbs presented no evidence that other equally (or less)

qualified employees who were not members of the protected class 3

were transferred or promoted, leaving unproved yet another

element of the prima facie case.

31. Bias-Gibbs failed, therefore, to make out a prima

facie case of racial discrimination on failure-to-promote (or

transfer) grounds, ending the inquiry . Because the burden never

shifted to JMC to articulate a legitimate, non-discriminatory

reason for its conduct, it was not necessary above to make any

findings of fact in this regard.

32. To establish a prima facie case of discriminatory

discipline or treatment, Bias-Gibbs was required to show that:

(1) she is a member of a protected class; (2) she was subjected

to an adverse employment action; (3) her employer treated

similarly situated employees outside of her protected class more

favorably than she was treated; and (4) she was qualified to do

the job. Mathis , 255 Fed. Appx. at 429-30 ; Burke-Fowler v.

Orange County, Fla. , 447 F.3d 1319, 1323 (11th Cir. 2006).

33. Once again, it is not disputed that Bias-Gibbs belongs

to a protected class, or that she was qualified for the chart

prep position. Bias-Gibbs failed, however, to produce evidence

showing that any employee outside of the protected class, who

was similarly situated to her in all relevant aspects, was

treated more favorably than she was. Likewise, Bias-Gibbs

offered no persuasive evidence that she suffered legally

cognizable adverse employment action.

34. Regarding the third element of a prima facie case of

disparate treatment, which necessitates a finding that Bias-

Gibbs' employer treated similarly situated employees outside of

the protected class more favorably than she was treated, the

courts have held that "'the [complainant] must show that [s]he

and the employees [outside of the protected class] are similarly

situated in all relevant respects.'" Mathis , 255 Fed. Appx. at

430 (quoting Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir.

1997)). The comparator must be nearly identical to the

complainant to prevent courts from second-guessing a reasonable

decision by the employer. Id. ; see also , Cooley v. Great

Southern Wood Preserving , 138 Fed. Appx. 149, 157 (11th Cir.

2005).

35. Bias-Gibbs was the only individual in the chart prep

position. No one, therefore, was similarly situated to her in

all relevant respects. But even if there were a similarly

situated employee to whom Bias-Gibbs could be compared, there is

no persuasive evidence that JMC treated non-minorities

differently , much less better , than Bias-Gibbs. The third

element of a prima facie case of disparate treatment simply was

not met.

36. A prima facie case also requires proof of "adverse

employment action." "An adverse employment action [for the

purposes of a discrimination claim] is an ultimate employment

decision, such as discharge or failure to hire, or other conduct

that alters the employee's compensation, terms, conditions, or

privileges of employment, deprives him or her of employment

opportunities, or adversely affects his or her status as an

employee." Gupta v. Fla. Bd. of Regents , 212 F.3d 571, 587

(11th Cir. 2000), cert. denied , 531 U.S. 1076, 121 S. Ct. 772,

148 L. Ed. 2d 671 (2001) (internal quotations and citations

omitted). "[The Eleventh Circuit] has never adopted a bright-

line test for what kind of effect on the [complainant's] 'terms,

conditions, or privileges' of employment the alleged

discrimination must have for it to be actionable; nor would such

a rigid test be proper." Davis v. Town of Lake Park, Fla. , 245

F.3d 1232, 1238 (11th Cir. 2001) (citing Gupta , 212 F.3d at

586). "It is clear, however, that not all conduct by an

employer negatively affecting an employee constitutes adverse

employment action." Id. "Title VII is neither a general

civility code nor a statute making actionable the ordinary

tribulations of the workplace." Id. at 1239 (internal

quotations and citations omitted).

37. The Eleventh Circuit has stated generally that " to

prove adverse employment action in a case under Title VII's

anti-discrimination clause, an employee must show a serious and

material change in the terms, conditions, or privileges of

employment." Id. at 1239 (emphasis in original). "Moreover,

the employee's subjective view of the significance and adversity

of the employer's action is not controlling; the employment

action must be materially adverse as viewed by a reasonable

person in the circumstances." Id.

38. None of the treatment Bias-Gibbs claims was

discriminatory constitutes adverse employment action. To

review, although she sat in a different room than the

secretaries who sat out front, Bias-Gibbs was not a secretary,

and her job could be performed in a less visible location.

Indeed, the volunteers who resumed performing the chart prep

duties after Bias-Gibbs resigned worked in the very same room,

apart from the secretaries. There was nothing "adverse" about

this, in any sense of the word. Similarly, while Bias-Gibbs

claims that her supervisor, Ms. Sparks, supervised her work with

excessive zeal, even such vigilant oversight cannot be

considered adverse action——at least not without more than was

shown here. And Bias-Gibbs' allegation that she was denied

adequate training on the Fast Forms computer program was not

supported by the evidence; her own testimony establishes that

she received all the computer training she needed for her

position.

39. Bias-Gibbs resigned her employment in November 2005;

in her Charge of Discrimination, she alleged that she had been

compelled to resign. Constructive discharge can be an adverse

employment decision for the purposes of claims brought under

Title VII or the FCRA. Poole v. Country Club of Columbus , 129

F.3d 551, 553 (11th Cir. 1997). Under the doctrine of

constructive discharge, a complainant " must demonstrate that

working conditions were 'so intolerable that a reasonable person

in her position would have been compelled to resign.'" Id.

(quoting Thomas v. Dillard Dep't Stores, Inc., 116 F.3d 1432,

1433-34 (11th Cir.1997), cert. denied , 512 U.S. 1221, 114 S. Ct.

2708, 129 L. Ed. 2d 836 (1994)). A complainant's "subjective

feelings about his employer's actions" will not be considered in

evaluating a constructive discharge claim. Doe v. Dekalb County

School Dist. , 145 F.3d 1441, 1450 (11th Cir. 1998). "Rather, we

determine whether 'a reasonable person in [the complainant's]

position would be compelled to resign.'" Id. (quoting Steele v.

Offshore Shipbuilding, Inc. , 867 F.2d 1311, 1317 (11th Cir.

1989)).

40. The Eleventh Circuit has defined a reasonable employee

as one who does not "assume the worst" or "jump to conclusions

too fast." Garner v. Wal-Mart Stores, Inc. , 807 F.2d 1536, 1539

(11th Cir. 1987)(affirming summary judgment in discrimination

case where employee quit after one day in self-perceived

unacceptable position). " Before finding a constructive

discharge, [the Eleventh Circuit] has traditionally required a

high degree of deterioration in an employee's working

conditions, approaching the level of 'intolerable. " Hill v.

Winn-Dixie Stores, Inc. , 934 F.2d 1518, 1527 (11th Cir. 1991).

41. Mindful of the foregoing principles, the undersigned

concludes that the evidence is insufficiently persuasive to

establish that Bias-Gibbs' working conditions were so

intolerable that a reasonable person in her position would have

felt compelled to resign. In sum, on the instant record, it

cannot be found that Bias-Gibbs was constructively discharged.

42. Because Bias-Gibbs failed to establish a prima facie

case of discriminatory treatment or constructive discharge, she

did not create a presumption of discrimination under the

McDonnell Douglas framework, and the burden never shifted to JMC

to rebut the presumption by demonstrating legitimate, non-

discriminatory reasons for its actions.

43. Bias-Gibbs has not alleged specifically that she was

harassed on the basis of her race, and her testimony,

consistently, includes a denial that such harassment occurred.

Bias-Gibbs did testify, however, that her supervisor made some

comments she considered derogatory, and so the issue of racial

harassment will be addressed.

44. To establish a prima face case of racial harassment as

a result of a hostile work environment, Bias-Gibbs needed to

prove that: (1) she belongs to a protected group; (2) she was

subjected to unwelcome harassment; (3) the harassment was based

on the protected characteristic, such as race; (4) the

harassment was sufficiently severe or pervasive to alter the

terms and conditions of employment and thus create a

discriminatorily abusive working environment; and (5) the

employer is responsible for that environment under a theory of

either direct or vicarious liability. Miller v. Kenworth of

Dothan Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002).

45. The legal requirement that harassment, to be

actionable, must have been severe or pervasive ensures that

Title VII and the FCRA do not become "general civility code[s]."

See Faragher v. City of Boca Raton , 524 U.S. 775, 788, 118 S.

Ct. 2275, 141 L. Ed. 2d 662 (1998). The severity or

pervasiveness of the alleged harassment, moreover, must be

established as both a subjective experience and an objective

fact. See Mendoza v. Borden, Inc. , 195 F.3d 1238, 1246 (11th

Cir. 1999)(en banc), cert. denied , 529 U.S. 1068, 146 L. Ed. 2d

483, 120 S. Ct. 1674 (2000). That is, the complainant must have

personally perceived any harassment as severe or pervasive, and

the environment must have been one that a reasonable person in

the complainant's position would have found hostile or abusive.

Id.

46. Four factors are important in analyzing whether

alleged harassment was severe or pervasive, objectively altering

the terms and conditions of employment: (1) the frequency of

the conduct; (2) the severity of the conduct; (3) whether the

conduct was physically threatening or humiliating——or merely an

offensive utterance; and (4) whether the conduct unreasonably

interfered with the employee's job performance. Id. For

harassing statements and conduct to be considered in determining

whether the "severe or pervasive" requirement is met in a race-

based case, they must be racial in nature. Cf. Gupta , 212 F.3d

at 583. "Accordingly, innocuous or boorish statements or other

behavior that does not relate to the race of the actor or the

employee do not count." Laosebikan v. Coca-Cola Co. , 167 Fed.

Appx. 758, 765 (11th Cir. 2006). Teasing, offhand comments, and

isolated incidents (unless extreme) will not amount to

discriminatory changes in the terms and conditions of

employment. Mendoza , 195 F.3d at 1245.

47. Bias-Gibbs failed to present sufficient, persuasive

evidence to establish a prima facie case of a hostile work

environment. The only incidents of an objectively racial nature

were (a) the comments by Ms. Sparks, made when Bias-Gibbs wore

her hair in braids, comparing Bias-Gibbs's appearance to Whoopi

Goldberg's; and (b) Ms. Sparks' remark suggesting that she would

prefer to have hair like a black person's. As found above,

these comments might be considered boorish or inconsiderate, but

viewed objectively, they are at worst clumsy attempts at humor.

Further, no evidence was presented that such comments were

constantly being made, nor was it established that these (or any

other) remarks were threatening, humiliating, or interfered with

Bias-Gibbs' job performance. That Bias-Gibbs was offended by

the comments, while certainly unfortunate, is nevertheless

insufficient to demonstrate conditions sufficiently severe or

pervasive to alter the terms and conditions of her employment.

In short, the objective component of the fourth element of the

prima facie case was not established.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order

dismissing Bias-Gibbs' Petition for Relief as partially time-

barred, and alternatively (and additionally) finding JMC not

liable on the merits for racial discrimination.

DONE AND ENTERED this 24th day of April, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 24th day of April, 2008.

ENDNOTES

1 / Although Section 760.11(1) "states that a complaint 'may' be

filed with the [FCHR], it is clear that such a complaint must be

filed either with the [FCHR] or its federal counterpart by

anyone who wishes to pursue either a lawsuit or an

administrative proceeding under the act." Ross v. Jim Adams

Ford, Inc. , 871 So. 2d 312, 315 (Fla. 2d DCA 2004).

2 / Her own personal opinion, without more, is not enough to

establish that she was qualified. Cf. Holifield v. Reno , 115

F.3d 1555, 1564 (11th Cir. 1997); see also , Austin v.

Progressive RSC, Inc. , 510 F. Supp. 2d 855, 865 (M.D.Fla.

2007)(prima facie case of race discrimination failed as

plaintiff could not demonstrate he was qualified for the

promotion he sought), aff'd , 2008 U.S. App. LEXIS 3728 (11th

Cir. Feb. 19, 2008) .

3 / With the exception of Joyce Stokes, the better qualified

white woman who received the position in Same Day Surgery that

Bias-Gibbs desired, Bias-Gibbs has no knowledge of the race of

any of the individuals who received the positions. Thus, quite

apart from the matter of qualifications, there is no evidence

that any of the positions Bias-Gibbs sought (except for the job

of Patient Access Specialist) were filled by non-minorities.

COPIES FURNISHED :

Gloria Jean Bias-Gibbs

570 West 5th Street

Riviera Beach, Florida 33401

Gregory D. Cook, Esquire

FitzGerald Mayans & Cook, P.A.

515 North Flagler Drive, Suite 900

West Palm Beach, Florida 33402

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.