08-000693 Leslie Stokes vs. Lexus Of Tampa Bay Status: Closed Recommended Order on Thursday, August 7, 2008.

Summary: The transfer of Petitioner and the termination of the employment agency assignment was not motivated by discrimination or retaliation. Respondent did not foster a hostile work environment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LESLIE STOKES, )

)

Petitioner, )

)

vs. ) Case No. 08-0693

)

LEXUS OF TAMPA BAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing in this proceeding for the Division of

Administrative Hearings (DOAH) on May 21, 2008, in Tampa,

Florida.

APPEARANCES

For Petitioner: Leslie P. Stokes, pro se

4714 Pleasant Avenue

Palm Harbor, Florida 34683

For Respondent: Andrew Froman, Esquire

Alva L. Cross, Esquire

Fisher & Phillips LLP

401 East Jackson Street, Suite 2525

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of her race, subjected Petitioner to a

hostile work environment, or retaliated against Petitioner in

violation of the Hillsborough County Human Rights

Ordinance 00-37, Section 4(1)(a)(1).

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the

Hillsborough County Human Rights Board (the Board) on June 4,

2004. Petitioner dual-filed an identical Charge with the Equal

Employment Opportunity Commission (EEOC) on the same date.

The Board completed the investigation of the allegations in

the Charge on January 8, 2008, and issued a determination that

cause existed to believe the alleged discrimination occurred.

Pursuant to Hillsborough County Human Rights Ordinance 00-37,

the matter was referred to DOAH to conduct an administrative

hearing.

At the hearing, Petitioner testified, presented the

testimony of three other witnesses, and submitted seven exhibits

for admission into evidence. Respondent cross-examined each

witness and submitted seven exhibits.

The identity of the witnesses and exhibits, and any

associated rulings, are reported in the Transcript of the

hearing filed with DOAH on June 27, 2008. The parties timely

filed their respective Proposed Recommended Orders (PROs) on

July 14, 2008.

FINDINGS OF FACT

1. Petitioner is an aggrieved person within the meaning of

Hillsborough County Human Rights Ordinance 00-37, Section 16.

Petitioner is an African-American female and filed a complaint

with the Board alleging that Respondent engaged in race, color,

and gender discrimination; retaliation; and the creation of a

hostile work environment.

2. Respondent is an employer within the meaning of

Section 16. Respondent operates a car dealership and is in the

business of selling and servicing new and used automobiles and

trucks in several states, including Florida.

3. Respondent was not Petitioner's employer. Petitioner

was a temporary worker during the relevant period, and her

employment contract was with an employment agency. No written

employment contract existed between the parties to this

proceeding. The employment agency paid Petitioner, and

Respondent paid the employment agency.

4. The employment agency assigned Petitioner to Respondent

from January 13 through January 23, 2004. Other than

Petitioner’s uncorroborated testimony, there is no written or

other evidence that Respondent intended Petitioner’s temporary

assignment either to become a permanent position or to last for

six weeks. The fact-finder finds the testimony of Petitioner to

be less than credible and persuasive.

5. From January 13 until January 21, 2004, Petitioner

worked at Respondent's Tampa office at Lexus of Tampa Bay

located on North Dale Mabry Avenue, Tampa, Florida. Respondent

transferred Petitioner to its office at Lexus of Clearwater,

Florida, on January 21, 2004, and terminated the assignment from

the employment agency on January 23, 2004. The termination of

assignment occurred in Pinellas County, rather than Hillsborough

County, Florida.

6. Petitioner began her assignment at Lexus of Tampa Bay

on January 13, 2004, as a receptionist. Respondent paired

Petitioner with Ms. Mary Ann Browne, a full-time receptionist

and Caucasian female. Respondent charged Ms. Browne with

training Petitioner in the responsibilities of a receptionist.

7. Petitioner alleges that Ms. Browne engaged in

unprofessional conduct during the 10 days she trained

Petitioner. The unprofessional conduct, according to

Petitioner's testimony included "racial undertones." For

example, Ms. Browne asked Petitioner why, "Black people are all

family, cousins, sisters, brothers." Petitioner responded,

"Don't ask me. I wouldn't be that black."

8. Ms. Browne allegedly stated aloud that two female

employees who hugged in greeting each other were lesbians.

Ms. Browne allegedly called another African-American employee a

"pimp" and referred to an Hispanic employee as a "macdaddy."

The fact-finder does not know the meaning of the term

"macdaddy," or even how to spell the term, and the record does

not provide an adequate definition or spelling. Ms. Browne

allegedly referred to homosexual customers as "flamers."

Finally, Ms. Browne allegedly engaged in threatening physical

behavior by tossing items at Petitioner across the reception

desk. No one but Petitioner heard the alleged racial and sexist

comments by Ms. Browne or witnessed the physically aggressive

behavior.

9. The preponderance of evidence does not establish a

prima facie showing of discrimination or retaliation. Nor does

the preponderance of evidence show that Respondent subjected

Petitioner to a hostile work environment. Finally, a

preponderance of the evidence does not show that Respondent

engaged in a discriminatory practice.

10. The evidence of Ms. Browne's conduct consists of

Petitioner's testimony and a diary that Petitioner created

contemporaneously with the acts Petitioner attributes to

Ms. Browne. No other employees at Lexus of Tampa Bay witnessed

the events evidenced in Petitioner's testimony and diary.

Ms. Browne left her employment with Respondent in the fall

of 2004 and did not testify.

11. Ms. Toni Davis, now Ms. Toni Scotland, was a

receptionist during part of the relevant time but was not

present during the entire time because she was being promoted to

a position in accounting. Ms. Scotland did not recall any

improper behavior by Ms. Browne in 2004.

12. The Investigative Report based its recommendation of a

finding of cause on statements attributed in the Report to then

Ms. Davis and the documentation of the disciplinary action taken

by Respondent against Ms. Browne. However, Ms. Scotland

testified that she did not recall being contacted by an

investigator for the Board and denied making any statements to

the investigator.

13. The investigation took approximately 3.5 years to

complete because the investigator is the only investigator for

the Board and because the investigator suffered a heart attack

during the investigation. At the hearing, the testimony of the

investigator concerning statements he attributed to

Ms. Scotland, also Ms. Davis, was vague and sparse and is less

than credible and persuasive.

14. A preponderance of the evidence does not show that

Respondent is responsible for the acts Petitioner attributes to

Ms. Browne. Petitioner complained to her employment agency

about the conduct of Ms. Browne. The employment agency notified

Respondent, and Ms. Helene Ott, the supervisor at the time,

interviewed both Petitioner and Ms. Browne on January 19, 2004.

15. The only complaint made by Petitioner to Ms. Ott on

January 19, 2004, was that Ms. Browne went to the break room to

bring back a drink in separate disposable drink cups for

Ms. Browne and Petitioner. Upon returning with the drinks,

Ms. Browne told Petitioner that Ms. Browne had spit in

Petitioner's cup. Petitioner did not tell Ms. Ott that

Petitioner witnessed Ms. Browne spit in the cup.

16. Petitioner's version of events changed at the hearing.

Petitioner testified that she saw Ms. Browne spit in

Petitioner's cup. Petitioner testified that Ms. Browne offered

to refill the cup Petitioner already had on the receptionist

desk, grabbed the cup, stood, drew up a large volume of spit

from deep in Ms. Browne's throat, and let the long volume of

liquid drop into Petitioner's cup in full view of Petitioner.

Petitioner further testified in tears that she stated repeatedly

to Ms. Browne, "Give me back my cup!"

17. The foregoing testimony of Petitioner is less than

credible and persuasive. The fact-finder is not persuaded that

any reasonable person would have wanted Ms. Browne to return the

cup. The cup was a disposable cup from the vending area which

was of no value to Petitioner. Petitioner did not relate this

version of the events to Ms. Ott when Ms. Ott investigated

Petitioner's complaints on January 19, 2004.

18. The version of events that Petitioner related to

Ms. Ott on January 19, 2004, is consistent with the

contemporaneous account by Mr. Browne. When Ms. Ott interviewed

Ms. Browne on January 19, 2004, Ms. Browne admitted that she

told Petitioner she had spit in Petitioner's cup when Ms. Browne

returned from the vending area to the reception desk with

Petitioner's drink. Ms. Browne also admitted to engaging in

offensive language, offensive commentary about customers, and

unprofessional conduct.

19. A preponderance of evidence does not show that

Respondent created or fostered a work environment that was

hostile toward Petitioner. On January 19, 2004, Ms. Ott issued

a written counseling/final warning to Ms. Browne for her use of

“offensive language, offensive commentary about customers, and

unprofessional conduct.” The disciplinary action advised

Ms. Browne that any further misconduct would result in the

termination of her employment.

20. On January 20, 2004, Ms. Ott interviewed Petitioner

again concerning additional complaints from the employment

agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and

unprofessional language, but Petitioner did not state to Ms. Ott

that Ms. Browne made racial or sexist comments.

21. On January 21, 2004, Ms. Ott needed to fill another

temporary vacancy at Lexus of Clearwater. Ms. Ott asked

Petitioner to go to Clearwater, and Petitioner went to the

Clearwater office voluntarily. Respondent ended the employment

agency assignment on January 23, 2004.

22. Ms. Ott described Petitioner’s performance as “very

good." On January 23, 2004, Ms. Ott offered to write a letter

of reference for Petitioner. Ms. Ott told Petitioner that

Ms. Ott would consider Petitioner for a position at Lexus of

Tampa Bay or Lexus of Clearwater if the need arose.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57(1),

Fla. Stat. (2008). The parties received adequate notice of the

administrative hearing.

24. Petitioner bears the burden of proof in this

proceeding. Petitioner must show by a preponderance of the

evidence that Respondent intentionally discriminated against her

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

because of a protected activity. Reeves v. Sanderson Plumbing

Products, Inc. , 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000).

25. 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

Charge filed by Petitioner. Tourville v. Securex, Inc. , 769 So.

2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Elec. Co-op.

Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997); Brand v. Florida Power

Corp. , 633 So. 2d 504 (Fla. 1st DCA 1994).

26. Petitioner 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 retaliation 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 retaliation must be equally

egregious.

27. 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.

28. 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).

If Petitioner fails make a prima facie case, the inquiry ends.

See Ratliff v. State , 666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA

1996), aff'd , 679 So. 2d 1183 (1996) ( citing Arnold v. Burger

Queen Sys. , 509 So. 2d 958 (Fla. 2d DCA 1987)). A preponderance

of evidence does not establish a prima facie case of

discrimination.

29. 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 similarly-situated individuals in a non-

protected class, and that there is sufficient evidence of bias

to infer a causal connection between her race, color 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).

30. A preponderance of the evidence does not show that

Petitioner received disparate treatment compared to similarly-

situated individuals, or that the alleged disparate treatment

was causally connected to Petitioner's race, color or sex. A

preponderance of the evidence does not show disparate treatment

or that any adverse treatment is causally connected to

Petitioner’s race, color 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 Holifield v. Reno ,

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

31. If it were determined that Petitioner established a

prima facie case of discrimination, 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 reason(s) offered by

Respondent for its action(s) are mere pretexts for unlawful

discrimination. Id.

32. A preponderance of evidence establishes a legitimate,

non-discriminatory, non-retaliatory reason for the challenged

termination of the temporary assignment by the employment

agency. Respondent no longer needed a temporary receptionist.

The testimony of Ms. Ott on this issue is credible and

persuasive.

33. In order for Petitioner to establish that she was

subjected to a hostile work environment, Petitioner must show,

by a preponderance of the evidence, (1) that she belongs to a

protected group; (2) that she has been subject to unwelcome

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

characteristic; (4) that the workplace is permeated with

discriminatory intimidation, ridicule, and insult sufficiently

severe or pervasive to alter the terms or conditions of

employment and to create an abusive working environment; and

(5) that the employer is responsible for such environment under

either a theory of vicarious or direct liability. Miller v.

Kenworth of Dothan , 277 F.3d 1269, 1275 (11th Cir. 2002);

Lawrence v. Wal-Mart Stores, Inc. , 236 F. Supp. 2d 1314 (M.D.

Fla. 2002).

34. A preponderance of the evidence does not show that

Petitioner was subjected to a hostile work environment. The

alleged statements by Ms. Browne were not made about Petitioner.

Nor were the statements sufficiently severe or pervasive to

constitute a hostile work environment 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 [protected characteristic] of the actor or

of the offended party are not counted”); Meritor Savings Bank v.

Vinson , 477 U.S. 57 (1986)(noting that the “mere utterance of a

racial epithet that engenders offensive feelings in an employee

but does not alter the conditions of employment, does not

present an actionable situation.”)

35. It is undisputed that the term “pimp” is not a term

reserved exclusively for African-Americans. Petitioner

testified at the hearing that she is unaware of the definition

of the epithet allegedly referencing Latin-Americans as,

“macdaddy.” Finally, before asking Ms. Browne what the term

“flamers” meant, Petitioner was unaware that Ms. Browne

allegedly used the term as a derogatory reference to

homosexuals.

36. Petitioner never complained to Respondent about the

alleged “unprofessional” behavior of Ms. Browne. Rather,

Petitioner notified her employer, the employment agency. When

Respondent received information from the employment agency,

Respondent reacted quickly and effectively. Respondent is not

responsible for the alleged “unprofessional” conduct of

Ms. Browne. 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).

37. To establish a prima facie case of retaliation,

Petitioner must show that (a) she engaged in statutorily

protected activity, (b) she suffered an adverse employment

action, and (c) the adverse employment action was causally

connected to the protected activity. Harper v. Blockbuster

Entertainment Corp. , 139 F.3d 1385, 1388 (11th Cir. 1988).

Petitioner did not engage in statutorily protected activity.

Petitioner did not charge, testify, assist or participate in any

investigation, proceeding, or hearing or opposed any unlawful

employment practice. E.E.O.C. v. Total Sys. Servs., Inc. , 221

F.3d 1171, 1174 (11th Cir. 2000). An employee’s statement or

communication cannot be deemed to be in opposition to an

unlawful employment practice unless it refers to a specific

practice of the employer that is allegedly unlawful. Guess v.

City of Miramar , 889 So. 2d 840, 847 (Fla. 4th DCA 2005).

38. A preponderance of the evidence does not establish a

prima facie case of retaliation. A preponderance of evidence

does not show that Petitioner engaged in statutorily protected

activity or that there was a causal connection between

Petitioner's “complaint” concerning Ms. Browne’s

“unprofessional” behavior and the termination of the assignment

by the employment agency.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the final order issued in this proceeding

should find that Respondent is not guilty of the allegations

made by Petitioner.

DONE AND ENTERED this 7th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 7th day of August, 2008.

COPIES FURNISHED :

Leslie P. Stokes

4714 Pleasant Avenue

Palm Harbor, Florida 34683

Gail P. Williams

Hillsborough County

Post Office Box 1110

Tampa, Florida 33601-1110

Andrew Froman, Esquire

Alva L. Cross, Esquire

Fisher & Phillips LLP

401 East Jackson Street, Suite 2525

Tampa, Florida 33602

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.