08-001456 Judy A. Sorey vs. Mastercorp, Inc. Status: Closed Recommended Order on Friday, September 5, 2008.

Summary: Petitioner complained she was discharged because of her race and that a coffee mug given to her insulted her because of her race. It was found that the mug was a symbol of a Puerto Rican festival and was not insulting to any race. She was not discharged.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDY A. SOREY, )

)

Petitioner, )

)

vs. ) Case No. 08-1456

)

MASTERCORP, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on July 16, 2008, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Judy Sorey, pro se

1025 North Everitt Avenue, Apt. A-3

Panama City, Florida 32401

For Respondent: Timothy Tack, Esquire

Kunkel Miller & Hament

15438 North Florida Avenue, Suite 202

Tampa, Florida 33613

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice with regard to Petitioner.

PRELIMINARY STATEMENT

Petitioner Judy A. Sorey (Ms. Sorey) filed an Employment

Claim of Discrimination with the Florida Commission on Human

Relations (Commission) on September 12, 2007. She complained

that she had been discriminated against by Respondent

Mastercorp, Inc. (Mastercorp), because of race and retaliated

against because she reported discrimination. On January 29,

2008, the Commission issued its "Notice of Determination:

Cause." This referred only to the complaint of retaliation.

"No cause" was found for complaints of a hostile work

environment or disparate treatment based on race. Ms. Sorey

thereafter filed a Petition for Relief with the Commission from

an Unlawful Employment Practice on March 3, 2008. The Petition

and allied papers were forwarded to the Division of

Administrative Hearings on March 21, 2008, and it was filed on

March 24, 2008. The matter was set for hearing on May 2, 2008.

Ms. Sorey requested a continuance and asked that the case be put

in abeyance. This request was granted in an Order Granting

Continuance and Placing Case in Abeyance filed April 1, 2008.

The case was eventually set for hearing on July 16, 2008, and

was heard that date.

Ms. Sorey proceeded at the hearing on all three complaints.

She testified and offered four exhibits into evidence. Two were

admitted. MasterCorp presented the testimony of two witnesses

and offered three exhibits into evidence. All three exhibits

were accepted.

A Transcript was filed on July 31, 2008. Respondent asked

for additional time to file its proposed recommended order.

Ms. Sorey did not object. The parties were given until

August 21, 2008, to file their proposed recommended orders.

Ms. Sorey filed her "Recommended Order" on August 20, 2008.

Mastercorp filed its "Recommended Order" on August 21, 2008.

References to statutes are to Florida Statutes (2006)

unless otherwise noted.

FINDINGS OF FACT

1. Ms. Sorey is an African-American woman who at the time

of the hearing was a resident of Panama City, Florida.

2. Mastercorp was Ms. Sorey's employer at all relevant

times and is engaged in the business of providing housekeeping

and cleaning services to timeshare resorts in the State of

Florida and elsewhere. Mastercorp has its headquarters in

Crossville, Tennessee.

3. Ms. Sorey was employed by Mastercorp at a resort in

Panama City called the Landmark, from August 2005 until

Mastercorp's contract with Landmark ended in September 2006.

4. Ms. Sorey began her employment with Mastercorp at

Landmark as a housekeeping supervisor. She was eventually

assigned to the laundry. It was while working in the laundry at

Landmark that she alleged discriminatory treatment.

5. Ms. Sorey was supervised by an executive housekeeper

(EH) and an assistant EH. The EH and assistant EH are

management level employees who are supervised by area, district,

or regional managers, and ultimately by corporate managers

working out of the Crossville office. An EH is responsible for

all operations at a client property, including budgeting and

supervising all Mastercorp employees located there.

6. Miguel Palacios began his career with Mastercorp in

2004 as an assistant EH and worked his way up to EH at a client

property in the Orlando area. Later, he was used as a roving

manager by Mastercorp. As a roving manager, he was assigned to

"problem properties." It was his job to ameliorate whatever was

causing a property to be a "problem property."

7. Mr. Palacios was assigned to Landmark because

operations there were unsatisfactory and, as a result,

Mastercorp was in danger of losing its contract. Mr. Palacios

was instructed to support the existing EH at Landmark. Later,

he took charge of the operation and ran it until a new EH,

Wilmer Gonzalez, was hired. Ms. Sorey was working at Landmark

when Mr. Palacios assumed his duties there.

8. Debbie Green was one of Mastercorp's housekeeping

supervisors at Landmark. Ms. Green is an African-American.

Because of her excellent performance, Ms. Green became

Mr. Palacio's acting assistant while he was in charge of the

Landmark property.

9. Mastercorp's Vice President of Operations, David Maier,

visited the Landmark property in March 2006 and told Ms. Sorey

that he was impressed with her work in the laundry. He

complimented her on the good job she was doing there. Mr. Maier

made a remark to Ms. Sorey to the effect that she should be her

"own boss." Ms. Sorey interpreted this to mean she could run

the laundry as she wished, and without supervision. This was

the first of several incorrect assumptions made by Ms. Sorey.

10. When a district manager questioned her placement in

the laundry, she attempted to contact Mr. Maier for

clarification, but was not able to do so.

11. Payment for working overtime at Landmark was permitted

only when approved by the EH. This was a policy dictated by the

requirement for Mastercorp to remain within its budget.

Ms. Sorey approached Mr. Gonzalez and Mr. Palacios and informed

them that she did not have enough time to complete her laundry

during normal working hours and expressed a desire to work and

be paid overtime. When rebuffed, Ms. Sorey became frustrated by

the demands on her, which, it is found, were substantial.

12. Eventually, Ms. Sorey brought a friend in to help her

and the friend was put on the Mastercorp payroll. This

alleviated some of the stress felt by Ms. Sorey. Subsequently,

a corporate quality inspector named Nell Wilson came to Landmark

in June 2006 and gave her department a 100 percent grade on its

evaluation and provided a certificate of dedication. Neither

Mr. Palacios nor Mr. Gonzalez found time to present the

certificate to her.

13. Mr. Palacios, a Puerto Rican, traveled to his native

land on vacation in June of 2006 and returned with souvenirs for

some of the employees at Landmark. These souvenirs included

coffee mugs, liquor, and key chains. He presented Ms. Sorey

with a coffee mug. She asserted that she was offended by the

coffee mug. She referred to it as an "old devil cup" and

considered it to be an inappropriate reflection on her race.

14. Ms. Sorey related at the hearing, "I don't know

nothing about Puerto Rico. Coming back here giving me no cup,

calling me no black devil." It is clear how a person lacking

sophistication in an international sense, or at least a

Caribbean sense, could misinterpret the nature of the mug.

15. The mug was black with a Puerto Rican flag

superimposed upon it. On one side of the flag were the words

"Puerto" and on the other, "Rico." Overlaid on the flag was a

figure that vaguely resembled a man that was variously colored

green, yellow, and red, and which appeared to be wearing a blue

suit. The figure wore a cape with a yellow lining. The mug had

the word "Vejigantes" written on it.

16. In certain parts of Puerto Rico, Vejigantes are masks

worn by dancers in carnivals. They represent various things

such as strength and harmony. The masks are part of Puerto

Rican culture and have nothing to do with race except that the

festival itself may have had roots in Africa.

17. Although Ms. Sorey appeared to be grateful at the time

she was given the mug, two or three days later she called Gloria

Turner, the general manager of the Landmark, telling her that

she was offended by it. This was relayed to Mr. Palacios who

went to Ms. Sorey and told her that he meant no offense and

offered to provide her with another gift in return for the mug.

She refused this offer.

18. Several days later Mr. Palacios counseled Ms. Sorey

because she had worked overtime without approval and was not

following the direction of Mr. Gonzalez. This was memorialized

in a written memorandum dated June 25, 2006.

19. Subsequently, Ms. Sorey submitted a handwritten

complaint, dated July 3, 2006, to Mastercorp's employee leasing

company, Oasis. This was forwarded to Mastercorp because

Ms. Sorey was an employee of Mastercorp.

20. The aforementioned document was four and one-half

pages long and complained about work issues relating to time and

amount of work. The sole issue that could be interpreted as

addressing race was this sentence: "Miguel Palacio went to

Puerto Rico and when he came back he came to the laundry and

gave me a black cup and on the cup was a body and a face like a

devil like he is call me a black devil. This face had red horn

on it and at the top of the cup have these letter 'Vejigantes.'"

21. The July 3, 2006, memorandum was the only complaint

that Mastercorp received from Ms. Sorey, and, as noted above, it

was received indirectly. Nevertheless, Whitney Stoker, an

employee in the human resources department in the Crossville,

Tennessee headquarters was tasked to conduct an investigation

into the matter.

22. In effecting her investigation, Ms. Stoker interviewed

Mr. Palacios. She attempted to contact Ms. Sorey by telephone

on five occasions. She left messages imploring Ms. Sorey to

provide her with details surrounding her complaint. Ms. Sorey

had an ample opportunity to amplify the information contained in

the complaint, but chose not to provide additional information.

23. Ms. Stoker also conducted an Internet search into the

matter of the "Vejigantes" mask that was featured on the mug,

using the Yahoo search engine. She discovered that it was

indeed a character signifying various aspects of Puerto Rican

culture and related to festivals held in some Puerto Rican

towns. She discovered that it had nothing to do with race or

insulting someone.

24. Mastercorp's contract with Landmark was by its terms

set to expire in September 2006. In July or August 2006 it

became clear that Mastercorp would not obtain another contract

with Landmark and, therefore, there would be no more work there

for Mastercorp's employees. However, a new opportunity for work

arose in Mastercorp's contract at Club Destin, in Destin,

Florida.

25. Mr. Palacios took nine of the Panama City employees to

the Destin job. There were not enough positions in Destin

available for everyone who had been employed at the Landmark

job. He did not consider race in deciding who would be offered

employment in Destin. He was not concerned about the complaint

Ms. Sorey had made. Ms. Sorey did not ask to be employed at

Destin, and Mr. Palacios did not ask her to work there.

26. Ms. Sorey did not complain at the time that she was

not offered one of the positions in Destin. One of the

employees employed at the Destin property was Donna Ponds, an

African-American. She was trained at Landmark, but was hired in

anticipation that she would work at Club Destin. She was hired

as the EH at Club Destin.

27. No evidence was adduced that indicated that anyone of

another race was treated differently or more favorably than

Ms. Sorey.

28. Mr. Palacios did not need any help in the laundry at

Club Destin because the property manager there was successfully

using foreign exchange students. Ms. Sorey expressed no desire

to move to the Destin facility at the time staffing decisions

were being made. During the hearing she was asked, "Did you

want to go to Destin." She answered, "Not really."

29. Ms. Sorey's allegations of harassment, disparate

treatment, and retaliation were precipitated by her anger at

management due to having to work hard and not being allowed to

incur overtime; the pressure she felt at not having enough time

to complete her duties; and her opinion that she was not

sufficiently recognized for her work in the laundry. No

evidence whatsoever was adduced that adverse working conditions

were precipitated by racial prejudice.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

31. Subsection 760.02(1), Florida Statutes, states that

the "Florida Civil Rights Act of 1992" (the Act) comprises

Sections 760.01 through 760.11, and 509.092, Florida Statutes.

32. Ms. Sorey is an "aggrieved person," and Mastercorp is

an "employer" as defined by Section 760.02, Florida Statutes.

33. Pursuant to Subsection 760.10(1), Florida Statutes, it

is an unlawful employment practice for an employer to discharge

or otherwise discriminate against an individual on the basis of

race.

34. Pursuant to Subsection 760.10(7), Florida Statutes, it

is an unlawful employment practice for an employer to

discriminate against a person because that person has, "opposed

any practice which is an unlawful employment practice" or

because that person "has made a charge . . . under this

section."

35. The Act is patterned after Title VII of the Federal

Civil Rights Act, 42 U.S.C. Section 2000E et seq. Federal case

law interpreting Title VII is applicable to cases arising under

the Act. See Florida Department of Community Affairs v. Bryant ,

586 So. 2d 1205 (Fla. 1st DCA 1991) and School Board of Leon

County v. Weaver , 556 So. 2d 443 (Fla. 1st DCA 1990).

36. There was no direct evidence of race discrimination

adduced at the hearing, so Ms. Sorey must prove disparate

treatment, if she can, through the burden-shifting mechanism

outlined by the U. S. Supreme Court in McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973) and Texas Dept. of Community

Affairs v. Burdine , 450 U.S. 248 (1981).

37. To establish a claim of disparate treatment under the

McDonnell Douglas framework, Ms. Sorey must establish a prima

facie case of race discrimination. If she does so, Mastercorp

may offer a legitimate, nondiscriminatory reason for its

actions. If it does so, Ms. Sorey must prove that Mastercorp's

reason is a pretext for race discrimination, if she is to

prevail.

38. In order to prove a prima facie case, Ms. Sorey must

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

was subjected to an adverse employment action; (3) she was

treated differently than similarly-situated employees of a

different race; and (4) that she was qualified for the job or

job benefit at issue. See Gillis v. Ga. Dep't of Corr. , 400

F.3d 883 (11th Cir. 2005).

39. Ms. Sorey is a member of a protected class because she

is an African-American. She was qualified to run the laundry at

the Landmark property. The failure to offer her a job at the

Destin property was not an adverse employment action. Even if

it was, there is no evidence that in such failure was a product

of discrimination because there is no evidence that similarly

situated employees of a different race were treated differently.

Accordingly, Ms. Sorey has failed to prove a prima facie case.

40. If one assumes arguendo that a prima facie case was

established, Mastercorp demonstrated that its decision as to who

would be given the opportunity to work at the Destin property

was based on business reasons having nothing to do with

discrimination.

41. Although it is unfortunate that Ms. Sorey felt hurt

with regard to the mug given to her by Mr. Palacio, a gift gone

awry due to cultural differences does not amount to evidence of

racial discrimination.

42. In order to prove a hostile working environment she

must demonstrate: (1) that she belonged to a protected class;

(2) that she was subjected to unwelcome harassment; (3) that the

harassment was based on her race; (4) that the harassment was

sufficiently severe or pervasive to alter the terms and

conditions of her employment and create a discriminatorily

abusive work environment; and (5) some basis for holding the

employer liable. See Mendoza v. Borden, Inc. , 195 F.3d 1238

(11th Cir. 1999).

43. Ms. Sorey's complaints with regard to harassment

concerned pressure she felt as a result of management goading

her to effect more production per day than she thought

reasonable. She objected to being harassed about inventory and

having too much work. These matters were not related to her

race.

44. In order to establish a prima facie case of

retaliation under the Act, Ms. Sorey must demonstrate: (1) that

she engaged in statutorily protected activity; (2) that she

suffered an adverse employment action; and (3) that there is a

causal relation between the two events. See Donovan v. Broward

County Bd. of Comm'rs , 974 So. 2d 458 (Fla. 4th DCA 2008) and

Harper v. Blockbuster Entn't Corp. , 139 F.3d 1385, 1388 (11th

Cir. 1998).

45. In Burlington Northern & Santa Fe Railway v. White ,

548 U.S. 53 (2006), the U. S. Supreme Court noted that the scope

of the retaliation provision is broader than that of Title VII's

substantive discrimination provisions. As the Court noted, the

anti-retaliation provision seeks to prevent an employer from

interfering with an employee's efforts to secure or advance

enforcement of the Act's basic guarantees. In the Burlington

Northern case, unlike the case at bar, there was no doubt that

Ms. White had been discriminated against, and there was

sufficient evidence available to persuade a jury that her

employer changed her job status when she complained.

46. The five-page written complaint Ms. Sorey submitted is

primarily a complaint about working conditions that have nothing

to do with discrimination. Her misunderstanding as to the

significance of the "Vejigantes" mug does not elevate the

document to a statutorily protected activity.

47. A simple Yahoo search by Ms. Whitney revealed that the

"Vejigantes" figure was unrelated to racism and demanded the

conclusion that Ms. Sorey was mistaken in her claim that its

presentation to her was a racial attack. Therefore, it may be

concluded that she did not oppose, ". . . any practice which is

an unlawful employment practice." Her complaint then became

solely one of mistreatment on the job having nothing to do with

racial discrimination. Complaining about nondiscriminatory job

issues is not a statutorily protected activity under the Act.

48. Even if one assumes that her complaint was a

statutorily protected activity, she did not suffer an adverse

employment action at the hands of Mastercorp. In September

2006, Mastercorp's contract with Landmark ended and most of

Mastercorp's employees at that site were laid off. No one

discharged Ms. Sorey. The job simply ended.

49. The third prong that must be proved to establish a

case of retaliation requires evidence that an action was taken

in response to a statutorily protected complaint. To prove this

type of causal connection, Ms. Sorey was only required to prove

that the protected activity and adverse action were not "wholly

unrelated." See Farley v. Nationwide Mut. Ins. Co. , 197 F.3d

1322 (11th Cir. 1999).

50. In Ms. Sorey's case, the evidence is clear that the

person who could have offered her the opportunity to work in

Destin, Mr. Palacios, gave no thought to her complaint when

determining who would be employed in Destin. In other words,

there was no relation whatsoever between the complaint, which,

as noted, was not a statutorily protected complaint, and his

hiring decisions for the new job in Destin. Thus, retaliation

could not have occurred.

51. Ms. Sorey may have been over-worked and treated poorly

in her occupation as a laundress in a large timeshare facility.

She may have been harassed by superiors who wanted more

production than was reasonable. Her treatment by her

supervisors may have been deplorable. But evidence that the

actions of Mastercorp were based on matters involving race is

completely lacking.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Petition for Relief from an Unlawful

Employment Practice be DISMISSED.

DONE AND ENTERED this 5th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 5th day of September, 2008.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Timothy Nathan Tack, Esquire

Kunkel Miller & Hament

15438 North Florida Avenue, Suite 202

Tampa, Florida 33613

Judy Sorey

1025 North Everitt Avenue, Apt. A-3

Panama City, Florida 32401

Larry Kranert, 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.