08-002132 Lauren M. Buecker vs. Tt Of Sand Lake, Inc., D/B/A Central Florida Chrysler Jeep Dodge Status: Closed Recommended Order on Thursday, November 13, 2008.

Summary: Petitioner did not make prima facie showing that supervisor coerced her into having sex on two occasions, sexually harassed her, or created a hostile work environment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAUREN M. BUECKER, )

)

Petitioner, )

)

vs. ) Case No. 08-2132

)

TT OF SAND LAKE, INC., d/b/a )

CENTRAL FLORIDA CHRYSLER JEEP )

DODGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case on August 13 and 14, 2008, in

Orlando, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Jeremy K. Markman, Esquire

King & Markman, P.A.

4767 New Broad Street

Orlando, Florida 32814

For Respondent: Donald St. Denis, Esquire

Michael J. Lufkin, Esquire

St. Denis & Davey, P.A.

1300 Riverplace Boulevard, Suite 101

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue is whether Respon dent discrimi nated against

Petitioner on th e basis of her gender or subjecte d her to a

hostile work environmen t in violation of Se ction 760.10 , Florida

Statutes (2006). 1

PRELIMINARY STATEMENT

On August 3, 2007, P e t i t i o n e r f i l e d a C h a r g e o f

Discrimination with the Florida Comm ission on Hu man Relations

(Commission). The Comm ission investigated th e allegation s in the

Charge of Disc rimination and, on Ma rch 20, 2008 , issued a

determination th at no cause ex isted to believ e the alleged

discrimination occurred . Petitioner requeste d an administrative

hearing in a Petition for Relief, file d with the Commission on

April 23, 2008, an d the Commission referred the matt er to DOAH to

conduct the fi nal hearing.

At the hearing, Petitioner testified and submitted eight

exhibits for admission into evidence. Respondent cross-examined

Petitioner, presented the testimony of five witnesses, and

submitted 19 exhibits.

The identity of the witnesses and exhibits and any rulings

regarding each are reported in the four-volume Transcript of the

hearing filed with DOAH on September 24, 2008. Petitioner

timely filed her Proposed Recommended Order (PRO) on October 1,

2008. Respondent timely filed its PRO on October 14, 2008.

FINDINGS OF FACT

1. Petitioner is an aggrieved person within the meaning of

Subsection 760.02(10) . Petitioner is a female and filed a

complaint with the Comm ission alleging that Respondent engaged in

gender discrimination, sexual harassment, an d the creati on of a

hostile work environment.

2. Respondent is an employer with in the meaning of

Subsection 760.02(7). Respondent operates a car dealer ship and

services new and used Chrysler-manufac tured automobile s and trucks

in the State of Florida.

3. Respondent hired Petitioner as a lube tech in

Respondent’s service department on July 26, 2006. Petitioner

was the only female employee in the service department.

Petitioner remained employed as a lube tech in the Quick Lube

part of the service department throughout her employment and

earned $7.50 per hour. Respondent did not raise or lower

Petitioner’s compensation during her employment. Respondent

terminated Petitioner’s employment on February 28, 2007.

4. On March 22, 2007, Petitioner obtained employment at an

automobile dealership in West Palm Beach, Florida, at an hourly

rate of $13.00. Arrigo Dodge Chrysler Jeep (Arrigo) hired

Petitioner as a pre-delivery inspection technician, but

Petitioner voluntarily terminated that employment for personal

reasons unrelated to this proceeding. 2

5. On or about February 28, 2007, Petitioner filed a claim

for unemployment compensation. 3 Respondent responded to the

claim on March 8, 2007. The response stated, in relevant part,

that Mr. Richard Burton, the service manager and Petitioner’s

immediate supervisor during her employment with Respondent,

terminated Petitioner’s employment for violation of Respondent’s

so-called “no-dating” policy. The no-dating policy prohibits

Respondent’s employees who are managers or supervisors from

dating non-management employees.

6. The response to the unemployment compensation claim is

an admission within the meaning of Subsection 90.803(18)(a).

However, the admission contains two factual inaccuracies.

First, Mr. Burton had no authority to hire or fire employees he

supervised. Second, the no-dating policy was not a ground for

the termination of Petitioner’s employment.

7. As further described in subsequent findings, Respondent

corrected the inaccuracies in the response to the claim for

unemployment compensation through testimony at the

administrative hearing in this proceeding. The fact-finder

found the testimony to be credible and persuasive.

8. August 3, 2007, when Petitioner filed the Charge of

Discrimination, was the first time Petitioner alleged that

Mr. Burton coerced her into having sexual intercourse with him

on October 5 and 13, 2006, and harassed her thereafter. The

Charge of Discrimination alleges in relevant part:

On October 5, 2006, Richard Burton invited

me out drinking with a group after work.

After drinking, when all others left, he

walked me to my car where he began to kiss

me. I pushed him away, but he continued. I

felt if I did not acquiesce, I would be

fired. He grabbed my breast and put his

hand down my pants. He then directed me to

his car, drove across the street, exited his

side of car, came to my side and had sexual

intercourse with me. He then drove me back

to my care [sic] and I went home crying. On

October 13, 2006, Mr. Burton again invited

me for drinks, and directed me to perform

oral sec [sic] in the parking lot of the

bar. He then attempted to have sexual

intercourse with again, but could not. . . .

I was invited out for drinks with Mr. Burton

again, but refused. On two occasions, I was

told by Richard Burton that if I did not

continue our relationship, I would be fired.

The treatment became terrible. Mr. Burton

no longer protected me from the nasty

comments of other employees, including other

employees saying I was “stupid”, telling me

to “go home and make babies” because that is

what I was supposed to do and that I did not

belong. Some of the worst comments came

from Joseph Roadkit, technician, Dave

Morgan, technician, Curtis, technician, and

Devon, porter. I became friends with

another technician, Wesley Wilkerson. On

occasions when I was not busy, I would

attempt to learn from him. I spend time

with him as he was an experienced

technician. Despite other lube techs

talking to other employees when they are

slow, I was disciplined in January 2007, for

talking to Mr. Wilkerson. I transferred

from an inside job with opportunities to

learn and advancement to working outside

with limited opportunities. This decision

was made by Richard Burton and Tom Grabby

[sic], Manager of Fixed Operations.

Eventually, in February 2007, Joseph Roadkit

was terminated due to his behavior.

On February 24, 2007, Richard Burton invited

me out for drinks for the first time in a

while. I initially agreed until he advised

I would have to drive him home. I advised

him I could not. Mr. Burton assured me he

would never fire me as I had hit his “soft

spot”. I refused to go out with him. Four

days later Richard Burton approached me at

work with the manager of fixed operation’s

wife, Patti Grabby [sic]. Mr. Burton

advised me I was terminated as there was no

room for me in the shop anymore. I was not

the least qualified nor was I the last

hired.

9. Mr. Burton did not testify in the administrative

hearing. Respondent terminated the employment of Mr. Burton,

sometime after Respondent terminated the employment of

Petitioner, because Mr. Burton was no longer licensed to drive,

and a valid driver’s license is a job requirement of the

position held by Mr. Burton.

10. Petitioner’s testimony was the only testimony

concerning the alleged coerced sexual intercourse and sexual

harassment by Mr. Burton. The fact-finder finds the testimony

of Petitioner to be less than credible and persuasive.

11. Petitioner’s testimony that she was the victim of

sexual coercion on October 5, 2006, is less than persuasive.

Petitioner had a restricted driver’s license that authorized her

to drive to and from work. Petitioner drove to a local Ale

House to have drinks with Mr. Burton, Mr. Radtke, and

Mr. Radtke’s wife. Everyone at the table was drinking alcoholic

beverages. Petitioner consumed six alcoholic beverages in

approximately four hours.

12. Petitioner consumed two drinks identified in the

record as Smirnoff Ice, a malted-rum, bottled drink, and four

shots, identified in the record as vanilla vodka. After the

fifth shot, Petitioner went to the bathroom, “puked up my

cheeseburger and the rest of the drinks,” returned to the table,

and consumed the sixth shot.

13. The testimony of Petitioner during the hearing

contains several inconsistencies with her deposition testimony,

responses to discovery, and allegations in the Charge of

Discrimination. Petitioner alleges in the Charge of

Discrimination, “I felt if I did not acquiesce, I would be

fired.” Petitioner found greater detail in her testimony during

direct examination in the final hearing. Petitioner testified

that after sexual intercourse in Mr. Burton’s vehicle,

Mr. Burton said, “If you tell anybody, I will fire you.”

14. The Charge of Discrimination does not allege that

Mr. Burton used force to engage in sexual intercourse with

Petitioner. The testimony of Petitioner during direct

examination in the final hearing claims that Mr. Burton

prevented Petitioner from exiting the vehicle by grabbing her

hand each time she reached for the door handle. Petitioner did

not seek medical treatment for rape and did not report a rape to

any law enforcement agency.

15. Petitioner viewed the alleged encounters with

Mr. Burton as “dates.”

Q. Did what happened between you and

Richard Burton, did you consider that

dating?

A. Yes.

Q. Why did you consider that dating?

A. Because sex is sex.

Transcript (TR) at 130, lines 5 through 9.

16. The Charge of Discrimination alleges that Mr. Burton

accompanied Petitioner to his vehicle on October 5, 2006, after

Mr. Radtke and his wife had left the Ale House. Petitioner

testified on direct examination in the final hearing that

Mr. Radtke and his wife were at the restaurant while the alleged

coerced sexual intercourse occurred.

17. Petitioner testified that she agreed to meet

Mr. Burton for drinks again on October 13, 2006. Mr. Radtke and

his wife were again present at the restaurant. When Mr. Burton

allegedly offered to accompany Petitioner to her vehicle,

Petitioner did not ask Mrs. Radtke to accompany her.

18. Petitioner testified that the alleged coerced sexual

intercourse on October 5 and 13, 2006, occurred in Mr. Burton’s

vehicle. Petitioner’s testimony lacks plausibility.

19. P e t i t i o n e r w e i g h e d 1 7 0 p o u n d s a t a h e i g h t o f f i v e f e e t ,

six inches, and Mr . Burton weighed 194 pounds at a height of five

feet, eight inches . Mr. Burton drove a Jeep Compass on both

nights, the smalle st of the sport utility vehi cles manufactured by

Jeep. On Octobe r 5, 2006, Petiti oner testified that Mr. Burton

placed Petitioner in the passenger si de of the vehi cle, told her

not to open the do or, walked to th e other side of the car, sat in

the driver’s seat, and drove to a constructi on site across the

parking lot that was abandoned at that time of night.

Q. So when he drove the car over to that

construction area, how did he get you in the

back seat?

A. He threw me be tween the two seats. [4 ]

Q. What happened next?

A. Well, he went-–he came into the back.

And he put my pa nties down to ab out my knees,

and he put his dick in me. I’m screaming,

“No. Stop.”

Q. And what happened next?

A. He finished and I ran pullin g up my

underwear to my car.

20. The Charge of Discrimination allege s that Mr. Burton

drove Petition er back to her ca r after the sexual intercourse on

October 5, 2006. Peti tioner’s vehicle was pa rked in th e parking

lot at some dist ance from the co nstruction area. The table where

Mr. Radtke and his wife were sitting is in th e outside ba r area of

the restaurant. Petiti oner testified that her screams were not

heard by patrons in the outside bar because the ba r was crowded

and noisy. Pe titioner did not presen t the testim ony of any

witnesses in the outside bar who, more likely than not, would have

observed Petitioner ru nning from the constr uction area to her

vehicle at some distance across the parking lot wh ile Petitioner

pulled her underwear up from her knees.

21. On October 5 an d 13, 2006, Pe titioner remained in the

passenger seat of Mr. Burton’s vehicle, with nothing preventing

her from leaving the ve hicle, while Mr. Burt on allegedly walked

from the passenger’s si de to the driv er’s side of the vehicle.

22. Other inconsistencies further attenuate the testimony

of Petitioner. During the final hearing, Petitioner claimed the

coerced intercourse occurred on October 2 and 3, 2006. Although

those dates correspond to telephone communications between

Mr. Burton and Petitioner, Petitioner’s sworn Answers to

Respondent’s First Set of Interrogatories, sworn statement in

her Charge of Discrimination, and prior deposition testimony all

allege that her contact with Mr. Burton was on October 5 and 13,

2006.

23. Petitioner test ified in the administ rative hearing that

on October 5, 2006, Pe titioner contacted Mr . Burton to let him

know that she would meet him for drinks. In her de position,

Petitioner testified that on the night of the first incident,

Mr. Burton called her to confirm her attendance.

24. Petitioner cont ends that Mr. Burton called her several

times on the night of the second incident, bo th before and after

the incident. The evid ence clearly demonstrat es that Petitioner

received no tele phone calls from Mr. Burton on ei ther October 5

or 13, 2006.

25. Petitioner testified in the final hearing that she was

wearing a dress on the night of the first incident. However, in

sworn Answers to Respondent’s First Set of Interrogatories,

Petitioner alleges that Mr. Burton “put his hand down [her]

pants.” The same allegation is reiterated by Petitioner in the

Petition for Relief. In her deposition, Petitioner testified

that Mr. Burton allegedly stuck his hand down her pants and that

at the end of the first incident, Petitioner left pulling up her

“pants and underwear.” (Emphasis supplied) Petitioner

unpersuasively attempted to explain the apparent discrepancy by

testifying in the final hearing that when she uses the term

“pants” she is referring to her underwear.

26. Petitioner did not avail herself of the procedures

outlined in Respondent’s written No Harassment policy for

complaining about discrimination, sexual harassment, or the

creation of a hostile work environment. Written Equal

Employment Opportunity and No Harassment policies are contained

in Respondent’s Employee Handbook. The written policy

specifically prohibits its employees from engaging in any verbal

or physically offensive conduct and expressly prohibits

offensive sexual remarks, advances, or requests. Further, the

written policy explicitly describes the procedures available to

a victim to report violations. 5

27. Petitioner received the Employee Handbook and reviewed

the Equal Employment Opportunity and No Harassment policies at

the time of her hiring. Petitioner acknowledged in writing her

receipt, review, and understanding of these policies.

28. The evidence does not establish a prima facie showing

that Respondent discriminated against Petitioner, harassed

Petitioner, or created a hostile work environment. Respondent

terminated Petitioner’s employment for valid business reasons

unrelated to Petitioner’s gender or the alleged coerced sexual

intercourse by Mr. Burton.

29. When Respondent first employed Peti tioner, Pe titioner

enrolled in the Chrysler Dealer Connect comp uter training system

for Level I and II courses and ex aminations, wh ich was the

customary prac tice of new empl oyees in the serv ice department.

Technicians such as Petitioner mu st complete each training course

and examination to reach the next leve l of certification.

30. Petitioner claims, in re levant part, th at Respondent

prevented Peti tioner from talk ing to and learni ng from more

experienced te chnicians. Howe ver, lube techni cians such as

Petitioner do no t advance through the Chrysler trai ning program by

talking to servic e technicians.

31. Respondent provided Peti tioner with ac cess to the

Chrysler Dealer Connec t training courses thro ugh a computer area

in its service de partment. Petitioner, li ke other te chnicians,

also had access to co mputers in management offices when available.

32. Petitioner remained in the Chrysler De aler Connect

system up to and thro ugh February 2007. In eight months of

employment, Pe titioner completed Level I certification and several

Level II courses. The average fo r Level I and II course

completion and certific ation in the service department is three

and one-half months.

33. Respondent pays lube technicians an d service te chnicians

differently. Respondent pays lu be technicians an hourly rate and

pays service technici ans a flat rate base d on work actually

completed. Resp ondent maintains a policy that requires lube

technicians who ar e not busy to ei ther clean their work area or

train through the Chrysler Dealer Connec t system. The policy

prohibits lube technici ans from training by talking to service

technicians in li eu of Chrysler training . Lube tech nicians who

socialize with service technicians redu ce the production rates of

service techni cians and reduce the lube technici ans’ Chrysler

training time.

34. Respondent repe atedly corrected Peti tioner for spending

her free time at work socializing wi th service te chnicians in

their bays rather th an utilizing the Chry sler Dealer Connect

training system. The corrections were verbal, as ar e the majority

of Respondent’s co rrective measures.

35. Chrysler requires Respondent to maintain a monthly

Customer Service Index (CSI) of approximately 90 percent. A CSI

is a manufacturer-distributed evaluation by consumers based on

customer satisfaction with the service provided by the service

department. The consequences of a low CSI is detrimental for

Respondent.

36. The Quick Lube portion of Respondent's service

department has significant CSI implications because of the high

volume of customer contact. P e t i t i o n e r w o r k e d i n t h e Q u i c k L u b e

part of the se rvice department during her em ployment with

Respondent.

37. Respondent repeatedly corrected Pe titioner for

noncompliance with Respondent’s “Perso nal Appearance ” policy.

Petitioner did not keep her shirt tucked in. Petitioner did not

wash her hands after wo rking on a customer’s vehicle. Petitioner

did not wear a clean uniform despit e having several in her

possession. Petitioner did not wear her ha t facing forward.

Petitioner’s unprofes sional appearance an d her visibi lity at

Respondent’s Quick Lube caused her to be si ngled out by customers

to Mr. Tom Grabbe, the fixed operations manager for Re spondent and

the immediate supervisor of Mr. Burton.

38. Respondent rece ived numerous custom er complaints about

Petitioner’s poor quality of work and performa nce. In August 2007,

Petitioner received three negative Custom er Feedback Reports

(CFRs) for poor job qu ality and perfor mance. One cu stomer waited

an hour and a half fo r an oil change when the Quick Lube was not

busy. Petitioner fail ed to put the oil cap back on to the engine

of another custom er’s vehicle. Petitioner put to o much oil into

the engine of an other customer ’s vehicle and soil ed the fender of

that vehicle with oil.

39. On January 25 , 2007, a fourth CF R complained about

Petitioner’s poor quality of work and performa nce. Peti tioner was

using her cellular telephone while rotating tires. Petitioner

also dropped a tool on the customer’s vehicl e and dented the body

of the vehicle.

40. Petitioner received othe r customer complaints. Not

every customer complain t regarding Peti tioner’s poor work quality

and performance wa s reduced to writing as a CFR. Some customer

complaints that were made on-sit e to Respondent’s employees would

not generate a CFR beca use the complain t was resolved immediately.

Petitioner admitted to being repriman ded at least two times in

addition to the previously discussed CFRs for getting grease on

cars. Petitioner was al so instructed to wipe dirt and grease off

customer vehicles afte r customers complained.

41. In January 2007, Mr. Grabbe transf erred Petiti oner from

an interior lube bay to an exterior lube bay. The transfer was in

response to comp laints from serv ice technicians th at Petitioner’s

numerous attempts to socialize with them was affect ing their

production.

42. The transfer from an inside bay to an outside bay in the

Quick Lube portion of the service depa rtment was not a demotion.

Petitioner continued the duties of a lube tech. Petitioner

received the same compen sation she received pr ior to the transfer.

Petitioner had the same access to the Chry sler Dealer Connect

training system before and af ter the transfer . Respondent

required male lube te chs to work in both the inside and outside

lube racks.

43. In Januar y 2007, service advisors inform ed Mr. Grabbe

that customers contin ued to complain abou t Petitioner leaving

grease on their vehicles. After Petition er received her fourth

CFR in January 2007, Mr . Grabbe instructed Ms. Wisty Fi sher, the

customer relations mana ger for the Serv ice Department, to gather a

sample of the cu stomer complaints about Pe titioner and to review

the CFRs with Petiti oner and Mr. Burton.

44. Ms. Fisher and Mr. Burton both addr essed the four CFRs

with Petitioner in a meeting and info rmed Petitioner that she

needed to “clean up her act” and be more aware and co nscious of

the customers’ vehicles . The four CFRs comp iled by Ms. Fisher

were put into Petition er’s personnel file. Respondent continued

to receive customer complaints rega rding Petitioner.

45. On the even ing of February 27, 2007 , Mr. Grabbe received

a telephone call from a customer of Resp ondent complaining that

grease and dirt had been left on his ve hicle. Mr. Gr abbe reviewed

the service ticket number and disc overed that Peti tioner had been

responsible fo r working on the vehicle.

46. Mr. Grabbe instru cted Mr. Burton to terminate Pe titioner

the following morn ing because of Petitioner ’s inability to refrain

from getting grease on customer vehicles. Mr . Grabbe was the sole

decision-maker in terminating Petitioner’s em ployment with

Respondent. Mr. Burt on did not raise th e issue of whether

Respondent should terminate Pe titioner’s employment.

47. On February 28, 2007, Respondent terminated Petitioner’s

employment based on Mr . Grabbe’s determinatio n that Petitioner’s

continued poor work quality and perfor mance threatened

Respondent’s CSI score. Respondent did not terminate Pe titioner’s

employment for violat ion of Respondent’s “No Dating” policy.

Neither Respon dent nor any of its employ ees had any kn owledge of

Petitioner dating any individual employed by Respondent until

after Petiti oner was terminated.

48. Mr. Burton did not have authority to hire or fire any

employee of Re spondent. Mr. Burton had the auth ority to

discipline Respondent’s employees subj ect to the prio r approval of

Mr. Grabbe.

49. Respondent did no t create or ac quiesce in a hostile work

environment for Pe titioner. In September 2006, Petitioner was

called a “stupid idio t” by one of Respon dent’s employees,

Mr. Richard Lawr ence. Petitioner aler ted Mr. Burt on to the

comment, and Mr. Burton repriman ded Mr. Lawrence. At the time,

Petitioner lived with Mr. Lawrence. The comm ent by Mr. Lawrence

was the only negative comment made to Pe titioner prior to

October 13, 2006.

50. After October 13, 2006, the only comments which

Petitioner was subjecte d to were from co-emp loyees and pertained

to Petitioner needing to “get back to work” and “do more stuff.”

Petitioner never comp lained to an y employee of Respondent

regarding any al leged comments after October 13, 2006.

CONCLUSIONS OF LAW

51. 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.

52. It is unlawful under the Florida Civil Right Act (FCRA)

for an employer to “ discharge or 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 an individual's sex. § 760.10( 1)(a).

The FCRA is modeled after federal law, and federal case law may

be used for guidance in evaluating the merits of claims arising

under Chapter 760. Castleberry v. Edward M. Chadbourne, Inc. ,

810 So. 2d 1028, 1030 (Fla. 1st DCA 2002).

53. Petitioner bears the initial burden of establishing by

a preponderance of the evidence a prima facie case of unlawful

discrimination. Reeves v. Sanderson Plumbing Prod., Inc. , 530

U.S. 133, 142 (2000). Failure to establish a prima facie case

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

2d 1008, 1012 n.6 (Fla. 1st DCA 1996).

54. Petitioner may employ one of three means to establish a

prima facie case of employment discrimination. Petitioner may

establish a prima facie case of discrimination through direct

evidence of discriminatory intent, statistical analysis

evidencing a pattern of discrimination, or circumstantial

evidence meeting the test established in McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973). Verbraeken v. Westinghouse Elec.

Corp. , 881 F.2d 1041, 1045 (11th Cir. 1989).

55. Petitioner did not present either direct or statistical

evidence of discrimination. The fact-finder finds the

circumstantial evidence of discrimination to be less than

credible and persuasive and, therefore, finds that Petitioner

did not make a prima facie showing that Respondent or its

employees violated the FCRA.

56. When allegations of discrimination rely only on

circumstantial evidence, courts follow the burden-shifting

paradigm established in McDonnell Douglas and its progeny.

Gamboa v. Am. Airlines , 170 Fed. Appx. 610, 612-13 (11th Cir.

2006) . If Petitioner were to have succeeded in making a prima

facie showing that Respondent or its employees violated the

FCRA, a rebuttable presumption of discrimination would have been

created, and the burden would shift to Respondent to articulate

some legitimate, non-discriminatory reason for the challenged

action. Texas Dep’t of Comty. Affairs v. Burdine , 450 U.S. 248,

253-54 (1981). If Respondent carries this burden of rebutting

Petitioner’s prima facie case, Petitioner must demonstrate that

the proffered reason was not the true reason, but merely a

pretext for discrimination. Id.

57. The ALJ has no authority to examine the wisdom of an

employer’s business decision. The ALJ may not examine the

wisdom of Mr. Grabbe’s decision to terminate an at-will employee

for poor performance. Davis v. Town of Lake Park, Florida , 245

F.3d 1232, 1245 (11th Cir. 2001).

58. The failure of Petitioner to prove liability renders

moot the issue of damages. If liability were proven, any award

of back pay would be significantly reduced by subsequent

comparable employment.

59. Petitioner must make a reasonable and good-faith

effort to mitigate damages by seeking substitute employment that

is "substantially equivalent" to the terminated position.

Weaver v. Gallardo, Inc. , 922 F.2d 1515, 1527 (11th Cir. 1991).

Once comparable substitute employment is found, a claimant must

make "reasonable and good faith efforts" to retain the job.

Senello v. Reserve Life Ins. Co. , 667 F. Supp. 1498, 1513 (S.D.

Fla. 1987) (internal citation omitted). Where a claimant

voluntarily quits a comparable job, "back pay should be

decreased by the amount [she] would have earned had [she] not

quit." Id. at 1513-14.

60. It is undisputed that Petitioner obtained substitute

employment as a pr e - d e l i v e r y i n s p e c t i o n t e c h n i c i a n with Arrigo on

March 22, 2007. The record shows that Arrigo paid Petitioner at

a rate of $13.00 per hour. The record further demonstrates that

Petitioner voluntarily quit the position with Arrigo. If

Respondent were liable for back pay, the back pay authorized in

this administrative proceeding is limited to $1,320.00.

61. Respondent did not file a motion for attorney's fees

and costs prior to the entry of this Recommended Order. Nor did

Respondent submit evidence of the amount and reasonableness of

any claim for fees and costs.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Commission enter a final order finding

that Respondent did not commit the factual allegations and

violations alleged in the Charge of Discrimination and Petition

for Relief.

DONE AND ENTERED this 13th day of November, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of November, 2008.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2006), unless otherwise stated.

2/ The period for which “back pay” is authorized in

Subsection 760.11(6) is limited to the period from February 28

through March 21, 2007.

3/ The agency that processed the unemployment compensation claim

found the effective date of the claim to be February 25, 2007.

4/ Petitioner testified that the alleged coerced sexual

intercourse occurred in the passenger seat of Mr. Burton’s

vehicle on October 13, 2006.

5/ Respondent does not maintain any written discipline policy

but, in practice, maintains a progressive discipline policy

where severity of discipline is based on the frequency of

offense rather than the level of offense.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jeremy K. Markman, Esquire

King & Markman, P.A.

4767 New Broad Street

Orlando, Florida 32814

Donald St. Denis, Esquire

Michael J. Lufkin, Esquire

St. Denis & Davey, P.A.

1300 Riverplace Boulevard, Suite 101

Jacksonville, Florida 32207

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.