08-003721 Joycelyn Jones vs. Spherion Staffing Status: Closed Recommended Order on Thursday, April 2, 2009.

Summary: Petitioner`s assignment was terminated for poor performance. Petitioner did not establish a prima facie case for discrimination or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCELYN JONES, )

)

Petitioner, )

)

vs. ) Case No. 08-3721

)

SPHERION STAFFING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on February 13, 2009, in Orlando, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

For Respondent: Aaron L. Zandy, Esquire

Jessica T. Walberg

Ford & Harrison, LLP

300 South Orange Avenue

Suite 1300

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed an

unlawful employment practice against Petitioner by

discriminating against her based on sex and race and by

retaliating against her.

PRELIMINARY STATEMENT

On July 17, 2008, the Florida Commission on Human Relations

(Commission) issued a Determination: No Cause to believe

Respondent, Spherion Staffing (Spherion), had discriminated

against Petitioner, Jocelyn Jones (Ms. Jones). Ms. Jones filed

a Petition for Relief with the Commission, alleging that she was

“subjected to a racially and sexually hostile work environment”

and that she was “subjected to disparate disciplinary actions

because of her race.”

The case was forwarded to the Division of Administrative

Hearings on July 29, 2008, for assignment to an administrative

law judge to conduct the final hearing. The case was originally

assigned to Administrative Law Judge Lawrence P. Stevenson, but

was transferred to Administrative Law Judge Susan B. Harrell to

conduct the final hearing.

The parties filed a Joint Prehearing Stipulation in which

they agreed to certain facts contained in Section E of the Joint

Prehearing Stipulation. To the extent relevant, those facts

have been incorporated into this Recommended Order.

The final hearing was originally scheduled for October 1,

2008, but was continued twice. On February 12, 2009, Ms. Jones

filed a motion to continue due to difficulties in serving

witnesses with subpoenas. The motion was denied, but Ms. Jones

was given leave to take the depositions of Roberto DeJesus,

Elaine Scott Hope, Sandy Boehly, and Eric Stephens within two

weeks of the conclusion of the final hearing and to file the

depositions as late-filed exhibits. No depositions were filed.

At the final hearing, Ms. Jones testified in her own behalf

and called the following witnesses: April Jacques, Anthony

Hinton, Jamie Jordan, and Dezeret Bright. Petitioner did not

submit any exhibits for admission in evidence.

At the final hearing, Spherion called April Jacques, Stacy

Futch and Matt Cooper as its witnesses. Respondent’s Exhibits 1

through 25 were admitted in evidence. Spherion was given leave

to late-file Respondent’s Exhibit 26. Respondent’s Exhibit 26

was filed on March 23, 2009, and is admitted in evidence.

The three-volume Transcript was filed on March 16, 2009.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the Transcript or the late-

filed depositions, whichever was later. Ms. Jones filed her

Proposed Recommended Order on March 19, 2009. Spherion filed

its Proposed Recommended Order on March 26, 2009. Both Proposed

Recommended Orders have been given consideration in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Jones is an African-American female. From May 29,

2007, to December 5, 2007, Ms. Jones was employed by Spherion.

Spherion provides temporary employees to businesses. Spherion

had a contract with American Automobile Association (AAA) to

provide temporary employees for an AAA call center in Lake Mary,

Florida.

2. AAA does not pay the Spherion employees, Spherion does.

AAA can request that Spherion terminate a Spherion employee from

an assignment at AAA.

3. Ms. Jones was employed as a customer service

representative (CSR) at the AAA site in Lake Mary, Florida. Her

duties included taking calls from AAA customers who were in need

of roadside assistance. At the time Ms. Jones was working at

the AAA site, approximately 150 to 200 Spherion employees were

assigned to the AAA call center. Approximately 60 to 70% of the

Spherion employees were female, and approximately 60 to 70 of

the female employees were members of racially protected classes.

4. Ms. Jones received the CSR Performance Participant

Guide, which is provided to all CSRs working on-site at AAA.

On May 21, 2007, Ms. Jones executed an acknowledgement of having

received the Spherion Workplace Harassment policy, the Spherion

Attendance and Punctuality policy, and Spherion’s Policies and

Procedures – Application Supplement. She also executed an

acknowledgement of having received Spherion’s Equal Opportunity

Statement. On June 7, 2007, Ms. Jones executed an

acknowledgement of having received Spherion’s Customer Service

Quality Commitment policy.

5. During her employment with Spherion, Ms. Jones was paid

$10.00 per hour.

6. Ms. Jones received approximately two weeks of training.

She began taking live calls on her own on June 10, 2007.

Spherion allowed Ms. Jones two months to learn her job before

Spherion began to evaluate her calls for quality assurance

purposes.

7. Spherion has a progressive discipline policy. A verbal

warning is first given followed by a written warning, and then a

final warning. On July 30, 2007, Ms. Jones received a verbal

warning for attendance. On August 23, 2007, she received a

final warning for call avoidance because she had failed to

follow Spherion’s policies and procedures related to receipt of

incoming calls. On September 18, 2007, Ms. Jones received a

verbal warning regarding safety because she did not use a safety

statement in one or more of her calls.

8. According to the policies of Spherion and AAA, the goal

for each skill set for a CSR is 90%.

9. On September 11, 2007, Ms. Jones’ performance for

quality assurance (QA) for the month of August was rated as 79%.

She was given a verbal warning for performance on September 7,

2007, for her poor performance in August. Ms. Jones was advised

that immediate action was required to correct her performance,

and that failure to meet the quality standards could lead to

further discipline, including termination.

10. Ms. Jones’ QA average for September was 69%. As a

result of her QA average for September, Ms. Jones was given a

Written Warning for Performance on October 11, 2007. 1 Again, she

was warned that she needed to take immediate action to improve

her performance and that failure to do so could result in

further disciplinary action, including termination.

11. Ms. Jones received a QA average of 77% for the month

of October. As a result of her October average, she received a

Final Warning for Performance on November 2, 2007. Once again,

Ms. Jones was reminded that she needed to take immediate action

to improve her performance and that failure to do so could lead

to further discipline, including termination.

12. For the month of November 2007, Ms. Jones received a

QA average of 78.2%. On December 2, 2007, Spherion received an

e-mail from Matthew Cooper, an AAA supervisor, directing

Spherion to terminate Ms. Jones assignment at AAA for failure to

achieve QA from August through November, 2007. 2 As a result of

her poor performance, Ms. Jones’ assignment with AAA was

terminated on December 7, 2007. At the time her assignment was

terminated, Ms. Jones was being paid $11 per hour and was

working 40 hours per week.

13. AAA has requested that other Spherion employees

assigned to the AAA call center have their assignments

terminated for low performance for four months, and Spherion

complied with those requests. Such employees included a white

male, an African-American/Hispanic female, and an Asian/American

male.

14. The termination of an assignment to the AAA site did

not mean that Ms. Jones was terminated from employment with

Spherion. If Ms. Jones desired to seek an assignment with

another Spherion client, she could have contacted the Spherion

branch office. Ms. Jones did not contact Spherion for another

assignment. Ms. Jones filed for unemployment compensation and

received one check for $182.00. 3

15. During the second week of January 2008, Ms. Jones

began to work for Kelly Services. She worked approximately 25

hours per week until she left Kelly Services during the first

week of June 2008. Her hourly rate of pay was $10.75 per hour.

From June 23, 2008, to September 22, 2008, Ms. Jones was

employed by Careers USA. She worked approximately 40 hours per

week, and her hourly rate of pay was $10.75. After leaving

Careers USA, Ms. Jones went to work for Comcast, where she is

currently employed. She works 40 hours per week, and her hourly

rate of pay is $10.75.

16. Spherion has a workplace harassment policy which was

provided to Ms. Jones at the time of her hiring. The policy

provides in pertinent part:

Spherion Corporation, including all of its

divisions, business groups and subsidiaries

[“Spherion”], is committed to providing a

work environment free of unlawful harassment.

Harassment based on an individual’s race,

religion, color, national origin,

citizenship, marital status, sex, age, sexual

orientation, veteran status, disability or

any other legally protected status is

strictly prohibited and will not be tolerated

at Spherion.

Employees have a right to be free from

harassment from managers, co-workers, and

non-employees with whom Spherion employees

have a business, service, or professional

relationship, including, but not limited to,

vendors, clients and client employees. Every

Spherion manager and supervisor is

responsible for ensuring that the spirit,

intent, and goals of this anti-harassment

policy are achieved.

* * *

All employees must report incidents of

harassment. Any employee who believes that

he or she is being harassed by a co-worker,

supervisor, manager, or other individual at

the workplace — whether employed by Spherion

or not — or believes that his or her

employment is being adversely affected by

such conduct, should immediately report such

concerns to his or her supervisor, next-level

manager, or other manager or the HR

department. A human resources representative

may be contacted at – Human Resources, c/o

Spherion Corporation, 2050 Spectrum

Boulevard, Fort Lauderdale, FL 33309, 800-

839-1965, or [e-mail].

17. If a Spherion employee has a complaint about an AAA

employee, the Spherion employee is to contact Spherion, not AAA.

Spherion has the responsibility to look into the matter.

18. When Ms. Jones first became employed with Spherion,

she made a complaint that one of the AAA security guards was

rude to her concerning the use of a restroom. April Jaques, who

was a Spherion client service supervisor and responsible for

staffing and human resources at the AAA call centers, followed

up on Ms. Jones’ complaint and learned that Ms. Jones had been

using a restroom that was off limits to employees after the

building was closed for the night. The security guard had

correctly advised Ms. Jones about the use of the restrooms.

Ms. Jaques explained to Ms. Jones which restrooms could be used

by overnight employees.

19. Ms. Jones claimed that John Sherwood, who was not her

supervisor, had discriminated against her based on her gender

because he was disrespectful and rude and had accused her of

destroying a computer. Her basis for claiming discrimination

claimed that Mr. Sherwood had retaliated against her because she

had complained to management about his being rude and

disrespectful. Her testimony was not clear how he retaliated

against her. Mr. Sherwood had no control over Ms. Jones’ pay,

benefits, or terms and conditions of employment.

20. While Ms. Jones was assigned to AAA, Anthony Hinton

was an AAA supervisor. Because Mr. Hinton was employed by AAA,

Spherion could not discipline Mr. Hinton. Mr. Hinton has been

described as a “by-the-book kind of guy,” who sometimes “rubs

people the wrong way.” He expected all employees to follow

policy regardless of the employee’s race or gender. There were

some complaints about his abrasive management style. Some

complaints were made by employees who are not members of a

protected class. The evidence does not support Ms. Jones’

assertions that Mr. Hinton was hostile only to African-American

women or women of color. In November 2007, AAA required him to

attend some anger management sessions with a therapist. He

completed the therapy sessions.

21. On September 6, 2007, Ms. Jones sent an e-mail to Mike

Fratus, an employee of AAA, complaining about Mr. Hinton. She

stated that Mr. Hinton had been rude and hostile to her on her

first day of work on the call center floor. She complained that

Mr. Hinton had put her on notice because of her footwear, 4 but

had not said anything to an employee who was sitting nearby and

wearing similar footwear. She further added, “[t]he word going

around is he is hostile and demeaning to Black women only.”

Ms. Jones did not specifically name any other Black women to

whom Mr. Hinton was rumored to be hostile and demeaning.

22. Mr. Fratus forwarded the e-mail to April Jaques on

September 11, 2007. Ms. Jaques scheduled a time to speak with

Ms. Jones regarding her concerns. It was Ms. Jaques’

understanding that AAA would follow-up regarding the complaint

against Mr. Hinton because Mr. Hinton was an AAA employee.

23. Mr. Hinton credibly testified that he spoke to

Ms. Jones about her inappropriate footwear, but that he did not

see any other employee at the time with similar footwear.

Mr. Hinton has spoken to non-African-American men and women

about their attire.

24. On September 19, 2007, Ms. Jones sent an e-mail to

April Jaques. Ms. Jones complained that Mr. Hinton had talked

to her about logging in early. 5 She denied that she had logged

in early and asked that “[n]o action be taken.” She further

stated:

Again after speaking with you and being

counseled on compliance regarding my time I

immediately wanted to correct the issue.

This is just very disturbing to me especially

after sharing with you and Mike how he

[Hinton] discriminates with his treatment

toward women of color.

Ms. Jaques discussed the e-mail with Ms. Jones. Ms. Jones did

not give Ms. Jaques any names of women that were being

discriminated against by Mr. Hinton. Because Mr. Hinton was an

employee of AAA, Ms. Jaques sent a copy of the e-mail to AAA.

25. In October 2007, Jamie Jordan, a dispatcher who was

employed by Spherion, complained to Mike Fratus about an incident

concerning Ms. Jones that happened on the call center floor. Mr.

Jordan had approached Ms. Jones about some information that was

missing from a call that had been received requesting a tow

truck. Mr. Jordan felt that Ms. Jones was rude and disrespectful

to him when he approached her. Mr. Fratus sent an e-mail to Ms.

Jaques, outlining Mr. Jordan’s complaint.

26. On October 5, 2007, Ms. Jaques spoke to Ms. Jones about

the incident between Ms. Jones and Mr. Jordan. Ms. Jones claimed

that Mr. Jordan was rude and harsh to her. During the

conversation, Ms. Jones became angry and accused Ms. Jaques of

discrimination and harassment. Ms. Jaques attempted to calm

Ms. Jones and told Ms. Jones that she would investigate the

incident.

27. Ms. Jones gave Ms. Jaques the names of some employees

who had witnessed the incident with Mr. Jordan. Ms. Jaques

investigated the issue, including talking with other employees

who had heard the altercation. Ms. Jaques concluded that both

Mr. Jordan and Ms. Jones were to blame for the incident.

28. Based on Ms. Jones’ testimony, as of November 1, 2007,

she had filed an employment discrimination complaint against

Spherion with the Florida Human Rights Association. The

complaint was forwarded to the Equal Employment Opportunity

Commission. Ms. Jones filed an amended complaint on

December 17, 2007.

29. On November 11, 2007, Ms. Jones sent an e-mail to

Simon DeYoung, an employee of AAA, complaining of sexual

harassment, verbal abuse, and retaliation. Specifically, she

was claiming that there were supervisors and a team leader who

were listening to her calls and referring them to the quality

assurance section; thus, her calls were not being monitored on a

random basis. She also claimed that she had made a

recommendation that the Dispatch section make return calls to

members for updated information rather than having a CSR get the

correct information and that Dispatch was upset with her for

making the recommendation. Simon DeYoung forwarded the e-mail

to Spherion management.

30. Stacy Futch was Spherion’s on-site client service

representative at the AAA site in St. Mary. She met with

Ms. Jones on November 11, 2007, concerning Ms. Jones’ e-mail to

Mr. DeYoung. Ms. Futch asked Ms. Jones about her claim of

sexual harassment, and Ms. Jones said that it had happened

months ago and that she had not brought the matter up before

because she did not think that the issue would be addressed.

Ms. Jones did not go into detail with Ms. Futch about the

alleged sexual harassment actions.

31. Ms. Jones felt that Mr. Jordan was sexually harassing

her based on some comments that he had made to her. Mr. Jordan

was not Ms. Jones’ supervisor. During the first week of

Ms. Jones’ employment with Spherion, Mr. Jordan asked her if she

would like to go fishing. Mr. Jordan admitted that he had told

Ms. Jones that he thought she was beautiful, but that he had

never seriously asked her to marry him. Ms. Jones went to

Mr. Jordan and asked him to stop making comments to her. Three

days later he told her that she looked nice. Ms. Jones

testified that in October 2007, Mr. Jordan told her that he was

drinking milk and that he was growing. Ms. Jones said she took

the comment to mean that his penis was getting larger.

Mr. Jordan denied he made any comments about drinking milk.

Given Ms. Jones’s conversation to Ms. Futch in which she told

Ms. Futch on November 11, 2007, that she had not experienced any

sexual harassment for several months, and Ms. Jones’s testimony

that after the October 5, 2007, altercation with Mr. Jordan that

there had been no further incidents involving him, I find that

Ms. Jones’ testimony about the milk to lack credibility.

32. Ms. Jones did not make a complaint to Ms. Jaques about

Mr. Jordan’s comments.

33. Ms. Jones claims that her low performance scores were

a result of her scores being manipulated by either AAA or

Spherion as retaliation for making a complaint of discrimination

and harassment. The evidence does not support Ms. Jones’ claim

that her scores were manipulated. Ms. Jones had heard that some

supervisors were dismissed for manipulating scores, and she

concluded that if other scores could be manipulated then her

scores must have been manipulated. The rumors that Ms. Jones

had heard about supervisors had nothing to do with the

manipulation of QA scores and Ms. Jones’ claim of manipulation

is based on pure speculation.

34. Ms. Jones claims that two other employees Jessica

Robart and Marci Palumbo, who were white females, had low QA

scores and were not dismissed for poor performance. Ms. Jones’s

claim is unfounded. Ms. Robart had low performance scores for

the last two weeks in June 2007 and for the last two weeks in

July 2007. Marci Palumbo, referred to as Ricky or Marsha by

Ms. Jones, had a low performance score for August 2007. Neither

Ms. Robart nor Ms. Palumbo had four consecutive months with low

performance scores. At least one non-minority male employee’s

employment has been terminated for poor performance relating to

QA.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

36. Ms. Jones contends that Spherion racially and sexually

discriminated against her by subjecting her to a racially and

sexually hostile work environment and retaliated against her for

complaining. Subsections 760.10(1)(a) and 7, Florida Statutes

(2007), 6 provide:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise

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.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor-management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

37. The Florida Civil Rights Act of 1992, Section 760.01,

et seq. , Florida Statutes, is modeled after Title VII of the

Civil Rights Act of 1964, 42 U.S.C. Section 2000, et seq. ;

therefore, case law interpreting Title VII is also relevant to

cases brought under the Florida Civil Rights Act. Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205, 1209

(Fla. 1st DCA 1991).

38. In a discrimination case, the petitioner has the

initial burden of establishing a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In order to establish a

prima facie case of discrimination, the petitioner must

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

(2) she was subject to an adverse employment action; (3) the

employer treated similarly situated employees outside the

protected class more favorably than she was treated; and

(4) she was qualified for the position. See Burke-Fowler v.

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

39. Ms. Jones has established that she is in a protected

class; she is a female African-American. She did not establish

that she was qualified to do the job of a customer service

representative. The minimum level of performance for a customer

service representative was 90%, and Ms. Jones never achieved a

90% QA performance level while she was at AAA. In her Proposed

Recommended Order, Ms. Jones argues that she was subjected to

disparate treatment based on her race and gender. She claims

that she was relieved of her assignment at AAA and not given

another assignment and Ms. Robart, a white female who had poor

QA performance, was treated more favorably. Ms. Jones’

assignment at AAA was terminated. The evidence does not

establish that Ms. Jones requested another assignment from

Spherion and was denied an assignment. The evidence does not

establish that Ms. Robart was treated more favorably than

Ms. Jones. Ms. Robart did not have a QA performance level under

90% for four months as did Ms. Jones. Ms. Jones has failed to

establish a prima facie case of disparate treatment based on

either gender or race.

40. If the petitioner proves a prima facie case of

discrimination, the burden shifts to the employer to proffer a

legitimate, non-discriminatory reason for the action it took.

Texas Department of Community Affairs v. Burdine , 450 U.S. 248,

101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The employer’s burden is

always one of production, not persuasion, as it always remains

the petitioner’s burden to persuade the fact finder that the

proffered reason is a pretext and that the employer

intentionally discriminated against the petitioner. Id. at

252-256.

41. Spherion has established that Ms. Jones’ assignment at

AAA was terminated because she did not meet the QA performance

level of 90%. Spherion has terminated assignments of other

Spherion employees who are outside Ms. Jones’ protected classes

for failure to meet the QA performance levels. Ms. Jones’s

assignment termination was not based on sexual or racial

discrimination.

42. The required elements of a prima facie case for

retaliation 7 are: (1) Petitioner participated in a protected

activity; (2) Petitioner suffered an adverse employment action;

and (3) there is a causal connection between participation in

the protected activity and the adverse employment action. See

Gupta v. Fla. Board of Regents , 212 F.3d 571, 587 (11th Cir.

2000); Farley v. Nationwide Mutual Ins. , 197 F.3d 1322, 1336

(11th Cir. 1999).

43. Ms. Jones has failed to establish a prima facie case

of retaliation. Ms. Jones did file a discrimination complaint

against Spherion, and her assignment at AAA was terminated.

However, Ms. Jones has failed to establish a causal connection

between her discrimination complaint or any of the verbal or

e-mail allegations she made against Spherion and the termination

of her assignment at AAA. Mr. Cooper is the supervisor employed

by AAA who made the recommendation to Spherion that Ms. Jones’

assignment be terminated based on her poor performance.

Ms. Jones did not think that Mr. Cooper’s recommendation was

based on discrimination or retaliation. The recommendation

based on poor performance was acted on by Spherion, and the

evidence presented did not support any causal connection between

the termination of the assignment and the filing of a

discrimination complaint or any of Ms. Jones’ allegations

concerning her treatment by AAA employees or Spherion employees.

44. To establish a claim of racial or sexual harassment,

Petitioner must prove the following elements: (1) Petitioner

belonged to a protected group; (2) Petitioner has been subjected

to unwelcome harassment; (3) the harassment must have been based

on the sex or race of the employee; (4) the harassment was

sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive

working environment; (5) the employer is responsible for such

environment under either a theory of vicarious or of direct

liability. Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269,

1275 (11th Cir. 2002); Mendoza v. Borden, Inc. , 195 F.3d 1238,

1245 (11th Cir. 1999).

45. Ms. Jones has failed to establish a claim of racial or

sexual harassment based on the actions of Mr. Hinton or

Mr. Jordan. Ms. Jones claims that Mr. Hinton was rude and

hostile to her because she was an African-American woman. The

evidence does not support her claim. Mr. Hinton’s militaristic

management style applied equally to men and to women and to

white employees as well as to employees of color.

46. Mr. Hinton counseled Ms. Jones on her footwear, which

was in violation of the AAA dress code and about logging in

early, which was also a violation of AAA policy. The counseling

did not result in disciplinary action, did not affect her

benefits or pay, or otherwise alter the terms and conditions of

her employment. Ms. Jones did not establish that Mr. Hinton’s

conduct was sufficiently pervasive or severe that it created a

discriminatorily abusive working environment. He counseled her

once about her footwear, once or twice about her logging in

early, and once requested her to get out of after call.

47. Mr. Hinton was an employee of AAA and not of Spherion.

When Spherion received complaints about Mr. Hinton, Spherion

forwarded the complaints to AAA, who had control over

Mr. Hinton. In one of her e-mails to Ms. Jaques complaining

about Mr. Hinton, Ms. Jones stated “No action requested.”

However, AAA did take some action to correct Mr. Hinton’s

abrasive management style by requiring him to attend anger

management classes.

48. Ms. Jones also complained that Mr. Jordan sexually

harassed her. Mr. Jordan was a co-worker and not Ms. Jones’

supervisor. He could not fire or discipline Ms. Jones, alter

her pay or benefits, or affect the terms and conditions of her

employment. The conduct which Ms. Jones claims created an

abusive working environment consisted of Mr. Jordan asking

Ms. Jones if she would like to go fishing; Mr. Jordan telling

Ms. Jones that she was beautiful and looked nice; and of

Mr. Jordan asking Ms. Jones to marry him in a joking manner.

Such conduct does not rise to the level of harassing conduct and

at best are considered isolated incidents. “[S]imple teasing,

offhand comments, and isolated incidents (unless extremely

serious) will not result in discriminatory changes in the terms

and conditions of employment.” Clark County School District v.

Breeden , 532 U.S. 268, 271 (2001).

49. Spherion has requested attorney’s fees and costs

pursuant to Subsection 760.11(6), Florida Statutes, which

provides that the Commission, in its discretion, may allow

reasonable attorney’s fees to the prevailing party as part of

its costs and that the provision regarding attorney’s fees be

interpreted in a manner consistent with federal case law

involving a Title VII action. “Attorney’s fees may not be

awarded to a defendant in a Title VII case unless the

plaintiff’s claim is frivolous, unreasonable or groundless.”

Yoder Brothers, Inc. v. Weygant , 973 So. 2d 625, 626 (Fla. 2d

DCA 2008). Respondents have not demonstrated that Ms. Jones’

claim was frivolous, unreasonable, or groundless.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be entered dismissing

Ms. Jones’ Petition for Relief and denying Spherion’s request

for attorney’s fees and costs.

DONE AND ENTERED this 2nd day of April, 2009 in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 2nd day of April 2009.

ENDNOTES

1/ Although Ms. Jones’ October 15, 2007, written warning

indicates that her “average [QA] for the month of August was

69%,” the reference to the month of August was a typographical

error by Spherion and should have said “September.”

2/ Mr. Cooper had no knowledge when he made the recommendation

to Spherion to terminate Ms. Jones’s assignment that Ms. Jones

had made a formal complaint of discrimination against Spherion.

Ms. Jones testified that she did not feel that Mr. Cooper had

discriminated or retaliated against her in any manner.

3/ Spherion uses a third party service to deal with unemployment

compensation claims. Spherion advised the third party service

that Ms. Jones’ assignment had been terminated due to poor work

performance. The response filed to the claim advised that

Ms. Jones’s assignment had been terminated for poor work

performance.

4/ AAA has a dress code policy which prohibits the wearing of

“flip-flops” or shoes of a similar nature.

5/ AAA has a policy which prohibits employees from logging on to

the computer more than six minutes prior to the beginning of

their shift. Mr. Hinton has counseled with non-African-American

employees and male employees about logging in early.

6/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 version.

7/ Although retaliation was not mentioned in Ms. Jones’ Petition

for Relief, both parties presented evidence at the final hearing

concerning retaliation and both parties argued the issue of

retaliation in the Proposed Recommended Orders.

COPIES FURNISHED :

Derick Daniel, Executive Director

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

Jessica T. Walberg, Esquire

Ford & Harrison LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

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.