08-000394 Cynthia Stebbins vs. Appliance Direct Status: Closed Recommended Order on Friday, April 4, 2008.

Summary: Petitioner failed to prove sexual harassment and retaliation claims and presented no evidence regarding racial discrimination. The petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA STEBBINS, )

)

Petitioner, )

)

vs. ) Case No. 08-0394

)

APPLIANCE DIRECT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Jeff B. Clark, duly-designated

Administrative Law Judge of the Division of Administrative

Hearings, held an administrative hearing in this case on

March 3, 2008, in Viera, Florida.

APPEARANCES

For Petitioner: Maurice Arcadier, Esquire

2815 West New Haven Avenue, Suite 303

Melbourne, Florida 32904

For Respondent: Christopher J. Coleman, Esquire

Robert L. Beals, Esquire

Schillinger & Coleman, P.A.

1311 Bedford Drive, Suite 1

Melbourne, Florida 32904

STATEMENT OF THE ISSUE

Whether Petitioner was subjected to race and gender

discrimination, sexual harassment/hostile work environment, and

retaliation, as alleged in her Petition for Relief.

PRELIMINARY STATEMENT

On January 22, 2008, Petitioner, Cynthia Stebbins, timely

filed a Petition for Relief which alleged unlawful employment

practices by Respondent, Appliance Direct, Inc., which included

race and gender discrimination, sexual harassment/hostile work

environment, and retaliation. The case was forwarded to the

Division of Administrative Hearings on January 24, 2008, by the

Florida Commission on Human Relations (FCHR). On the same day,

an Initial Order was sent to both parties requesting mutually

convenient dates for a final hearing.

Based on the response of the parties, the case was

scheduled for final hearing on March 3, 2008, in Viera, Florida.

The case was presented as scheduled. Petitioner testified

on her own behalf and offered three exhibits, which were

received into evidence and marked Petitioner's Exhibits 1

through 3. Respondent presented the testimony of two witnesses:

Chuck Thew and Kevin Drako and offered two exhibits, which were

received into evidence and marked Respondent's Exhibits 1 and 2.

No transcript was ordered. Both parties timely filed

Proposed Recommended Orders.

All references are to Florida Statutes (2006), unless

otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Petitioner, a 36-year-old Caucasian female, was

employed by Respondent as a sales associate. She first worked

for Respondent at its Sebastian, Florida, store where she

started in June 2006. She voluntarily resigned from the

Sebastian store in October 2006 and was hired by Respondent's

Merritt Island, Florida, store one week later.

2. Respondent owns and operates an appliance retail store

in Central Florida. Respondent employs more than 15 people.

3. At some time during Petitioner's employment, John

Barnaba, an operations manager who rotated among several stores,

said things to her that she found "unacceptable." For example,

"You would look good on my Harley," "You look like a biker

chick," and "You must be anorexic." He also clapped his hands

behind her and said, "hurry, hurry, hurry."

4. She reported Mr. Barnaba's conduct to Phil Roundy, her

manager and manager of the Merritt Island store, who said

"That's just the way he is," or words to that effect. She was

unaware of any other action undertaken by Mr. Roundy regarding

her complaint.

5. In January 2007, Petitioner began a voluntary sexual

relationship with Mr. Roundy, which involved at some point,

Petitioner and Mr. Roundy living together. This relationship

lasted until April 29, 2007, when the parties separated. She

and Mr. Roundy "got back together in May, about a week after her

termination." Mr. Roundy did not sexually harass Petitioner

based on the voluntary nature of their relationship, nor did he

sexually harass Petitioner between April 29 and May 18, 2007.

6. After Petitioner and Mr. Roundy separated, he started

treating her "differently." She reports that he became critical

of her and would not assist her.

7. Respondent has published an "information resource for

common questions and concerns" titled, " Associate Handbook " that

addresses sexual harassment and presents a grievance procedure

for employees who believe they have been subjected to unfair

treatment. It contemplates reporting the unfair treatment to

(1) "your immediate manager"; (2) the store manager; or

(3) "[s]hould the problem, however, be of a nature which you do

not feel free to discuss with your manager, you are encouraged

to discuss the problem in confidence directly with Human

Resources."

8. Petitioner requested a transfer to another store on

May 1, 2007. She requested the transfer before Mr. Roundy

started treating her "differently." She called Human Resources

on May 9 and 15, 2007; it is unclear as to whether she called to

check on the requested transfer or to report the alleged sexual

harassment. She did not timely pursue any recourse suggested in

the Associate Handbook .

9. On May 9, 2007, Mr. Barnaba, the operations manager

mentioned above, authored an email that characterized several of

Petitioner's activities of that work day as "completely

unprofessional and insubordinate." The following day,

Mr. Roundy emailed his supervisor that Petitioner had gone

through his private, business-related emails and discovered

Mr. Barnaba's May 9, 2007, email. He also related several

incidents that he thought unprofessional and that reflected bad

customer service. He advised that Petitioner accused Barnaba

and himself of conspiring to try to terminate her.

10. Petitioner was scheduled to work on May 16 and 17,

2007, but did not report to work. She was scheduled to work on

May 18, 2007; as a result, Kevin Draco, a risk manager for

Respondent, went to the Merritt Island store to interview her.

When Petitioner did not appear, management made the decision to

terminate Petitioner for "absenteeism."

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Section 120.569 and

Subsections 120.57(1) and 760.11(7), Florida Statutes (2007).

12. Subsection 760.10(1)(a), Florida Statutes, which is

part of the Florida Civil Rights Act (FCRA), provides that it is

an unlawful employment practice to "discriminate against any

individual with respect to compensation, terms, conditions, or

privileges of employment, because of such individual's . . .

sex . . . ."

13. The FCRA was patterned after Title VII of the Federal

Civil Rights Act, so case law construing Title VII is persuasive

when construing to the FCRA. Castleberry v. Edward M.

Chadbourne, Inc. , 810 So. 2d 1028, 1030 n.3 (Fla. 1st DCA 2002).

14. Although Title VII and the FCRA do not mention sexual

harassment, it is well-settled that both acts prohibit sexual

harassment. Mendoza v. Borden, Inc. , 195 F.3d 1238, 1244-45

(11th Cir. 1999); Maldonado v. Publix Supermarkets , 939 So. 2d

290 (Fla. 4th DCA 2006).

15. Petitioner alleges a hostile work environment/sexual

harassment claim, which, by definition, is a claim that is based

on "bothersome attentions or sexual remarks that are

sufficiently severe or pervasive to create a hostile work

environment." Burlington Industries, Inc. Ellerth , 524 U.S.

742, 751 (1998) (distinguishing hostile environment claims from

quid pro quo sexual harassment claims).

16. In order to establish a hostile environment/sexual

harassment claim, Petitioner must prove: (1) the employee is a

member of a protected group; (2) the employee was subjected to

unwelcome sexual harassment, such as sexual advances, requests

for sexual favors, and other conduct of a sexual nature; (3) the

harassment was based on the sex 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; and (5) that the employer knew or

should have known about the harassment and took insufficient

remedial action. Maldonado , 939 So. 2d at 293-94. Accord

Hadley v. McDonald's Corporation , Order No. 04-147 (FCHR Dec. 7,

2004); Natson v. Eckerd Corp ., 885 So. 2d 945, 947 (Fla. 4th DCA

2004).

17. The requirement that Petitioner prove that the

harassment is sufficiently severe or pervasive ensures that the

anti-discrimination laws do not become "general civility codes."

Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998). This

requirement is regarded "as crucial, and as sufficient to ensure

that courts and juries do not mistake ordinary socializing in

the workplace--such as male-on-male horseplay or intersexual

flirtation--for discriminatory conditions of employment."

Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75, 81

(1998).

18. The factors to be considered in determining whether

the harassment is sufficiently severe or pervasive include:

(1) the frequency of the conduct; (2) severity of the conduct;

(3) whether the conduct was physically threatening or

humiliating; and (4) whether the conduct unreasonably interfered

with the employee's job performance. Maldonado , 939 So. 2d at

294; Hadley , supra .

19. The evidence fails to establish that the sexual

harassment described by Petitioner was sufficiently severe or

pervasive so as to create a hostile work environment .

Petitioner participated in a consensual sexual relationship with

her supervisor; there is no evidence that she did not welcome

this relationship. She then complains that she was treated

"differently." She also claimed sexual harassment by a second

employee; that particular complaint does not appear to be severe

or pervasive. The evidence fails to establish that Respondent

knew or should have known about the harassment prior to

Petitioner's termination on May 18, 2007, and, therefore, its

failure to do anything about the harassment prior to that date

was not unreasonable or inappropriate.

20. There is an affirmative defense to hostile

environment/sexual harassment claims known as the " Faragher-

Ellerth defense" based upon the United States Supreme Court

decisions from which the defense developed. Baldwin v. Blue

Cross/Blue Shield of Alabama , 480 F.3d 1287, 1292 (11th Cir.

2007).

21. An employer can avoid liability for sexual harassment

based upon the Faragher-Ellerth defense if: (1) it exercised

reasonable care to prevent and correct promptly any sexual

harassing behavior; and (2) the employee unreasonably failed to

take advantage of any preventive or corrective opportunities.

Id. at 1303; Maldanado , 939 So. 2d at 297-98.

22. Applying these standards to the facts of this case,

Petitioner failed to meet her burden to prove her sexual

harassment claim. Even if it was determined that Petitioner had

established a prima facie case of sexual harassment, which she

did not, Respondent met its burden to prove the Faragher-Ellerth

defense. The evidence establishes that Respondent has a

procedure in place for Petitioner to avail herself, but she

failed to take advantage of that procedure. Petitioner failed

to take advantage of employer-provided opportunities on the job

for preventing, correcting, or addressing alleged acts of sexual

harassment because Petitioner never made a formal or informal

report of such behavior to appropriate management or Human

Resources, as provided in Respondent's Associate Handbook .

23. Subsection 760.10(7), Florida Statutes, provides that

it is an unlawful employment practice to "discriminate against

any person because that person has opposed any practice which is

an unlawful employment practice under [the FCRA] . . . ."

24. To establish a prima facie case for retaliation under

Subsection 760.10(7), Florida Statutes, Petitioner must

demonstrate that: (1) she engaged in a statutorily protected

activity; (2) she suffered an adverse employment action; and

(3) there is a causal relation between the two events. Hinton

v. Supervision International, Inc . 942 So. 2d 986, 990 (Fla. 5th

DCA 2006); Guess v. City of Miramar , 889 So. 2d 840, 846 (Fla.

4th DCA 2004).

25. Petitioner in the instant matter was not involved in a

protected activity for which alleged retaliation occurred.

Because of this, Petitioner failed to make a prima facie case of

retaliation. Tatt v. Atlanta Gas Light Company , 2005 WL 1114356

(11th Cir. 2005).

26. If Petitioner establishes a prima facie case, the

burden shifts to Respondent to proffer a legitimate, non-

retaliatory reason for the adverse employment action. Rice-

Lamar v. City of Ft. Lauderdale , 853 So. 2d 1125, 1132-33. If

Petitioner fails to establish a prima facie case, as in the

instant case, the burden never shifts to Respondent.

27. The ultimate burden of persuasion remains with

Petitioner throughout the case to demonstrate a discriminatory

motive for the adverse employment action. Reeves v. Sanderson

Plumbing Products , 530 U.S. 133 (2000); St. Mary's Honor Center

v. Hicks , 509 U.S. 502 (1993).

28. To do so, Petitioner must prove by a preponderance of

the evidence that the reason proffered by Respondent is "false"

or "unworthy of credence" and that the real reason that she was

fired was retaliation for her complaints about the sexual

harassment. St. Mary's Honor Center v. Hicks , 509 U.S. at

507-08, 515-17. Proof that "the employer's proffered reason is

unpersuasive, or even obviously contrived, does not necessarily

establish that the [Petitioner's] proffered reason [of

retaliation] . . . is correct." Id. at 524 . It is "not

enough . . . to disbelieve the employer; the fact finder must

believe the [Petitioner's] explanation" of retaliation.

Id. at 519.

29. Petitioner failed to prove the first element of her

prima facie case. There is no evidence that Petitioner engaged

in any statutorily protected conduct prior to her termination on

May 18, 2007.

30. There was no evidence presented that Respondent was

made aware of Petitioner's alleged sexual harassment allegations

in a timely manner.

31. Petitioner failed to establish that there was a casual

link between an alleged protected activity and an alleged

adverse employment action, because Petitioner did not report

allegations of sexual harassment to Respondent and Petitioner

was not subjected to an adverse job action based on the alleged

protected activity.

32. Even if it was determined that Petitioner had

established a prima facie case, Respondent met its burden to

proffer a legitimate, non-retaliatory reason for the adverse

employment action taken against Petitioner. Specifically,

Respondent presented credible evidence showing that Petitioner

was fired for absenteeism.

33. Petitioner failed to prove that the reasons presented

by Respondent for her firing were "false," "unworthy of

credence," or otherwise pretextual.

34. Subsection 760.10(1)(a), Florida Statutes, provides

that it is an unlawful employment practice to "discriminate

against any individual with respect to compensation, terms,

conditions, or privileges of employment, because of such

individual's race, [or] color . . . ."

35. In order to establish a prima facie case for wrongful

discrimination by direct evidence, a plaintiff must present

evidence that the employer acted with a discriminatory motive.

This evidence "must not only speak directly to the issue of

discriminatory intent, it must also relate to the specific

employment decision in question." Bush v. Barnett Bank of

Pinellas County , 916 F. Supp. 1244, 1252 (Fla. 1996).

36. The protection against intentional racial

discrimination applies to both minority and non-minority

employees. McDonald v. Santa Fe Trail Transp. Co. , 427 U.S.

273, 278 (1976). In that regard, where the Petitioner alleges a

claim of reverse discrimination, as here, she must prove that

she: (1) belongs to a class; (2) was qualified for the job;

(3) was adversely treated at the job; and (4) minority group

members were treated more favorably in terms, conditions or

privileges of employment. Wilson v. Bailey , 934 F.2d 301 (11th

Cir. 1991).

37. Petitioner presented no evidence concerning a racial

discrimination claim.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order dismissing the Petition for Relief with

prejudice.

DONE AND ENTERED this 4th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 4th day of April, 2008.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Maurice Arcadier, Esquire

2815 West New Haven Avenue, Suite 303

Melbourne, Florida 32904

Christopher J. Coleman, Esquire

Schillinger & Coleman, P.A.

1311 Bedford Drive, Suite 1

Melbourne, Florida 32940

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.