10-001818 Dorine Alexander vs. Bar-B-Que Management Inc., D/B/A Sonny's Real Pit Bar-B-Q Status: Closed Recommended Order on Friday, August 13, 2010.

Summary: Petitioner failed to prove that she was discriminated against by Respondent based on race and an alleged disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORINE ALEXANDER, )

)

Petitioner, )

)

vs. ) Case No. 10-1818

)

BAR-B-QUE MANAGEMENT INC., )

d/b/a SONNY’S REAL PIT BAR-B-Q, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 7,

2010, in Ocala, Florida, before Suzanne F. Hood, Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dorine Alexander, pro se

307 Marian Oaks Course

Ocala, Florida 34473

For Respondent: Joanne B. Lambert, Esquire

Jackson Lewis, LLP

390 North Orange Avenue, Suite 1285

Post Office Box 3389

Orlando, Florida 32802-3389

STATEMENT OF THE ISSUE

The issue is whether Respondent, Bar-B-Que Management, Inc. d/b/a Sonny's Real Pit Bar-B-Q (Respondent), discriminated against Petitioner, Dorine Alexander (Petitioner), based on an alleged disability and her race.

PRELIMINARY STATEMENT

On or about August 31, 2009, Petitioner filed an Employment

Complaint of Discrimination against Respondent. The complaint

alleged that Respondent failed to accommodate her alleged

disability, and discriminated against her based on race and by

constructively discharging her.

The Florida Commission on Human Relations (FCHR) issued a

Determination: No Cause on March 3, 2010. Petitioner filed a

Petition for Relief with FCHR on April 1, 2010. FCHR referred

the case to the Division of Administrative Hearings on April 5,

2010.

A Notice of Hearing dated April 19, 2010, scheduled the

hearing for June 7 and 8, 2010.

When the hearing commenced, Petitioner testified on her own

behalf. She did not present the testimony of any other

witnesses or offer any exhibits as evidence.

Respondent presented the testimony of six witnesses.

Respondent offered 55 exhibits that were accepted as evidence.

The Transcript of the proceeding was filed on July 13,

2010. Petitioner's Proposed Recommended Order was filed on

July 21, 2010. Respondent's Proposed Findings of Fact and

Conclusions of Law were filed on August 2, 2010.

Except as otherwise noted, all references hereinafter shall

be to Florida Statutes (2009).

FINDINGS OF FACT

1. Respondent is a management company with employees at 16

franchise-owned restaurants in central and north-eastern

Florida. Respondent has employment policies that prohibit

discrimination on the basis of race and disability. It also has

policies that provide for reasonable accommodation of employees

with disabilities.

2. Respondent's policies inform employees about the

procedure to be followed in reporting perceived race or

disability discrimination. The policies prohibit retaliation

against employees who report perceived discrimination.

3. Petitioner is an African-American female. Respondent

employed her as a cashier in its Belleview, Florida, location

from July 14, 2008, to April 5, 2009.

4. At the beginning of her employment, Petitioner was

aware of Respondent's policies relative to discrimination.

Respondent provided her with a copy of its Team Member Handbook

containing the policies.

5. Petitioner's duties included working as a cashier in

both the drive-thru and at the front counter. She also was

responsible for stocking all takeout areas and completing side

work.

6. Initially, Petitioner's job required her to perform

deck scrubbing. However, when Petitioner notified her manager

that deck scrubbing made it difficult for her to breathe, she no

longer had to perform that task. Petitioner never complained

that she continued to have breathing difficulties even when

others were performing deck scrubbing.

7. Respondent accommodated Petitioner's alleged breathing

problem even though Petitioner never provided Respondent with

requested medical documentation indicating that she had asthma

or any other respiratory difficulties. There is no competent

evidence to show that Petitioner is disabled.

8. In the Fall of 2008, Respondent demoted the general

manager at the restaurant where Petitioner worked. The demotion

was based on poor performance, including not enforcing company

policies and failing to hold employees accountable for

compliance with company policies and performance standards.

9. Respondent directed the new management team to enforce

company policies and to issue discipline when appropriate. The

directive was communicated to the restaurant's employees.

10. After the change in management, Petitioner received

numerous disciplinary write-ups. The write-ups included the

following: (a) violation of Respondent's policy against use of

cell phones during working hours; (b) violation of Respondent's

policy against smoking on the premises and/or parking lot while

in uniform during working hours; (c) violation of Respondent's

attendance policy, requiring employees to arrive at work on time

and to attend mandatory meetings unless excused; (d) violation

of Respondent's cash-handling policy, resulting in cash overages

and shortages; and (d) violation of Respondent's work

performance standards by failing to stock supplies and complete

other side work duties.

11. Non-black employees received written discipline for

the same violations as Petitioner. At least one white employee

was terminated for violating the cell phone usage policy.

12. Prior to February 2009, Petitioner worked an average

of 25 hours per week. The fewest number of weekly hours worked

by Petitioner after February 2009 was 19 hours. Petitioner

worked 19 hours for only two weeks.

13. Petitioner asserts that she was not allowed to "pick

up" extra shifts when another cashier went on vacation for five

days. Scheduling requests had to be submitted by Tuesday for

the next week's schedule. Petitioner failed to timely request

any of the extra available shifts. Instead, she approached the

scheduling manager after the schedule was already completed.

Despite the lateness of her request, the scheduling manager

revised the schedule to assign Petitioner one extra shift.

14. Beginning in January 2009, Respondent's schedules were

created and posted on-line through a computer program called Hot

Schedules. At all times relevant here, the schedule was posted

late only three times. The late posting affected all employees,

not just Petitioner.

15. Petitioner asserts that she was assigned to work the

drive-thru more than white employees. This assertion is without

merit as shown by the following statistics.

16. Petitioner worked 59 shifts between January 1, 2009,

and her resignation on April 5, 2009. Respondent assigned

Petitioner to work in the drive-thru on 23 of those shifts,

approximately 39 percent of the total shifts. Petitioner worked

at the front counter for the remainder of her shifts,

approximately 61 percent of the total shifts.

17. Two white cashiers, Brittany Knaul and Sarah Liles,

worked a comparable number of shifts between January 1, 2009,

and April 5, 2009. During that time, Ms. Knaul worked 54

shifts, with 25 shifts or 46 percent assigned to the drive-thru.

Of the 86 shifts worked by Ms. Liles, 33 shifts or 38 percent

were in the drive-thru. On the other hand, Beatrice McKoy, a

black cashier, worked almost exclusively at the front counter

between January 1, 2009, and April 5, 2009.

18. Petitioner sought out and spoke with Respondent's

Director of Operations, Josh McCall, on several occasions during

her employment. The conversations involved her requested

accommodation and complaints about the disciplinary write-ups.

Petitioner never reported any perceived race discrimination.

19. On one occasion, Mr. McCall asked Petitioner if she

believed she was being discriminated against based on her race.

Petitioner denied that she was being treated differently from

non-black employees.

20. Petitioner submitted a letter of voluntary resignation

on March 30, 2009. Her last day at work was April 5, 2009.

21. Petitioner asserts that she was constructively

discharged. However, Petitioner failed to notify Respondent of

the alleged discrimination until she spoke with Respondent's

Area Manager on April 6, 2009, after her resignation and last

day at work.

22. Shortly after her last day at work for Respondent,

Petitioner voluntarily resigned her other job with Internet

Access. Petitioner resigned that job due to a dispute with her

manager.

23. Petitioner obtained subsequent employment which ended

when that company closed in June 2009. Petitioner remained

unemployed until February 2010. The only employment she held in

the intervening six months was occasional work assisting her

sister, who is a home health aide.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and 760.11,

Florida Statutes.

25. It is unlawful for an employer to discriminate against

an individual based on the individual's race or disability. See

§ 760.10(1)(a), Fla. Stat.

26. The Florida Civil Rights Act (FCRA), Sections 760.01

through 760.11, Florida Statutes, as amended, was patterned

after Title VII of the Civil Rights Act of 1964, 42 U.S.C.

Section 2000e et seq . Federal case law interpreting Title VII

is applicable to cases arising under the FCRA. See Green v.

Burger King Corp. , 728 So. 2d 369, 370-371 (Fla. 3d DCA 1999);

Florida State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA

1996).

27. Florida courts also have recognized that actions under

the FCRA are analyzed under the same framework as the Americans

with Disabilities Act, 42 U.S.C. Section 12101, et seq . See

Chanda v. Engelhard/ICC , 234 F.3d 1219, 1221 (11th Cir. 2000).

28. Petitioner can establish a case of discrimination

through statistical, direct, or circumstantial evidence. See

Holifield v. Reno , 115 F.3d 1555, 1561-1562 (11th Cir. 1997).

In this case, Petitioner presented no statistical or direct

evidence of discrimination.

29. An employment discrimination case based on

circumstantial evidence involves the following burden-shifting

analysis: (a) the employee must first establish a prima facie

case of unlawful discrimination; (b) if a prima facie case is

proven, the employer may articulate a legitimate, non-

discriminatory reason for the alleged unlawful conduct; and

(c) the burden then shifts to the complainant to prove that the

employer's reasons are a mere pretext for intentional

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

(1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S 248

(1981).

30. Throughout the burden-shifting analysis, the burden of

proving intentional discrimination remains at all times with the

complainant. St. Mary's Honor Center v. Hicks , 509 U.S. 502,

510 (1993).

Disability Discrimination

31. To prevail on a case involving a failure to

accommodate a disability, Petitioner must show the following:

(a) that she is disabled; (b) that she is qualified for the job,

with or without a reasonable accommodation; and (3) that she was

denied a reasonable request for accommodation. See Lucas v.

W. W. Grainger, Inc. , 257 F.3d 1249 (11th Cir. 2001); Willis v.

Conopco, Inc. , 108 F.3d 282 (11th Cir. 1997).

32. Petitioner cannot establish the first or third prong

of her prima facie case. As to the first prong, Petitioner

never provided Respondent with requested medical documentation

of her alleged disability. Additionally, the only evidence

presented during the hearing indicated that Petitioner was not

disabled.

33. Petitioner did not prove the third prong of her prima

facie case because Respondent relieved her of her deck scrubbing

duties immediately upon her request. This was the only

accommodation that Petitioner ever requested. Petitioner's

testimony to the contrary is not persuasive.

34. "Failure to establish a prima facie case of

discrimination ends the inquiry." See Ratliff v. State , 666 So.

2d 1008, 1012 n.6, aff'd , 679 So. 2d 1183 (1996)(citing Arnold

v. Burger Queen Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)).

Petitioner did not meet her burden of proving a prima facie case

of discrimination based on an alleged disability.

Race Discrimination

35. To establish a prima facie case of race

discrimination, Petitioner must show the following: (a) that

she is a member of a protected class; (b) that she was qualified

for the position; and (c) that similarly-situated employees

outside the protected group did not suffer the same adverse

action. See Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir.

1997).

36. Petitioner first claims that she received written

discipline for performance and policy violations for which non-

black employees were not disciplined. There is no merit to her

claim because the overwhelming and undisputed evidence is that

white and Hispanic employees were issued disciplinary write-ups

for the very same performance and policy violations. Clearly,

Petitioner was not treated less favorably than employees outside

of her protected class with respect to written discipline.

37. Petitioner further asserts that her hours were reduced

beginning in February 2009. Petitioner's testimony regarding

the alleged reduction in hours is contradicted by persuasive

evidence showing that Respondent scheduled black and white

cashiers to work without consideration of race.

38. Petitioner next claims that she was not allowed to

"pick up" extra shifts when another cashier went on vacation for

five days. The most persuasive evidence indicates that

Petitioner failed to timely request extra shifts. Even so, the

scheduling manager revised the schedule to assign Petitioner one

extra shift.

39. Petitioner also alleges that work schedules were

posted late, causing her difficulty with her second job. The

evidence shows that the late posting of schedules affected all

employees equally. Therefore, Petitioner did not and could not

show any differential treatment between black and white

employees in this regard.

40. Finally, Petitioner contends that she was assigned to

work in the drive-thru more often that her non-black co-workers.

This contention is without merit because Petitioner worked in

the drive-thru the same or less than her white counterparts.

41. Even if Petitioner had established a prima facie case

of race discrimination, Respondent provided evidence of

legitimate, non-discriminatory reasons for each action it took.

With regard to Petitioner's disciplinary write-ups, Respondent

established that Petitioner violated its written policies and

procedures. Petitioner admits most of the violations.

42. As to the alleged reduction in hours, the alleged

failure to schedule extra shifts, and the late posting of

schedules, Respondent presented evidence that its scheduling

manager made all decisions in accordance with Respondent's anti-

discrimination policy. There is no evidence of race

discrimination as to these claims.

43. Petitioner has provided no evidence that Respondent’s

reasons for its actions were a pretext for racial

discrimination. Petitioner has not met her ultimate burden of

proof on this issue.

Constructive Discharge

44. To prove constructive discharge, a claimant must

demonstrate that "working conditions were so intolerable that a

reasonable person in the plaintiff's position would have felt

compelled to resign." Durley v. APAC, Inc. , 236 F.3d 651, 658

(11th Cir. 2000). Reasonable conduct involves notifying the

employer of improper behavior, and affording the employer an

opportunity to correct the situation. See Slattery v. Neumann ,

200 F. Supp. 2d 1367 (S.D. Fla. 2002).

45. In this case, Petitioner did not produce any evidence

to show that her working conditions were intolerable to the

degree required to prove a constructive discharge claim. The

issuance of disciplinary write-ups alone is insufficient to

prove constructive discharge. See Hill v. Winn-Dixie Stores,

Inc. , 934 F.2d 1518, 1527 (11th Cir. 1991). There is no

persuasive evidence of any other adverse employment action

suffered by Petitioner.

46. Petitioner's claim of constructive discharge also

fails because she never reported the need for further

accommodation and never reported the alleged race

discrimination. Petitioner was not constructively discharged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 13th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 August, 2010.

COPIES FURNISHED :

Joanne B. Lambert, Esquire

Jessica A. DeBono, Esquire

Jackson Lewis LLP

390 North Orange Avenue, Suite 1285

Post Office Box 3389

Orlando, Florida 32802-3389

Dorine Alexander

307 Marion Oaks Course

Ocala, Florida 34473

Denise Crawford, Agency Clerk

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

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.