10-001857 Patricia Davidowitz vs. Millers Ale House, Inc. Status: Closed Recommended Order on Friday, September 17, 2010.

Summary: Evidence did not establish discharge on account of gender, retaliation, or hostile work environment. Use of "bitch" by angry manager in final conversation not sufficient to establish claims. Feud with female co-worker also insufficient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA DAVIDOWITZ, )

)

Petitioner, )

)

vs. ) Case No. 10 - 1857

)

MILLERS ALE HOUSE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge, John D. C. Newton, II, of the

Division of Administrative Hearings, heard this case, as

noticed, on August 16, 2010, by video conference at sites in

Tallahassee, Florida and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Patricia Davidowitz , pro se

13396 48th Court North

West Palm Beach, Florida 33411

For Respondent: Christine L. Wilson, Esquire

Jason Berkowitz, Esquire

Jackson Lewis

One Biscayne Tower

2 South Biscayne Boulevard, Suite 3500

Miami, Florida 33131

STATEMENT OF THE ISSUES

1. Did Respondent, Miller's Ale House, Inc. (Ale House),

discriminate against Petitioner, Patricia Davidowitz

(Davidowitz), on account of her sex?

2. D id Miller's Ale House retaliate against Ms. Davidowitz

for opposing an unlawful employment practice?

PRELIMINARY STATEMENT

On September 4, 2009, Ms. Davidowitz filed a Ch arge of

Discrimination against t he Ale House with the Equal Employment

Opportunity Co mmission (EEOC) and the Florida Commission on

Human Relations (Commission) . The Charge alleg ed sex

discrimination and retaliation. On March 10, 2010 , t he

Commission issued a Determination of No Cause. Ms. Davidowitz

filed a Petition for Relief from an U nlawful Employment Practice

with the Commission. On April 7, 2010, the Commission

transmitted the Petition to the Division of Administrative

Hearings (DOAH) to conduct a Final Hearing. The undersigned set

the final hearing for June 17, 2010. On June 15, 2010, the

undersigned granted Ms. Davidowitz' Second Motion for

Continuance and set the final hearing for August 16, 2010. The

hearing was held as scheduled.

Ms. Davidowitz testified on her own behalf. She also

presented the testimony of Jeffrey Davi dowitz ; John Desensi,

Boynton Beach Ale House General Manger; and Mitch Koenig, Ale

House Regional Manager. Ms. Da vidowitz's Exhibits 1, 2, 4 - 6, 8,

10, 11 - 13 ( two letters from Bagel Twins and two letters from

Flix Café only), 15 (legal services bills from Christopher

Copeland P.A., W - 2s, and pay history only), and 16 were admitted

into evidence.

The Ale House presented testimony from Valerie Ensigner,

Risk Man ager. Ale House Exhibits 1 - 3, 19, 22, and 23 were

accepted into evidence. Both parties made clo sing arguments.

The T ranscript was filed on August 31, 2010. Both parties

submitted Proposed Recommended Orders. Ms. Davidowitz filed a

Motion to Strike Respondent's Findings of Fact. The motion was

denied.

FINDINGS OF FACT

Based on the testimony an d other evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Ms. Davidowitz worked as a bartender and server at the

Ale House in Boynton Beach, Florida, from October 2004 until

Se ptember 5, 200 8 . She performed her duties well and provided

good service to her customers.

2. For about a year before her discharge, Ms. Davidowitz

worked with another female bartender and server , Tisha McKenna.

She also performed her duties well and provided good service to

her customers.

3. From January 2007 forward, John Desensi was the General

Manager of the Boynton Ale House. Although Ms. Davidowitz and

Ms. McKenna performed the technical aspects of their jobs well

in the eyes of the General Man ager, the y feuded with each other.

Their behavior interfered with the work environment.

4. In the year preceding Ms. Davidowitz's termination, she

and Ms. McKenna had many arguments. For instance, o ne night

they argued about cutting limes. They contin ued the argument

the next day at the bar staff meeting.

5. Around August 19, 2008, Ms. McKenna and Ms. Davidowitz

engaged in an unpleasant dispute in front of a customer.

Ms. Davidowitz was insisting that the customer produce

identification before ser ving him alcohol. Ms. McKenna came up

and told the customer: "F**k that stupid bitch. You can sit at

my table." Two managers took the employees outside the

restaurant. The managers instructed both that they had to work

professionally together or they would be sent home.

6. The same day or the following day, Mr. Desensi spoke to

Ms. McKenna and Ms. Davidowitz together. He told them that

their feuding was not appropriate and that further outbursts

would not be tolerated. Mr. Desensi was very profes sional and

respectful in that meeting.

7. Mr. Desensi had verbally warned both employees several

times about their disagreements. He told them that their

behavior was unprofessional and disruptive. He also told them

that as the disagreements escalated t heir behavior was affecting

guests.

8. Ms. Davidowitz believed that the General Manager

favored Ms. McKenna. There is, however, no evidence to support

that belief.

9 . On September 4, 2008, Ms. Davidowitz noticed that

Ms . McKenna was wearing black soc ks. Ale House uniform policies

did not permit black socks. Knowing this, Ms. Davidowitz asked

during the pre - shift meeting if black socks were now permitted.

10. Ms. McKenna was not at the meeting. She later learned

of the question and became very upse t. Ms. McKenna spoke to

Mr. Desensi about the incident that same day. She told him that

she "wanted to kick Ms. Davidowitz's ass." Ms. McKenna quit

that day.

11 . Mr. Desensi was angry. He believed that

Ms. Davidowitz had repeatedly needled Ms. McK enna to the point

that she quit. He asked Ms. Davidowitz to come to his small,

closed office. His agitation was visible.

12. Mr. Desensi asked Ms. Davidowitz what she meant by the

"black socks" question. Ms. Davidowitz answered that it was a

legitima te uniform policy question. Mr. Desensi replied: "You

know god damn well who you were talking about. You were just

being a bitch"

13. Ms. Davidowitz then began telling Mr. Desensi that

Ms. McKenna was harassing her and selling drugs. Mr. Desensi

go t more and more upset, saying again: "You're just being a

bitch."

14. In the office Mr. Desensi continued chastising

Ms. Davidowitz for just over five minutes. A video recording of

the incident shows that Mr. Desensi's conduct and demeanor were

angry i f not menacing . It also shows he did not touch or

attempt to touch Ms. Davidowitz or take any action with sexual

overtones. He was standing, shaking his hands, pointing,

pacing, and leaning toward her.

15. Ms. Davidowitz was backed against the door. Once when

she tried to leave, Mr. Desensi reached past her to shove the

door closed. Near the end of the meeting, Ms. Davidowitz

advised Mr. Desensi that his conduct was unprofessional and that

she was going to report him to higher management. As she lef t

the office Mr. Desensi said: "Sorry I called you a bitch."

16. Ms. Davidowitz was visibly upset. She approached the

shift manager, Mr. George Sfetsas, and asked if she could go

home. He asked if she was alright. Ms. Davidowitz again asked

if she cou ld go home. Mr. Sfetsas authorized her to leave.

17. After leaving the restaurant on September 4, 2008,

Ms. Davidowitz called Assistant General Manager Ed Reynes and

Regional Manger Mitch Koenig and told them about the incident.

Mr. Koenig told her to take the following day off while he

investigated. Ms. Davidowitz never returned to the Ale House.

18. Following that conversation, Mr. Koenig spoke to

Mr. Desensi. In that conversation Mr. Desensi told Mr. Koenig

that he did not want Ms. Davidowitz wor king in the Boynton Beach

Ale House any longer. He had decided he would no longer

tolerate Ms. Davidowitz's disruptive behavior or employ Ms.

Davidowitz. Mr. Koenig said he was going to offer

Ms. Davidowitz a job at another Ale House in the area.

19. O n September 5, 2009, Mr. Koenig called

Ms. Davidowitz. Mr. Koenig told her that he did not think it

was a good idea for her to continue working at the Boynton Beach

Ale House. Later in the conversation he made it clear that

Ms. Davidowitz could not wor k at the Boynton Beach Ale House any

more.

20. Mr. Koenig offered to transfer Ms. Davidowitz to an

Ale House located in west Boca Raton, Fl orida. The position was

a full - time job with pay similar to the pay at the Boynton Beach

restaurant. The job res ponsibilities were similar too. The

W est Boca Raton Ale House is about ten minutes f a rther from

Ms. Davidowitz's home than the Boynton Beach Ale House.

Mr. Koenig also offered to serve as a job reference for

Ms. Davidowitz if she sought work elsewhere.

21. Ms. Davidowitz said she would think about the transfer

offer. She also said, "I'm not going to go lightly. I am going

to go kicking and screaming." She never accepted the transfer

offer.

22. In September 2009 , after Mr. Koenig told her she was

terminated from the Boyton Beach Ale House, Ms. Davidowitz

called and spoke to Valerie Ensinger, Risk Manager for Ale

House. Ms. Davidowitz told Ms. Ensinger of her termination and

the events preceding it. Ms. Davidowitz told Ms. Ensinger that

Ms. McKenn a had been harassing her and stealing from Ale House.

She also told Ms Ensinger that she thought that Ms. McKenna was

a favored employee. Ms. Ensinger asked her to write the

information down and get back in touch. Ms. Davidowitz did not

contact Ms. Ensi nger again.

23. Since rejecting the offer of work at the W est Boca

Raton Ale House and her termination from the Boynton Beach Ale

House, Ms. Davidowitz has been regularly employed .

Ms. Davidowitz found work at OS Restaurant Services, Inc., d/b/a

Carrabb as Italian Grill (Carrabbas) the day after her

conversation with Mr. Koenig . She worked at Carrabbas until

February 2009. Ms. Davidowitz left Carrabbas to take a

supervisory position at Char Hut. She worked there until Char

Hut closed. Since then Ms. D avidowitz has worked at Sneaky

Pete's.

24. In 2008 Ms. Davidowitz earned $17,777.12 from

employment with Ale House, Applebee's, and Carrabbas combined.

She earned $13,057.20 from her nine months of employment with

Ale House in 2008 . Assuming that Ms. Da vidowitz would have

earned the monthly average of compensation from those nine

months for the last three months of 2008, she would have earned

$17,405.60 that year if she remained employed at the Ale House.

25. In 2009, Ms. Davidowitz earned $28,079.00 fr om her

employment at Carrabbas, Char - Hut, and Sneaky Petes. In 2009

Ms. Davidowitz earned $10,301.88 more than she earned in 2008.

Ms. Davidowitz also earned $10,673.40 more in 2009 than she

would have earned if she had remained employed by the Ale House .

26. Ms. Davidowitz never complained that while she worked

at Ale House that she was treated differently than any male

employee. She does not maintain in this proceeding that wh ile

she worked at Ale House she was treated differently than any

male employ ee. There is no evidence that Ms. Davidowitz was

treated differently than any male employee.

27. Ms. Davidowitz filed her complaints with the EEOC and

the Commission on September 8, 2009. The complaints allege that

she was terminated and harassed on a ccount of her sex. They

also allege that Ale House retaliated against her for

complaining about unlawful harassment. The Commission issued a

determination of No Cause to believe that Ms. Davidowitz was the

subject of discrimination or retaliation.

28. T here was no persuasive evidence sufficient to prove

that Ms. Davidowitz's gender was a factor in the decision to

terminate her employment at the Boynton Beach Ale House.

29. There is no persuasive evidence sufficient to prove

that Ale House terminated Ms. Davidowitz from employment at the

Boynton Beach Ale House because of her complaints about

Mr. Desensi or Ms. McKenna.

30. There is no evidence that that Ms. Davidowitz was

treated differently than male employees.

31. There was no evidence sufficient to prove that Ale

House created a hostile work environment.

CONCLUSIONS OF LAW

32 . Ms. Davidowitz advances two claims. First , she

maintains that Ale House discriminated against her on account of

her sex by creating a hostile work environment through hara ssing

her and by discharging her. Second , she claims that Ale House

retaliated against her for complaining of unlawful harassment.

33 . Sections 120.569 and 120.57(1), Florida Statutes

(20 1 0) grant DOAH jurisdiction over the subject matter of this

procee ding and of the parties.

3 4 . Section 760.10 (1)(a), Florida Statutes (2009) makes

it unlawful for an employer to take adverse action against an

individual because of the individual's sex. Section 760.10(7)

Florida Statutes (2009) , makes it unlawful for a n employer to

discriminate again s t any person because that person has opposed

an unlawful employment practice.

3 5 . Section 760.11(7), Florida Statutes (2009) , permits a

party who receives a no cause determination to request a formal

administrative heari ng before the Division of Administrative

Hearings. "If the administrative law judge finds that a

violation of the Florida Civil Rights Act of 1992 has occurred,

he or she shall issue an appropriate recommended order to the

commission prohibiting the pract ice and recommending affirmative

relief from the effects of the practice, including back pay."

Id.

3 6 . Florida's Chapter 760 is patterned after Title VII of

the Civil Rights Act of 1964, as amended. Consequently , Florida

courts look to federal case law when interpreting Chapter 760,

Florida Statutes (2009). Valenzuela v GlobeGround North

America, LLC. , 18 So. 3d 17 (Fla. 3rd DCA 2009).

3 7 . A party may prove unlawful sex discrimination by

direct or circumstantial evidence. Smith v. Fla. Dep't of

Corr. , Case No. 2:07 - cv - 631, (U.S. Dist. Ct. M. Dist, Fla. May

27, 2009); 2009 U.S. Dist. LEXIS 44885 (U.S. Dist. Ct. M. Dist,

2009). Direct evidence did not establish unlawful

discrimination by direct evidence.

3 8 . The direct evidence establish ed, as set fo rth in the

findings of fact , that Mr. Desensi lost control of his temper

and behaved unprofessionally the last day of Ms. Davidowitz 's

employment when he decided to terminate her. But t here is no

evidence that his decision to terminate her was due to her sex.

The findings of fact show that decision to terminate

Ms. Davidowitz was due to her participation in the long - running

feud with Ms. McKenna and its e ffect on the work place,

culminating in Ms. McKenna quitting.

3 9 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

s uccessful, this creates a presumption of discrimination. Then

the burden shifts to the employer to offer a legitimate, non -

di scriminatory reason for the adverse employment action. If the

employer meets that burden, the presumption disappears and the

employee must prove that the legitimate reasons were a pretext.

Valenzuela v GlobeGround North America, LLC. , 18 So. 3d 17 (Fla.

3 rd DCA 2009). Facts that are sufficient to establish a prima

facie case must be adequate to permit an inference of

discrimination. Id.

40 . The findings of fact here are not sufficient to

establish a prima facie case. The facts found that relate to

Ms . Davidowitz's sex shows that on the day he decided to

terminate her employment, Mr. Desensi was extremely angry and

twice called her a "bitch" during their final conversation.

The se findings of fact establish only that Mr. Desensi lost his

patience and h is temper with the long - running, unprofessional

feud between two employees and decided to discharge one after

the other quit thus relieving himself of a person with a history

of difficult behavior in the work place.

Hostile Work Environment

41 . Ms. Dav idowitz advances a sexually hostile work

environment claim. Under Title VII and S ection 760.10, Florida

Statutes (2009) , a plaintiff can establish gender discrimination

through sexual harassment by the creation of a hostile work

environment, by showing:

( 1) that she belongs to a protected group;

(2) that she has been subjected to unwelcome

sexual harassment; (3) that the harassment

was based on her sex; (4) that the

harassment was sufficiently severe or

pervasive to alter the terms and conditions

of employ ment and create a discriminatorily

abusive working environment; and (5) that a

basis for holding the employer liable

exists.

Cotton v. Cracker Barrel Old Country Store, Inc. , 434 F.3d 1227,

1231 (11th Cir. 2006). Ms. Davidowitz was not subjected to

unwel come sexual harassment.

42 . If Mr. Desensi's temper outburst her last day of

employment is assumed to be unwelcome sexual harassment, it was

not sufficiently severe or pervasive to a l ter the terms and

conditions of employment and create a discriminatori ly abusive

working environment. Determining whether harassing conduct is

sufficiently severe or pervasive to alter the terms and

conditions of employment has a subjective and objective

component. The plaintiff must subjectively perceive the

environment t o be abusive. And the conduct must be severe or

pervasive enough to create an objectively hostile or abusive

work environment. Blackmon v. Wal - Mart Stores East, L.P. , Case

No. 09 - 11953 ; 358 Fed. Appx. 101 (11th Cir. December 23, 2009) .

The single incide nt on the last day of Ms. Davidowitz's

employment is not objectively severe enough to establish a

hostile work environment. See Smith v. Fla. Dep't of Corr. ,

2009 U.S. Dist. LEXIS 44885 (U.S. Dist. Ct. M. Dist,

(200 9) ,(stuffed monkey left for days in Afri can - American

employee's work place despite complaints was insufficient

evidence of harassment to preclude grant of summary judgment);

Agee v. Potter , Case No. 06 - 12391 , 216 Fed. Appx (11th Circ.

February 5, 2007). 837 ( abusive conduct , including shouting a nd

threat to "take care of you , " did not make summary judgment for

employer an error.)

Retaliation

43 . The court in Blizzard v. Appliance Direct, Inc. ,

16 So. 3d 922, 926 (Fla. 5th DCA 2009) , described the analysis

required for a retaliation claim. The opinion says:

To establish a prima facie case of

retaliation under section 760.10(7), a

plaintiff must demonstrate: (1) that he or

she engaged in statutorily protected

activity; (2) that he or she suffered

adverse employment action; and (3) that the

adver se employment action was causally

related to the protected activity. See

Harper v. Blockbuster Entm't Corp. , 139 F.3d

1385 (11th Cir.), cert. denied, 525 U.S.

1000, 119 S. Ct. 509, 142 L. Ed. 2d 422

(1998). Once the plaintiff makes a prima

facie showing, the burden shifts and the

defendant must articulate a legitimate,

nondiscriminatory reason for the adverse

employment action. Wells v. Colorado Dep't

of Transp. , 325 F.3d 1205, 1212 (10th Cir.

2003). The plaintiff must then respond by

demonstrating that defendant's asserted

reasons for the adverse action are

pretextual. Id.

4 4 . Ms. Davidowitz claims that her complaints to

Mr. Koenig and to Ms. Ensigner were complaints about sex

discrimination and therefore were statutorily protected activity

and that she suffered adverse employment action because of them.

The facts found do not establish a complaint about sex

discrimination .

4 5 . Ms. Davidowitz complained of plainly unprofessional

conduct by Mr. Desensi, including use of foul language, and

harassme nt by Ms. McKenna, a co - worker with whom she was

feuding. A single incident of unprofessional behavior that

included use of foul language by an angry supervisor, even the

term "bitch" directed at a female twice in a single

conversation , would not amount t o discrimination on account of

gender .

4 6 . The adverse employment action here is termination from

the Boynton Beach Ale House. By the time Ms. Davidowitz spoke

to Mr. Koenig, the decision to terminate her from the Boynton

Beach Ale House had been made. Therefore her complaint to

Mr. Koenig could not have been the cause for her termination.

4 7 . When Ms. Davidowitz spoke to Ms. Ensinger,

Ms. Davidowitz had already been terminated. Consequently , the

termination could not have been causally related t o her

conversation with Ms. Ensinger.

4 8 . The facts do not support Ms. Davidowitz's claims of

sexual discrimination and retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commissi on on Human

Relations deny the Petition of Patricia Davidowitz in FCHR Case

Number 2009 - 02875.

DONE AND ENTERED this 17th day of September, 2010, in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrat ive Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

thi s 17th day of September, 2010.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jason Berkowitz, Esquire

Jackson Lewis

One Biscayne Tower

2 South Biscayn e Boulevard, Suite 3500

Miami, Florida 33131

Patricia Davidowitz

13396 48th Court North

West Palm Beach, Florida 33411

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 Orde r in this case.