10-000533 Britney Pinckney vs. Burger King Corporation Status: Closed Recommended Order on Friday, June 18, 2010.

Summary: Petitioner failed to establish discrimination in employment or constructive discharge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRITNEY PINCKNEY, )

)

Petitioner, )

)

vs. ) Case No. 10-0533

)

BURGER KING CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

April 23, 2010, by video teleconference in Tallahassee and

Daytona Beach, Florida, before the James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Britney Pinckney, pro se

306 North Caroline Street

Daytona Beach, Florida 32114

For Respondent: Rene Gonzalez-LLorens, Esquire

Shutts & Bowen LLP

1500 Miami Center

201 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent, Burger King Corporation (BKC or

Respondent), violated the Florida Civil Rights Act of 1992,

Sections 760.01–760.11 and 509.092, Florida Statutes, by

subjecting Petitioner, Britney Pinckney (Petitioner), to sexual

harassment constituting discrimination in employment or by

constructively discharging Petitioner while she was employed

with Respondent.

PRELIMINARY STATEMENT

On June 30, 2009, Petitioner filed a charge of

discrimination with the Florida Commission on Human Relations

(the Commission), Charge No. 200902327 (Charge of

Discrimination). In the Charge of Discrimination, Petitioner

alleges that she was sexually harassed by Joseph Kennedy, a

shift coordinator, at BKC Restaurant No. 1446, located at

825 Nova Road, Daytona Beach, Florida (the Restaurant), and

constructively discharged. As she testified at the Final

Hearing, Petitioner asserts that during her three-month period

of employment at BKC, Mr. Kennedy made sexually-specific

comments to her, as well as committed five incidents which

included: (i) and (ii) bumping against Petitioner with his

private area on two occasions; (iii) placing his hands on

Petitioner’s waist while she was counting cash at the front

register on one occasion; (iv) placing his hand inside her shirt

and rubbing a piece of ice on her chest on one occasion; and

(v) grabbing Petitioner inside the cooler and stating that they

were “finally alone” on one occasion.

After investigating Petitioner’s sexual harassment

allegations, on January 5, 2010, the Commission issued a

Determination of No Cause, finding that:

complainant's allegations are neither severe

nor pervasive enough to constitute sexual

harassment or warrant constructive

discharge. Most notably, Respondent took

corrective action in response to

Complainant's concerns by conducting several

investigations into her claims and offering

her the option of transferring to another

work site. This action was reasonable in

light of the fact that Complainant's

allegations could not be substantiated.

The Commission’s Determination notified Petitioner of her

right to file a Petition for Relief for a formal administrative

proceeding within 35 days of the Notice. On February 3, 2010,

Petitioner filed a Petition for Relief and the Commission

forwarded the petition to the Division of Administrative

Hearings for the assignment of an administrative law judge to

conduct an administrative hearing.

At the administrative hearing held in this case on

April 23, 2010, Petitioner testified on her own behalf, but did

not call other witnesses or offer any exhibits into evidence.

Respondent presented the testimony of seven witnesses and

offered 28 pre-marked exhibits which were received into evidence

portions of Petitioner’s deposition that were read into the

record were received into evidence.

The proceedings were recorded and a transcript was ordered.

The parties were given until May 22, 2010, within which to

submit their respective Proposed Recommended Orders. Respondent

timely filed its Proposed Recommended Order on May 21, 2010.

Petitioner requested and was granted additional time in which to

file her Proposed Recommended Order, which she filed on June 7,

2010. Both parties’ Proposed Recommended Orders were considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

Petitioner’s Employment History at BKC

1. On January 17, 2009, Petitioner commenced working as a

team member at the Restaurant.

2. The Restaurant’s General Manager was Jason Merdes.

3. The Restaurant’s Assistant Managers were Heather Thiess

and Arlene Rosado.

4. Danny Singh is a BKC Company Business Manager. As a

BKC Company Business Manager, Mr. Singh supervised 10 BKC

restaurants (and their general managers), including the

Restaurant where Petitioner worked.

5. Petitioner last day of work at the Restaurant was

April 12, 2009.

BKC’s Non-Discrimination and Anti-Harassment Policy

6. As an equal-opportunity employer, BKC strictly

prohibits and has zero tolerance towards discrimination,

harassment, or retaliation of any kind.

7. BKC’s Non-Discrimination and Anti-Harassment Policy is

set forth in BKC’s Code of Business Ethics and Conduct.

8. BKC’s Non-Discrimination and Anti-Harassment Policy

sets forth BKC’s Equal Employment Opportunity Policy; defines

harassment; explains the steps an employee must take to report

harassment; and sets forth the complaint procedures.

9. BKC’s Non-Discrimination and Anti-Harassment Policy

explains that harassment complaints may be reported to a

supervisor, a manager (including assistant managers, general

managers, and CBMs), a human resources representative, BKC’s

Chief Ethics and Compliance officer, or BKC’s Toll-Free

Reporting Line.

10. Petitioner received BKC’s Non-Discrimination and Anti-

Harassment Policy through several ways. Petitioner first

received a copy of BKC’s Non-Discrimination and Anti-Harassment

Policy prior to her first day of work at the Restaurant.

Petitioner signed an acknowledgment on December 17, 2008,

attesting to having read, received, and understood BKC’s Code of

Business Ethics and Conduct, which included BKC’s Non-

Discrimination and Anti-Harassment Policy.

11. In addition, throughout the time Petitioner was

employed at the Restaurant, BKC’s Non-Discrimination and Anti-

Harassment Policy was posted on the wall in the Restaurant’s

crew area, and was accessible to all employees.

12. Petitioner also received BKC’s Employee Handbook

(called the Team Member Playbook) which contains BKC’s Non-

Discrimination and Anti-Harassment Policy, as evidenced by an

acknowledgement signed by Petitioner on December 17, 2008,

attesting to her receipt of the Team Member Playbook and the

Non-discrimination and Anti-Harassment Policy. The

acknowledgement signed by Petitioner states:

My signature below indicates that I have

received a copy of the BKC Team Member

Playbook. I understand that it is my

responsibility to read and abide by its

contents, particularly the following: Anti-

Harassment, including the "We're Listening"

toll-free reporting line and Equal

Employment Opportunity.

13. Petitioner was also aware of the “We’re Listening”

Poster that was on the wall in the Restaurant during her

employment with BKC. The “We’re Listening” Poster displays a

toll-free telephone number that employees can call to complain

about any incidents, including harassment or discrimination.

The “We’re Listening” Poster also had two business card slots

containing the business cards and telephone numbers of Mr. Singh

and BKC’s local Human Resources representative.

14. In addition, Petitioner testified that when she

started working, Mr. Singh informed her and the other employees

that if anything made them feel uncomfortable, he was the person

to speak with and he would handle the situation.

Petitioner’s Performance

15. During the three months that she worked at BKC,

Petitioner received verbal and written warnings from Ms. Thiess

for her repeated absences and lateness. At the final hearing,

Petitioner admitted that she had problems with lateness and

tardiness, and that Ms. Thiess spoke to her about being tardy.

Joseph Kennedy (the accused harasser)

16. Joseph Kennedy is a disabled employee and also suffers

from a facial disfigurement. He has worked for BKC for

approximately five years. Mr. Kennedy is a shift coordinator,

which is an hourly position, but not a member of the

Restaurant’s management.

17. Despite his disability and disfigurement, as well as

working 40 hours a week, Mr. Kennedy has taken college courses

during the past several years. He obtained a bachelor’s degree

in December 2009.

18. During the past five years that he has worked at BKC,

Mr. Kennedy has been supervised by female managers and has

worked along female employees, all of whom have a favorable

opinion of Mr. Kennedy and have never witnessed any sexually

harassing behavior or comments made by Mr. Kennedy.

19. Specifically, during the two-and-a-half years that she

supervised and worked with Mr. Kennedy, Ms. Thiess has never

witnessed Mr. Kennedy rub himself against anyone;

inappropriately touch anyone; make a sexually harassing or

offensive comment; make a sexually harassing or offensive joke;

or grab anyone inappropriately.

20. Ms. Thiess has not received any employee complaints

against Mr. Kennedy for any sexually harassing or offensive

conduct or comment. Ms. Thiess testified that Mr. Kennedy is

“strictly professional” and she has never had a problem with

him.

21. Ms. Rosado, who has supervised and worked with

Mr. Kennedy for the past four or five years, has never witnessed

Mr. Kennedy rub himself against anyone; inappropriately touch

anyone; make a sexually harassing or offensive comment; make a

sexually harassing or offensive joke; or grab anyone

inappropriately.

22. Excluding the claim that Petitioner raised after her

last day of work at the Restaurant, Ms. Rosado has not received

any employee complaints against Mr. Kennedy for any sexually

harassing or offensive conduct or comment.

23. Ms. Rosado testified that Mr. Kennedy is a “good guy,

quiet, kind of off to himself.”

24. Frances Randolph, who has worked with Mr. Kennedy at

the Restaurant for one-and-a-half years, has never witnessed

Mr. Kennedy rub himself against anyone; inappropriately touch

anyone; make a sexually harassing or offensive comment; make a

sexually harassing or offensive joke; or grab anyone

inappropriately. Ms. Randolph testified that Mr. Kennedy is a

“very good worker. He takes pride in his team, and works with

his crew members, and he's very quiet and he observes all the

policies. He don't play.”

25. Another co-worker, Ebonee Smith, who worked at the

Restaurant with Mr. Kennedy for one-and-a-half years, has never

witnessed Mr. Kennedy rub himself against anyone;

inappropriately touch anyone; make a sexually harassing or

offensive comment; make a sexually harassing or offensive joke;

or grab anyone inappropriately. In her testimony regarding

Mr. Kennedy, Ms. Smith said, “I think he's a sweetheart, I don't

have any problems with him.”

26. Ms. Casey Barrell, who worked with Mr. Kennedy at the

Restaurant for one-and-a-half years and also attended school

with Petitioner, has never witnessed Mr. Kennedy rub himself

against anyone; inappropriately touch anyone; make a sexually

harassing or offensive comment; make a sexually harassing or

offensive joke; or grab anyone inappropriately. According to

Ms. Barrell, Mr. Kennedy “is very secluded, he keeps to himself

more than with anybody else.”

29. In addition to the Restaurant’s female co-workers and

supervisors, Mr. Singh similarly agrees that Mr. Kennedy has

been a good and professional employee. During the five years

that he has supervised the Restaurant and worked with

Mr. Kennedy, Mr. Singh has never witnessed Mr. Kennedy rub

himself against anyone; inappropriately touch anyone; make a

sexually harassing or offensive comment; make a sexually

harassing or offensive joke; or grab anyone inappropriately.

30. Moreover, other than Petitioner’s allegations raised

after her last day of work at the Restaurant, Mr. Singh has not

received any employee complaints against Mr. Kennedy for any

inappropriate touching or for making a sexually harassing or

offensive comment or joke. In Mr. Sigh’s opinion, Mr. Kennedy

“goes by the book” and is reliable.

Petitioner’s Report Regarding Mr. Kennedy

31. Petitioner’s last seven days of employment were

March 29, March 30, March 31, April 5, April 11, and April 12.

On one of these last seven days, Petitioner approached

Ms. Rosado and stated that she felt “uncomfortable” working with

Mr. Kennedy.

32. Petitioner, however, did not complain to Ms. Rosado

that Mr. Kennedy had inappropriately touched her, placed ice

inside her shirt, or that he had made any inappropriate or

sexually harassing comment. Rather, Petitioner only complained

that she felt “uncomfortable” working with Mr. Kennedy.

33. Ms. Rosado informed Petitioner that she would

immediately relay Petitioner’s concern to the Restaurant’s

General Manager, Mr. Merdes. Then, Ms. Rosado immediately

reported Petitioner’s concern to Mr. Merdes, who investigated

the allegations on that same day.

34. Mr. Merdes spoke with Petitioner the very next day.

Petitioner’s Resignation

35. Petitioner did not return to work after April 12,

2009, her last date of employment, because she decided to

resign. Petitioner was scheduled to work on April 14 and 15,

2009, but failed to show up to work.

36. On April 17, 2009, Petitioner visited the Restaurant

and informed Mr. Merdes that she was resigning. At that time,

Petitioner complained to Mr. Merdes that “she does not

appreciate the way [Mr. Kennedy] looks at her. He tends to

brush against her. He bumps into her and he picks on her as

coming to work, or making her do more stuff in the restaurant.”

37. Based on these allegations, first raised by Petitioner

on April 17, 2009, Mr. Merdes informed Mr. Singh.

Mr. Singh’s Investigation of Petitioner’s Allegations

38. The very next day, April 18, 2009, Mr. Singh and

Mr. Merdes met with Mr. Kennedy to discuss Petitioner’s

April 17, 2009 allegations. Mr. Kennedy denied the allegations.

39. In addition, Mr. Singh spoke with Ms. Rosado and

Ms. Thiess about Petitioner’s April 17, 2009, allegations.

Ms. Rosado and Ms. Thiess confirmed to Mr. Singh that they had

not witnessed any improper behavior by Mr. Kennedy.

40. Thereafter, Mr. Singh telephoned Petitioner once or

twice a day to discuss her April 17 allegations, but Petitioner

did not respond.

41. Mr. Merdes and Ms. Thiess also telephoned Petitioner

several times. Although they left voice messages, Petitioner

did not return their telephone calls.

42. In addition, Ms. Thiess sent text messages to

Petitioner, but Petitioner never responded.

Petitioner’s Transfer to a Different BKC Restaurant

43. After leaving voice messages that were unanswered,

Mr. Singh spoke on the telephone with Petitioner’s mother.

Petitioner subsequently telephoned Mr. Singh. During that

telephone conversation, Petitioner explained that she did not

like the way Mr. Kennedy rubbed against her, but she did not

provide any specifics and could not identify any witnesses who

saw this alleged improper conduct. Petitioner did not mention

the alleged ice or cooler incidents to Mr. Singh.

44. During the conversation, Petitioner informed Mr. Singh

that she wanted a transfer to another restaurant, and suggested

BKC Restaurant 4646, which was closer to her house and where she

knew employees. Mr. Singh agreed to transfer Petitioner to BKC

restaurant 4646.

45. On April 23, 2009, BKC Restaurant 4646 was having a

“team rally,” which is a mandatory attendance event for

employees where they have a pep talk on sales and other issues.

Mr. Singh asked Petitioner to meet him at BKC Restaurant 4646’s

April 23, 2009, team rally so that Petitioner could attend and

they could continue discussing her April 17 allegations after the

team rally.

46. On April 23, 2009, Mr. Singh and Petitioner met at BKC

Restaurant 4646 and spoke about the allegations. Petitioner,

however, could not provide any specific times or identify any

witnesses who saw the alleged incidents. Again, Petitioner did

not mention the alleged ice incident, the cooler incident, or

any sexually harassing comments.

47. Mr. Singh spoke with Terrell Bolden, who is the

general manager of BKC Restaurant 4646, and informed him of

Petitioner’s transfer to that restaurant.

48. After meeting Petitioner at BKC Restaurant 4646 on

April 23, 2009, Mr. Singh returned to the Restaurant to

investigate Petitioner’s allegations. The investigation did not

confirm the allegations or reveal any wrongdoing by Mr. Kennedy.

Petitioner Failed to Report for Work at BKC Restaurant 4646

49. Despite receiving approval to transfer to Restaurant

4646, Petitioner never showed up to work at BKC Restaurant 4646.

Mr. Singh had provided Petitioner with the telephone numbers for

BKC Restaurant 4646, but she never called.

50. After Petitioner had not shown up for a week,

Mr. Singh telephoned Petitioner about starting work at BKC

Restaurant 4646, but was unable to reach her and she never

returned his telephone call.

51. At the final hearing, Petitioner denied that she met

with Mr. Singh on April 23, 2009. Petitioner’s testimony,

however, confirmed that Mr. Singh proposed a transfer to BKC

Restaurant 4646 and that he asked her to get back to him on the

transfer. She also testified that she chose not to accept the

transfer, “Because I was afraid if I go there, then they’ll know

what happened at the other restaurant and I’ll feel even more

uncomfortable.”

52. According to Petitioner, after Mr. Singh offered her a

transfer, she declined. Petitioner’s testimony confirmed,

however, that Mr. Singh called after offering her the transfer,

but she never returned his telephone call.

The Injunction Petitioner Sought Against Mr. Kennedy

53. On May 28, 2009, Petitioner filed an ex parte Petition

for Injunction for Repeat Violence against Mr. Kennedy in the

Circuit Court of Volusia County, Florida.

54. Despite the fact that she had not had any contact with

Mr. Kennedy since her last day of work on April 12, 2009,

Petitioner swore, under oath, in her petition for the injunction

that she “genuinely fears repeat violence” by Mr. Kennedy.

55. The court scheduled a hearing on the injunction.

Mr. Kennedy, along with his witnesses, attended the hearing.

Petitioner, however, failed to show up at the hearing, and the

court denied a permanent injunction.

Petitioner’s Evidence Regarding the Alleged Incidents of

Harassment and Offensive Comments

First Alleged Incident

56. Petitioner testified about five incidents of

“harassment” that she said occurred while she was employed at

the Restaurant. As to the first alleged incident, Petitioner

testified that Mr. Kennedy passed next to her while she was

working at the sandwich board, brushed up against her, and kept

walking. Petitioner testified that, before she could even say

anything, Mr. Kennedy had already walked away.

57. The BKC kitchen area is a confined space where, during

peak hours, nine employees work and it is possible that bumping

occurs due to the kitchen’s small size. In fact, Ms. Thiess

testified that she has been bumped into by other employees due

to the confined space. Petitioner admitted that the area near

the sandwich board is a tight area with limited space.

58. Although an employee was working next to Petitioner

(about four feet away) and could see her at the time of the

first alleged incident, Petitioner testified that no one

witnessed this first alleged incident. In addition, Petitioner

did not complain to any manager at BKC and did not contact the

toll-free telephone reporting number at the time of the first

alleged incident.

Second Alleged Incident

59. As to the second alleged incident, Petitioner

testified that she was bagging some items at the front counter

and Mr. Kennedy allegedly bumped and rubbed into her. According

to Petitioner, this incident happened while six employees were

working at the Restaurant and occurred at the front counter in

view of customers. Petitioner further testified that no

employees or customers complained about the second alleged

incident.

60. Petitioner did not complain to any manager at BKC and

did not contact the toll-free telephone reporting number at the

time of the second alleged incident.

Third Alleged Incident

61. As to the third alleged incident , Petitioner testified

that Mr. Kennedy allegedly touched her side while she was

counting cash at the front counter register. The third alleged

incident purportedly happened while six employees were working

at the Restaurant and occurred at the front counter in view of

customers. Petitioner testified, however, that no employees or

customers complained about the third alleged incident.

62. Petitioner did not complain to any manager at BKC and

did not contact the toll-free telephone reporting number at the

time of the third alleged incident.

Fourth Alleged Incident

63. As to the fourth alleged incident, Petitioner

testified that the top button of her three-button polo shirt was

unbuttoned while she was working at the front counter, and that

Mr. Kennedy purportedly placed his hand inside her polo shirt

and rubbed a piece of ice on her chest.

64. Petitioner testified that the fourth alleged incident

occurred in April, but before April 12, 2009, her last day at

the Restaurant. Accordingly, the fourth alleged incident could

only have occurred on April 5 or 11, the only days that

Petitioner worked in April.

65. Since the alleged fourth incident purportedly happened

at the front counter, it would have been in plain view for

customers and other employees to see Mr. Kennedy place his hand

inside Petitioner’s polo shirt and rub ice on her chest.

Petitioner testified, however, that no employees or customers

complained of or reported the fourth alleged incident.

66. Petitioner further testified that employee Frances

Randolph witnessed the fourth alleged incident. In her

testimony at the final hearing, however, Ms. Randolph denied

that the alleged forth incident ever took place.

67. Petitioner did not complain to any manager at BKC and

did not contact the toll-free telephone reporting number at the

time of the fourth alleged incident.

Fifth Alleged Incident

68. As to the fifth and last alleged incident , Petitioner

testified that on April 12, 2009, her last day of work at BKC,

Mr. Kennedy followed her into the cooler, grabbed her, and

stated that they were finally alone. Petitioner testified that

she pushed Mr. Kennedy and walked out of the cooler area.

69. Petitioner, however, did not complain to any manager

at BKC and did not contact the toll-free telephone reporting

number at the time of the fifth alleged incident.

Alleged Offensive Comments

70. Petitioner also testified that Mr. Kennedy made

offensive jokes and comments from time to time. Petitioner only

identified one comment that she claimed was overheard by another

employee, Ms. Randolph. Petitioner testified that she requested

a tampon from Ms. Randolph, Ms. Randolph stated that she had

tampons in her truck, and Mr. Kennedy purportedly made an

offensive remark.

71. Ms. Randolph, however, denies ever hearing the

offensive remark from Mr. Kennedy, denies that any conversation

involving a tampon occurred, and moreover, states that she did

not even own a vehicle at the time of the alleged offensive

comment.

72. Petitioner testified that she did not complain to any

manager at BKC and did not contact the toll-free telephone

reporting number at the time of any alleged sexually harassing

or offensive comments.

Credibility determinations

73. Mr. Kennedy denied the allegations and testified that

he had not rubbed himself against Petitioner, had not

inappropriately touched her, had not grabbed or accosted her

while they were in the cooler, and had not made offensive

comments to Petitioner or told her sexually offensive jokes.

74. In light of the testimony of other witnesses regarding

Mr. Kennedy’s behavior, the testimony contradicting Petitioner’s

allegations, the improbability that all of the incidents could

have occurred without others complaining, the circumstances

surrounding the injunction sought by Petitioner, and the timing

of Petitioner’s report of the alleged incidents, it is found

that Petitioner’s testimony lacks credibility.

75. On the other hand, Mr. Kennedy’s testimony in this

proceeding is credited, and it is found that Mr. Kennedy did not

inappropriately rub up against Petitioner, did not put ice on

Petitioner, did not inappropriately touch or grab Petitioner,

did not make any sexually harassing or offensive comments or

jokes to Petitioner or in Petitioner’s presence, and did not

grab Petitioner while they were in the cooler at the Restaurant.

76. In sum, it is found, as a matter of fact, that

Mr. Kennedy did not sexually harass Petitioner.

CONCLUSIONS OF LAW

77. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2009), 1 / and Florida Administrative Code Rule

60Y-4.016(1).

78. The State of Florida, under the legislative scheme

contained in Sections 760.01–760.11 and 509.092, Florida

Statutes, known as the Florida Civil Rights Act of 1992 (the

Act), incorporates and adopts the legal principles and

precedents established in the federal anti-discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq. The Florida

law prohibiting unlawful employment practices is found in

Section 760.10, Florida Statutes. This section prohibits

discrimination against any individual with respect to

compensation, terms, conditions, or privileges of employment

because of such individual's sex. § 760.10(1)(a), Fla. Stat.

Florida courts have held that decisions construing Title VII of

the Civil Rights Act of 1964, as amended, should be used as

guidance when construing provisions of the Act. See , e.g. ,

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

1205 (Fla. 1st DCA 1991).

Petitioner Failed to Establish Sexual Discrimination

79. The United States Supreme Court has held that sexual

harassment that creates a hostile or abusive work environment is

a form of sex discrimination. See Meritor Savings Bank v.

Vinson , 477 U.S. 57, 64 (1986). In this case, Petitioner

alleges that the alleged harassment was by a co-worker,

Mr. Kennedy, as opposed to a manager or supervisor. In order to

prevail, Petitioner must first establish a prima facie 2 / case by

a preponderance of the evidence. 3 / As noted by Florida’s Fourth

District Court of Appeal:

Where harassment is [allegedly] perpetrated

by a co-worker (as opposed to a supervisor

or manager), to establish a hostile work

environment sexual harassment claim, an

employee must show: (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. See

Speedway SuperAmerica, LLC v. Dupont, 933

So. 2d 75, 80 (Fla. 5 th DCA 2006); see also

Natson v. Eckerd Corp., 885 So. 2d 945, 947

(Fla. 4 th DCA 2004) (citing Breda v. Wolf

Camera & Video, 222 F.3d 886, 889 n.3 (11 th

Cir. 2000) and Castleberry v. Edward M.

Chadbourne, Inc., 810 So. 2d 1028, 1029-30

(Fla. 1st DCA 2002) ).

Maldonado v. Publix Supermarkets , 939 So. 2d 290, 293-94 (Fla.

4th DCA 2006).

80. The Petitioner failed to present evidence sufficient

to establish her claim of sexual harassment that constituted a

hostile or abusive work environment. As noted in the Findings

of Fact, above, Petitioner’s testimony, which was the only

evidence submitted by Petitioner in this case to support her

allegations that she had been sexually harassed by Mr. Kennedy,

was not credible. In contrast, Mr. Kennedy’s testimony that he

did not sexually harass Petitioner was credible and credited.

81. Even if Petitioner had established that she was

sexually harassed by Mr. Kennedy, she failed to provide a basis

to hold BKC liable. That is because Petitioner failed to

establish that BKC “knew or should have known about the

harassment and took insufficient remedial action.” Id.

Therefore, Petitioner further failed to provide a basis for

finding BKC liable.

82. In fact, rather than showing that BKC knew about the

alleged harassment, the evidence showed that, despite being

aware of BKC’s anti-harassment policy and reporting procedures

from a number of sources, Petitioner failed to timely take

advantage of those policies and procedures. Petitioner did not

advise BKC about the alleged harassment until after her last day

of work. Even then, BKC took prompt remedial action by offering

Petitioner a transfer, even before undertaking an investigation

which ultimately failed to substantiate Petitioner’s

allegations. BKC’s remedial action was sufficiently “immediate,

appropriate, and reasonably likely to stop the [alleged]

harassment, thereby [further] precluding any finding of

liability.” Id. at 297.

83. In sum, Petitioner failed to establish that she was

subjected to sexual harassment constituting a hostile or abusive

environment in the workplace, or that BKC should be liable to

Petition for sexual discrimination under Section 760.10, Florida

Statutes.

Petitioner Failed to Establish Constructive Discharge

84. To prove constructive discharge, Petitioner must

demonstrate that BKC deliberately made her working conditions so

intolerable that a reasonable person in her position would be

compelled to resign. Doe v. Dekalb County School Dist. , 145

F.3d 1441, 1450 (11th Cir. 1998). According to the United

States Eleventh Circuit Court of Appeals:

In assessing constructive discharge claims,

we do not consider a plaintiff's subjective

feelings about his employer’s actions.

Rather, we determine whether “a reasonable

person in [the plaintiff's] position would

be compelled to resign.”

Doe , 145 F.3d at 1450 (citing Steele v. Offshore Ship., Inc. ,

867 F.2d 1311, 1317 (11th Cir. 1989)).

85. Petitioner has not demonstrated that a reasonable

person in her position would be forced to resign, particularly

in light of the finding that the alleged sexual harassment did

not take place. Moreover, since BKC transferred her to a

different restaurant after she made allegations on April 17,

2009, nothing in the record indicates that BKC treated

Petitioner so poorly that a reasonable employee in her position

would have felt compelled to resign. To the contrary, the

evidence shows that BKC took appropriate action to ensure that

Petitioner had a full opportunity to communicate her concerns,

that her allegations were promptly investigated, and that

sufficient remedial measures were taken to assure that the

alleged sexual harassment, if true, would not continue.

86. Rather than take advantage of a new opportunity to

work in one of BKC’s restaurants away from the alleged

perpetrator and closer to her home, Petitioner refused to return

to work. The evidence does not support an inference that

Petitioner’s decision to abandon her job was effectively coerced

by BKC’s actions. Accordingly, Petitioner has failed to

establish a constructive discharge claim.

Conclusion

Petitioner failed to prove her Charge of Discrimination and

it is otherwise concluded that Respondent, Burger King

Corporation, did not violate the Florida Civil Rights Act of

1992, Sections 760.01–760.11 and 509.092, Florida Statutes, and

is not liable to Petitioner, Britney Pinckney, for sexual

harassment constituting discrimination in employment, or

constructive discharge while Petitioner was employed with Burger

King Corporation.

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 Petitioner’s Charge of

Discrimination and Petition for Relief consistent with the terms

of this Recommended Order.

DONE AND ENTERED this 18th day of June, 2010, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 18th day of June, 2010.

ENDNOTES

1 / Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version. All references to Florida

Administrative Code or federal statutes and rules are to their

current, effective versions.

2 / Generally, for discrimination in employment claims, the

federal courts have utilized a three-part “burden of proof”

pattern developed in McDonnell Douglas Corp. v. Green , 411 U.S.

792, 93 S. Ct. 1817 (1973), applies. Under that pattern:

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to “articulate some legitimate,

nondiscriminatory reason” for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

McDonnell Douglas , 411 U.S. at 802, 804, 93 S. Ct. at 1824,

1825). While perhaps appropriate to apply in some contexts, in

this case, as Petitioner has failed to make out a even a prima

facie case, the shifting of burden pattern has not been further

applied or elaborated in this Recommended Order.

3 / McDonnell Douglas , 411 U.S. at 802; § 120.57(1)(j), Fla.

Stat. That is, Petitioner has the burden of proving her case by

“the greater weight of the evidence,” or evidence that “more

likely than not” tends to prove her case. See Gross v. Lyons ,

763 So. 2d 276, 280 n.1 (Fla. 2000).

COPIES FURNISHED :

Britney Pinckney

306 North Caroline Street

Daytona Beach, Florida 32114-3020

Rene J. Gonzalez-Llorens, Esquire

Shutts & Bowen LLP

1500 Miami Center

201 South Biscayne Boulevard

Miami, Florida 33131

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

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.