11-004572 Mary Cottrell vs. Concord Custom Cleaners Status: Closed Recommended Order on Friday, January 27, 2012.

Summary: Petitioner was not discriminated against based upon her race. Her employment was terminated based upon a legitimate, nondiscriminatory reason. Her petition for relief should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY COTTRELL , )

)

Petitioner , )

)

vs. ) Case No. 11 - 4572

)

CONCORD CUSTOM CLEANERS , )

)

Respondent . )

)

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on November 8, 2011 , by video

teleconference at sites located in Tallahassee and Pensacola ,

Florida.

APPEARANCES

For Petitioner: Mary Cot trell , pro se

776 Backwoods Road

Century, Florida 32535

For Respondent: Christopher J. Rush, Esquire

Christopher J. Rush & Associates, P.A.

1880 North Congress Avenue, Suite 206

Boynton Beach, Florida 33426

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice by discriminating against Petitioner based

upon her race.

PRELIMINARY STATEMENT

Petitioner, Mary Cottrell , file d an Employment Complaint of

Discrimination with the Florida Commission on Human Relations

(FCHR) against Concord Custom Cleaners on February 16, 2011,

claiming she was the victim of discrimination based upon her

race. Following an investigation of Petiti oner ' s allegations,

FCHR issued a Determination: No Cause on August 11, 2011.

On September 12, 2011, Petitioner filed a Petition for

Relief with FCHR challenging its Determination: No Cause . The

petition was forwarded to the Division of Administrative

H earings .

Pursuant to notice, this matter was set for hearing before

Administrative Law Judge Robert S. Cohen, on November 8, 2011,

in Tallahassee, Florida. Petitioner filed a request to set the

hearing by video teleconferencing between sites in Pensacola and

Tallahassee, Florida. The hearing remained scheduled for

November 8, 2011, and was reset by video teleconference at sites

in Pensacola and Tallahassee, Florida.

At the hearing, Petitioner testified on her own behalf, and

presented the testimony of Ana starsia Martinez, Petitioner ' s

daughter and also a former employee of Respondent . Petitioner

offered one exhibit , which was a d mitted into evidence.

Respondent presented the testimony of Jerry Wienhoff and offered

seven exhibits , all of which were admitte d into evidence.

A t ranscript of the final hearing was not ordered by either

party . After the hearing, Respondent filed a Motion for

Extension of Time for Filing Proposed Recommended Order, which

was granted. Petitioner filed a post - hearing response on

December 6, 2011. Respondent filed its Proposed Recommended

Order on December 9, 2011 .

References to statutes are to Florida Statutes (20 11 )

unless otherwise noted.

FINDINGS OF FACT

1. Respondent is an " employer " within the meaning of

section 760.0 2(7), Florida Statutes.

2. Petitioner, an African - American female, submitted an

application for employment directly with the store manager ,

Jerry Wienhoff. Mr. Wienhoff personally interviewed Petitioner

and hired her within 48 hours of her application for the

afternoon clerk position. She began working for Respondent on

July 21, 2009.

3. Petitioner received a notice of a disciplinary issue on

March 9, 2010. Respondent cited Petitioner for failure to

complete her work in a timely manner . Petitioner was warned

that if her work did not improve, her employment would be

terminated.

4 . No t long after issuance of this disciplinary notice,

Mr. Wienhoff , the store manager and Pensacola Regional Manager

for 17 years , began receiving complaints about Petiti oner ' s

behavior. One complaint came from a long - time customer, while

another came from a co - employee. The complaints were that

Petitioner treated them rudely.

5 . During her employment, Petitioner complained that her

work duties were heavier than those of the morning clerk.

Mr. Wienhoff relieved Petitioner of certain duties related to

tagging each garment dropped off during the afternoon shift.

None of the other stores out of the four area stores had similar

requests to remove this duty.

6 . Petitio ner testified that the morning clerk, a white

female, Amanda Sidner, was given a lighter workload. Petitioner

further testified that Ms. Sidner was given additional hours

during Petitioner ' s vacation, yet Petitioner was not given

additional hours during M s. Sidner ' s vacation.

7. Mr. Wienhoff testified and Petitioner admitted that she

took vacation days during the same week that Ms. Sidner took

vacation days. Further, Petitioner was given additional hours

during the days Ms. Sidner was on vacation, and the balance of

those hours that Petitioner was not interested in working went

to Petitioner ' s daughter, Anastarsia Martinez, also an African -

American female.

8 . On December 14, 2010, Petitioner was issued her second

and final corrective action report by Mr. Wienhoff. At that

time , Mr. Wienhoff terminated Petitioner due to the ongoing

complaints about her behavior in the workplace.

9 . Respondent also established the racial composition of

every employee under Mr. Wienhoff ' s supervision. The company

p rofile in Pensacola shows a racially diverse mix of employees.

1 0 . Petitioner candidly testified that she never heard

Mr. Wienhoff make racially insensitive comments to her or any

other employee. Her claim of discrimination is based upon

favoritism. She believes that other employees were treated

better than she, but did not tie this perceived favorable

treatment to their race.

CONCLUSIONS OF LAW

1 1 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), and 760.11(4)(b), Fla. Stat.

1 2 . Section 760.10(1)(a), Florida Statutes, states:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual ' s race, color, religion, sex,

national origin, age, handicap, or marital

status.

1 3 . Petitioner is an " aggriev ed person, " and Respondent is

an " employer " within the meaning of section 760.02(10) and (7),

respectively.

1 4 . The Florida Civil Rights Act (FCRA), sections 760.01

through 760.11, as amended, was patterned after Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000 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 - 71 (Fla. 3d DCA 1999); Fla. State Univ. v. Sondel , 685 So.

2d 923 (Fla. 1st DCA 1996).

1 5 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent has discriminated

against h er . See Fla. Dep ' t of Transp. v. J.W.C. Co., Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981).

1 6 . The United States Supreme Court has established a n

analytical framework within which courts should examine claims

of discrimination. In cases alleging discriminatory treatment,

Petitioner has the initial burden of establishing, by a

preponderance of the evidence, a prima facie case of

discrimination. S t. Mary ' s Honor Ctr. v. Hicks , 509 U.S. 502

(1993); Combs v. Plantation Patterns , 106 F.3d 1519 (11th Cir.

1997).

1 7 . To establish a prima facie case of discrimination,

Petitioner must establish the following : (1) s he is a member of

a protected class; (2) s he suffered an adverse employment

action; (3) that s he received disparate treatment from other

similarly - situated individuals in a non - protected class; and

(4) that there is sufficient evidence of bias to infer a causal

connection between h er race and th e disparate treatment.

1 8 . Petitioner proved that she is a member of a protected

class as an African - American female and that she suffered an

adverse employment action, i.e., her employment was terminated ,

she failed to prove that Respondent subjected he r to different

terms and conditions due to her race. Petitioner was not able

to prove she received disparate treatment from other similarly -

situated individuals in a non - protected class , and she offered

no evidence of sufficient bias to infer a causal con nection

between her race and her alleged disparate treatment.

19 . Petitioner alleges disparate treatment based upon her

race. Her allegations were: 1) she was terminated due to

customer complaints and performance issues while a white

employee violated a work rule related to donation of abandoned

clothes and was not terminated; 2) she was given a heavier

workload than her white counterpart; and 3) she did not receive

additional hours during her white counterpart ' s vacations.

However, Petitioner conceded i n her testimony that Ms. Sidner,

the white co - employee, did not violate th e work rule regarding

abandoned clothes, nor any other work rule. Thus, Petitioner

failed to prove or provide any evidence of unequal application

of work rules. Since Petitioner fa iled to prove by a

preponderance of the evidence that Respondent subjected her to

any different standard than that of other similarly situated

employees, this claim must fail. See Horn v. United Parcel

Serv., Inc. , 433 F. App ' x 788, 2011 U.S. App. LEXIS 1 3973 (11th

Cir. 2011); Jones v. Bessemer Carraway Med . Ctr . , 137 F.3d 1306

(11 th Cir. 1998).

2 0 . Petitioner testified her workload was heavier than the

morning shift white co - employee Ms. Sidner, yet she admitted

that the morning shift employee had some du ties she did not have

on the afternoon shift. Even if true, this allegation does not

constitute an adverse employment action. Hart v. U.S. Attorney

Gen. , 433 F. App ' x 779, 2011 U.S. App. LEXIS 14075 (11th Cir.

2011); Davis v. Town of Lake Park , 245 F.3d 1332 (11th Cir.

2001) . Petitioner also conceded that her manager relieved her

of the obligation to tag all of the garments delivered in the

afternoon. In any event, any variations between the morning and

afternoon workloads w ere due to business needs or fluctuations.

Moreover, Petitioner offered no evidence to prove her manager

intentionally assigned her a heavier workload due to her race.

In fact, her testimony supported the fact that Petitioner ' s

manager lightened her workload at her request. Therefo re,

Petitioner failed to prove by a preponderance of the evidence

that her manager assigned her a heavier workload based upon her

race.

2 1 . Petitioner conceded that she did not want all of

Ms. Sidner ' s vacation hours and, in fact, took two vacation days

of her own during the five vacation days reserved by Ms. Sidner.

Accordingly, Petitioner voluntarily took fewer hours than might

otherwise have been available to her. Regardless , the evidence

proved there was no significant difference between the actual

nu mber of hours provided to Ms. Sidner during Petitioner ' s

vacation and those worked by Petitioner during Ms. Sidner ' s

vacation. Here too, Petitioner failed to prove by a

preponderance of the evidence that she suffered disparate

treatment on the basis of he r race; nor did she prove an adverse

employment action. See Hart and Da vis , supra .

2 2 . Finally, Respondent terminated Petitioner based upon a

legitimate, nondiscriminatory basis. Mr. Wienhoff hired

Petitioner almost immediately following a personal inter view.

Mr. Wi e nhoff warned Petitioner both verbally and in writing

about her performance issues. When both an employee and a

long - time customer complained of Petitioner ' s workplace

rudeness, Mr. Wienhoff terminated Petitioner ' s employment. The

record es tablishes that Mr. Wienhoff harbored no racial animus

against Petitioner and, given his hiring record, against

African - Americans generally.

2 3 . Based upon the evidence and testimony offered at

hearing, Petitioner failed to establish a prima facie case

ag ainst Respondent for rac ial discrimination. Further,

Respondent articulated a clear nondiscriminatory reason for

Petitioner ' s termination from employment. Accordingly,

Respondent cannot be found to have committed the " unlawful

employment practice " allege d in the employment discrimination

charge, which is the subject of this proceeding. Therefore, the

employment discrimination charge should be dismissed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order finding that no act of discrimination was

committed by Respondent and dismissing the Petition for Relief.

DONE AND ENTER ED this 27th day of January , 2012 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative 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 wi th the Clerk of the

Division of Administrative Hearings

this 27th day of January , 2012 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Thomas A. Groend yke, Esquire

Douberley & Cicero

1000 Sawgrass Corporate Parkway, Suite 590

Sunrise, Florida 33323

Mary Cottrell

776 Backwoods Road

Century, Florida 32535

Chris topher J . Rush, Esquire

Christopher J. Rush & Associates , P.A.

1880 North Congress Avenue, Su ite 20 6

Boynton Beach, Florida 33426

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 e xceptions 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.