12-002010 Vanessa Jimenez vs. Westgate Resorts Status: Closed Recommended Order on Thursday, September 20, 2012.

Summary: Petitioner failed to establish prima facie case of retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VANESSA JIMENEZ , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2010

)

WESTGATE RESORTS , )

)

Respondent . )

)

RECOMMENDED ORDER

On August 14 and 15, 2012, an ad ministrative hearing in this

case was held by video telec onference in Orlando and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Janice D. Kerr, Esquire

J. D. Kerr, P.A.

Suite 7

20 South Rose Avenue

Kissimmee, Florida 34741

M. Jesusa Cruz Panton, Esquire

Panton Law Firm PL

1094 Plaza Drive

Kissimmee, Florida 34743

For Respondent: Myrna Lizz Maysonet, Esquire

Brandon Hill, Esquire

Richard Wayne Epstein, Esquire

Greenspoon Marder, P.A.

201 East Pine Street, Suite 500

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether the termination of the

Petitioner's employment by the Respondent was an act of

retaliation ag ainst the Petitioner .

PRELIMINARY STATEMENT

On November 10, 2011, Vanessa Jimenez (Petitioner) filed a

Charge of Discrimination a gainst Westgate Vacation

Villas/Westgate Resorts (Respondent) with the Florida Commission

on Human Relations (FCHR). The compl aint alleged that the

Respondent's termination of her employment was in retaliation for

a complaint of discrimination reported to the Respondent's human

relations manager on June 6, 2011. The complaint of

discrimination is not at issue in this proceeding. After an

investigat ion , the FCHR issued a " Determination: No Cause " on

May 12, 2012. The Petitioner filed a Petition for Relief

(Petition) request ing an administrative hearing . O n June 7,

2012, the FCHR forwarded the Petition to the Division of

Adminis trative Hearings, which scheduled and conducted the

proceeding.

At the hearing, t he Petitioner presented the testimony of

five witnesses and had E xhibits numbered 1 through 14 admitted

into evidence . The Respondent presented four witnesses and had

E xhib its numbered 5 , 6, 19, 21 through 24, 26 , 27, 31, 33, 36,

and 41 through 43 admitted into evidence.

A T ranscript of the hearing was filed on August 29 , 2012.

Both parties filed p roposed r ecommended o rders on September 10 ,

2012 , that have been reviewed i n the preparation of this

Recommended Order.

Prior to the hearing, the parties filed a Joint Pre - hearing

Stipulation containing a statement of admitted facts. The

Findings of Fact set forth herein are based upon the statement of

admitted facts and the testi mony and evi dence admitted at the

hearing.

FINDING S OF FACT

1. Beginning on July 16, 2003, the Petitioner became

employed by CFI Resorts Management, Inc. ( CFI ) , in the

housekeeping department at Westgate Vacation Villas (Villas) .

2. CFI employs more than 15 employees and is the operator

of the Westgate Resorts/Westg ate Vacation Villas .

3. At all times material to this case, CFI maintained a

written anti - discrimination policy and established procedures for

the reporting of alleged discrimination . The Pet itioner received

a copy of the written policy when she became employed by CFI at

the Villas. The CFI policies were also accessible on the company

intranet , to w hich all employees had access.

4. From 2003 through 2005, the Petitioner attempted to

transfer from the housekeeping department to various other

department s at the Villas . H er attempts were unsuccessful,

primar ily because she lacked the qualification s or experience t o

perform the jobs she sought.

5. In 2005, w hile still employed in the housekeepi ng

department, the Petitioner began a consensual sexual relationship

with Geoff Price , a supervisor in the security department at the

Villas.

6. On February 17, 2006, the Petitioner requested and

received a transfer from housekeeping to the Villas securit y

department , where she became employed as a security officer .

7. At the time of the transfer, the Petitioner did not meet

basic qualifications for employment as a security officer. S he

was unable to speak or write English sufficiently to allow her to

pr epare the reports required by her position . After she began

working in the security department, other empl oyees had to assist

her in prepar ing the reports.

8. The Petitioner was routinely late for her assigned work

shift, and she sometimes slept on the j ob.

9. The sexual relationship between the Petitioner and

Mr. Price continued after she began her employment in the

security department. O ther employees were aware that the

Petitioner and Mr. Price were engaged in a sexual relationship

and were hesitan t to complain about her lack of job skills or

performance .

10. Security department supervisors were unable to manage

the Petitioner because she was involved with Mr. Price. One

supervisor testified that the Petitioner was essentially

unmanageable because the sexual relationship between the

Petitioner and Mr. Price allowed the Petitioner to " get away "

with her poor job performance. He testified that other employees

had to " walk on egg shells with [the Petitioner] there. "

11. The Petitioner received no wa rnings or written

reprimands during her security department employment, and her

hourly pay rose from $ 9.50 to $10.57.

12. The Petitioner and Mr. Price engaged in sexual activity

two or three times a month, during working and non - working hours,

usually in Mr. Price's office or in hotel rooms at the Villas.

T he Petitioner and Mr. Price also engaged in sexual activity at

the home of Clinton Skinner, a security department manager .

13. On three occasions, Mr. Price surreptitiously recorded

video of sexual act ivity between the Petitioner and Mr. Price

using a computer located at Mr. Skinner's home. The videos,

dated April 26, 2009, February 11, 2010, and March 24 , 2010, were

recorded witho ut the Petitioner's knowledge.

14. T he video recordings were copied ont o at least one DVD

and were exhibited at the Villas to other employees by Mr. Price.

15. Both the Petitioner and Mr. Price were married to other

people during the period th ey engaged in sexual activity.

16. The Petitioner became aware that other employee s had

seen the videos , and she complained to Mr. Price about the

recording and exhibition of their sexual activity .

17. In May 2011, t he Petitioner discontinued the sexual

relationship with Mr. Price.

18. On or about June 6, 2011, the Petitioner contacte d

Roger Cuccaro ( d irector of s ecurity at the Villas) and Angel

Rivera (CFI's r egional h uman r esources d irector) and complain ed

about the surreptitious recording, the DVD , and the fact that

other employees had been allowed to see the video recordings.

The Petitioner submitted a written statement of her complaint to

CFI a few days later.

19. CFI commenced an investigation into the Petitioner's

allegations .

20. Mr. Price was to be interviewed on June 16, 2011, but

he resigned immediately prior to the interv iew and refused to

c ooperate in the investigation.

21. T he investigation soon e xpanded to a review of the

Villas' security department operations , and numerous employees

were interview ed .

22. The investigation revealed the extent of the sexual

activity be tween the Petitioner and Mr. Price and revealed that

other co - workers had engaged in similar sexual activity .

Additionally, investigators learned that two sexually - involved

employees had engaged in an incident of physical violence while

at work.

23. CFI investigators also discovered that the Petitioner

was unqualified for the position she held, was frequently late

for her shift , and was unable to perform essential tasks of her

position without assistance from other employees and that she,

and other securi ty department employees, would sleep while on the

job.

24. CFI investigators review ed usage of the company email

system and discovered that some security department employees,

including the Petitioner, had used office computers and email to

send numerous explicit pornographic photographs to co - workers and

to other persons beginning in 2008 and continuing through 2009 .

25. CFI policy prohibits use of office email for various

non - business purposes, including dissemination of discriminatory,

hostile, suggest ive or otherwise i nappropriate email.

26. After reviewing the results of the investigation, and

in consultation with the corporate human resources director, Mark

Waltrip, the c hief o perating o fficer for CFI , decided that he

needed to " clean hous e " in the security department.

27. CFI attempts to create a wholesome " family - type "

atmosphere for g uests staying at its properties. T he security

department is an important element in maintaining such an

environment. Mr. Waltrip reasonably believed that the behav ior

of numerous security department employees was contrary to the

expectations of CFI and was detrimental to operation of the

resort.

28. CFI terminated the employment of Security Director

Cuccaro, Human Resources Regional Director Rivera, and Security

Manager Skinner.

29. All security department e mployees who participated in

the dissemination of the pornographic email, including the

Petitioner, we re terminated from employment.

30. CFI terminated the employment of other security

department employees fo r various reasons related to the

ope rations of the department.

31. At the hearing, Mr. Waltrip testified that he would

have fired Mr. Price had he been presented with the opportunity

to do so.

32. The Petitioner's employment by CFI was terminated on

Augu st 17, 2011.

33. The Petitioner presented no credible evidence that any

of the terminations, including her own, wer e unreasonable or

unwarranted.

34. There was no evidence presented that any of the

employees who engaged in dissemination of the pornograph ic email

were n ot terminated from employment.

35. The evidence failed to establish that CFI terminated

the Petitioner's employment in retaliation for her complaint

about Mr. Price's surreptitious recording of their sexual

encounters and sub sequent exhibit ion of the DVD.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 & 120.57, Fla . Stat . (2012) .

37. Chapter 760, Part I, Florida Statutes (2011) , sets

for th the Florida Civil Rights Act of 1992 (Act). Florida courts

have determined that Title VII federal discrimination law should

be used as guidance when applying the provisions of the Act.

Fla . Dep ' t of Cmty . Aff . v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991); Sch . Bd . of Leon Cnty . v. Hargis , 400 So. 2d 103 (Fla. 1st

DCA 1981).

38. Section 760.10(7) states that it is " an unlawful

employment practice for an employer . . . to discriminate against

any person because that person has opposed any practice whi ch is

an unlawful employment practice. "

39. The Respondent is an " employer " as defined in

section 760.02(7).

40. To establish a prima f acie case of retaliation under

s ection 760.10(7) , the Petitioner must demonstrate: (1) that she

engaged in statutorily - pro tected activity; (2) that she suffered

an adverse employment action; and (3) that the adverse employment

action was causally related to the protected activity. Harper v.

Blockbuster Entm't Corp. , 139 F.3d 1385 (11th Cir. 1998 ), cert.

denied , 525 U.S. 1000 (1998). Assuming the Petitioner

establishes a prima facie case, the Respondent must then

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 Petitioner must then respond by

demonstrating that the Respondent's asserted reasons for the

adverse action are pretextual. Id.

41. In this case, t he Petitioner has failed to establish a

prima facie case of retaliation. While the Petitioner's

termin ation from employment was clearly an adverse employment

action , the Petitioner's complaint of June 6, 2011, was not about

an unlawful employment practice . The Petitioner's actual

complaint was about Mr. Price's surreptitious recordings of their

sexual act ivity and the exhibition of the recordings to co -

workers . T he Respondent's termination of the Petitioner's

employment was based on a pattern of her clearly inap p rop ri ate

conduct .

42. Had t he Petitioner established a p rima facie case of

retaliation , the R espondent would have been required to

articulate a legitimate, nondiscriminatory reason for the adverse

employment action. At the hearing, the Respondent presented

sufficient evidence to demonstrate that the Respondent was fully

justified in terminating t he Petitioner's em ployment. She was

not qualified for the position and was unable to perform basic

requirements of her job. She regularly engaged in sexual

activity with a co - worker at the workplace and during working

hours. She was often late for her w ork shift and sometimes slept

on the job. She, along with a number of other security

department employees, disseminated numerous explicit pornographic

photographs to co - workers and to other persons through the office

email system.

43. There was no eviden ce whatsoever that the Respondent's

asserted rationale for the terminati on of the Petitioner's

employment was a pretext for retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commi ssion on Human

Relations enter a f inal o rder dismissing the Petitioner's

com plaint against the Respondent.

DONE AND ENTERED this 20th day of September , 2012 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 with the Clerk of the

Division of Administrative Hearings

this 20th day of September , 2012 .

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

Janice D. Kerr, Esquire

J. D. Kerr, P.A.

Suite 7

20 South Ros e Avenue

Kissimmee, Florida 34741

M. Jesusa Cruz Panton, Esquire

Panton Law Firm PL

1094 Plaza Drive

Kissimmee, Florida 34743

Myrna Lizz Maysonet, Esquire

Brandon Hill, Esquire

Richard Wayne Epstein, Esquire

Greenspoon Marder, P.A.

201 East Pine Stree t, Suite 500

Orlando, Florida 32801

Lawrence F. Kranert , Jr. , 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.