13-002880 Amanda Atkinson vs. Stavro's Pizza, Inc. Status: Closed DOAH Final Order on Tuesday, October 29, 2013.

Summary: In this summary proceeding, Petitioner failed to establish a prima facie case of retaliatory employment discrimination; accordingly, the Petition is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMANDA ATKINSON,

Petitioner,

vs. Case No. 13 - 2880

STAVROÓS PIZZA, INC.,

Respondent.

/

SUMMARY FINAL ORDER

Pursuant to notice, this cause was heard by W. David

Watkins, the assigned Administrative Law Judge of the Division

of Administrative Hearings (DOAH) , on September 12, 2013, via

video teleconference with sites in Daytona Beach and

Tallahassee, Florida.

APPEARANCES

For Petitioner: M atthew E. Romanik, Esquire

Damore, Delgado, Romanik & Rawlins, PLC

227 Seabreeze Boulevard

Daytona Beach, Florida 32118

For Respondent: Kelly Parsons Kwiatek, Esquire

Cobb Cole

150 Magnolia Avenue

Daytona Beach, Florida 32115 - 2491

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether

Respondent retaliated against Petitioner in violation of the

Florida Civil Rights Act of 1992, based upon her complaints

about a coworkerÓs conduct perceived by Petitioner to be sexual

harassment.

PRELIMINARY STATEMENT

On January 10, 2013, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(Commission) . Following its investigation of the matter, o n

June 20, 2013, the Commission issued a "no cause" determination .

Dissat isfied with the CommissionÓs finding, Petitioner filed a

Petition for Relief (Petition) with the Commission on July 24,

2013, seeking relief from an alleged unlawful employment

practice.

Th e Commission transmitted the Petition to DOAH on July 30,

2013, whe re it w as assigned to the undersigned for purposes of

an administrative hearing and issuance of a recommended order .

On August 5, 2013, t he parties filed a j oint m otion for a

summary h earing, which was granted by Order dated August 12,

2013.

T he hearing was held as noticed on September 12, 2 013,

pursuant to section 120.574 , Florida Statutes . 1 / At the

conclusion of the hearing it was announced that the parties

would have 20 days from the date of transcript fil ing to submit

proposed final orders. Both par ties availed themselves of this

opportunity, and both P roposed Recommended O rders have been

carefully considered in the preparation of this Summary Final

Order.

FINDINGS OF FACT

Based on the testimony and documentary evidence presented

at hearing, the demeanor and credibility of the witnesses, and

on the entire record of this proceeding, the following findings

of fact are made:

1 . Petitioner, a female, was employed as a server wi th

Respondent from May 6, 2011, through September 29, 2012.

2 . Respondent, Stavro's Pizza, Inc., is a restaurant

located in New Smyrna Beach, Florida. Respondent employs more

than 15 individuals at any given time and therefore is subject

to the Florida C ivil Rights Act of 1992. §§ 760.01 - 760.l1, Fla.

Stat.

3 . Early on the morning of Friday, September 27, 2012, it

was reported to M art ha Trimble, long - time General Manager of

Respondent, that a "weird conversation" took place between

Petitioner and another employee, Brian Hayes, the previous

evening. 2 / During this conversation, Mr. Hayes allegedly told

Petitioner that Ð he kn ew everything about her, including where

she lived, and that her favorite color was blue. Ñ Mr. Hayes

also allegedly told Petitioner that he was soon to be the new

manager of the restaurant.

4 . Msimble approached Petitioner later that day about

the alleged incident with Mr. Hayes, and while Petitioner

admitted she had had a strange convers ation with Mr. Hayes, she

denied that she was upset by it. Nonetheless, Msimble told

Petitioner she would investigate the matter and that she took it

seriously.

5 . Later that same day Msimble also questioned

Mr. Hayes, who denied making the repor ted comments. And while

Msimble was aware that Petitioner had voluntarily given

Mr. Hayes her address, 3 / out of caution, Msimble placed

Mr. Hayes on leave while she continued her investigat ion .

6 . The following day, Saturday, September 28, 2012, there

was a mandatory meeting for all emp loyees of Respondent . The

meeting was mandatory because Msimble had been made aware of

horseplay among some employees , and was concerned that staff

training had been inadequate. Notice of the meeting was

conspicuously p osted in the restaurant for two weeks prior to

the meeting. T he notice explained that the meeting was

mandatory and that all employees were to attend unless the y

contacted Msimble prior to the meeting to be excused.

7 . Petitioner did n ot attend the Saturday meeting and was

not excused in advance . Four other employees contacted

Ms. Trimble ahead of time and explained that they would be

unable to attend due to schedule conflicts. Th o se employees

were excused.

8 . When Msimble contac ted Petitioner later in the day,

Petitioner told Msimble that she had been ill, and in bed

all day.

9 . That evening Msimble also reviewed the security

camera video of the one hour period the previous Thursday during

which Petitioner and Mr. Hayes had been alone in the restaurant ,

and during which the suspect comments had reportedly been made .

In reviewing the video, Msimble specifically watch ed for

physical contact, lingering conversations, and body language.

At hearing, Msimble related he r observations from the

restaurant video as follows:

So I watched the tape. Brian basically

stayed back in the kitchen.

Uh, we have side work we do. We make garlic

bread. We make boxes. We do little oil

containers for to - go salads.

And Brian was back doing that almost the

entire time.

Once I saw him go up to the waitress station

and get a beverage and bring it back.

Amanda basically was at the register. She

would come back every once in a while, hang

a ticket, kind of stand there and chitchat

until, uh Î until, uh, a salad was given to

her or something like that.

So, um, but mainly they were both in their

own areas. I did not see anything that

indicated that there was anything improper

going on.

10 . Following her review of the su rveillance video

Ms. Trimble concluded that there was no basis to believe that

Mr. Hayes had engaged in any form of sexual harassment against

Petitioner .

11 . The following day, Sunday, September 29, 2012,

Ms. Trimble met with Petitioner regarding her absence from the

mandatory meeting the day before . At this meeting Msimble

informed Petitioner that because she failed to attend the

mandatory meeting without being excused, and had failed to even

call Msimble to explain she was ill and would be u nable to

attend, her employment was terminated .

12 . A former employee of Respondent , Lindsey Yauch,

testified on behalf of Petitioner. Ms. Yauch testified that she

had once missed a mandatory meeting called by Msimble but

had not been fired as a res ult . However, on cross - examination

Ms. Yauch could not remember the purpose, date, or any other

detail s surrounding the meeting.

13 . Ms. TrimbleÓs testimony regarding the meeting that

Ms. Yauch missed was more precise. Msimble recalled that it

was a Ðsafe - staff meetingÑ, which is a food - handlerÓs course

that all employees must take. Because all 27 of RespondentÓs

employees were required to take the class, it was offered on two

separate dates, and employees were permitted to choose which

session the y would attend. Ms. Yaugh had chosen to attend the

first session, but overslept and missed the class as a result.

Since a second class offering was still available, Ms. Yaugh was

permitted to attend the second session, which she did.

14 . There is no credible evidence in this record that

Petitioner was treated differently than other similarly situated

employees when she was terminated for missing a mandatory

meeting.

15 . At hearing Msimble testified that Petitioner's

termination had nothing to do with her gender or the alleged

comments made by Brian Hayes. Rather, PetitionerÓs termination

was the result of her missing a mandatory staff meeting without

excuse. This testimony is credible.

16 . To his credit, in his closing statement counsel for

Petitioner candidly acknowledged that, even if true, the

comments made by Mr. Hayes would not constitute sexual

harassment.

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the pa rtie s hereto

pursuan t to s ection 120.57(1), Florida S tatutes.

18 . The Florida Civil Rights Act of 1992 provides the

substantive state law governing this matter. §§ 760.01 - 760.l1,

Fla . Stat.

19 . Section 760.10(7) provides:

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or beca use that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

20 . Petitioner initially filed a Charge of Discrimination

with the Commission for discrimination based on sex,

specifically sexual harassment, and re taliation based on a

complaint of sex ual harassment . However as noted , at hearing

Petitioner conceded that the allegations against Mr. Hayes did

not rise to the level of sexual harassment, and Petitioner

there fore withdrew her claim of sex discrimination against

Respondent. As such, this Summary Final Order addresses only

retaliation based on her report of sex ual harassment .

21 . Section 760.l0(l)(a), which prohibits employers from

discriminating against an individual with respect to his or her

employment based upon sex, is derived from Title VII of the

Federal Civil Rights Act. Russell v. KSL Hotel Corp. , 887

So. 2d 372 (2004). F urt her, "[i]t is well settled that when

Florida statutes are adopted from an a ct of Congress, the

Florida Legislature also adopts the construction placed on that

statute by the federal courts insofar as that construction is

not inharmonious with the spirit and policy of Florida's general

legislation of the subject." Id . (citing Gr een v. Burger King

Corp. , 728 So. 2d 369,370 - 71 (Fla. 3d DCA 1999)).

22 . Pursuant to s ection 760.10(7), it is an unlawful

employment practice for an employer to discriminate against any

person because that person has made a charge of conduct which is

pro hibited under s ection 760.l0( 1 )( a ).

23 . In order to prevail, Petitioner has the ultimate

burden of proving by a preponderance of the evidence that

Respondent committed an unlawful employment practice by

retaliating against her. Fla . Dep Ó t of Transp . v. J.W.C. Co .

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

24 . No credible direct or statistical evidence of unlawful

retaliation exists in this case. Therefore , a finding of

discrimination, if any, must be based on circumstantial

evidence.

25 . The burden and order of proof in discrimination cases

involving circumstantial evidence is set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 03 (1973). The

McDonnell Douglas frame work has been used in retaliation cases

in which the Petitioner relies on circumstantial evidence.

Laincy v. Chatham Cnty . Bd . of Assessors , 520 Fed Appx. 780, 781

( 11 th Cir. 2013 ) (citing Bryant v. Jones , 575 F.3d 1281, 1307 - 08

(l 1 th Cir.2009)).

26 . To demonstrate retaliation under McDonnell Douglas ,

Petitioner must first establish a prima facie case of

retaliation . Thereafter, the employer may offer legitimate,

nondiscriminatory reasons for its employment action. If the

employer does that, in order to prevail, Petitioner must

establish that the employer's art iculated legitimate,

nondiscriminatory reasons were a pretext to mask unlawful

discrimination. Smith v. J. Smith Lanier & Co. , 352 F.3d 1342

(11th Cir. 2000).

27 . To establish a prima facie case of retaliation,

Petitioner must show that: 1) she was eng aged in an activity

protected under Title VII; 2) she suffered an adverse employment

action; and 3) there was a causal connection between the

protected activity and the adverse employment action. See

Pennington v. City of Huntsville , 261 F.3d 1262 (11th C ir.

2001). To satisfy the causal connection requirement, Petitioner

must establish that the protected activity and the alleged

retaliatory action are not completely unrelated. Wideman v.

Wal - Mart Store, Inc. , 141 F.3d 1453 (11th Cir. 1998). Notably,

the person who engaged in the alleged conduct must be aware of

the protected activity. Gupta v. Fla. Bd. of Regents , 12 F.3d

571 (11th Cir. 2000).

28 . As for the statutorily protected expression, not every

act an employee takes in opposition to discrimination is

protected. Laincy , 520 Fed. Appx. At 782 (citing Butler v. Ala.

Dep't of Transp. , 536 F.3d 1209, 1214 (l 1 th Cir.20 08)). The

employee must show: (1 ) that he had a subjective good - faith

belief "that his employer was engaged in unlawful employment

practices"; and (2) that his belief, even if mistaken, was

objectively reasonable in light of the record. I d . (emphasis

added).

29 . Likewise, not every discriminatory comment made by a

coworker constitutes an unlawful employment practice. Laincy ,

520 Fed. Appx. At 782 (citation omitted). Rather, to establish

a claim of a hostile work environment sexual harassment, the

employee "must show that the workplace is permeated with

discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the

victim's employment and create an abusive working environment."

Id . (quotation omitted). Thus, the c ourts have held that a

"derogatory remark by a co - worker, without more, does not

constit ute an unlawful employment practice" and opposition to

such a remark, consequently, is not statutorily protected

conduct." Id . (quotation omitted).

30 . More specifically, the objective severity of the

harassment must be judged from the perspective of a reasonable

person in the Petitioner's position, taking into consideration

all the circumstances, which are determined by a review of four

factors: 1) the frequency of the conduct; 2) the severity of the

conduct; 3) whether the conduct was physically threat ening or

humiliating; and 4) whether the conduct unreasonably interfered

with the employee's job performance. Maldonado v. Publix

Supermarkets , 939 So. 2d 290, 294 (Fla. 4th DCA 2006)

(citing Mendoza v. Borden. Inc. , 195 F.3d 1238, 1246 ( 11th

C ir.1999)).

3 1 . Ð '[S]imple teasing, Ó offhand comments, and isolated

incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of

employment. Ñ Maldonado , 939 So.2d at 294 (quoting Faragher v.

City of Boca Raton , 524 U .S. 775, 788, (1998)). In other words,

it is objectively unreasonable to believe that a coworker's

single use of d iscriminatory language "is enough to permeate

the workplace with 'discriminatory intimidation, ridicule, and

insult' and to 'alter the conditions of the victim's employment

and create an abusive working environment.' Ñ Laincy , 520 Fed.

Appx. At 782 (citation omitted) (emphasis added).

3 2 . In this case, the claim ed statutorily protected

activity is reporting to Ms. Trimble the "weird con versation"

that took place between Petitioner and Mr. Hayes on

September 26, 2012. Petitioner conceded during the hearing that

the reporte d comments by Mr. Hayes did not subjectively rise to

the level of sexual harassment, and the undersigned finds that

any allegation that Respondent was engaged in unlawful

employment practices, i.e. Mr. Hayes sexually harass ing

Petitioner, i s not objectively r easonably given the facts found

herein . 4 /

3 3 . Inasmuch as Petitioner did not establish that she had

a subjective good - faith belief that Respondent was engaged in

unlawful employment practices and that such belief was not

objectively un reasonable, Petitioner's opposition to the "weird

conversation" with Mr. Hayes is not a statutorily protected

expression . Thus, Petitioner failed to establish a prima facie

case of retaliation based on sex.

3 4 . Assuming arguendo that Petitioner had establish ed a

prima facie case of retaliation based on the report of sexual

harassment , the burden would then shift to Respondent to proffer

a legitimate reason for the adverse employment action, i.e.

termination of employment . Assuming Respondent does proffer a

legitimate reason for the adverse employment action, t he burden

then shifts back to Petitioner to prove by a pr eponderance of

the evidence that the "legitimate reason" i s merely a pretext

for the prohibited, retaliatory conduct. Russell , 887 So. 2d at

879 - 80 (citing Sierminski vansouth Fin . Corp . , 216 F.3d 945,

950 (11th Cir .200)) .

3 5 . To meet the requirements of the pretext step,

Petitioner must produce sufficient evidence for a reasonable

fact - finder to conclude that the employer's legitimate,

nondiscriminatory reason was "a pretext for discrimination."

Laincy , 520 Fed. Appx. At 781 (citing Vessel s v. Atlanta Indep.

Sch. Sys. , 408 F.3d 763, 771 (11th Cir.2005)) . "Provided that

the proffered reason is one that might motivate a reasonable

employer, an employee must meet that reason head on and rebut

it, and the employee cannot succeed by simply quarreling with

the wisdom of that reason." Id . (citing Chapman v. Aansp. ,

229 F.3d 1012, 1023 (11th Cir.2000) (en banc). Rather, the

plaintiff must show "such weaknesses, implausibilities,

inconsistencies, incoherencies or contradictions in the

emp loyer's proffered legitimate reasons ... that a reasonable

fact finder could find them unworthy of credence." Id. (citing

Vessels , 408 F.3d at 771) ) .

3 6 . Ev en had Petitioner proved a prima facie case of

retaliation , Respondent provided a nondiscriminatory reason for

terminating h er. S pecifically, Petitioner was not excused from,

did not attend, and did not notify Msimble of her not being

able to attend Respondent's mandatory meeting on September 28,

1 4

2012. Furt her, there is no evidence that the reason provided by

Respondent is a pretext for discrimination.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the p etition of Amanda Atkinson is DISMISSED .

DONE AND ORDERED this 2 9 th day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 2 9 th day of October , 2013 .

ENDNOTES

1 / Unless otherwise noted, all statutory references herein are

to the 2013 version of the Florida Statutes.

2 / This information was reported to Msimble, second - hand, by

another employee , in whom Petitioner had confided.

3 / Mr. Hayes was looking for a place to live closer to the

restaurant. The apartment complex in which Petitioner lived had

availability, so Petitioner wrote down the name and phone number

of the complex on a piece of pa per and asked Msimble to give

it to Mr. Hayes. Msimble then stapled the paper to

Mr. HayesÓ timecard to ensure he would get it.

4 / Even had the undersigned concluded that Petitioner had been

the victim of sexual harassment in the workplace, it could be

argued that Petitioner did not ÐopposeÑ the harassment since it

was reported to Msimble by a third party, and Petitioner did

not disclose the incident until questioned about it by

Ms. Trimble.

COPIES FURNISHED :

Matthew Evan Romanik, Esquir e

Damore, Delgado, Romanik and Rawlins

227 Seabreeze Boulevard

Daytona, Florida 32118

Kelly V. Parsons

Cobb and Cole

150 Magnolia Avenue

Post Office Box 2491

Daytona Beach, Florida 32115

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commence d by

filing one copy of a Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Ap peal in the appellate district where the party resides. The

Notice of Appeal must be filed within 30 days of rendition of

the order to be reviewed.