14-005354 Anna L. Foster vs. Max-Pak, Llc, And Staff Builders Hr, Llc Status: Closed Recommended Order on Wednesday, February 25, 2015.

Summary: Petitioner failed to establish that she was reassigned to a different position by her employer on account of her gender.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A NNA L. FOSTER,

Petitioner ,

vs. Case No. 14 - 5 354

MAX - PAK, LLC , AND STAFF

BUILDERS HR, LLC,

Respondent s.

_______________________________/

RECOMMENDED ORDE R

On February 12, 2015, this case was heard by D .R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings (DOAH ) , at videoconferencing sites in

Lakeland and Tallahassee, Florida.

APPEARANCES

For Petitioner : Richard A. Johnson

Qualified Representative

1412 Connestee Road

Lakeland, Florida 33805 - 3349

For Respondent : Virgil T ray Ba tcher , Esquire

(Staff Builders) Trent Cotney, P.A.

407 North Howard Avenue

Suite 100

Tampa , Florida 33606 - 1575

For Respondent: No appearance

(Max - Pa k )

STATEMENT OF THE ISSUE

The issue is whether Respondent s violated the Florida Civil

Rig hts Act (the Act) , as amended, as alleged in Petitioner's

Employment Complaint of Discrimination.

PRELIMINARY STATEMENT

The procedural background of this case is somewhat unusual.

On J une 30, 2014, P etitioner filed a n Employment Complaint of

Discriminatio n with the Florida Commission on Human Relations

(FCHR) alleging that she was terminated from employment by her

former employer, Max - Pa k , [LLC] , on account of her sex. On

November 14, 2014, the FCHR issued a N otice of Determination:

No Cause, in which it identified Max - Pa k and "Staff Builders" as

co - r espondents . Petitioner then filed a Petition for Relief,

which identified "Johnnie Ford/Max - Pak" as the Respondent. 1/ The

Petition was transmitted by FCHR to DOAH requesting that a

hearing be conducted to r esolve the complaint . The transmittal

letter reflected only Max - Pa k as a respondent. On February 6,

2015, an appearance was entered by counsel on behalf of Staff

Builders HR, LLC (Staff Builders) . At hearing, b y agreement of

the parties, Staff Builders was added as a co - respondent. On

February 9, 2015, the case was transferred from Administrative

Law Judge Quattlebaum to the undersigned.

At the final hearing, Richard A. Johnson was authorized to

appear as Petitioner 's qualified representative. Petiti oner

testified on her own behalf and presented the testimony of one

witness. Staff Builders presented the testimony of two

witnesses. Respondent's E xhibits 1 - 10 were received in

evidence. There was no appearance on behalf of Max - Pa k .

There is no tra nscr ipt of the hearing . Staff Builders

filed a P roposed Recommended Order , which has been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a n African - American female. She began

employment with Staff Builder s around October 2012 and continued

working with that entity until she voluntarily resigned around

May 2014. As the name implies, Staff Builders is a staffing

agency in Lakeland, Florida, that provides temporary staffing

for various clients in the Lakeland area . One client is Max -

Pa k , a manufacturing firm also located in Lakeland . A service

agreement has been executed by the two companies to formalize

this arrangement.

2. Because the evidence shows that Max - Pak was able to

exercise control over the manner in whi ch Petitioner and other

temporary employees performed their duties, a joint employer

relationship is present. See, e.g. , Amarnare v. Merrill Lynch,

Pierce, Fenner & Smith , Inc. , 611 F. Supp. 344, 349 (D.N.Y.

1984); Washington v. Cingular Wireless, LLC , Ca se No. 05 - 2988

(Fla. DOAH Oct. 25, 2005; FCHR Jan. 6, 2006) .

3 . Before an employee is placed with a client, Staff

Builders provides in - house training regarding work rules. Each

employee is required to sign a training checklist acknowledging

that he/she h as received this training. Exhibit 8 reflects that

Petitioner received this training on October 15, 2012.

4 . As a part of her training, b efore she was assigned to

work at Max - Pak, Petitioner was given a copy of Max - Pa k 's work

rules. See Resp. Ex. 7. Among other things, the rules provide

that if an employee is " threatening, intimidating, coercing or

interfering with fellow employees at any time," it would

"usually lead to the immediate dismissal at the first offense."

Employees are expected to follow the work rules of both Staff

Builders and the ir temporary employer.

5 . When the underlying incident occurred, Pet itioner was

working as a temporary employee for Max - Pa k in the assembly

line. On March 24 , 2014, the men's restroom was out of service.

Th is required that both male and female workers use the women's

restroom until the men's restroom was restored to service .

6 . That morning, Petitioner went to the restroom, knocked

on the closed door, and a male voice responded "wait a minute."

The person using the bathroom was Tomm y E ngram, an African -

American male who worked as a temporary staffing employee in the

shipping and receiving department.

7 . Although the testimony describing the incident is quite

limited , the more credible evidence shows th at w hen Engram

exited the restroom, Petitioner demanded to know why he was

using the women's restroom. " Words " between the two ensued,

including a comment by Engram that Petitioner should not

dis res pect him. Petitioner testified that she was insulted by

the tone and demeanor of Engram 's words , and had she not been a

female, he would not have spoken to her in the manner that he

did. However, there is no credible evidence that Engram used

profanity or w ords of a sexual nature , or that his remarks were

moti vated by gender considerations.

8 . When Petitioner spotted Engram in her work area a few

minutes later, she demanded to know why he was there. The two

had further words, and Petitioner told Engram she would have her

boyfriend "beat him up." She then tel ephoned her boyfriend,

Kenneth Graham, and told him about the incident. By threatening

Engram in this manner, Petitioner violated a Max - Pa k work rule

that prohibits an employee from threatening or intimidating a

fellow employee and was subject to immediat e dismissal .

9 . That same evening, Engram w ent to " the t rees, " a local

area frequented mainly by African - Americans where they socialize

and drink. Graham was also at the t rees that evening , and after

he spotted Engram, Graham says they began arguing abou t the

restroom incident and a "fist fight" between the two took place.

Engram suggested that the fight was instigated by Graham , and

his version of events was corroborated by a witness to the

fight, whose statement indicates that Graham initiated the

skir mish. See Resp. Ex. 2. Engram's version is accepted as

being more credible.

10 . The next morning, Engram reported the incident to

Ford. After Ford and Max - Pa k conferred, Staff Builders advised

Petitioner that Max - Pa k no longer wanted her as a staffing

employee at the ir plant. This action was taken solely because

Petitioner had violated a Max - Pak work rule by threatening

Eng ram with physical harm. There was no evidence that the

decision by either Respondent was based on Petitioner's gender.

1 1 . This w as not the first time a temporary employee at

Max - Pa k was asked not to return for violating work rules . Two

other Staff Builder workers , both male s , were also reassigned to

another client after violati ng the same anti - violence work

rules.

1 2 . Petitioner continued working for Staff Builders and

was assigned to staff another client in Tampa, where she worked

for four or five weeks. After finding a permanent job,

Petitioner voluntarily resigned her position with Staff Builders

around May 2014.

1 3 . Petiti oner's complaint was filed on June 30, 2014.

She says it was filed because no one would tell her why she

could not return to Max - Pak. However, at no time before the

complaint was filed did Petitioner advise either Max - Pa k or

Staff Builders that she belie ved her "termination" was because

of her sex. In fact, the only person she r eported any alleged

discrimination to was "Jade," a co - worker whose last name was

not given .

CONCLUSIONS OF LAW

1 4 . Petitioner has the burden of proving by a

preponderance of t he evidence that Respondent s committed an

unlawful employment practice. See § 120.57(1)(j), Fla. Stat.

1 5 . Section 760.10(1)(a) , Florida Statutes (2014), makes

it unlawful for an employer to take adverse action against an

individual because of the indi vidual's sex.

16. The Act is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Thus, case law construing Title

VII is persuasive when construing the Act. See , e.g. , Fla.

State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

1 7 . Petitioner may establish unlawful discrimination based

on gender through the use of direct evidence or circumstantial

evidence. Harris v. Shelby Cnty. Bd. of Educ. , 99 F.3d 1078,

1083 (11th Cir. 1996). Direct evidence is evidence that, "if

believed, proves [the] existence of [a] fact in issue without

inference or presumption." Burrell v. Bd. of Tr. o f Ga.

Military Coll. , 125 F.3d 1390, 1393 (11th Cir. 1997). Direct

evidence consists of "only the most blatant remarks, whose

intent could be nothing other than to discriminate " on the basis

of an impermissible factor . Carter v. City of Miami , 870 F.2d

578, 582 (11th Cir. 1989). There is no direct evidence of

gender discrimination in the record.

1 8 . To prove unlawful discrimination by circ umstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

successful, this creates a presumption of discrimination. Then

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

discrimina tory 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. Globe Ground N. Am., LLC , 18 So. 3d 17 (Fla. 3d

DCA 2009).

1 9 . Petitioner must prove discrimination by indirect or

circumstantial evidence by first establishing a prima facie case

of gender discrimination showing (a) she is a member of a

protected class; ((b) she was qualified for the job; (c) she was

subjected t o an adverse employment action; and (d) other

similarly - situated employees, who are not members of the

protected group, were treated more favorably than Petitioner.

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973).

20 . There is insufficient evidence to establish a prima

facie case of discrimination based on gender. There is no

evidence that Petitioner was subject to an adverse employment

action - - she was merely reassigned to a different job. Even

assuming that reassignment constitute d an adv erse employment

action, Petitioner failed to identify any other similarly -

situated males who were treated more favorably than she.

Indeed, two males were reassigned to a different client for the

same reason as Petitioner.

2 1 . Even if a prima facie case was made, evidence was

presented that established Petitioner was reassigned from Max -

Pa k to another client for legitimate, non - discriminatory

reasons. There is ample evidence to show that Petitioner's

reassignment was due solely to her violating a Max - Pa k work

rule .

2 2 . Petitioner has failed to establish a prima facie case

of gender discrimination by a preponderance of the evidence.

Therefore, her Petition for Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conc lusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief filed by

Petitioner against both Respondents .

DONE AND ENTERED this 25th day of February , 20 1 5 , in

Talla hassee, Leon Cou nty, Florida.

S

D . R. ALEXANDER

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 25th day of February , 201 5 .

ENDNOTE

1/ In her Petition for Relief, Petitioner alleged for the first

time that she was terminated in retaliation for participation in

a protected activity , not otherwise descr ibed . The undersigned

lacks jurisdiction to consider the new charge. See, e.g. ,

Williams v. Shands at Alachua Gen. Hosp. & Santa Fe Health Care ,

Case No. 98 - 2539, 1999 Fla. Div. Adm. Hear. LEXIS 5120 (Fla. DOAH

Jan. 8, 1999 ; FCHR June 16, 1999).

C OPI ES FURNISHED:

Tammy Barton , Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301 - 4857

Richard A. Johnson

1412 Connestee Road

Lakeland, Florida 3380 5 - 3349

Anna L. Foster

647 West Third Street

L akeland, Florida 33805 - 4305

Virgil Tray Batcher, Esquire

Trent Cotney, P.A.

Suite 100

407 North Howard Avenue

Tampa , Florida 33606 - 1575

(eServed)

Max - Pa k , LLC

2808 New Tampa Highway

Lakeland, Florida 33815 - 3465

Cheyanne M. Costillo, General Counsel

F lorida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301 - 4857

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 days of the date of this Recommended Order. A ny exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.