15-005538 Caryl Zook vs. Benada Aluminum Florida, Inc. Status: Closed Recommended Order on Wednesday, January 27, 2016.

Summary: The Petitioner/employee, Zook, failed to prove that the Respondent/employer, Benada Aluminum Florida Inc., discriminated against her due to her age, a disability, or in retaliation for raising claims of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARYL ZOOK ,

Petitioner ,

vs. Case No. 15 - 5538

BENADA ALUMINUM FLORIDA, INC.

Respondent .

/

RECOMMENDED ORDER

This case came before Administrative L aw Judge Robert L.

Kilbride for final hearing on December 7, 2015 , in

Ft. Lauderdale, Florida .

APPEARANCES

For Petitioner: Caryl Zook , pro se

5425 43rd Street

Vero Beach, Florida 32967

For Respondent: Grissel T. Se ijo, Esquire

Littler Mendelson , P.C.

Wells Fargo Center, Suite 2700

333 Southeast 2 nd Avenue

Miami, Florida 33131

STATEMENT OF THE ISSUE S

Whether Respondent committed the unlawful empl oyment

practice alleged in the Charge of Discrimination filed with the

Florida Commission on Human Relations (ÐFCHRÑ) on or about

September 9, 2014 , and , if so, what relief should Petitioner be

granted.

PRELIMINARY STATEMENT

On September 8, 2014 , Caryl Zoo k ( ÐPetitionerÑ) filed a

Charge of Discrimination (ÐCompl aintÑ) with FCHR alleging that

B enada Aluminum Florida , Inc. ( ÐRespondentÑ) , terminated her

employment as a c hef because of her age , disability , or in

retaliation for protected conduct . Following it s investigation

of the Complaint, FCHR notified the parties in a letter dated

August 26, 2015 , that Ðno reasonable cause exis ts to believe that

an unlawful practice occurred.Ñ

Petitioner elected to pursue administrative remedies and

timely fil ed a Petition for Relief with FCHR on or about

September 30, 2015. FCHR referred the matter to the Division of

Administrative Hearings (ÐDOAHÑ) to assign an Administrative Law

Judge to conduct a final hearing under c hapter 120 , Florida

Statutes (2015) . In a Pre - h eari ng Stipulation dated December 3,

2015 , the parties agreed to certain facts . The partiesÓ

stipulations of fact have been incorporated into this Recommended

Order , to the extent they are relevant or required .

The final hearing was held on December 7 , 2014 . Re spondent

and P etitioner were present. Petitioner represented herself. At

the hearing, Petitioner testified and offered , without objection,

Exhibits 1 through 8 and , over objection of counsel, played

excerpts of a recording of an unemployment compens ation hearing

before the Florida Department of Economic Opportunity related to

her termination. RespondentÓs counsel presented the testimony of

Monte Friedkin, Sher ee Friedk i n, Rosario Diaz , and also called

Petitioner. RespondentÓs Exhibit 1 was received into evidence

without objection.

The parties stipulated to the following facts:

(1) P etitioner was hired by Mr. Friedkin to be his executive

chef; (2) P etitioner was over the age of 40 years old at the time

of hire by Mr. Friedkin ; and (3 ) Mr. Friedkin was over the age of

40 when he hired P etitioner.

The final hearing T ranscript was fi l e d with DOAH on

December 29, 2015 . The parties timely filed proposed recommended

orders, which were given due consideration in the preparation of

this Recommended Order .

FINDING S OF FACT

Based on the evidence presented at hearing, the undersigned

makes the following find ing s of materia l and probative facts :

TESTIMONY OF PETITIONER, CARYL ZOOK

1. Petitioner, a 61 - year - old female born in 1954, worked as

a private c hef fo r Mr. Friedkin , owner of Respondent. She began

in 2007 and was an Ðat willÑ employee , there being no written

employment contract.

2. Her duties included providing dinners and other meals at

Mr. FriedkinÓs r esidence , catering or assisting him with some

ev ents , and overseeing some of the other staff members at his

residence.

3. P etitioner was in an auto accident in 2011 and suffered

neck injuries. Petitioner required physical therapy,

acupuncture, steroid injections , and several x - rays.

4. After Petition er was terminated from Respondent in

September 2013 , she underwent surgery to remove several bad

vertebrae f r o m her neck area .

5. Due to her neck injury and pain , Petitioner testified

that she needed to park close to Mr. FriedkinÓ s house to carry

grocerie s as a reasonable accommodation . Other than the

inference drawn from this scant evidence , there was little , if

any, direct or circumstantial evidence presented to prove tha t

R espondent had knowledg e of a qualifying disability by

P etitioner. 1/

6. P etitio ner characterized Mr. FriedkinÓ s behavior over

the years as insulting and abusive, and she endured it for many

years.

7. There was an arrangement between P etitioner and Friedkin

for him to pur chase a home for her to live in. S he would repair

or remodel t he home , and at some point , he would transfer the

mortgage and home to her. 2/

8. For the Yom Kippur holiday, Mr. Friedkin contacted

Petitioner and instructed her to prepare a dinner for his family

and to have it ready at 3:00 p.m. that day .

9. Typicall y , meals were prepared by P etitioner at

Mr. FriedkinÓs home . However, this one was prepared at

P etitionerÓs home because , as she testified, it Ð needed to be

brined Ñ in her refrigerator in advance.

10. Petitioner was admittedly running late and did not h ave

the meal pre pared by 3:00 p.m . Mr. Friedkin called her while she

was driving to his house but she did not answer the phone. When

she arrived at his house, Mr. Friedkin was in his vehicle

blocking the driveway.

11. After she park ed on the street, Mr. Friedkin got out of

his vehicle and began ranting and raving at her , accusing her of

being late.

12. He was very upset . He continued yelling and told her

that , ÐN ext week you better start looking for a new job . Ñ

13. Petitioner went into the house and left the food in the

refrigerator.

14. It was undisputed that the food ( a t urkey breast) was

not given to Mr. Friedkin outside the home because it was not

carved or ready for consumption.

TESTIMONY OF SHER EE FREIDKIN

15 . Mr. FriedkinÓs wife testified th at Mr. Friedkin had

ma de it clear to P etitioner that he wanted her to prepare a

turkey meal and that they would pick it up at 3:00 p.m. at the

residence.

16. W hen she and her husband arrived at their home at

3:00 p.m., P etitioner was not there. They wen t inside, looked in

the refrigerator , and saw that the food was not there . They

call ed P etitioner on her cell phone but she did no t answer. They

waited for some period of time for her , a ll the while getting

very frustrated and agitated. 3/

17. After wa iting more than 30 minutes for P etitioner to

arrive , they decided to go to Whole Foods to b u y a turkey meal at

around 3:40 p.m.

18. On their way, P etitioner phoned them. She said she

would be at the house soon , and so , they decided to drive back

and meet her. After they arrived back at their residence they

had to continue to wait for her to arrive.

19. S he finally arrived , sometime after 3:40 p.m., and got

out of her vehicle eventually. ( Apparently, P etitioner waited in

her car for some period of time . )

20. When she got out, P etitioner was in shorts, a sloppy

shirt , and her hair was i n curlers. Mr. and Mrs. Friedkin found

this i nappropriate, particularly since P etitioner usually wore an

apron and dressed more appropriately in their presence .

21. Mr. Friedkin was very upset and demanded that she give

him the food because they were running late to their family

function . P etitioner refused , c laim ing the turkey needed to be

sliced. Mr. Friedkin was very angry and used several unnecessary

expletives du ri ng the course of his conversation with P etitioner .

Mr. Friedkin told her something like , ÐyouÓre firedÑ and ÐdonÓt

show up Monday for work . Ñ

22. Mrs. Friedkin overheard no age , disability , or

retaliation - related comments during this heated exchange.

TESTI MONY OF MONTE FRIEDKIN

23. He confirmed t hat P etitioner was his c hef and also did

some assorted chores and supervision around his house.

24. H e directed P etitioner to make a meal and have it ready

for them to pick up at his residence by 3:00 p.m. on the day in

question . He testified that P etitioner always cooked any food

for his family at his residence.

25. When they arrived around 3:00 p . m . at the house ,

P etitioner was not there , and there was no food.

26. He tried to call her and had to leave a mess age. They

decided to go to Whole Foods to buy the meal. They departed for

Whole Foods around 3:40 p . m.

27. His description of the event was consistent with his

wifeÓs testimony.

28. In addit ion to the delay caused by P etitioner,

Mr. Friedkin testified that it was important to him that she was

presentable at all times around him and his family.

29. During the confrontation in the driveway , he terminated

her employment . He testified that he had experienced some other

performance issues with her over th e months preceding this event

and that she had begun to r espond to questions and directi ves

from him in increasingly insubordinate way s.

30. As far as her termination was concerned, he

unequivocally denied that her age, a disability , or retaliation

was ev er considered or motivated his decision .

31. He admitted that Petitioner told him that she had a car

accident in one of their vehicles sometime in 2011. However, she

continued to work for him for approximately two years after the

accident without inciden t . She did complain to him , at some

point, of some neck pain . He denied that Petitioner ever gave

him any medical documents verifying or stating that she was

disabled.

32. On cross - examination by P etitioner , Mr. Friedkin

elaborated that , during the mont hs preceding the food incident,

she had become more and more insubordinate , and there was a

growing problem with her not following instructions he gave her.

In his words, t he incident at his residence involving the turkey

dinner was the proverbial Ðstraw that broke the camelÓs back . Ñ

33. On redirect , Mr. Friedkin denied ever considering any

disability and said he did not even know she was Ðdisabled . Ñ 4/

TESTIMONY OF ROSARIO DIAZ

34. Another witness, M r s. Diaz, testified that Mr. and

Mrs. Friedkin arriv ed at the residence at around 3:00 p.m. and

came into her office. They wanted to know whether or not

P etitioner was there with the food , and whether or not she had

called. Diaz told him that she was not there and did not call.

Mr. and Mrs. Friedkin then departed.

35. Approximately 30 minutes later , P e titioner came into

her office u pset and said that she could no t believe what had

just happened and t hat Mr. Friedkin had just fired her . Ms. Diaz

commented to her that maybe they were upset because she was late.

36. Mrs. Diaz had worked for Mr. Friedkin for nearly

30 years. She interacted with P etitioner at the residence

freq uently. She testified that P etitioner never complained to

her about age, disability , or other discriminat ory remarks or

comments by Mr. Friedkin. She also testified that she never

overheard any com ments by Mr. Friedkin about P etitionerÓs age or

disability , or how either may have affected P etitionerÓs work

performance .

37. A t P etit i onerÓs request, r ecorded portions of a n

unemployment compensation hearing , conducted by an appeals

referee from the Florida Department of Economic Opportunity

(DEO) , were played . P etitioner represented that the purpose was

to show that Mr. Friedkin had made several statements during that

hearing that were inconsistent with his present testimony.

38. Th e D EO hearing w as to determine whether or not

P etitioner was entitled to unemployment com pensation benefits.

DEO ruled in P etitionerÓs favor and found that she was not

disqualified from receiving benefits an d that no ÐmisconductÑ

occurred on the job as a result of the Yom Kippur meal incident . 5/

3 9 . The undersigned find s that Mr. Friedkin did not m ake

any materially inconsistent statements during the D EO hearing

bearing upon his credibility as a witnesses in this case.

40. There was in s ufficient proof offered by Petitioner to

show that R espondentÓs proffered explanation for her termination

(poor work performance) was not true , or was only a pretext for

discrimination .

CONCLUSIONS OF LAW

41 . DOAH ha s personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 1 20.57(1),

Florida Statutes (2015 ).

42 . The Florida Civil Rights Act of 1992 (ÐFCRAÑ), chapter

760, Florida Statutes (2015) , prohibits discrimination in t he

workplace. Among other things, the FCRA makes it unlawful for an

employer:

To discharge or to fail or refuse to hire any

individual with respect to compensation,

terms, conditions, or privileges of

employment, because of such individualÓs

race, color, religion, sex, national origin,

age, handicap, or marital status.

§ 760.10(1)(a), Fla. Stat.

43 . The FCRA, as amended, is patterned after the Age

Discrimination in Employment Act (ÐADEAÑ) and Title VII of the

Civil Rights of 1964. Thus, federal decisional authority

interpreting the ADEA is applicable to age discrimination cases

arising under the FCRA . Petrik v. City of Pembroke Pines , 120

So. 3d 102 (Fla. 4th DCA 2013); Sunbeam TV Corp. v. Mitzel , 83

So. 3d 865, 877 n. 3 (Fla. 3d DCA 2012); Wool sey v. Town of

Hillsboro Beach , 201 3 U.S. App. LEXIS 18569, *1 n. 1 (11th Cir.

2013).

44 . Likewise, FCHR and Florida courts have det ermined that

federal d iscrimination law should be used as guidance when

construing the other anti - discrimination prov isions of section

760.10. See, e.g. , Fla. State Univ. v. Sondel , 685 So. 2d 92 3,

925 n.1 (Fla. 1st DCA 1996); Valenzuela v. GlobeGround N. Am.,

LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009).

A. AGE DISCRIMINATION

45 . To prevail on an age discrimi nation claim , Petitioner

was required to p rove by a preponderance of the evidence , which

may be direct or circumstantial , that age was the Ðbut - forÑ

reason for the termination or other adverse employment action by

the employer. In other words, Ðbut forÑ h er age, P etitioner

would not have been terminated. Gross v. FBL Fin. Servs., Inc. ,

557 U.S. 167, 177 - 78 (2009); G reene v. Sch. Bd. of Broward C nty . ,

2014 U.S. Dist. LEXIS 111664 *13 - 14 (S.D. Fla. 2014).

B. DISABILITY DISCRIMINATION

46 . To st ate a prima facie case of discrimination based on

a disability, P etitioner was required to prove that : (a) s he ha d

a disability; (b) sh e was a qualified individual with a

disability; and (c) s he was subjected to unlawful discrimination

because of h er disa bility. Morisky v. Broward Cnty. , 80 F.3d

445, 447 (11th Cir. 1996).

47 . To establish the first prong of th is test, Petitioner

was required to prove by a preponderance of the evidence that :

(1) s he had a physical disability that substantially limit ed one

or more of the major life activities; (2) s he had a record of

such impairment; or (3) that s he was regarded by Respondent a s

having an impairment. See 42 U.S.C. § 12102(1)(A) - (C).

48 . A n impairment's minor interference in major life

activitie s does not qualify as a disability. Toyota Motor Mfg.,

Kentucky, Inc. v. Williams , 534 U.S. 184, 198 (2002). The

impai rment's impact must be permanent , and t he e mployer must know

of the impair ment.

49 . While medical records can serve as a basis fo r

demonstrating a disability, Petitioner must prove from h er

records that s he actually suffered a physical impairment in the

past and that it substantially limited h er major life activities.

Cribbs v. City of Altamonte Springs , 2000 U.S. Dist. LEXIS 20084

(M.D. Fla. Oct. 18, 2000). T he re was scant, if any, evidence

f rom P eti ti oner to describe what her disability was or how it

affected her ability to work or other wise how it impaired her

work or major activities of her life .

C. RETALIATION

50 . T o establish a prima facie case of retaliation,

Petitioner must show that: (1) she was engaged in an activity

protected by c hapter 760; (2) she suffered an adverse employment

action by her employer; and (3) there was a causal connection

between the protect ed activity and the adverse employment action.

See Pennington v. City of Huntsville , 261 F.3d 1262, 1266 (11th

Cir. 2001).

STANDARDS OF PROOF IN A DISCRIMINATION CASE

51. Generally, two types of evidence are used in employment

discrimination cases -- d irect and circumstantial evidence , or a

combination of both .

52. Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption and must in some way relate to the

adverse action against the complainant. G reene v. Sch. Bd. of

Broward C nty . , supra . Only the most blatant or direct remarks,

whose intent could mean nothing other than to discriminate on the

basis of age, constitute direct evidence of age discrimination.

Id . at 2 6 .

53. In this case, t here was no direct evidence of

discrimination offered by Petitioner. More specifically, there

w as no evidence in the form of blatant or direct verbal

statements, emails, memos or documents offered to show that

Respondent int ended to discriminate against Petitioner because of

her age, disability , or to retaliate for some protected activity

or class .

54 . When direct evidence of discrimination does not exist,

the employee may attempt to establish a prima facie case by way

of circumstantial evidence through the burden - shifting legal

framework articulated by the United States Supreme Court in

McDonnell Douglas Corporation v. Green , 411 U.S. 7 92, 802 - 805

(1973).

55. However, f ailure to establish a prima facie case of

di scrimination by either direct or circumstantial evidence ends

the inquiry. See Kidd v. Mando Am. Corp. , 731 F.3d 1196, 1202

(11th Cir. 2013). If, however, the employee succeeds in making a

prima facie case, the burden then shifts to the employer to

artic ulate a legitimate, non - discriminatory reason for its

complained - of conduct. Id. This intermediate burden of

persuasion by the employer is "exceedingly light." Vessels v.

Atlanta Indep. Sch. Sys. , 408 F.3d 763, 769 - 70 (11th Cir. 2005).

56 . If the employer meet s this burden, the employee is

obligated to prove that the proffered rea son was not the true

reason for the employment decision, but rather was a pretext or

excuse for discrimination. Kidd , 731 F.3d at 1202. The employee

m ay satisfy this bu rden directly by showing t hat a discriminatory

reason more likely than not motivated the termination decision,

or indirectly, by showing that the proffered reason for the

employment decision is not worthy of belief. Dep't of Corr. v.

Chandler , 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991).

57 . Notwithstanding these shifts in the burden of

production, the ultimate burden of persuasion remains at all

times with the employee. Byrd v. BT Foods, Inc. , 948 So. 2d 921,

927 (Fla. 4th DCA 2007).

58 . In ev aluating claims of discrimination in the

workplace, it is important to remember that Ð c ourts do not sit as

a super - personnel department that re - e xamine an entityÓs business

decisions.Ñ Da vis v. Town of Lake Park, Fl a . , 245 F. 3d 1232,

1244 (11th Cir. 2001) . Whether an employment decision was

prudent , just , or fair is irrelevant because an employer Ðmay

fire [Petitioner] for a good reason, a bad reason, a reason based

on erroneous facts, or for no reason at all,Ñ as long as its

action is not for a discrimin atory reason. Nix v. WLCY

Radio/Rahall CommcÓns , 738 F. 2d 1181, 1187 (11th Cir. 1984).

59 . Further, an employee may not recast the employerÓs

proffered nondiscriminatory reasons o r substitute her business

judgment for that of the employer. Chapma n v. AI Transport, et

al. , 229 F. 3d 1012, 1030 (11th Cir. 2000). Provided that the

proffered reason is one that might motivate a reasonable

employer, an employee must meet those reasons head on and rebut

them, and the employee cannot succeed by simply qua rrelling with

the wisdom of those reasons. Id.

60. The ultimate burden of persuading the trier of fact

that an employer intentionally discriminated against the employee

because of age or other reasons remains at all times with the

employee. See , ge n . Gross v. FBL Fin. Servs., Inc. , 557 U.S.

167, 177 (2009).

ULTMATE FINDINGS AND CONCLUSIONS OF LAW

61 . Turning to this case, b ased on the evidence presented

at the final hearing , there was no credible or persuasive

evidence presented to show that R espondent discriminated against

Petitioner and fired her because of her age, disability , or in

retaliation for some protected activity.

62. The persuasive and credible evidence presented at

hearing showed that Petitioner was terminated because of po or job

performance on September 13, 2013 , and other increasing concerns

about her job performance and insubordination.

63 . Likewise, t here was no credible evidence presented by

Petitioner to show that the reason s given by Respondent for her

termin ation w ere not true.

64 . Petitioner failed to d emonstrate Ðsuch weaknesses,

implausibilities, inconsiste ncies, incoherencies, or

contradictions in the employerÓs proffered legitimate reasons for

its actions that a reasonable factfinder could find the m unworthy

of credence.Ñ Combs v. Plantation Patterns, Meadowcraft, Inc. ,

106 F. 3d 1519, 1538 (11th Cir. 1997).

65. While Mr. FriedkinÓs decision to terminate P etitioner

may seem unfair , abrupt , or even unjustified , this does not

convert an otherw ise legitimate termination into an unlawful or

illegal termination.

66. Likewise, the fact that DEO concluded that RespondentÓs

reason for PetitionerÓs termination did not rise to the level of

Ð misconduct , Ñ sufficient to justify disqualifying P etiti oner f rom

receiving unem ployment compensation benefits , is not persuasive

or relevant primarily because the standards of proof are

different. Se e D onnell v. Univ. Cmty. Hosp. , 705 So. 2d 1031

( Fla. 2 d DCA 1998) ( "Although an employee's actions may justify

discharge, the same conduct does not necessarily preclude

entitlement to unemployment benefits." ) , citing Betancourt v. Sun

Bank Miami, N.A. , 672 So. 2d 37, 38 (Fla. 3d DCA 1996).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

L aw, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Pet ition f or Relief and find in

RespondentÓ s favor.

DONE AND ENTERED this 27 th day of January , 2016 , in

Tallahassee, Leon County, Florida.

S

Robert L. Kilbride

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

Divisio n of Administrative Hearings

this 2 7 th day of January , 2016 .

ENDNOTE S

1/ Petitioner testified that she ÐdidnÓt specifically complain

regarding discriminationÑ but that she Ðasked for minor

accommodations because of my neck injuries.Ñ However, she did

not elaborate on what specific accommodations were requested, who

she spoke with, what disability she described, or whether or not

her requests were fulfilled or denied.

2/ While there was considerable evidence on this subject, its

relevance and probati ve value was limited , and it has little or

no bearing on the outcome of this case.

3/ The meal was being prepared for a special family event with

their children and grandchildren which undoubtedly added to their

frustration and concern. There was also s ome urgency because

their Yom Kippur meal needed to be consumed before sundown to

comply with Jewish custom and practice.

4/ Other than Petitioner providing the undersigned with

voluminous medical records and reports, there was no evidence to

explain her injuries, or how they may have affected or limited

her work or major life activities. Further, there was no

evidence to show what medical records were discussed with or

provided to Respondent, Benada Aluminum Florida, Inc.

5/ The undersigned notes that the relevance of an adverse finding

in an unemployment compensation proceeding under c hapter 443 , is

of limited relevance. The standard for proving ÐmisconductÑ in

a DEO hearing to disqualify an employee from benefits is

significantly different than the burdens of proof in a

discrimination case or what may constitute sufficient grounds to

terminate employment. In fact, in Ðat willÑ employment, no

grounds are required.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relatio ns

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Grissel T. Seijo, Esquire

Littler Mendelson, P.C.

Wells Fargo Center, Suite 2700

333 Southeast 2nd Avenue

Miami, Florida 33131

(eServed)

Caryl J. Zook

5425 43rd Street

Vero Beach, Fl orida 32967

(eServed)

Cheyanne Costilla , General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written excepti ons 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.