16-000147 Marcella Taggart vs. Publix Super Markets, Inc. Status: Closed Recommended Order on Tuesday, May 24, 2016.

Summary: Petitioner's termination from employment was based on dishonesty and not discriminatory.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCELLA TAGGART,

Petitioner,

vs. Case No. 16 - 0147

PUBLIX SUPER MARKETS, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On March 22, 2016, an administrativ e hearing in this case

was held by video teleconference in Lakeland and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Katherine A. Heffner, Esquire

Council on American - Islamic Relations

8076 North 56th Street

Tampa, Florida 33617

For Respondent: Edmund J. McKenna, Esquire

Ogletree, Deakins, Nash, Smoak

and Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in the case is whether Marcella Taggart

(Petitioner) was the subject of unlawful discrimination by

Publix Super Mark ets, Inc. (Respondent) , in violation of

c hapter 760, Florida Statutes.

PRELIMINARY STATEMENT

By Complaint of Discrimination filed with the Florida

Commission on Human Relations (FCHR) on June 25, 2015, the

Petitioner alleged that the Respondent committe d unlawful

discrimination on the basis of race, color, sex, age, and in

retaliation.

By Notice of Determination dated December 7, 2015, the FCHR

determined that there was Ðno reasonable cause to believe that

an unlawful employment practice occurred.Ñ

O n January 11, 2016, the Petitioner filed a Petition for

Relief with the FCHR. On January 13, 2016, the FCHR forwarded

the Petition for Relief to the Division of Administrative

Hearings, which scheduled and conducted the proceeding.

At the hearing, the P etitioner testified on her own behalf,

presented the testimony of four additional witnesses, and had

Exhibits identified as E, G, I, J and K admitted into evidence.

The Respondent presented the testimony of three witnesses, and

had Exhibits numbered 14, 1 6, 17, 20, 33, 34, and 46 admitted

into evidence. 1/

A T ranscript of the hear ing was filed on May 2, 2016.

Proposed recommended o rders were due to be filed by May 12,

2016. On May 9 , 2016, the Respondent filed a Proposed

R ecommended O rder. On May 13, 2 016, the Petitioner filed a

Motion for Extension of Time to File Proposed Recommended Order

seeking to extend the deadline to May 20, 2016. On May 16,

2016, the Respondent filed a Memorandum in Opposition to the

PetitionerÓs motion. On May 20, 2016, the Petitioner filed a

Proposed Recommended Order.

The PetitionerÓs motion failed to comply with Florida

Administrative Code Rule 28 - 106.204(3) which requires that a

motion include a statement that the movant has conferred with

all other parties of record an d state whether any party objects.

Additionally , th e motion failed to comply with r ule 28 -

106.204(4) which requires that motions for extensions of time

must be filed prior to the deadline sought to be extended and

must state good cause for the request. N onetheless, both

Proposed Recommended Orders have been revie wed in the

preparation of this O rder.

FINDINGS OF FACT

1. Beginning in June 2007, and at all times material to

this case, th e Petitioner was employed as a systems a nalyst in

the RespondentÓs In formation Technology (IT) department.

2. The Respondent is a Florida corporation that operates a

chain of grocery stores.

3. The RespondentÓs IT departme nt is a high - security unit.

A s ystems a nalyst working in the IT department has access to the

Res pondentÓs financial and product pricing systems. Such an

employee would also have access to some confidential human

resources department data, including names, addresses, social

security numbers, and banking information of the RespondentÓs

other employees .

4. At the hearing, the Petitioner testified that some co -

workers harassed her by repeatedly asking questions about her

hair when she wore it in a braided hairstyle.

5. The Respondent has adopted an explicit policy

prohibiting all forms of harassmen t. In relevant part, the

policy states as follows:

The very nature of harassment makes it

virtually impossible to detect unless the

person being harassed registers his or her

discontent with the appropriate company

representative. Consequently, in orde r for

the company to deal with the problem,

offensive conduct o r situations must be

reported.

6. The policy identifies a specific formal process by

which an employee who feels harassed may lodge a complaint about

such behavior.

7. The Petitioner did not file a formal complaint about

the alleged harassment related to her hairstyle.

8. The evidence fails to establish that the Petitioner

informally complained to the Respondent about such alleged

harassment prior to her termination from employment.

9. In April 2009, the Petitioner participated in a work -

related meeting, during which the Petitioner perceived that she

was treated by another female employee in a demeaning manner.

10. The Petitioner reported the other employeeÓs behavior

in an email to supervisor Terry Walden.

11. The other employee wrote a similar email complaining

about the PetitionerÓs behavior at the meeting, and, according

to the PetitionerÓs email, the Petitioner was aware of the other

employeeÓs report.

12. Although the P etitioner now asserts that she

complained that the incident was discriminatory, the

PetitionerÓs email, which was written at the time of the

incident, does not state or imply that the incident was related

to some type of discriminatory conduct by the other employee, or

that the altercation was related to anything other than assigned

work responsibilities.

13. In May 2014, the Petitioner and a white male co - worker

engaged in an office confrontation about assigned work

responsibilities. Both the Responden t and the other employee

separately reported the incident to supervisors. The Respondent

investigated the incident and interviewed other employees who

observed, but were not involved in, the confrontation.

14. As a result of the incident, the Petitione r received a

written memo of counseling on June 16, 2014, from supervisor

Greta Opela for Ðpoor interpersonal skills.Ñ The memo reported

that the Petitioner Ðconsistently performed well in her position

from a technical standpointÑ but that she Ðhas had on going

associate relations issues.Ñ

15. The memo stated that the Petitioner was unable to work

appropriately with other employees and that Ðmany associates

have requested not to work with her because of their previous

interactions with her.Ñ

16. The m emo noted that the PetitionerÓs behavior towards

her co - workers had been referenced in previous performance

evaluations, as well as in direct discussions between the

Petitioner and her immediate managers.

17. In relevant part, the memo further stated as follows:

Of concern, when coached or provided

constructive criticism, Marcella is very

unrec eptive and often becomes defensive and

deflects blame to others. Given Marcella

has had interpersonal conflicts with

numerous individuals, Marcella needs to

recog nize her role in these conflicts, take

ownership for her actions, and work to

correct her behavior.

* * *

Marcella must treat her fellow associates

with dignity and respect. Also Marcella

must take ownership for her actions and work

to improve upon he r relationships with her

peers. Should Marcella fail to improve upon

her interpersonal skills, she will be issued

additional counseling, removed from her

position, or separate d from Publix.

18. The PetitionerÓs written acknowledgement of her

receipt of the memo indicated that she disagreed with the

assessment.

19. The Petitioner asserts that the Respondent committed

an act of discrimination against her because the Respondent did

not issue a similar memo to the other employee. The evidence

fails to su pport the assertion.

20. The evidence fails to establish that the Respondent

had any reason to issue a similar memorandum to the other

employee, or that the other employee had a documented history of

exhibiting Ðpoor interpersonal skillsÑ that could war rant

counseling.

21. There is no evidence that the June 2014 memo was

related in any manner to the PetitionerÓs race, color, sex, age,

or was retaliatory. Although the memo was placed in the

PetitionerÓs personnel file, the Respondent took no adverse

e mployment action against the Petitioner as a result of the memo

or the underlying incident.

22. On June 23, 2014, the PetitionerÓs house, which she

owned with her husband, was partially destroyed in a fire. The

Petitioner had been called to the scene a fter the fire

commenced, and was present as the structure burned.

23. T he fire and subsequent events resulted in an

investigation by the State Fire MarshallÓs Office.

24. On April 1, 2015, the Petitioner informed supervisor

Opela that the Petitioner had to go to the Hillsborough County

SheriffÓs Office (HCSO) and was unsure whether she would return

to work on that day. Thereafter, the Petitioner left the

workplace and traveled to the HCSO where she presented herself

for arrest on a felony charge of m aking a Ðfalse and fraudulent

insurance claim.Ñ

25. After the Petitioner left her place of employment,

Ms. Opela accessed an internet resource and learned of the

pending charge against the Petitioner.

26. Ms. Opela reported the information to her ow n

supervisor, Ms. Walden, and to Susan Brose, a manager in the

RespondentÓs human resources department. Ms. Brose reviewed the

available internet information, and then arranged with the

Petitioner to meet upon her return to the workplace.

27. At the he aring, Ms. Brose testified that the

Respondent requires complete honesty from its employees, and

that, according to the Re spondentÓs policies, dishonest of any

kind is unacceptable and can result in termination from

employment. Ms. Brose testified that sh e restates the

requirement at the commencement of every personnel disciplinary

meeting, and did so at the beginning of her meeting with the

Petitioner, after which she asked the Petitioner to explain the

situation.

28. The Petitioner responded by stating that there had

been a fire at the house, that there had been no insurance on

the house, that her husband had filed a claim, and that she had

asked the insurance carrier not to pursue the claim. The

Petitioner denied to Ms. Brose that she had been arrested at the

HCSO.

29. Ms. Brose also spoke with William Harrison, a

detective with the Florida Department of Financial Services,

Division of Insurance Fraud. Mr. Harrison prepared and executed

the Summary of Offense and Probable Cause Statement (Probable

C ause Statement), dated December 4, 2014, which formed the basis

for the PetitionerÓs arrest on April 1, 2015.

30. According to the Probable Cause Statement: the

Petitioner was aware at the time of the fire that the

homeownerÓs insurance on the house ha d lapsed for non - payment of

the premium; the Petitioner was present at the scene of the fire

and became aware that the policy could be reinstated during the

Ðgrace periodÑ by payment of the premium due, as long as the

house had suffered no damage during th e uninsured period; the

Petitioner was warned at the scene of the fire by an employee of

the S tate Fire MarshallÓs office that the reinstatement of the

lapsed policy without disclosing the damage could constitute

insurance fraud; and the Petitioner was ove rheard on the phone

at the scene of the fire having the lapsed policy reinstated.

31. Ms. Brose became aware that, when having the lapsed

insurance policy reinstated, the Petitioner executed a

ÐStatement of No LossÑ form that provided in relevant part a s

follows:

I CERTIFY THAT THERE HAVE BEEN NO LOSSES,

ACCIDENTS OR CIRCUMS TANCES THAT MIGHT GI VE

RISE TO A CLAIM UNDE R THE INSURANCE POLI CY

WHOSE NUMBER IS SHOW N ABOVE.

32. After completing her review of the circumstances,

Ms. Brose concluded that the Petitioner had been dishonest

during their meeting.

33. Ms. Brose recommended to Ms. Walden that the

PetitionerÓs employment be terminated because the Petitioner

worked in a high - security unit of the IT department where she

had access to confidential fi nancial information and systems,

the Petitioner had been arrested for fraud, and the Petitioner

was not honest when asked to explain the circumstances.

34. On April 13, 2015, Ms. Walden terminated th e

PetitionerÓs employment as a systems a nalyst for the reasons

identified by Ms. Brose.

35. The Petitioner presented no evidence that the

RespondentÓs termination of her employment was related to the

PetitionerÓs race, color, sex, age, or in retaliation for any

complaint of discrimination.

CONCLUSIONS O F LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2015). 2 /

37. The Petitioner has alleged that she was subjected to

unlawful discrimination by the Respondent on the basis of race,

color, sex, age, and i n retaliation, in violation of

c hapter 760, Florida Statutes. The Petitioner has the burden of

proving by a preponderance of the evidence that the Respondent

committed an unlawful employment prac tice. Fla. DepÓt of

Transp. v. J.W.C. Co. , 396 So.2d 778 (Fla. 1 st DCA 1981). The

burden has not been met.

38. Chapter 760, Part I , sets forth the Florida Civil

Rights Act of 1992 (the "Act"). The Respondent is an ÐemployerÑ

as defined in section 760 .02(7). Section 760.10, provides in

relevant part as follows:

(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 c ompensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment ag ency, 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 because that

person has made a charge, testifi ed,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

39. Florida courts interpreting the provisions of

s ection 760.10 , have held that federal discrimination laws

should be used as guidance when co nstruing provisions of the

Florida law. See Brand v. Fl a . Power Corp. , 633 So. 2d 504, 509

(Fla. 1st DCA 1994); Fl a . DepÓ t of C m ty . Aff airs v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

40. The Petitioner has the ultimate burden to establish

discrimi nation either by direct or indirect evidence. Direct

evidence is evidence that, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 578, 581 - 582 (11th Cir. 1989).

Blatant remarks, whose intent could be nothing other than to

discriminate, constitute direct evidence of discrimination. See

Earley v. Champion Int Ól Corp . , 907 F.2d 1077, 1081 (11th Cir.

1990). There is no credible evidence of direct discrimination

in this case.

41. Absent direct evidence of discrimination, Petitioner

has the burden of establishing a prima facie case of

discrimination. St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993); Texas Dep Ó t of Cmty. Affairs v. Burdine , 450 U.S. 248

(1981); McDonnell Dougla s Corp. v. Green , 411 U.S. 792 (1973).

42. When there is no direct evidence of discrimination,

the Petitioner may establish unlawful discrimination through the

presentation of circumstantial evidence. Such evidence is

subject to the analysis set forth in McDonnell Douglas and

Burdine , 450 U.S. 248 (1981). Under such analysis, the

Petitioner has the initial burden of establishing a prima facie

case of unlawful discrimination.

43. If the Petitioner is able to prove a prima facie case

by a preponderanc e of the evidence, the burden shifts to the

Respondent to articulate a legitimate, non - discriminatory reason

for its actions. Assuming the employer articulates a

legitimate, nondiscriminatory reason for the employment

decision, the burden then shifts back to the Petitioner who must

establish that the reason offered by the employer is not the

true reason, but is mere pretext for the decision. The question

becomes whether or not the proffered reasons are "a coverup for

a . . . discriminatory decision." McD onnell Douglas , 411 U.S.

at 805.

44. The ultimate burden of persuading the trier of fact

that there was intentional discrimination by the Respondent

remains with the Petitioner. Burdine , 450 U.S. at 253.

45. The evidence presented in this case is in sufficient to

meet the burden of establishing a prima facie case of

discrimination against the Petitioner based on the PetitionerÓs

race, color, sex, or age. Because the failure to establish a

prima facie case ends the analysis, the PetitionerÓs complaint

of discrimination must be dismissed.

46. In order to establish a prima facie case of

retaliation, the Petitioner must satisfy four requirements. The

Petitioner must show that she engaged in a statutorily protected

activity, that the Respondent was awa re of the protected

activity, that the Petitioner suffered adverse employment

action, and that the adverse action was causally related to the

protected activity. See Little v. United Technologies, Carrier

Transicold Div . , 103 F.3d 956, 959 (11th Cir. 1997 )(citing Coutu

v. Martin Cnty . Bd . of Cnty . Comm Ór s , 47 F.3d 1068, 1074 (11th

Cir. 1995)).

47. The evidence fails to establish that the Petitioner

filed any formal complaint (the Ðstatutorily protected

activityÑ) alleging unlawful discrimination or hara ssment by any

employee while she was employed by the Respondent. The

PetitionerÓs specific allegations of unlawful harassment were

first raised after the PetitionerÓs employment was terminated.

Accordingly, the evidence fails to establish that the

Petiti onerÓs termination (the Ðadverse employment actionÑ) was

in retaliation for any such complaint. The Petitioner has

failed to establish a prima facie case of retaliation .

A ccordingly, the analysis ends and the complaint of retaliation

must be dismissed.

48. Even had the Petitioner met the burden of establishing

a prima facie case of discrimination or retaliation, the

Respondent more than met its burden to articulate a legitimate,

non - discriminatory reason for its termination of the Petitioner

from emplo yment.

49. The Petitioner was employed in a position allowing

access to confidential data of the Respondent and its employees.

The PetitionerÓs employment was terminated by the Respondent for

being dishonest when she was asked to disclose the details o f

her felony arrest for making a false and fraudulent insurance

claim. The Petitioner presented no evidence whatsoever that the

rationale offered by the Petitioner for the termination was mere

pretext for an act of discrimination or retaliation.

RECOMME NDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petitioner's

complaint of discrimination.

DONE AND ENTERED this 24th day of May , 2016 , 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 24th day of May , 2016 .

ENDNOTE S

1/ PetitionerÓs Exhibit K and RespondentÓs Exhibit 17 are the

same document, which was also referenced as Joint Exhibit 17

during the hearing.

2/ All statutory references are to Florida Statutes (2015).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed )

Edmund J. McKenna, Esquire

Ogletree, Deakins, Nash, Smoak

and Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Katherine A. Heffner, Esquire

Council on American - Islamic Relations

8076 North 56th Street

Tampa, Florida 3 3617

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wit hin

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.