17-000018 Hassan Habibi vs. Auto Club Group Status: Closed Recommended Order on Wednesday, May 31, 2017.

Summary: Petitioner failed to prove he was subject to an unlawful employment practice by Respondent based on his race, religion, or national origin. Further, Petitioner failed to demonstrate he was constructively discharged from his employment with Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HASSAN HABIBI,

Petitioner,

vs. Case No. 17 - 0018

AUTO CLUB GROUP,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted be fore

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on March 23, 2017, by video

teleconference with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Hassan Sarfraz Habibi , pro se

Post Office Box 950033

Lake Mary, Florida 32795

For Respondent: Christine E. Howard, Esquire

Fisher & Phillips LLP

Suite 2350

101 East Kennedy Boulevard

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Petitioner, Hassan Habibi, was subject to an

unlawful employment practice by Respondent, Auto Club Group,

based on his race, religion, or nat ional origin in violation of

the Florida Civil Rights Act.

PRELIMINARY STATEMENT

On May 12, 2016, Petitioner filed a Charge of Discrimination

with the Florida Commission on Human Relations (the ÐCommissionÑ)

alleging that Respondent, Auto Club Group (the Ð Auto ClubÑ),

violated the Florida Civil Rights Act by discriminating against

him based on his race, religion, or national origin.

On December 6, 2016, the Commission notified Petitioner that

no reasonable cause existed to believe that the Auto Club had

com mitted an unlawful employment practice.

On January 3, 2017, Petitioner filed a Petition for Relief

with the Commission alleging a discriminatory employment

practice. The Commission transmitted the Petition to the

Division of Administrative Hearings (ÐDOAH Ñ) to conduct a

chapter 120 evidentiary hearing.

The final hearing was held on March 23, 2017. At the final

hearing, Petitioner testified on his own behalf. PetitionerÓs

Exhibit 1 was admitted into evidence. The Auto Club presented

the testimony of She rry Latour, Jami Mieser, Amy Thornhill, and

Jeanette Wieland. Auto Club Exhibits 1 through 19 were admitted

into evidence.

A two - volume Transcript of the final hearing was filed on

May 1, 2017. At the close of the hearing, the parties were

advised of a t en - day timeframe following receipt of the hearing

transcript at DOAH to file post - hearing submittals. Both parties

timely filed Proposed Recommended Orders which were duly

considered in preparing this Recommended Order.

FINDING S OF FACT

1. The Auto Club is affiliated with the American Automobile

Association (ÐAAAÑ), a national not - for - profit organization that

provides its members with benefits relating to travel, emergency

roadside assistance, and insurance coverage.

2. Petitioner initiated this matter a lleging that the Auto

Club discriminated against him b ased on his race, religion, or

national origin. Petitioner was born in Pakistan. He is a

Muslim.

3. On April 21, 2015, the Auto Club hired Petitioner as a

temporary employee through Randstad, a third - party employee

staffing firm.

4. The Auto Club placed Petitioner in the position of a

Membership Service Representative at its membership services call

center in Heathrow, Florida. Generally, a Membership Service

Representative is responsible for handli ng, processing, and

resolving incomin g calls from Auto Club members.

5. PetitionerÓs last day of work for the Auto Club was

May 14, 2015, three and a half weeks after he began his job.

6. Petitioner spent his first two weeks with the Auto Club

in a trai ning class learning how to properly handle and respond

to service calls from Auto Club members. PetitionerÓs training

class consisted of approximately 15 people. His instructor was

Amy Thornhill. Petitioner reported to Jeanette Wieland, Manager

of the M embership Servi ce Customer Interaction Center.

7. At first, Petitioner sat in the back of his training

classroom. However , he soon requested to relocate after he

became increasingly distracted by the clicking of a pen by

another trainee. Ms. Thornhill f acilitated PetitionerÓs request

and moved him to the front of the room. She also advised the

class to be respectful of the other trainees.

8. On May 13, 2015, Petitioner was scheduled to leave the

training class and begin handling live calls on the servi ces call

center floor. However, Petitioner called in sick that day and

did not report to work.

9. While he was out, Petitioner composed an e - mail for

Ms. Wieland. Petitioner wrote that he believed problems that he

had experienced at a job he recently h eld at Aon Hewitt had

fo llowed him to the Auto Club.

10. In an attachment to his e - mail, Petitioner listed

several Ðbizarre thingsÑ and objectionable behavior he was

experiencing at the Auto Club. Petitioner believed that on

either April 21 or 22, 2015, someone from Aon Hewitt had appeared

at the Auto Club office and was ÐbrainwashingÑ people to harass

and intimidate him (t he same way he was harassed at Aon Hewitt) .

Petitioner advised that this person might have been seeking

revenge against him.

11. P etitioner proposed that he be allowed to review the

Auto Club video surveillance footage of the parking lot on

April 21 and 22, 2015, with the Lake Mary Police Department, the

Seminole County SheriffÓs Office, and/or Auto Club security.

Petitioner believ ed that the video would lead to the arrest and

prosecution of the perpetrators who were brainwashing Auto Club

employees and had damaged his car in the Auto Club parking lot.

12. Finally, Petitioner complained about how he was treated

by several trainees in his training class including Sherry

Lato ur, ÐEdgardo,Ñ and ÐJudith.Ñ

13. Petitioner returned to work the next day on May 14,

2015. He reported to the call center floor for his first day

taking live customer service calls. Unfortunately, Petitioner

fo und his work shift extremely disconcerting. After he began

handling phone calls, a man named ÐTerranceÑ sat next to him.

Petitioner recounted that Terrance began loudly conversing with a

nearby friend in such a disruptive and distracting manner that

Peti tioner could not hear the customers speaking over the

telephone. Petitioner became very concerned that his quality

assurance scores would decrease.

14. Petitioner recounted that Terrence never spoke directly

to him. However, Petitioner was alarmed to he ar Terrance mention

the e - mail that he had sent to Ms. Wieland the previous day.

Terrance ignored PetitionerÓs pleas for quiet.

15. At the final hearing, Petitioner proclaimed that

Terrance was intentionally placed next to him to prevent him from

doing h is job. Petitioner accused Ms. Wieland of deliberately

using Terrance in retaliation for the complaints he raised in his

May 13, 2015, e - mail. Petitioner alleged that Ms. Wieland

directed Terrance to be so disruptive that Petitioner would be

too scared t o return to work the next day.

16. Petitioner met with Ms. Wieland on May 14, 2015, around

5:00 p.m. during his mid - shift break. During their meeting,

Petitioner repeated that he strongly believed that someone from

Aon Hewitt had been brainwashing Auto C lub employees to harass

and intimidate him. Petitioner also complained that this person

had damaged his car in the Auto Club parking lot. Petitioner

again requested that he be allowed to review the Auto Club

surveillance video of the parking lot to try a nd identify the

individual.

17. Petitioner also complained that on several occasions

while he was in the Auto Club cafeteria, Edgardo and Judith threw

plastic knives at his feet. Petitioner emphasized that this

behavior occurred so much that Edgardo and Judith must have been

acting out on purpose. Petitioner stressed that someone from Aon

Hewitt was putting them up to it.

18. Ms. Wieland advised Petitioner to go the Lake Mary

P olice D epartment if he felt threatened. In the meantime, she

would check wit h Auto Club security regarding the surveillance

videos. Ms. Wieland also requested that he let her know

immediately if anything else occurred while he was working at the

Auto Club.

19. The next day, May 15, 2015, Petitioner called Randstad

and explained that he had encountered several problems at the

Auto Club. Consequently, he did not believe it was worth

continuing his employment there. Shortly thereafter, a Randstad

representative called Ms. Wieland and relayed that Petitioner did

not feel safe at th e Auto Club. Therefore, he w ould not be

returning to work.

20. On May 21, 2015, Petitioner e - mailed Ms. Wieland again.

Petitioner expressed that the people who committed the Ðegregious

actsÑ against him needed to be punished. Petitioner beseeched

Ms. W ieland to provide him Ms. LatourÓs last name so that he

could file civil charges against her. Petitioner further

contended that a former Randstad employee named ÐVictoriaÑ may

have been involved in Ms. LatourÓs objectionable actions.

Petitioner also indi cated that two other male employees threw

plastic knives and forks at his feet in the cafeteria in addition

to Edgardo and Judith. Petitioner wanted these people to be

punished. Finally, Petitioner declared that when he used the

rest room at the Auto Club , two male employees would come into the

restroom and do exactly the same thing an em ployee at Aon Hewitt

would do.

21. At the final hearing, Petitioner summarized the alleged

discriminatory incidents that he endured during his tenure with

the Auto Clu b t o include the following:

a. On several occasions, Petitioner encountered Ms. Latour

outside the menÓs restroom. Petitioner believed that she

intentionally positioned herself to block his exit. Petitioner

surmised that Ms. Latour was attempting to have h im commit

unwanted physical contact with her.

b. On several occasions, Ms. Latour, Edgardo, and Judith

stared at Petitioner while he was in the parking lot and watched

him enter the office building.

c. Ms. Latour once asked Petitioner where Edgardo and

J udith were sitting on the call center floor .

d. Ms. Latour and Ms. Thornhill held a secretive

conversation of which Petitioner believed he was the subject.

e. Edgardo did not shut the bathroom stall while he was

using the restroom (just like the people a t Aon Hewitt).

f. In the Auto Club cafeteria, Edgardo and Judith dropped

plastic forks and knives in front of Petitioner as he walked by.

Petitioner believed that they intentionally threw the utensils at

his feet to intimidate and provoke him. Petitione r believed that

someone from Aon Hewitt put them up to it.

g. An extremely noisy fan was placed next to Petitioner on

the call center floor which distracted him from his customer

service calls.

h. On several occasions, a sports utility vehicle parked

t oo close to his car in the parking lot which made opening his

car door difficult. (A similar incident occurred while

Petitioner worked at Aon Hewitt.)

i. Someone scratched the bumper of his car while he was

parked in the parking lot, perhaps to provoke h im.

22. Finally, Petitioner asserted that the Auto Club engaged

in a Ðmassive and elaborate effortÑ to cover up and conceal the

discriminatory acts of Ms. Latour. Petitioner claimed that

Ms. Latour was trying to blackmail or provoke him so that the

Auto Club would fire him. Petitioner was also frustrated that

the Auto Club would not produce video surveillance from the

restroom hallway which he ass erted would support his claim.

23. Although Petitioner objected to the conduct of several

individuals who w orked at the Auto Club, at the final hearing, he

specifically identified Ms. Latour as the only person who

discriminated against him. However, Petitioner acknowledged that

he never specifically complained to anyone that he was being

harassed based on his race, religion, or national origin during

the time he worked at the Auto Club. Neither did Petitioner ever

accuse Ms. Latour, Edgardo, or Judith of discriminating against

him.

24. Petitioner never informed anyone working for the Auto

Club that he was bor n in Pakistan. On the other hand, Petitioner

did recall a conversation with one co - worker (not Ms. Latour, or

Edgardo, or Judith) during which he mentioned that he was Muslim.

25. At the final hearing, Petitioner explained that he did

not realize that he was being illegally harassed until after he

left the Auto Club. Petitioner asserted that Ms. LatourÓs

objectionable behavior must have been based on his race because

he was the only person in his training class who was of Asian and

Pakistani origin or a Muslim. Petitioner explained that

Ms. Latour did not harass anyone else in their training class.

26. Amy Thornhill testified at the final hearing.

Ms. Thornhill stated that she had no knowledge of PetitionerÓs

race, religion, or national origin during the time he worked for

the Auto Club. Ms. Thornhill further claimed that she never

heard anyone make any comments about PetitionerÓs race, religion,

or national origin.

27. Ms. Thornhill recalled that Petitioner complained about

a fellow trainee who was tapping a pen during his training class.

She believed that she properly addressed the situation when she

allowed Petitioner to move to the front of the classroom. She

also cautioned the class to be mindful of their classmates.

28. Ms. Thornhill was awa re that Ms. Latour was also in

PetitionerÓs training class. Ms. Thornhill testified that she

never observed Ms. Latour behave inappropriately towards

Petitioner. Neither did she and Ms. Latour ever discuss

PetitionerÓs race, religion, or national origin. Ms. Thornhill

did not remember Petitioner complaining to her about

discrimination or harassment.

29. Ms. Latour, who is still employed with the Auto Club,

testified at the final hearing. Ms. Latour first met Petitioner

in their 2015 training class. Ms . Latour denied ever making any

improper or offensive actions or comments to Petitioner.

Ms. Latour denied that Edgardo or Judith encouraged her to

provoke him. Ms. Latour also asserted that she did not know

PetitionerÓs race, religion, or national orig in while he worked

at the Auto Club.

30. Ms. Latour further declared that she never blocked

PetitionerÓs exit from the menÓs restroom. She reported that the

womenÓs restroom is directly across the hallway from the menÓs

restroom and surmised that perhaps that was the reason Petitioner

encountered her in the hallway. Ms. Latour also relayed that

Auto Club employees routinely congregate in the hallway near the

training area and the elevators. Ms. Latour denied that she

participated in a conversation with Ms. Thornhill about

Petitioner. Ms. Latour also rejected PetitionerÓs allegatio n

that she purposefully watched him in the parking lot.

31. Despite the fact that Petitioner did not return to work

after May 14, 2015, the Auto Club continued to investigate his

complaints. Jami Mieser, a Senior Employee Relations Specialist

for the Auto Club, testified at the final hearing. Ms. Mieser

looked into the concerns Petitioner raised in his e - mails to

Ms. Wieland in May 2015. Ms. Mieser did not find any evidence

substantiating PetitionerÓs claims that Auto Club and Aon Hewitt

employees were intentionally provoking or discriminating against

him. Ms. Mieser did not notify Petitioner of the results of her

investigation in 2015. Petitioner had left the Auto Club by the

time she ha d completed her investigation.

32. Ms. Mieser also testified regarding the video

surveillance of the Auto Club parking lot. She explained that

Auto Club security only maintained the video for approximately

90 days. Therefore, the videos are no longer available to help

determine whether an individual purposefully damaged Petit ionerÓs

car in April 2015.

33. Ms. Wieland testified at the final hearing and

acknowledged that she did ask a man named Terrance to sit next

to Petitioner on his f irst day on the call center floor.

Ms. Wieland explained that she routinely places an experienced

Membership Service Representative next to a trainee to assist the

new employee with any issues. However, she denied instructing

Terrance to disrupt Petitio ner from doing his job or scare him

away from the Auto Club. Ms. Wieland also stated that Petitioner

never complained about Terrence durin g their May 14, 2015,

meeting.

34. Based on the competent substantial evidence in the

record, the preponderance of t he evidence does not establish that

the Auto Club discriminated against Petitioner based on his race,

religion, or national origin. Accordingly, Petitioner failed to

meet his burden of proving that the Auto Club discriminated

against him in violation of t he Florida Civil Rights Act.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120.569, 120.57(1), and 760.11(7),

Florida Statutes. See also Fla. Adm in. Code R. 60Y - 4.016.

36. Petitioner brings this matter alleging that the Auto

Club discriminated against him based on his race, religion, or

national origin in violation of the Florida Civil Rights Act of

1992 (ÐFCRAÑ). The FCRA protects individuals fr om discrimination

and retaliation in the workplace. See §§ 760.10 and 760.11, Fla.

Stat. Section 760.10 states, in pertinent part:

(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 compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

37. T he burden of proof in this administrative proceeding,

absent a statutory directive to the contrary, is on the party

asserting the affirmative of the issue. DepÓt of Transp. v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); see also DepÓt of

Banking & Fin ., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996)(ÐThe general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evidence as to that issue.Ñ). See also Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d DCA 2009)

( citing Tex. Dep't of Cmty. Aff . v. Burdine , 450 U.S. 248 , 253,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) )( t he ultimate burden of

proving discrimination rests at all times with the plaintiff ) .

38. The prepon derance of the evidence standard is applicable

to this matter. See § 120.57(1)(j), Fla. Stat.

39. The FCRA is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Accordingly, Florida courts hold

that federal decisions construing Title VII are applicable when

considering claims under the FCRA. Harper v. Blockbuster Entm't

Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998); Valenzuela , 18 So.

3d at 21; and Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1

(Fla. 1st DCA 1996).

40. Based on a llegations and testimony Petitioner presented

at the final hearing, Petitioner asserts a hostile work

environment claim. A hostile work environment under Title VII is

established Ðupon proof 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."

Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269, 1275 (11th Cir.

2002).

41. In the absence o f direct or statistical evidence of

discriminatory intent (there is none here), Petitioner must rely

on circumstantial evidence of discrimination to prove his case.

For discrimination claims involving circumstantial evidence,

Florida courts follow the thr ee - part, burden - shifting framework

set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93

S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its progeny. See also

Valenzuela , 18 So. 3d at 21 - 22; and St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455, 458 (Fla. 3d DCA 2011).

42. Under the McDonnell Douglas framework, a petitioner

bears the initial burden of establishing, by a preponderance of

the evidence, a prima facie case of discrimination. McDonnell

Douglas , 411 U . S . at 802 - 04; see also Burke - Fowler v. Oran ge

Cnty. , 447 F. 3d 1319, 1323 (11th Cir. 2006). Demonstrating a

prima facie case is not difficult, but rather only requires the

petitioner Ðto establish facts adequate to permit an inference of

discrimination.Ñ Holifield v. Reno , 115 F.3d 1555, 1562 (11t h

Cir. 1997) .

43. To establish a prima facie claim for a hostile work

environment, Petitioner must show that: (1) he belongs to a

protected group; (2) he was subjected to unwelcome harassment;

(3) the harassment was based on the protected characteristic (his

race, religion, or national origin); (4) the harassment was

sufficiently severe or pervasive to alter the terms and

conditions of his employment and create a discriminatorily

abusive working environment; and (5) the employer is responsible

for such en vironment under a theory of either vicarious or direct

liability. Mitcham v. Univ. of S. Fla. Bd. of Trs. , 71 F. Supp.

3d 1306 (M.D. Fla. 2014); Miller , 277 F.3d at 1275.

44. The "severe or pervasive" element contains both a

subjective and an objective c omponent. The employee must

Ð'subjectively perceive' the harassment as sufficiently severe

and pervasive to alter the terms or conditions of employment, and

this subjective perception must be objectively reasonable."

Mendoza v. Borden, Inc. , 195 F.3d 123 8, 1246 (11th Cir. 1 999).

45. In evaluating the objective severity of the harassment,

courts consider four factors: "(1) the frequency of the conduct;

(2) the severity of the conduct; (3) whether the conduct is

physically threatening or humiliating, or a mere offensive

utterance; and (4) whether the conduct unreasonably interferes

with the employee's job performance." Id. "Courts should

examine the conduct in context, not as isolated acts, and

determine under the totality of the circumstances whether th e

harassing conduct is sufficiently severe or pervasive to alter

the terms o r conditions of the plaintiff's employment and create

a hostile or abusive working environment." Id.

46. However, it is a Ðbedrock principle that not all

objectionable conduct or language amounts to discrimination under

Title VII.Ñ Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d

798, 809 (11th Cir. 2010). Title VII is not a "general civility

code." Gupta v. Fla . Bd . of Regents , 212 F.3d 571, 583 (11th

Cir. 2000). "Simple tea sing, offhand comments, and isolated

incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of employment."

Mitcham v. Univ. of S. Fla. Bd. of Trs. , 71 F. Supp. 3d 1306, 1317

(M.D. Fla. 2014); Faragher v . City of Boca Raton , 524 U.S. 775,

778, 118 S. Ct. 2275, 2283, 141 L. Ed. 2d 662 (1998). Harassment

constitutes employment discrimination only if the Ðworkplace is

permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently seve re or pervasive to alter the conditions

of the victimÓs employment and create an abusive work

environment.Ñ Harris v. Forklift Sys. Inc. , 510 U.S. 17, 21

(1993); see also Perry v. Harris Chernin, Inc. , 126 F.3d 1010,

1013 (7th Cir. 1997)(ÐThe workplace th at is actionable i s the one

that is hellish.Ñ).

47. Petitioner failed to meet his burden of proving that

the objectionable conduct he experienced at the Auto Club was

sufficiently severe or pervasive so as to alter the terms or

conditions of his employmen t. While Petitioner clearly ,

subjectively perceived the alleged harassment to be Ðsevere and

pervasive,Ñ the evidence in the record does not demonstrate that

his working environment was o bjectively hostile or abusive.

48. Petitioner undoubtedly did not a ppreciate encountering

Ms. Latour in the hallway outside the menÓs restroom. Petitioner

was disturbed by the plastic utensils that were dropped in the

cafeteria. Petitioner was frustrated with the parking situation.

Petitioner objected to the volume wit h which Terrence talked on

the call center floor. However, the evidence did not establish

that these isolated incidents were so Ðsevere or pervasiveÑ that

they created a serious or material change in the terms or

conditions of PetitionerÓs job as a Member ship Service

Representative. No evidence demonstrates that Petitioner was

physically threatened or humiliated. Neither did any of these

episodes unreasonably interfere with his ability to perform his

responsibilities in the service call center. Furtherm ore, when

given the opportunity, the Auto Club demonstrated that it was

willing to address a nd accommodate his grievances.

49. At most, the disagreeable conduct amounted to a

personality clash between co - workers (mostly from PetitionerÓs

perspective). Su ch interoffice strife is not sufficient to

establish a hostile work environment claim under the FCRA or

Title VII. See e.g. , McCollum v. Bolger , 794 F.2d 602, 610 (11th

Cir. 1986)(ÐTitle VII prohibits discrimination; it is not a

shield against harsh trea tment at the work place. Personal

animosity is not the equivalent of sex discrimination. . . . The

plaintiff cannot turn a personal feud into a sex discrimination

case. . . ."). Consequently, the undersigned concludes that a n

objective, reasonable perso n would not find the conduct about

which Petitioner complains created a hostile or abusive working

environment. Accordingly, PetitionerÓs allegations do not

substantiate a hostile work env ironment claim under the FCRA.

50. Further, PetitionerÓs discrimin ation claim fails

because he did not produce sufficient evidence that the alleged

harassment was based on his protected class (race, religion, or

national origin). It is well - established that Title VII "does

not prohibit harassment alone, however severe a nd pervasive.

Instead, Title VII prohibits discrimination, including harassment

that discriminates based on a protected category . . . ." Reeves ,

594 F.3d at 809 ; see also Baldwin v. Blue Cross/Blue Shield of

Ala. , 480 F.3d 1287, 1301 Î 02 (11th Cir. 2007)( ÐTitle VII does not

prohibit profanity alone, however profane. It does not prohibit

harassment alone, however severe and pervasive. Instead,

Title VII prohibits discrimination, including harassment that

discriminates based on a protected category.Ñ).

51 . The evidence and testimony in the record does not

identify any objectionable action or communication on the part of

the Auto Club that was based on PetitionerÓs race, religion, or

national origin. At the final hearing, Petitioner denounced

Ms. Latour as the individual who discriminated against him.

However, Petitioner never revealed his religion to Ms. Latour.

Neither did he tell her that he was born in Pakistan. Petitioner

offers that he was the only Asian, Pakistani, or Muslim in his

training clas s. However, this fact alone is not enough to

sustain a hostile work environment claim based on discrimination.

52. Regarding PetitionerÓs retaliation claim, to establish

a prima facie case of retaliation, Petitioner must demonstrate

that: (1) he engaged in statutorily protected activity;

(2) he suffered a materially adverse employment action; and

(3) there was a causal connection between the protected activity

and the adverse employment action. Kidd v. Mando Am. Corp .,

731 F.3d 1196, 1211 (11th Cir. 2013); Webb - Edwards v. Orange

Cnty. SheriffÓs Off . , 525 F.3d 1013, 1028 (11th Cir. 2008). An

action is Ðmaterially adverseÑ if it might have dissuaded a

reasonable worker from making or supporting a charge of

discrimination. Chapter ustee v. Gate Gou rmet. Inc . , 683 F.3d

1249, 1258 - 59 (11th Cir. 2012) .

53. As with his hostile work environment claim, Petitioner

fails to prove a claim of retaliation. Initially, no evidence

establishes that Petitioner engaged in statutorily protected

activity during his interactions with Ms. Wieland in May 2015.

Petitioner did not express to her his objection to an unlawful

employment practice. While Petitioner wrote the term

ÐharassmentÑ in his e - mail on May 13, 2015, he did not

specifically link his complaint to some discriminatory activity

that was based on his race, religion, or national origin.

54. Further, Petitioner did not establish the requisite

causal connection between his complaints to Ms. Wieland and his

decision not to return to work on May 15, 2015. Pet itioner

claims that Ms. Wieland retaliated against him when she tasked a

ÐdisruptiveÑ employee to sit next to him on the call center

floor. However, the evidence in the record does not support

PetitionerÓs proposition that Ms. Wieland positioned Terrence

next to Petitioner to make him quit his job. Consequently,

Petitioner did not prove that some action on the part of the Auto

Club was sufficiently adverse to est ablish a claim of

retaliation.

55. As to a final point, the Auto Club did not terminate

Petit ionerÓs employment. Rather, Petitioner elected not to

return to work on May 15, 2015. The FCRA makes unlawful an

employerÓs actions Ðto discharge . . . or otherwise to

discriminate against any individual with respect to compensation,

terms, conditions, o r privileges of employment.Ñ (emphasis

added) . See § 760.10(1)(a), Fla. Stat. Consequently, to

establish an adverse employment action under the FCRA, Petitioner

must prove that he was Ðconstructively dischargedÑ from the Auto

Club.

56. To prove a claim for constructive discharge, Petitioner

must demonstrate that a discriminatory employer imposed working

conditions that were "so intolerable that a reasonable person in

[the employee's] position would have been compelled to resign."

Fitz v. Pugmire Lincoln - Mercury, Inc. , 348 F.3d 974, 977 (11th

Cir. 2003) . Petitioner must show that he Ðquit in reasonable

response to an employer - sanctioned adverse action officially

changing [his] employment status or situation, for example, a

humiliating demotion, extreme c ut in pay, or transfer to a

position in which he would face unbearable working conditions.Ñ

Pennsylvania State Police v. Suders , 542 U.S. 129, 134 (2004).

Establishing a constructive discharge claim is a more onerous task

than establishing a hostile work environment claim. Bryant v.

Jones , 575 F.3d 1281, 1298 (11th Cir. 2009). Petitioner must

demonstrate a greater severity or pervasiveness of harassment than

the minimum required to prevail on a hostile work environment

claim. Hipp v. Liberty Nat'l Life Ins. Co . , 252 F.3d 1208,

1231 - 32 (11th Cir. 2001).

57. Petitioner failed to prove that he was constructively

discharged from his employment with the Auto Club. Petitioner

did not show that the working conditions he experienced ( i.e. ,

co - workersÓ bathro om and dining etiquette, parking issues, noisy

seatmates) were so intolerable that a reasonable person would

have been compelled to resign. The unpleasant conduct does not

meet the high burden required to establish a constructive

discharge. Further, as d iscussed above, no evidence demonstrates

that any of these actions related in any way to PetitionerÓs

race, religion, or national origin. Consequently, PetitionerÓs

claim of a constructive discharge must fail.

58. Finally, at the final hearing, Petitione r expressed his

frustration with the Auto ClubÓs unwillingness to punish

Ms. Latour , Edgardo , and Judith, as well as its failure to

produce videotapes of the hallway and the parking lot. It should

be noted, however, that in a proceeding under the FCRA, t he court

is Ðnot in the business of adjudging whether employment decisions

are prudent or fair. Instead, [the courtÓs] sole concern is

whether unlawful discriminatory animus motivates a challenged

employment decision.Ñ Damon v. Fleming Supermarkets of Fl a.,

Inc. , 196 F.3d 1354, 1361 (11th Cir. 1999) . Not everything that

makes an employee unhappy is an actionable adverse action. Davis

v. Town of Lake Park, Fla. , 245 F.3d 1232, 1238 (11th Cir. 2001);

see also Alexander v. Fulton Cnty., Ga . , 207 F.3d 1303, 1341

(11th Cir. 2000)(Ð[I]t is not the court's role to second - guess

the wisdom of an employer's decisions as long as the decisions

are not racially motivated.Ñ).

59. Accordingly, the evidence on record does not

substantiate PetitionerÓs claim that Auto C lub discriminated

against him because of his race, religion, or national origin.

Petitioner failed to offer evidence demonstrating that the

alleged harassment was sufficiently Ðsevere or pervasiveÑ to

alter the terms and conditions of his employment or th at he was

subjected to unwelcomed harassment based on his membership in a

protected group. Further, the evidence does not establish that

the Auto Club constructive ly discharged Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclus ions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, Auto Club

Service Group, did not commit an unlawful employment practice

against Petitioner, Hassan Habibi, and dismiss his Petition f or

Relief.

DONE AND ENTERED this 31st day of May , 2017 , in Tallahassee,

Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 31st day of May , 2017 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2016 ),

unless otherwise noted.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Hassan Sarfraz Habibi

Post Office Box 950033

Lake Mary, Florida 32795

(e Served)

Christine E. Howard, Esquire

Fisher & Phillips LLP

Suite 2350

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Brett Purcell Owens, Esquire

Fisher & Phillips LLP

Suite 2350

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Che yanne Costilla, General Counsel

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 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.