17-005005 Asha J. Logan vs. Brow Art 23 Cordova Mall Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, November 5, 2020.

Summary: Petitioner proved that Respondent engaged in an unlawful employment action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASHA J. LOGAN,

Petitioner,

vs. Case No. 17 - 5005

BROW ART 23 CORDOVA MALL,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, on January 16, 2018, and February 2,

2018, Administrative Law Judge Yolonda Y. Green, of the Division

of Administrative Hearings (ÐDivisionÑ), conducted a final

hearing by video tele conference in Pensacola and Tallahassee,

Florida, pursuant to section 120.57(1), Florida Statu t es (2017) .

AP PEARANCES

For Petitioner: Tracey D. Robinson - Coffee, Esquire

Law Office of Tracey Robinson - Coffee

Post Office Box 18305

Pensacola, Florida 32523

For Respondent: Jason Curtis Taylor, Esquire

McConnaughhay, Duffy, Coonrod ,

Pope, and Weaver, P.A.

1709 Hermi t age Boulevard , Suite 200

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Respondent subjected Petitioner to an unlawful

employment practice on the basis of her race in violation of

section 760.10, Florida Statutes (2016) . 1/

PRELIMINARY STATEMENT

On February 15, 2017, Petitioner, Asha J. Logan

(ÐMs. Logan Ñ or ÐPetitionerÑ), filed a Complaint of Employment

Discrimination with the Florida Commission on Human Relations

( the ÐCommissionÑ). The complaint alleged that Respondent, Brow

Art 23 Cordova Mall (Ð Brow Art 23 Ñ or ÐRespondentÑ), violat ed

the Civil Rights Act of 1964 and the Florida Civil Rights Act of

1992 (ÐFCRAÑ) , as amende d, by discriminating against her on the

basis of race and creating a hostile work environment . On

August 11, 2017 , following its investigation of the allegations

in the complaint, the Co mmission issued a determination of ÐNo

Reasonable CauseÑ to support PetitionerÓs complaint.

On September 13, 2017, Petitioner filed a Petition for

Relief requesting an administrative hearing regarding the

CommissionÓs ÐNo Reasonable CauseÑ determination pursuant to

section 760.11(7).

The Commission referred the matter to the Division on

September 13, 2017 ; and on Sept ember 14, 2017, this matter was

assigned to the undersigned. The undersigned issued a Notice of

Hearing, scheduling the final hearing for November 15, 2017.

The parties filed a Joint Motion for Continuance of Hearing on

November 13 , 2017. The undersigne d granted the motion and

rescheduled the hearing for January 16 , 2018 .

On January 16 , 2018 , the hearing commenced as scheduled.

During the hearing , it was determined that a witness would be

unavailable to appear by phone as anticipated. When it was

det ermined that the parties could not complete the hearing

during the scheduled time period, the hearing was recessed until

a date that the parties were available. The parties were

instructed to provide dates of availability within seven days.

This matter w as rescheduled for February 2 , 2018, and it

reconvened as scheduled until completion .

The parties filed a prehearing stipulation wherein they

stipulated to certain facts , which, to the extent relevant, have

been incorporated in the Findings of Fact below .

Both parties offered the testimony of the following

th ree witnesses: Rusbina Malak, store m an a ger of Brow Art 23 2/ ;

Krishnara Marcano, r egional m anager of Brow Art 23 ; and Vyoulit

Sadek, human resources staff member of Brow Art 23 . The parties

offered Joint Exhibit 1, which was admitted.

In addition to the witnesses offered by both parties,

Petitioner testified on her own behalf a nd offered the testimony

of the following witnesses: Mariella Ablaza and Dominique

Welch , former employee s of Brow Art 23 . Petitioner offered

Exhibits 1, 2, 3, 7, 11, and 19 , which were admitted without

objection . Petitioner offered Exhibit 20, which was admitted

over objection. Respondent did not offer any witnesses other

than those offere d jointly. Respondent offered Exhibits 3

through 10 and 13 , which were admitted.

The proceeding was recorded by a court reporter and the

parties ordered a transcript of the final hearing. The two -

volume Transcript was filed on March 5 , 2018 . Responden t timely

filed its Proposed Recommended Order (PRO). Petitioner did not

timely file her PRO. However, there were no objections to the

PetitionerÓs late - filed PRO and ; thus, it has been accepted.

The PROs have b oth been carefully considered in preparation of

this Recommended Order.

FINDING S OF FACT

The following Findings of Fact are based on exhibits

admitted into evidence, testimony offered by witnesses, and

a dmitted facts set forth in the P rehearing S tipulation.

Background

1. Ms. Logan is an African - American female and a member of

a protected class. At all times material to this matter , she

was employed as an esthetician at Brow Art 23 . Ms. Logan was an

employee of Brow Art 23 as that term is defined by the FCRA.

2. Brow Art 23 is a skin care salon that spe cializes in

eyebrow threading. The Brow Art 23 corporate offices are

located in Highland Park, Illinois. However, it has multiple

locations throughout the United States , including Florida.

Ms. Logan worked at Brow Art 23 in the Cordo va Mall located in

Pensacola, Florida . At all times material to this matter, Brow

Art 23 employed more than 15 full - time employees.

3. Ms. Logan filed a complaint with the Commission

alleging Brow Art 23 , through Sara Mark , created a hostile work

environment and had racial bias against African - Americans.

4. The Commission issued a ÐNo C auseÑ determination and

Ms. Logan filed a Petition for Relief, which is the matter

before the undersigned.

5. Ms. Logan is a licensed e st he tician in the State of

Florida. Her license allows her to perform hair removal

techniques , such as threading, waxing , and sugaring.

Ms. Logan Ós lice nse also permits her to perform eyelash

extensions.

6 . Ms. Logan sought employment with Brow Art 23 . She was

interviewed and began work the next day. Other than in the

instant matter, Ms. Logan had not been disciplined during her

employment with Brow Art 23 .

Ms. Mark Ó s Actions /Hostile Work Environment

7 . Between December 2015 and January 2016 , Sara Mark was

hired to work in the Cordova Mall store . Ms. Mark is believed

to be of Egyptian desce nt. 3 / Asha Logan and Sara Mark initially

were fri endly and worked well together. However, at some point

in 2016 their relationship changed.

8 . Ms. Logan testified that Ms. Mark engaged in hostile

behavi or toward her in various ways. Ms. Logan testified t hat

Ms. Mark would remove her tips f rom the cas h register without

permission.

9. Ms. Mark told customers not to patronize other

threaders bu t , when confronted, Ms. Mark would deny making the

statements. However, Ms. Mark did not single out Ms. Logan .

10. Ms. Logan testified that Ms. Mark would follow her

while she was working inside the store and stand close to her

when she was servicing custo mers. Ms. Mark would also follow

Ms. Logan outside the store in the mall corridor while Ms. Logan

was attempting to solicit customers . Brow Art 23 employees,

Dominique Welch and Mariella Ablaza , witnessed the behavior.

They testified that Ms. Mark appeared to be attempting to

intimidate Ms. Logan when she followed her .

11 . Ms. Mark also read Ms. LoganÓs private emails. All

employees had access to a single company computer at Brow

Art 23 . While emails were sent from the company to communicate

w ith employees as a group, Ms. Mark would repeatedl y read Ms.

LoganÓs private emails that were addressed only to her.

12 . Ms. Mark Ó s actions went beyond non - physical

intimidation. It also involved physical aggression. In an

incident, which is a primary issue here, Ms. Mark walked past

Ms. Logan and kicked her foot.

13. Both Ms. Logan and Ms. Welch testifi ed that it was an

intentional act because Ms. Mark had enough room within the

designated area to avoid contact when she kicked Ms . Logan.

Moreover, she did not apologize to Ms. Logan for kicking her

foot.

14. Ms. Logan testified that she believed Ms. Mark Ós

beh avior was motivated by racial bias against African - Americans

because Ms. Mark made comments about African - American customers

being d irty, smelling badly , and not tipping.

15 . In addition to the comments about African - American

customers, Ms. Mark used offensive language which demonstrated

her racial animus. W hile worki ng with Ms. Logan and Ms. Welch,

Ms. Mark used t he racial epithet Ðnigger .Ñ Ms. Logan and

Ms. Welch asked Ms. Mark not to use the word because they found

it offensive. Despite the requests, Ms. Mark continued to

repeat it and said, ÐI donÓt understand why I canÓt call you a

Ò nigger . ÓÑ

16 . In a separate incident, Ms. Logan, Ms. Welc h,

Ms. Ablaza , and Ms. Mark were working together . The group began

discussing where Ms. Mark w as originally from and someone

referenced Ms. Mark as being from Africa . Ms. Mark replied,

Ð N o, IÓm not. I'm not a 'nigger . '"

17 . Ms. Logan informed her assistant man ager , Rusbina

Malak , of the incidents and con cerns she had with Ms. Mark .

After receiving no response, Ms. Logan then reported her

concerns to Ms. Marcano. Up to this point, Ms. Logan had not

communicated her concerns regarding discrimination .

18 . Ms. Marcano testified that she had no independent

recollection of Ms. Logan contacting her about complaints of

harassment, a ssault , or discrimination and had discarded any

notes that she had in a notebook of conversations with employees

during that time.

19 . Ms. Marcano rece ive d information fro m Ms. Malak that

she characterized as two employees Ð not getting along . Ñ

Ms. Marcano then instructed Ms. Logan to text her complaint to

the group and scheduled a co nference call on Whatsapp . Whatsapp

is an instant messaging application that Ms. Marcano and

Ms. Malak used to communicate with the employees at the Cordova

Mall store . Whatsapp i s an open forum where eac h user can view

the messages and comments of the other users in the group text.

The use of Whatsapp was not authorized by Brow Art 23 Ós

corporate office.

20 . Ms. Logan followed the inst ructions of her managers

and posted her complaint on Whatsapp . During the conference

call, there was a group discussion between all the employees at

the Cordova Mall location, Ms. Marcano , and an unnamed

individual from human resources .

21 . According to Ms. Marcano , all the issues were resolved

during the confer ence call . To the contrary , Ms. Logan and

Ms. Welch disagreed and testified that management essen tially

disregarded their complaints.

22 . T he Eye Brow Art 23 employees , including the store

manager and the regional manager , testified that a manager had

never been to the Cordova Mall location o nce during the period

that Ms. Mark was hired and the incident of August 17, 2016. 4/

Policy and Procedure

23 . Brow Art 23 provided employees with an employee

handbook , which directs employees to make complaints directly to

their team leader and manager. Brow Art 23 also has an equal

employment section of their employee handbook that specifically

directs employees to address violations of the equal employment

policy with the team lea der. The team leader would then forward

the complaint to the manager or corporate office . Under the

policy, c omplaints are to be promptly investigated with due

regard for the privacy and respect of all.

24 . In addition to the equal employment policy, B row

Art 23 has a policy prohibiting harassment , including creating a

hostile work environment. The circumstances , which may

constitute harassment , include language, epithets , and unwelcome

touching.

25 . M s . Malak testifi ed that she received several

complaints from Ms. Logan and that she Ðsaw t hat [Ms. Logan] had

a lot of problems [with Ms. Mark ].Ñ Ms. Malak advised Ms. Logan

to contact her supervisor , Ms. Marcano , because she had no

authority to handle those types of complaints .

26 . Ms. Logan attempted to send an email to Ms. Sadek on

May 19, 2016, regarding her complaints of discrimination and

harassment. The email was addressed to Ð[e-mail] . Ñ

Ms. Sadek denied that she received the email and credibly

testified that her email is [e-mail]. The

undersigned finds that there was insufficient evidence offered

to demonstrate that Ms. Sadek received Ms. LoganÓs email.

27. Ms. Logan also sent electronic message s to management

with complaints regarding her problems with Ms. Mark . On

June 2, 2016, Ms. Logan sent a text message to Ms. Mala k and

complained that ÐI have reported to you several weeks ago via

phone that IÓm having serious issue with worker Sara. I have

told you that she has kick [sic] me in the back store out of

dislike and you said youÓd get with Krishnara and nothing has

been done about being kicked yet.Ñ On June 27, 2016 , Ms. Logan

sent a text message to Ms. Malak and compl ained that Ð I have

sent you information one [sic] how nasty the store is left

everyday and how I an [sic] harassed everyday. Can you give me

an idea of how long before this issue will be resolved.Ñ There

is a date stamp below the June 27, 2016, text message indicating

that it was read on the same date. Ms. Malak confirmed that she

received the message. Inst ead of resolving the issue, Ms. Malak

directed Ms. Logan to Ðput the message on the group message so

everybody can read and everybody can see and they can reply.Ñ

Ms. Logan received no resolution to her complaints.

28. On July 26, 2016, Petitioner sent an other email , which

was addressed to Mary Fernandez , a human resources staff member

of Brow Art 23, and copied Ms. Malak and Ms. Marcano . The email

subjec t line included Ðdiscriminative treatment by Worker Sarah

Marks.Ñ This was the first time that Ms. Logan expressed her

concerns about Ms. MarkÓs behavior being racially motivated.

29. T here was insufficient evidence offered to demonstrate

that the email address for Ms. Fernandez was correct or that

Ms. Fernandez received the email. However, the email address

for Ms. Malak an d Ms. Marcano were correct and both members of

management affirmed that they received the email.

30 . Ms. Logan prope rly followed the written policy

contained in the employee manual. She reported her complaints

of harassment to her store manager , Ms. Malak , and to the

regional manager , Ms. Marcano. She reported her complaints that

she believed the harassment was racially motivated. There was

no corrective action taken to address Ms. MarkÓs behavior.

31 . Although t here was testimony that Ms. Mark engaged in

similar acts with other employees, she consistently engaged in

harassing behavior with Ms. Logan. Moreover, although there

were other employees of different racial backgrounds (i.e.,

Hispanic, Asian, etc.) , Ms. Logan is the only employee to whom

Ms. Mark directed a racial epithet.

Incident Leading to Ms. LoganÓ s Suspension on August 17, 2016

32 . On August 17, 2016 , Ms. Logan, Ms. Ablaza, 5 / and

Ms. Mark were together at the store. There were three chairs in

the s itting area, including two store - owned chairs and a chair

owned by Ms. Mark. The chair Ms. Logan used was owned by the

store for employee use. It was well - known that Ms. Mark did not

permit other employees to use her chair .

33. The three employees were sitting in the employee break

room area waiting for customers . The employees would sit in a

particular position based on rotation to provide services to

customers. Ms. Logan was sitting in the first chair as she

would service the next customer. M s. Logan was sitting in a

store - owned chair and Ms. Mark was sitting in her personal

chair. Ms. Logan then left her chair to service a client.

However, she discovered that she did not have a customer. When

Ms. Logan returned , Ms. Mark was sitting in the first chair

(previously occupied by Ms. Logan) . What happens next is in

dispute.

34. The evidence demonstrates that Ms. Logan placed her

h and on the back of the chair, Ms. Mark began to stand up from

the chair , and Ms. Logan moved the chair so she could sit in it.

Ms. Mark did not testify at th e hearing. However, her

de s cription of the incident in a text message to Ms. Malak was

that Ms. Logan pushed her from the chair.

35. Ms. Ablaza, t he only neutral witness to the incident ,

testified about what she observed. Ms. Ablaza recalled that

Ms. Logan asked Ms. Mark for her chair but Ms. Mark ignored her.

Ms. Logan asked Ms. Mark for the chair a second time and

explained that she needed to si t due to back pain.

Again, Ms. Mark did not respond to Ms. LoganÓs request .

Ms. Logan was holding the chair when Ms. Mark began to s tand.

Ms. Ablaza saw Ms. Mark on the floor using her hands to support

her self . Ms. Ablaza had a clear, unobstructed view of the

incident. Ms. Ablaza did not see Ms. Logan pull the cha ir from

underneath Ms. Mark , and she did not see Ms. Logan push

Ms. Mark. Ms. Ablaza shared her descr iption of the incident

with Ms. Malak before Ms. Mark was instructed to call the

police. Ms. Ablaza also sent a description of the incident to

Ms. Marcano by text message within the two days following the

incident . Ms. A blaza is found to b e credible and corroborates

Ms. LoganÓs descri ption that she did not push Ms. Mark , she did

not pull the chair from underneath Ms. Mark, or otherwise cause

Ms. Mark to fall from the chair.

36 . Ms. Malak directed Ms. Mark to call the police and

Ms. Mark followed Ms. MalakÓs instruction. The police arrived

and spoke to Ms. Ablaza and Ms. Mark. Ms. Logan was asked to

leave the store on that day , but she was not arrested.

Ms. Malak notified Ms. Logan that she was suspended f or an

indefinite period of time be cause Ms. Mark reported that

Ms. Logan hurt her . The action taken by Ms. Malak was

communicate d to h uman resources and Ms. Marcano and affirmed by

corporate management and human resources .

37. Brow Art 23 corporate representatives attempted to

schedule a conference call with Ms. Logan to discuss her

employment status. However, Brow Art 23 made no further contact

after Ms. Logan r equested that her counsel be present during any

discussions. Ms. Logan did n ot return to work at Brow Art 23

and , thus, was effectively terminated on August 17, 2016.

Retaliation

38. Petitioner alleged in her complaint of discrimination

that Respondent retaliated against her after she complained

about Ms. Mark.

Disability Discrimination

39. Petitioner did not present any evidence to demonstrate

she had any condition that proves she suffers from a disability

or that an adverse action was taken due to her alleged

disability.

Age Discrimination

40. Petitioner did not present any evidence to demonstrate

she was discriminated against on the basis of age. Ms. Logan

did not present any evidence to demonstrate the age of any

alleged comparator.

Past Wages

41. As a condition of employment, Ms. Logan sign ed a non -

compete agreement , wh ich required that she not disclose any

information or techniques learned wh ile employed with Brow

Art 23 . The non - compete agreement also barred Ms. Logan from

working with another competitive business within a 25 - mile

radius for up to 18 months ( until after February 17, 2018 ) .

Brow Art 23 also had stores in neighboring cities to Pensacola,

which in effec t extended the 25 - mile radius.

42. The parties stipulated that w hile employed at Brow

Art 23 , Ms. LoganÓ s pay rate was $2 0.0 0 per hour.

43. S he worked 40 hours per week and made approximately

$150.00 per week in tips. Thus, Petitioner earned $ 9 50 per week

( $2 0.00 x 40 hours = $8 00 $ 150 (tips) = $9 50 per week ).

44. Ms. Logan applied for and received unemployment in the

amount of $2,614.00. Ms. Logan introduced re - employment letters

for 11 weeks , but was paid a total of 12 weeks , bringing the

total paid out closer to $3,000.00.

45. Ms. Logan worked for two weeks tem porarily as a server

in March 2017 and earned approximately $200.00. Ms. Lo gan could

not remain employed in the position due to her medical

limitations .

46. From October 2017 , through November 2017 , Ms. Logan

also worked at Blink part - time as a full - service technician

performing epilation techniques , such a sugaring, waxing , and

eyebrow design . She initially earned a wage rate of $15.00 per

hour. At some point h er hours were decreased, and her pay was

ultimately reduced to $10.00 per hour. Ms. Logan was paid a

total of $1,350.00 while employed at Blink. Ms. Logan als o

wor ked at a hotel for an undetermined time period in November

and December 2017, earning approximately $1,800.00.

47. Based on the evidence, Ms. Logan experien ced a loss in

pay of $34,690.

48 . Ms. Logan has incurred costs and attorneysÓ fees

related to t his final hearing in amounts that are currently

undetermined.

CONCLUSIONS OF LAW

49 . Pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2016), DOAH has jurisdiction over the subject matter

and parties to this proceeding.

50 . Section 760.10(1)(a) makes it unlawful for an employer

to take adverse action against an individual because of that

employeeÓs race.

51 . The civil rights act defines ÐemployerÑ as Ðany person

employing 15 or more employees for each working day in each of

20 or more calendar weeks in the current or preceding calendar

year, and any agent of such person.Ñ £ 760.02(7), Fla. Stat.

52 . The parties have stipulated that Brow Art 23 is an

employer as defined by c hapter 760.

53 . Petitioner filed a complaint alleging Respondent

discriminated against her on the basis of her race.

54 . Section 760.11(1) provides, in pertinent part, that

Ð[a]ny person aggrieved by a violation of ss. 760.01 - 760.10 may

file a complaint with the [FCHR] within 365 days of the alleged

violatio n.Ñ Petitioner timely filed her complaint.

55 . Section 760.11(7) provides that upon a determination

by the FCHR that there is no reasonable cause to believe that a

violation of the FCRA has occurred, Ð[t]he aggrieved person may

request an administrative hearing under ss. 120.569 and 120.57,

but any such request must be made within 35 days of the date of

determination of reasonable cause.Ñ Following the FCHR

determination of no cause, Petitioner timely filed her Petition

for Relief from Unlawful Employme nt Practices and Request for

Administrative Hearing requesting this hearing.

56 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, t he

Florida Statute will take on the same constructions as placed on

its federal prototype.Ñ Brand v. Fla. Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v. GlobeGround

N. Am., LLC , 18 So. 3d 17 (Fla. 3d DCA 2009); Fla. State Uni v.

v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't of

Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

57 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practi ce. See St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla. 3d DCA 2011); Fla. Dep't of Transp.

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

58 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d at 22.

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

prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); H olifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). It is well established that ÐÒonly the

most blatant re mark , whose intent could be nothing other than to

discriminate . . .Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Super markets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations omitted).

60 . In the absence of any direct or statistical evidence

of discriminatory intent, Petitioner must rely on circumstantial

evidence. In McDonnell Douglas Corporation v. Gr een , 411 U.S.

792 (1973), and as refined in Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981), and St. Mary's Honor

Center v. Hicks , 509 U.S. 502 (1993), the United States Supreme

Court established the procedure for determining whether

employment discrimination has occurred when employees rely upon

circumstantial evidence of discriminatory intent.

61 . Under McDonnell Douglas , Petitioner has the initial

burden of establishing a prima facie case of unlawful

discrimination. " Demonstratin g a prima facie case is not

onerous; it requires only that the plaintiff establish facts

adequate to permit a n inference of discrimination. " Holifield,

115 F.3d at 1562; cf., Gross v. Lyons , 763 So. 2d 276, 280 n.1

(Fla. 2000)( " A preponderance of the evidence is ' the greater

weight of the evidence, ' [citation omitted] or evidence that

' more likely than not' tends to prove a certain proposition. " ).

6 2 . Petitioner's Char ge of Discrimination against

Respondent alleges that Petitioner was subjected to a hostile

work environment because of her race, age , disability , and on

the basis of retaliation . Petitioner establish ed a prima facie

case that she was subjected to a hostile work environment based

upon her race. However, Petitioner failed to establish

discrimin ation on the basis of her age, disability , or on the

basis of retaliation .

Hostile Work Environment

63 . Petitioner asserts that Respondent's discriminatory

harassment created a hostile working environmen t. "A hostile

work environment claim is comprised of a series of separate acts

that collectively constitute one unlawful employment practice."

Amtrak v. Morgan , 536 U.S. 101, 117 (2002).

64 . For an employer to be held liable for harassment based

on race , it must be established upon proof that Ðthe workplace

is permeated with discriminatory intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the

conditions of the victimÓs employment and create an abusive

working environment.Ñ Miller v . Kenworth of Dothan, Inc. ,

277 F.3d 1269, 1275 (11th Cir. 2002)(quoting Harris v. Forklift

Sys., Inc. , 510 U.S. 17, 21 (1998)).

65 . In order to establish a prima facie case under the

hostile work environment theory, Petitioner must show: (1) that

she belongs to a protected group; (2) that she has been subject

to unwelcome harassment; (3) that the harassment must have been

based on a protected characteristic of the employee, such as

race; (4) that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment and

create a discriminatorily abusi ve working environment; and

(5) that the employer is responsible for such environment under

a theory of vicarious or of direct liability. Id.

66 . Petitioner established all of the elements required to

establish a prima facie case. Petitioner is African - American ,

and she was subject to unwelcomed intimidation and ridicule

based upon her race. T he harassment directed toward Petitioner,

as described in the Findings of Fact above, was sufficiently

severe and pervasive to alter the terms and conditions of her

employment and create a hostile work environment.

67 . Factors relevant in determining whether conduct is

sufficiently severe and pervasive to show a hostile work

enviro nment include, among others: (a) the frequency of the

conduct, (b) the severity of the conduct, (c) whether the

conduct is physically threatening or humiliating, or a mere

offensive utterance, and (d) whether the conduct unreasonably

interferes with the e mployee's job performance. Miller ,

277 F.3d at 1276.

68 . Ms. MarkÓs disrespect and intimidation, and

interference with customers occu rred during each shift that

Ms. Mark worked with Ms. Logan. The conduct was severe in that

it interfered with Petitione rÓs ability to do her jo b and

provide service to customers. Ms. Mark Ós conduct was physically

threatening in that she kicked Ms. LoganÓs foot without apology

or acknowledgment of the encounter. Despite PetitionerÓs

efforts and complaints to members of ma nagement , the offensive

and d iscriminatory conduct continued. The management indicated

that they believed the interaction between Ms. Mark and

Ms. Logan was simply a case of Ðn ot getting along,Ñ however,

Ms. Mark used racial epithets in reference to Ms. Logan. Such

references were not directed to other employees who were of a

different race than Ms. Mark.

69 . The evi dence also demonstrated that Brow Art 23 was

responsible for a hostile work environment under the theory of

direct and vicarious liability. Ms. Mark , who was responsible

for the hostile work environment , was an em ployee of Brow

Art 23 . Despite numerous efforts and att empts by Petitioner to

request Ms. Mark to stop her behavior, the hostile work

environment continued. PetitionerÓs complaint s, both written

via email and text, and oral, to Ms. Mala k and Ms. Marcano , were

not resolved . The evidence demonstrates that Ms. Mark

understood how her use of the racial ep i thet would impact

Ms. Logan .

Legitimate Non - Discriminatory Reason

70. Petitioner alleges that she was suspended from

employment with Brow Art 23 , which is an adverse employment

action.

71 . The burden now shifts to Respondent to proffer a

legitimate reason for the adverse employment action. Assuming

Respondent does proffer a legitimate reason for the adverse

employment action, the burden then shifts back to Petitioner to

prove by a preponderance of the evi dence that the Ðlegitimate

reasonÑ is merely a pretext for the prohibited, retaliatory

conduct. Russell v. KSL Hotel Corp. , 887 So. 2d 372 (Fla. 3d

DCA 2004) (citing Sierminski vansouth Fin. Corp. , 216 F.3d

945, 950 (11th Cir. 2000)).

72. RespondentÓ s proffered legitimate nondiscriminatory

reason for suspending Ms. Logan was the incident with Ms. Mark

on August 17, 2016 , and Ms. LoganÓs alleged refusal to

participate in the investigation of the incident. The bases

relied upon by Respondent are not su pported by the evidence.

73. D espite receiving discrimination and harrassment

complaints about Ms. Mark, Brow Art 23 accepted Ms. MarkÓs

description of the incident over two other employees, one of

which was a neutral observer . Furthermore, Ms. Logan was not

arrested even though there was police involvement. Based on the

totality of the facts and circumstances, there was insufficient

evidence to demonstrate that the suspension for the August 17,

2016, incident was a legitimate non - discriminatory basis for the

adverse employment action.

74 . Brow Art 23 also asserts that Ms. LoganÓs inability to

return to work was her unwillingness to participate in the

August incident investigation. To the contrary, the

preponderance o f evidence demonstrates that Ms. Malak had

suspended Ms. Logan for the incident that occurred on August 17,

2016. Ms. Logan did not refuse to participat e in the incident

investigation but rather, she requested that her counsel be

present during the interview. PetitionerÓs request was not an

un reasonable request given the nature of the allegations and her

acrimonious history with Ms. Mark.

75 . Moreover, t he eviden ce demonstrates that there were at

least two occasions when Ms. Mark allegedly used the term

ÐniggerÑ when she was aware that use of the racial epithe t was

offensive to Ms. Logan, an African - American. T he other issue

specifically re lated to any form of racial animus consisted of

Ms. MarkÓs use of the phrase Ðyou people.Ñ She used the phrase

approx imatel y 10 times within a seven - month period.

7 6 . Petitioner carried her burden of persuasion necessary

to state a prima facie case for her claim of a hostile work

environment based on PetitionerÓs race and that she was

suspended from her position as a threader at Brow Art 23 . Brow

Art 23 failed to offer or prove a legitimate, nondiscriminatory

reason for its actions.

Back Pay

77 . As Petitioner brought this action as an administrative

proceed ing pursuant to section 760.11(7) , Florida Statutes, the

relief she is entitled is authorized under the same section ,

which provides in pertinent part: If the administrative law

judge finds that a violation of the FCRA of 1992 has occurred,

he or she shall issue an appropriate recommended order to the

commission prohibit ing the practice and recommending affirmative

relief from the effects of the practice, including back pay.

78 . In accordance with section 760.11(6) and federal case

law, Petitioner is Ðpresumptively entitled to back pay.Ñ Weaver

v. Casa Gallardo, Inc. , 922 F.2d 1515, 1526 (11th Cir.

1991)(superseded by statute on other grounds).

79 . As noted in the Findings of Fact above, Petitioner

experienced a loss in pay totaling $ 34,690 . 6 /

80 . Respondent asserts that Petitioner failed to mitigate

her damages. Based on the circumstances, Petitioner

appropriately sought suitable employment . Ms. Logan o ffered

evidence of positions she held and the reasonable bases for her

separation from those positions. Moreover, the non - compete

agreement hampered her ability to work in the area in which she

was licensed without causing undue hardship (i.e., moving out of

the area or traveling a long distance ) . As Respondent asserted

in its PRO, Ms. Logan has the freedom to select the desired

fie ld in which she works. In this matter, her ability to

mitigate damages was limited due to the non - compete agreement.

RECOMMENDATION

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:

1. Finding that Respondent constructively discharged

Asha J. Logan by suspending her indefinitely and subjecting her

to a hostile work environment based on PetitionerÓs race;

2. Ordering Res pondent to pay Petitioner $ 34,690 .00 in

back pay through the final date of the hearing, February 2,

2018, with interest accruing on the total amount at the

applicable statutory rate from the date of the Commission's

final order;

3. Ordering Brow Art 23 to make arrangements to reinstate

Petitioner to an equivalent position with Brow Art 23 ;

4 . Prohibiting any future acts of discrimination by Brow

Art 23 ; and

5 . Award Petitioner attorneysÓ fees and costs.

Jurisdiction is reserved for a determination of the specific

amount of attorneysÓ fees and cost to be awarded.

DONE AND ENTERED this 23rd day of May , 2018 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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 23rd day of May , 2018 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes, Florida Administrative Code, and federal laws are to

the 2016 versions , which have not substantively changed since

the time of the alleged discrimination.

2/ During the final hearing, there were several references to

Ms. Malak as the assista nt store manager. However, based on her

job description and responsibilities , she was the store manager.

3 / Egypt is located in North Africa . P erson s having origins in

Europe, the Middle East, or North Africa are considered white.

See Office of Mgmt. & Budget , Executive Office of the President,

Revised Statistical Policy Directive No. 15, 62 Fed. Reg.

58,782, 58,789 (Oct. 30, 1997).

4/ Despite the title of store manager , Ms. Malak was based in

Puerto Rico, with communications with store employees

accomplished electronically.

5 / Ms. Ablaza is Asian.

6 / Petitioner minimized the amount owed for back pay by securing

other employment. Champion IntÓl Corp. v. Wideman , 733 So. 2d

559, 562 (Fla. 1st DCA 1999)(plaintiff in employment

discrimination suit required to minimize damages by attempting

to find suitable employment).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on H uman Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Anthony Caruso, Esquire

Wessels Sherman

The D u nham Center

2035 Foxfield Road

St. Charles, Illinois 60174

Tracey D. Robinson - Coffee, Esquire

Law Office of Tracey Robinson - Coffee

Post Office Box 18305

Pensacola, Florida 32523

(eServed)

Jason Curtis Taylor, Esquire

McConnaughhay, Duffy, Coonrod,

Pope , and Weaver, P.A.

1709 Hermitage Boulevard , Suite 200

Tallahassee, Florida 32308

(eServed)

Cheyanne 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.