17-006311 Frances G. Danelli vs. Frito-Lay, Inc. Status: Closed Recommended Order on Wednesday, July 11, 2018.

Summary: The evidence failed to show that (a) Respondent terminated Petitioner on the basis of her sex or age, or in retaliation for engaging in protected activity; or (b) Respondent subjected Petitioner to a hostile work environment based on her sex or age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCES G. DANELLI ,

Petitioner,

vs. Case No. 17 - 6311

FRITO - LAY , INC.,

Respondent.

_______________________________/

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

March 14 and 15 , 20 1 8 , at sites in Tallahassee and Lauderdale

Lakes , Florida.

APPEARANCES

For Petitioner: Donald R. McCoy , Esquire

DON ALD R. McCOY, P.A.

111 Southeast 12th Street

Fort Lauderdale , Florida 3 3316

For Respondent: Bonnie Mayfield , Esquire

Dykema Cox Smith

39577 Woodward Avenue, Suite 300

Bloomfield Hills , Michigan 48304

STATEMENT OF THE ISSUES

The issue s in this case are whether , in violation of the

Florida Civil Rights Act, Respondent terminated Petitioner on

the basis of her sex or age, or in retaliation for engaging in

protected activit y; and whether Respondent subjected Petitioner

to a hostile work en vironment based on her sex or age .

PRELIMINARY STATEMENT

On April 21, 2017, Petitioner Frances G. Danelli filed a

Complain t with the Florida Commission on Human Relations

( " FCHR " ), alleging claims of sex discrimination, age

di scrimination, retaliation, and harassment. The FCHR

investigated Ms. Danelli ' s claims, and, on October 12, 2017,

issued a Determination stating that no reasonable cause existed

to believe that an unlawful practice had occurred. Thereafter,

Ms. Danelli filed a Petition for Relief, which the FCHR

transmitted to the Division of Administrative Hearings ( " DOAH " )

on November 17, 2017.

Initially, this case was set for final hearing on

January 19, 2018. At the parties ' joint request, the

undersigned continued the final hearing to March 14 and 15,

2018. The hearing took place on those days, with both parties

present.

Ms. Danelli testified and called five additional witnesses:

Sara Oblac zyns ki, Cesar Caban, Carla Seda, S tanley Gamble, and

Carlos Canizares. Petitioner ' s Exhibits 1 through 7, 9, 19 , 20,

22, 34, 36, 46 through 52, and 78 were received in evidence , and

Petitioner's Exhibit 67 was received as a proffer . Respondent

Frito - Lay, Inc., did not call any witnesses during its case - in -

chief. Respondent ' s Exhibits 1 through 10, 12 through 14 ,

17 through 25, 27 , 28, 30, and 31 were admitted.

At the close of the final hearing, the parties were given

20 days from the date of the filing of the hearing transcript to

file their proposed recommended orders. The transcript was

filed on April 24, 2018, and, accordingly, the post - hearing

submissions were due by May 14, 2018. Frito - Lay, Inc., filed

its Proposed Recommended Order on May 14, 2018, and a First

Amended Proposed Or der on May 15, 2018. Ms. Danelli untimely

filed her Proposed Findings, Conclusions, and Recommended Order

on May 15, 2018, and exceeded the page limit. On May 15, 2018,

the parties filed a Joint Motion to Withdraw Proposed

Recommended Orders and to Allow Late Filing of Amended Versions.

On May 16, 2018, Frito - Lay, Inc., filed its May 16, 2018

Proposed Recommended Order, and Ms. Danelli filed her revised

Proposed Findings, Conclusions, and Recommended Order . The

amended post - hearing submittals have been considered in the

preparation of this Recommended Order.

Unless otherwise indicated, citations to the official

statute law of the s tate of Florid a refer to Florida Statutes

201 8 .

FINDINGS OF FACT

1. Respondent Frito - Lay, Inc. ( " Frito - Lay " ), makes and

sells snack foods, including many familiar brands of chips.

Petitioner Frances G. Danelli ( " Danelli " ) is a former employee

of Frito - Lay.

2. Frito - Lay initially hired Danelli in or around 1998 as

a p acker for its West Valley, Utah , plant. Wh en Danelli ' s

husband was transferred to Florida, she took a job for Frito - Lay

in Pompano Beach, Florida, and later moved to the company ' s West

Palm Beach Distribution Center as a r oute s ales r epresentative

( " RSR " ). Danelli worked in Florida as a Frito - Lay RSR for more

than 15 years, and her routes eventually included such large

stores as Publix, Walmart, Winn - Dixie, and Target. 1 /

3. RSRs sell and deliver Frito - Lay products to retail

stores, and these stores, in turn, sell the products to

consumers. RSRs are responsible, as well, for presenting the

company ' s product s to shoppers in the best way possible to

increase sales. So, RSRs not only sell and deliver products to

stores, but they also unload the products, stock the shelves ,

set up displays, and remo ve unsold items whose sell - by dates

have expired. RSRs are paid an hourly wage plus commissions.

4. RSRs are required to compete for sales against other

companies ' vendors, who (like Frito - Lay ' s p ersonnel ) are trying

to place as many of their products as possible onto the shelves

of the snack food aisle. Shelf space is essential for growing

sales, and competition for product placement can be fierce .

5 . There is no dispute that Danelli ' s performance as an

RSR was fine, perhaps even exemplary. Frito - Lay considered her

to be a good employee.

6 . Danelli went to work early each morning, usually

arriving at the warehouse by 4:00 a.m. so that she could get to

her first store by 5:00 a.m., which would give her a head start

on other vendors. When Danelli got to the warehouse , she would

clock in on her handheld computer, which she also used to track

the goods she delivered to each store. Upon returning to the

warehouse, she had paperwork to complete and print from the

handheld computer.

7. In 2013, Frito - Lay started requir ing drivers of

delivery trucks over a certain size , including RSRs such as

Danelli, to comply with U.S. Department of Transportation

( " D OT " ) regulations. As relevant, these regulations require an

RSR to take at least a ten - hour break before driving a

commercial vehicle, and they prohibit an RSR from driving a

commercial vehicle after 14 consecutive hours on duty.

8. Frito - Lay programmed its employees ' handheld computers

so that an employee subject to the DOT regulations would receive

a conspicuous warning if he or she attempted to clock in to work

less than ten hours after last going off duty. As Danelli

testified at hearing, if the comp uter told her to wait, she

would go to the warehouse, pick up some product, fix her truck,

and then sign in when the handheld said she could go.

9. Evidently, however, to get the warning, an employee

needed to log on as a " regulated " employee; if, by mi stake, a

" regulated " employee logged on as " non - regulated, " she would not

get the warning.

10. Danelli found it difficult to comply with the DOT

regulations, which led to Frito - Lay ' s imposing discipline

against her in accordance with the company ' s Correc tive Action

Process set forth in its Sales National RSR Handbook, which

governed Petitioner ' s employment.

11. The handbook prescribes a process of progressive

discipline that begins with " coaching, " which is a form of pre -

discipline. As the name suggests, a " coaching " is , essentially,

a nondisciplinary intervention whose purpose is to correct an

issue before the employee ' s conduct warrants stronger measures.

12. If coaching is ineffective, the Corrective Ac tion

Process calls for increasingly severe steps of discipline. The

steps of discipline consist of a Step 1 Written Reminder, a

Step 2 Written Warning, a Step 3 Final Written Warning, and a

Step 4 Termination. The particular discipline to be imposed

depe nds upon the severity of the infraction and the step of

discipline, if any, the employee happens to be on when the

infraction is committed.

13. Steps of discipline remain " active " for six to nine

months, depending on the step. If the employee does not co mmit

any further disciplinary infractions during the active period,

the step " falls off. " If the employee commits another

disciplinary infraction within the " active " period, however, he

or she move s to the next disciplinary step in the Corrective

Action P rocess.

14. O n June 5, 2014, after having previously been coach ed

to maintain compliance with the DOT regulations, Danelli

received a Step 1 Written Reminder for four violations of the

10 - hour rule . She did not appeal this discipline .

15. On Ju ly 25, 2014, Danelli received a Step 2 Written

Warning for a new violation of the 1 0 - hour rule. Once again,

Danelli did not appeal the discipline.

16. On October 7, 2014, Danelli was given another

coaching, during which she was informed that ( i ) an

investi gation into her DOT hours was in process, and ( ii ) the

company was concerned that she might be getting assistance on

her route from her husband in violation of the RSR Performance

Standards.

17. On January 27, 2015, Danelli received a Step 3 Final

Writ ten Warning for violating the 14 - hour rule. She did not

appeal this discipline.

1 8 . Under the Corrective Action Process, a Step 3 Final

Written Warning remains " active " for nine months and is the

final ste p prior to a Step 4 Terminatio n. On May 2 , 2015,

Danelli committed another DOT violation. Because she was

already on a Step 3 Final Written Warning, she was suspended

pending further investigation.

19. Danelli maintains that this violation, and others,

resulted from her making a simple mistake with the handheld

computer, namely failing to log on as a " regulated " employee,

which cost her the electronic warning she otherwise would have

received . She point s out, too, that in this instance, the

vi olation was minor, merely clocking in ten minutes early.

These arguments are not wholly without merit, and if Frito - Lay

had fired Danelli for a single, ten - minute violation of the DOT

regulations , the undersigned would question the company ' s

motivation. But that is not what happened. Danelli d id not

just violate the ten - hour rule once or twice, but many times ,

after multiple warnings , and in the face of increasingly serious

disciplinary steps.

20. Further, Frito - Lay did not terminate Danelli ' s

employment over this latest violation of the ten - hour rule, even

though it would have been justified in doing so within the

parameters of the Corrective Action Process. Instead, the

company placed Danelli on a Last Chance Agreement.

21. Last Chance Agreements are not specifically provided

for in the Corrective Action Process but are used, at the

company ' s discretion, as a safety valve to avoid the occasional

unfortunate termination that might result from strict adherence

to rigid rules. In this regard, the agreement given to Danelli ,

dated May 15, 2015, s tated as follows:

We strongly considered [terminating your

employment]. However, due to the unique

facts and circumstances involved here, as

well as your 15 years of service with the

Company, the Company is willing to issue

this Last Chance Warning . This step is over

and above our normal progressive

disciplinary process, and is being issued on

a one - time, non - precedent setting basis.

. . . [ A ] ny subsequent violations by you

may result in discipline up to an d including

immediate termination. Mor e specifically,

any future violations [of the DOT

regulations] will result in your immediate

termination.

As Danelli put it, the Last Change Agreement was a " sign of

grace " from Frito - Lay. By its terms, it was intended to be

" active and in effect for a p eriod of 12 months. "

22. The undersigned pauses here to let the Last Chance

Agreement sink in, because the fact that Frito - Lay d id not fire

Danelli in May 2015 when ÏÏ for objective, easy - to - prove reasons ,

after a b y - the - book application of progressive discipline ÏÏ it

clearly could have, is compelling evidence that the company was

not harboring discriminatory animus against Danelli. After all,

if Frito - Lay had wanted Danelli gone because of her age or her

gender, why in the world would the company not ha ve jumped at

this golden opportu nity, which Danelli had given it, to fire her

with practically no exposure to liability for unlawful

discrimination? The irony is that by showing mercy, Frito - Lay

set in motion the chain of events that led to this proceedin g .

23. In or around November of 2015, Danelli underwent

surgery, which required her to take some time off of work . For

several years b efore this leave, Danelli ' s route had consisted

of a Super Walmart and two Publix stores . When she returned,

the Super Walmart had been assigned to another RSR , and to make

up for its loss, Danelli ' s supervisor, Stanley Gamble, put a

third Publix grocery on Danelli ' s route, i.e., Publix #1049

located in Tequesta, Florida.

24. Danelli was acquainted with one of the manager s at the

Tequesta Publix , a Mr. Morgan. On her first day back, Danelli

and Mr. Gamble went to that store , where Mr. Morgan told

Mr. Gamble that he was " glad Frances is here. " Mr. Morgan had

complained to Mr. Gamble about the previous RSR , who left the

st ore " all messed up, " according to Mr. Gamble. Danelli also

met Sarah Oblacz ynski, the store ' s " backdoor receiver, " which is

the Publix employee who checks in merchandise .

25. On her new route, Danelli usually went to the Teque sta

store first, early in the morning. She soon ran into a vendor

named Tony who worked for Snyder ' s of Hanover ("Snyder's") , a

snack food company that competes with Frito - Lay. From the

start, Tony was nasty to Danelli and aggressive, telling her

that " t here is no space " for two vendors. Tony was possessive

about shelf space within the store, as well as the parking space

close to the store ' s loading dock . Danelli thought, because of

Tony ' s behavior, that he might be using drugs .

26. On Tuesday, April 6 , 2016, Petitioner had an argument

with Tony over the shelf space that the store manager previously

had awarded to her for the display of Frito - Lay products. Tony

asserted that he had been promised the same space and said to

Danelli , " Y ou ' re going to take that stuff out of the shelf . "

Danelli told him, " No, Morgan said that ' s still my space. " At

this, Tony began cursing and pushed Danelli ' s cart into her,

yelling , " That fucking Morgan ! " Danelli later spoke to

Mr. Morgan , w h o assured Danelli that the she lf space in question

was hers and said he would leave a note to that effect for

Ms. Oblaczynski .

27. There is a dispute as to when Danelli reported the

forgoing incident to Frito - Lay. She claims that, before the end

of the day on April 6, she told Mr. Gamble, her supervisor, all

about the matter, in detail, and requested that someone be

assigned to accompany her on her route the next day because Tony

planned on taking her shelf space. According to Danelli,

Mr. Gamble just laughed and said he did not ha ve anybody to help

her. Mr. Gamble testified , to the contrary, that Danelli had

neither reported the April 6, 2016 , incident to him nor asked

for any assistance . ( Danelli admit s that she did not report the

incident to Mr. Canizares, s ales z one d irector, or to Human

Resources ( " HR " ) ) .

28. Without written documentation regarding this alleged

discussion , it is hard to say what, if anything, Danelli

reported on April 6, 2016. It is likely that Danelli did

complain to Mr. Gamble about Tony on some occasion(s), and might

well have done so on April 6. What is unlikely, however, is

that Danelli notified Mr. Gamble that she felt she was being

sexually harassed by Tony. Tony ' s b oorish and bullying

behavior, to the extent directed at Danelli, seems to h ave been

directed to her qua competitor, not as a woman. At the very

least, the incident is ambiguous in this regard, and one could

reasonably conclu de, upon hearing about it, that Tony was simply

a jerk who resorted to juvenile antics in attempting to ga in the

upper hand against a rival vendor. The undersigned finds that

if Danelli did speak to Mr. Gamble about Tony on April 6, he ÏÏ

not unreasonably ÏÏ did not view the incident as one involving

sexual harassment .

29. As far as Mr. Gamble ' s declining to provide Danelli

with an escort, assuming she requested one, his response is

reasonable if (as found) Mr. Gamble was not clearly on notice

that Danelli believed she was being sexually harassed. Danelli,

after all, was by this time an experie nce d and successful RSR

who undoubtedly had encountered other difficult vendors during

her career. Indeed, as things stood on April 6, a person could

reasonably conclude that Danelli in fact had the situation under

control, inasmuch as Mr. Morgan had clea rly taken Danelli ' s side

and interven ed on her behalf. What could a Frito - Lay

" bodyguard " reasonably be expected to accomplish, which would

justify the risk of escalating the tension between Tony and

Danelli into a hostile confrontation?

30. During the e vening of April 6, 2016, Danelli talked to

her husband about the problem at Publix #1049 , and they decided

that he would accompany her to the store the next morning before

reporting to his own work , to assist if Tony caused a scene .

31. On April 7, 2016, Danelli ' s husband drove to

Publix #104 9 in his own vehicle. Although no longer an employee

of the company, Danelli ' s husband entered the store wearing a

Frito - Lay hat, and h e stayed in the snack aisle while Danelli

went to the back to br ing the order in.

32. Ms. Oblac z yn s ki, the receiver, presented Tony with a

note from Mr. Morgan stating that Danelli ' s products and sales

items were assigned to aisle one. In response, T ony started

swearing about Mr. Morgan and the denial of shelf spa ce, made a

hand gesture indicative of a man pleasing himself, and told

Ms. Oblac z yn s ki that " they can take a fly [ing] F ' n leap. " Tony

had made this particular hand gesture about Mr. Morgan on a

number of previous occasions, in front of both men and women.

33. Mr. Danelli left to go to work once Danelli ' s product

was placed, and she left to go to the next store on her route.

34. When Danelli returned to the warehouse, she went to

Mr. Gamble ' s office and told him about the April 7, 2016,

incident. Accor ding to Danelli , Mr. Gamble laughed in response .

Danelli asked Mr. Gamble if the company would conduct an

investigation, and he said yes. She recalls that e very day

there after , she asked Mr. Gamble if he had heard anything

because she thought " we [Frito - Lay] were investigating " and that

HR was on top of it.

35. Danelli admits, h owever, that she " intentionally " did

not tell Mr. Gamble that her husband had accompanied her to

Publix #104 9 to assist her in the store that morning. She did

not repor t this detail because she knew it was " bad. " In

conflict with Danelli ' s account, Mr. Gamble testified that

Danelli did not report that Tony made a sexual gesture in front

of her or used coarse or profane lang uage in her presence on

April 7, 2016.

36. T he undersigned finds that Mr. Gamble most likely did

not laugh at Danelli or otherwise treat her dismissively upon

hearing her report of the incident. If Mr. Gamble had believed

the matter were so trivial or amusing, he would not likely have

agreed to inv estigate. The undersigned finds, further, that

however Danelli described the incident, she did not make it

clear to Mr. Gamble that she perceived Tony ' s behavior as a form

of sexual harassment. Danelli did not make a formal written

complaint to that effect at the time, and the situation at

Publix #1049 was, at the very least, ambiguous . More likely

than not, Mr. Gamble viewed the troublesome vendor from Snyder ' s

as an unwelcome business problem to be dealt with , not as a

perpetrator of unlawful, gender - based discrimination.

37. To elaborate, putting Tony ' s " sexual gesture " to one

side momentarily, the rest of his conduct, even the cursing,

while certainly objectionable, is not suggestive of sexual

harassment; it is just bad behavior. Tony ' s temper tantrums and

outbursts no doubt upset Danelli and others, but that does not

turn them into gender discrimination . Further, Danelli seems to

have handled the situation well until she resorted to self - help

on April 7, 2016. The responsible Publix employees were already

aware of the problem , and in due course, they complained to

Snyder ' s, which unsurprisingly removed Tony from that store.

Meantime, had Danelli felt physically threa tened or afraid as a

result of Tony ' s more aggressive antics, she (or Publix) could

have called the police; this, indeed, would have been a safer

and more reasonable alternative to bringing along her husband or

another civilian for protection, which as men tioned above posed

the risk of provoking a fight, given Tony ' s volatility.

38. Ultimately, it is Tony ' s " sexual gesture " that

provides a colorable basis for Danelli ' s sexual harassment

complaint. But even this gives little grounds for a claim of

disc rimination, without more context than is present here. To

be sure, the " jerk off gesture " or " air jerk " is obscene, and

one would not expect to see it in polite company or in the

workplace. Yet, although it clearly mimics a sexual practice,

the air jerk is generally not understood as being a literal

reference to masturbation. T hat is, t he gesture is not

typically used to convey a present intention to engage in

masturbation or as an invitation to perform the act on the

gesturer. Rather, the jerk off gest ure usually signifies

annoyance, disgust, disinterest, or disbelief . As with its

cousin, the " finger " (or bird) gesture, the sexual connotations

of the air jerk are (usually) subliminal.

39. Here, there is no allegation or evidence that Tony ' s

jerk off gesture was undertaken in pursuit of sexual

gratification or was intended or perceived as a sexual advance

on Danelli (or someone else) ÏÏ or even as being overtly sexual in

nature. (Obviously, if the evidence showed that, under the

circumstances, Tony was, e.g., inviting Danelli to participate

in sexual activity, this would be a different case. The

undersigned is not suggesting, just to be clear, that the air

jerk gesture is incon sistent with or could never amount to

sexual harassment, but only that it is not unequivocally a sign

of such harassment, given its commonly understood meanings.) To

the contrary, it is clear from the surrounding circumstances

that Tony made the gesture t o indicate that he regarded

Mr. Morgan ' s note as pointless and annoying. It was roughly the

equivalent of giving them the bird , albeit arguably less

contemptuous than that . For these reasons, the undersigned

finds it unlikely that , assuming Danelli descr ibed the gesture

(which is in dispute), Mr. Gamble thought Danelli was

complaining about sexual harassment, as opposed to a very

difficult vendor.

40. On April 13, 2016, Mr. Gamble visited Publix #1049 and

spoke to Ms. Oblac z y n s ki about the situation. D uring this

conversation, Ms. Oblac z yn s ki stated that the " Frito - Lay people "

did nothing wrong . She further specified that " the person

[ Danelli] had with her did nothing wrong. "

41 . After speaking with Ms. Oblac z yn s ki, Mr. Gamble met

with Danelli while she was servicing her second account. Right

off the bat , Mr. Gamble asked Danelli who was with her at

Publix #1049 on April 7, 2016. She eventually admitted that her

husband was with her in the store that day. Aware of the

seriousness of her offe nse and the active Last Chance Agreement,

Danelli asked Mr. Gamble, several times, if she would be fired.

42 . That same day, Mr. Gamble called Carlos Canizares

to tell him what he had learned. Mr. Canizares instructed

Mr. Gamble to stay with Danelli while she finished servicing her

accounts and then to obtain a written statement from her about

the incident.

4 3 . Later on April 13, 2016, Danelli provided a writt en

statement in which she confirmed that her husband had been

working with her at Publix #1 049 the previous week. Danelli has

since described this statement as a " full written account of the

harassment [and] rude sexual gestures. " Danelli knew, of

course, that HR would review her statement, and yet she said

nothing therein about having complai ned to Mr. Gamble or any

supervisor about harassment generally or Tony in particular;

about Tony ' s use of course or improper language; or about having

requested an escort to help keep Tony in line.

44. On the instructions of the company ' s HR department ,

Mr. Gamble conducted an investigation into th e " rude sexual

gesture " about which Danelli had complained. Specifically, he

called Mr. Morgan , the Publi x manager , and asked him about the

incident . Mr. Gamble also requested that he be allowed to

review any videotapes and documents concerning the incident.

Mr. Morgan informed Mr. Gamble that Publix was investigating the

matter. Mr. Gamble ' s request to allow Frito - Lay access to

Publix videotapes and documents was, however, turned down.

45. Tony ' s boori sh behavior aside, the fact remained that

Danelli, without prior approval, had allowed a non - employee to

perform work or services for Frito - Lay at one of the stores on

her route, which the RSR Performance Standards specifically

prohibit without express aut horization. RSRs who are found to

have permitted non - employees to accompany them on their routes

are either discharged or issued multiple steps of discipline, as

Danelli knew. Because Danelli violated this rule while on an

active Last Chance Agreement, F rito - Lay decided to terminate her

employment.

46. On April 26, 2016, Mr. Canizares met with Danelli to

inform her that she was fired. Danelli timely appealed her

termination pursuant to the company ' s Complaint and Appeal

Procedure, electing to have her appeal decided by a neutral,

third - party arbitrator. The arbitration hearing took place in

January 2017. Three months later, the arbitrator ruled that

Danelli ' s termination had been proper and carried out in

accordance with Frito - Lay ' s employment policie s .

47. Danelli does not presently deny that she violated the

DOT regulations and the company policy forbidding the use of

non - employees as helpers while on duty, nor does she dispute

that Frito - Lay had sufficient grounds for imposing the

disciplinary ste ps leading to the Last Chance Agreement.

Indeed, she does not contend that it would have been wrongful

for Frito - Lay to have fired her in May 2015 instead of offering

the Last Chance Agreement. Her position boils down to the

argument that because Frito - L ay could have exercised leniency

and not fired her for bringing her husband to work at

Publix #1049 (which is probably true 2 / ) , its failure to do so can

only be attributable to gender or age discrimination. Put

another way, Danelli claims that but for her being a woman in

her 50s, Frito - Lay would have given her another " last chance. "

This is a heavy lift.

48. As circumstantial evidence of discrimination, Danelli

points to the company ' s treatment of another RSR, a younger man

named Ryan McCreath. Like Danelli, Mr. McCreath was caught with

a non - employee assisting him on his route. Unlike Danelli,

however, Mr. McCreath was not on any active steps of discipline

at the time of the incident, much less a Last Chance Agreement.

Although Mr. McCreath ' s disci plinary record was not unblemished,

Frito - Lay did not terminate his employment for this violation of

the RSR Performance Standards. Instead, he received three steps

of discipline and was issued a Final Written Warning.

49. Mr. McCreath ' s situation is d istinguishable because he

was not under a Last Chance Agreement at the time of the

violation. Moreover, it is not as though Mr. McCreath got off

scot - free. He received a serious punishment. Danelli could not

have received a comparable punishment for the same offense

because she was already beyond Step 3; her record, unlike his,

did not have room for the imposition of three steps of

discipline at once.

50. The McCreath incident does not give rise to a

reasonable inference that Frito - Lay unlawfully discr iminated

against Danelli when it terminated her employment for committing

a " three - step violation " while on an active Last Chance

Agreement . There is simply no reason to suppose that if

Danelli, like Mr. McCreath, had not had any active steps of

disciplin e when she violated the rule against having non -

employees provide on - the - job assistance, Frito - Lay would have

terminated her employment for the April 7, 2016, infraction ; or

that if Mr. McCreath, like Danelli, had been on a Last Chance

Agreement when he vi olated the rule, Frito - Lay would have issued

him a Final Written Warning in lieu of termination .

Ultimate Factual Determinations

51 . There is no persuasive evidence that any of Frito -

Lay ' s decisions concerning, or actions affecting, Danelli ,

directly or indirectly, were motivated in any way by age - or

gender - based discriminatory animus. Indeed, there is no

competent, persuasive evidence in the record, direct or

circumstantial, upon which a finding of unlawful age or gender

discrimination could be made.

52. There is no persuasive evidence that Frito - Lay took

any retaliatory action against Danelli for having opposed or

sought redress for an unlawful employment practice .

53. There is no persuasive evidence that Frito - Lay

committed or permitted sexual hara ssment of Danelli or otherwise

exposed her to a hostile work environment .

54 . Ultimately, therefore, it is determined that Frito - Lay

did not discriminate unlawfully against Danelli on any basis.

CONCLUSIONS OF LAW

55 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to s ections 120.569 and 120.57(1),

Florida Statutes.

56 . As stated in City of Hollywood v. Hogan , 986 So. 2d

634, 641 (Fla. 4th DCA 2008) :

The Florida Civil Rights Act of 1992 (FCRA)

prohibits age discrimination i n the

workplace. See § 760.10(1)(a), Fla.

Stat. (2007). It follows federal law, which

prohibits age discrimination through the Age

Discrimination in Employment Act (ADEA).

29 U.S.C. § 623. Federal case law

interpreting Title VII and the ADEA applies

to cases arising under the FCRA. Brown

Distrib. Co. of W. Palm Beach v.

Marcell , 890 So. 2d 1227, 1230 n.1

(Fla. 4th DCA 2005).

57 . Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice for an employer:

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

individual ' s race, color, religion, sex,

pregnancy, national origin, age, handicap,

or marital status.

58 . In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 803 (1973), the U.S. Supreme Court articulated a scheme for

analyzing emplo yment discrimination claims where, as here, the

complainant relies upon circumstantial evidence of

discriminatory intent. Pursuant to this analysis, the

complainant has the initial burden of establishing by a

preponderance of the evidence a prima facie ca se of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. If, however, the complainant

succeeds in making a prima facie case, then the burden shifts

to the accused employer to articulate a legitimate,

nond iscriminatory reason for its complained - of conduct. If the

employer carries this burden, then the complainant must

establish that the proffered reason was not the true reason but

merely a pretext for discrimination. Id. ; St. Mary ' s Honor Ctr .

v. Hicks , 5 09 U.S. 502, 506 - 07 (1993).

59 . Under the foregoing framework, Danelli bears the

burden of establishing her prima facie case by a preponderance

of the evidence and must show, among other elements, that:

( i ) she was subjected to an adverse employment action; and

( ii ) similarly - situated employees outside of her protected class

( i.e., younger and/or male) were treated differently . Schrock

v. Publix Super Mkts, Inc . , 653 F. App ' x 662, 663 (11th Cir.

2016); see, e.g. , Holland v. Gee , 677 F.3d 1047, 1055 ( 11th Cir.

2012)(Title VII); Chapman v. AI Transp. , 229 F.3d 1012, 102 4

(11th Cir. 2000)(ADEA).

60 . In this matter, the evidence does not establish a

prima facie case of discrimination based on sex or age. To

begin with, Danelli fail ed to identify any other similarly -

situated employees outside of her protected class who were

treated more favorably. Danelli points t o Mr. McCreath as a

similarly - situated, younger, male employee who was treated

better than she was. Specifically, she argu es that Mr. McCreath

was given a Final Written Warning for his violation of the

policy prohibiting non - employees from working with Frito - Lay

employees on their routes, whereas she was fired for the same

violation.

61 . " When comparing similarly - situated in dividuals to

raise an inference of discriminatory motivation, these

individuals must be similarly situated in all relevant

respects. " Jackson v. BellSouth Telecom. , 374 F.3d 1250, 1 273

(11th Cir. 2004) (emphasis added). In determining whether

employees are similarly situated, courts require that the

proposed comparator and the plaintiff be " nearly identical . " I n

this regard , it is necessary to consider whether they:

( i ) " answered to the same supervisor " ; ( ii ) " worked under the

same standards of conduct " ; ( iii ) had different disciplinary

records , see Jones v. Ala bama Power Co . , 282 F. App ' x 780, 784

(11th Cir. 2008) (factoring in the proposed comparator ' s lack of

a disciplinary record in holding that the plaintiff and the

comparator were not similarly situated); and (iv ) " engaged in

' the same conduct without such differentiating or mitig ating

circumstances that would distinguish . . . the employee ' s

conduct or the employer ' s treatment of the employee. '"

Sanguinett i v. United Parcel Serv., Inc. , 114 F. Supp. 2d 1313,

1317 (S.D. Fla. 2000)(citing Mitchell v. Toledo Hosp. , 964 F.2d

577, 583 (6th Cir. 1992); Jones v. Gerwens , 874 F.2d 1534, 1541

(11th Cir. 198 9) (finding that " disciplinary measures undertaken

by different supervisors m ay not be comparable for purposes of

Title VII analysis " ); Dep ' t of Child. & Fam s . v. Shapiro , 68 So.

3d 298, 305 (Fla. 4th DCA 2011) (quoting Maniccia v. Brown , 171

F.3d 1364, 1368 (11th Cir. 1999)).

62 . As found above, Mr. McCre ath ' s disciplinary record

differed materially from Danelli ' s in that she was on a Last

Chance Agreement and he had no active discipline . Differences

in the plaintiff ' s and a comparator ' s overall record may render

them not " similarly situated " for purposes of establishing a

prima facie case. See, e.g. , Knight v. Baptist Hosp. of Miami,

Inc . , 330 F.3d 1313, 1316 - 19 (11th Cir. 2003)(finding that the

employee and comparator who committed the same act were not

similarly situated because the compar ator ' s overall record was

better); Cooper v. S . Co . , 390 F.3d 695, 741 (11th Cir.

2004) (holding that a plaintiff ' s prior placement in a

disciplinary program rendered employees not placed in the

program invalid comparators) . Mr. McCreath ' s different

discip linary record at the time of his discipline establishes

that he was not similarly situated to Danelli .

63 . Danelli ' s failure to make out a prima facie case

of discrimination ended the inquiry. Because the burden

never shifted to Frito - Lay to articulate a legitimate,

nondiscriminatory reason for its conduct, it was not necessary

to make any findings of fact in this regard. Nevertheless,

Frito - Lay gave such a reason for its decision to discharge

Danelli , namely that she violated the RSR Per formance Standards

while on an active Last Chance Agreement . The undersigned found

this explanation to be well - founded in fact and not pretextual.

64 . In addition to the age and gender discrimination

claims, Danelli asserts that Frito - Lay terminated her employment

in retaliation for her complaint regarding a third - party

competitor ' s (Tony ' s) purported harassment. Particularly, in

her Complaint, Danelli claims that she " would not have been

fired but for . . . [her] harassment complaints. "

65 . Under the F lorida Civil Rights Act ' s ( " FCRA " )

opposition clause, Frito - Lay is prohibited from retaliating

against Danelli because she has opposed an unlawful employment

practice. § 760.10(7), Fla. Stat. Meanwhile, under the FCRA ' s

participation clause, Frito - Lay is prohibited from retaliating

against an employee because he or she " has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under [the FCRA]. " Id.

66 . As a preliminary matter, Danelli never " made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing " prior to her termination

from employment. Accordingly, Danelli cannot establish her

retaliation claim under the FCRA ' s participation clause.

67 . To establish her prima facie case of retaliation

under the FCRA ' s opposition clause , Danelli must demonstrate

that: ( i ) she engaged in statutorily protected activity;

( ii ) she suffered a materially adverse action; and ( iii ) a

causal relationship existed between her protected activity and

the adverse action. Goldsmith v. Bagby Elevator Co., Inc . , 513

F.3 d 1261, 1277 (11th Cir. 2008). If Danelli establishes a

prima facie case, the burden shifts to Frito - Lay to rebut the

pre sumption by articulating a legitimate non - retaliatory reason

for the materially adverse action. Id. Danelli then must

demonstrate that the articulated reason is a pretext to mask an

improper motive. Id . In other words, Danelli must show that

her allege d protected activity was a " but for " cause of her

termination. Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S.

338 (2013).

68 . The first element of Danelli ' s prima facie case of

retaliation requires her to show that she engaged in statutorily

protected activity. For this , Danelli must prove that she had a

" good faith, reasonable belief that . . . [Respondent] was

engaged in unlawful employment practices. " Little v. Unite d

Techs., Carrier Transicold Div. , 103 F.3d 956, 960 (11th Cir.

1997). In order to constitute protected activity, Danelli must,

at the very least, have communicate d her belief that illegal

discrimination wa s occurring. Marcelin v. Eckerd Corp. of Fla.,

I nc. , No. 8:04 - CV - 491 - T - 17MAP, 2006 U.S. Dist. LEXIS 18097 , *27 -

*28 (M.D. Fla. Apr. 10, 2006) (citing Webb v. R & B Holding Co. ,

992 F. Supp. 1382, 1389 (S.D. Fla. 1998)). " It is not enough

for [Petitioner] . . . to complain about a certain policy or

certai n behavior of coworkers and rely on the employer to infer

that discrimination [or harassment] has occurred. " Webb , 992 F.

Supp. at 1389.

69 . Although Danelli complain ed about Tony, her complaints

were not grounded on her sex or any other protected

c haracteristic. This is because Tony ' s utterances and gesture,

as both Danelli and Ms. Oblac z yn s ki testified, were about

Mr. Morgan and the denial of shelf space. None of this clearly

and unambiguously related to Danelli ' s sex or any other

protected chara cteristic , and Danelli never told Frito - Lay,

unequivocally, that she believed it did. Frito - Lay was not

required to draw an inference of unlawful sexual harassment from

such circumstances .

70 . It is well - established that laws prohibiting

retaliation do n ot set forth " a general civility code for the

American workplace " and do not protect employees from being

mistreated in the workplace. See Oncale v. Sundowner Offshore

Servs., Inc. , 523 U.S. 75, 80 (1998). Here, the evidence

demonstrates that Tony ÏÏ although rude and boorish ÏÏ took action

against Danelli because he wanted her shelf space, not because

of her sex or any other protected characteristic . Thus,

Danelli ' s general complaints about Tony and his mi streatm ent of

her cannot serve as the basis of a retaliation claim.

71 . Even if they could, Danelli still needed to prove that

she would not have been terminated " but for " her complaint. See

Trask v. Sec ' y, Dep ' t of Vet s' Aff . , 822 F. 3d 1179, 1194 (11th

Cir. 2016). Danelli was unable to do this because she

undisputedly violated the RSR Performance Standards one day

after she supposedly complained about the alleged harassment.

Specifically, on April 7, 2016, Petitioner had her husband ÏÏ a

non - employee ÏÏ assist her with her work on her route.

Petitioner ' s flagrant act of misconduct sever ed any causal chain

that might have existed between any alleged protected activity

and her termination. See Fleming v. Boeing Co. , 120 F.3d 242,

248 (11 th Cir. 1997)(the employee ' s failure to meet performance

standards broke the causal chain established by the employee who

filed complaints of sexual harassment shortly before her

application for employment was rejected). Because Danelli

failed to prove th e required causation between these two events,

her retaliation claim was not established .

72 . Finally, Danelli asserts a claim of sexual harassment ,

alleging that Ton y harassed her while she was working.

Generally, sexual harassment comes in two forms: ( i ) harassment

that does not result in a tangible employment action

(traditionally referred to as " hostile work environment "

harassment), and ( ii ) harassment that does result in a tangible

employment action (traditionally referred to as " quid pro quo "

har assment). See Gen. Burlington Indus., Inc. v. Ellerth , 524

U.S. 742, 760 - 63 (1998). This case involves an alleged hostile

work environment.

73 . To establish a claim of a hostile work environment,

Danelli must prove 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. "

Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993).

74 . When, as here, the alleged harassment is committed by

coworkers, non - supervisory employees, or third parties, the

p etitioner must demonstrate that the r espondent " knew, or

reasonably should h ave known, of the harassment and failed to

take prompt remedial actions. " See Allen v. Tyson Foods, Inc. ,

121 F. 3d 642, 646 - 47 (11th Cir. 1997) (citing Faragher v. City of

Boca Raton , 111 F.3d 1530, 1535, 1538 (11th Cir. 1997)). The

remedial action must be reasonably calculated to prevent the

misconduct from recurring . Kilgore v. Thompson & Brock Mgmt.,

Inc. , 93 F.3d 752, 753 - 54 (11th Cir. 1996).

75 . Danelli failed to establish her hostile work

environment claim. Foremost, she has not shown that Tony ' s

purportedly harassing behavior was based on her sex. The

e vidence establishes, rather, that Tony ' s conduct was based on

his desire to acquire Danelli ' s shelf space, or was responding

to Mr. Morgan ' s denial of Tony ' s demands regarding shelf space.

See Smart v. City of Miami Beach, Fla. , 933 F. Supp. 2d 1366,

1376 (S.D. Fla. 2013) ( " As an initial matter, a plaintiff ' s claim

of sexual harassment may not be supported with evidence of non -

sexual, non - gender - based harassment. " ).

76 . The fact that Tony made a sexual gesture ÏÏ the air

jerk ÏÏ in front of Danelli did not turn the situation into an

actionable hostile work environment. See Reeves v. CH Robinson

Worldwide, Inc. , 594 F.3d 789, 808 (11th Cir. 2010)(noting that

words containing sexual content or invoking sexual connotations

do not a utomatically serve as evidenc e of sex - based

discrimination). " [N]ot all sexually offensive conduct rises to

the level of a . . . violation. " Mendoza v. Borden, Inc. , 195

F.3 d. 1238, 1268 (11th Cir. 1999).

77 . The law is clear: " innocuous statements or conduct,

or boorish ones, u nrelated to a protected ground " are not

actionable. Cotton v. Cracker Barrel Old Country Store, Inc. ,

434 F.3d 1227, 1234 (11th Cir. 2006); s ee also Williams v. Ala.

Pub. Health Dep ' t. , 159 F. App ' x 120, 121 (11th Cir.

2005)(affirming the district court ' s dismissal of a hostile work

environment claim where the plaintiff " alleged that her

coworkers ' conduct was annoying and unprofessional but failed to

allege that it was attributable to her membership in a protected

category " ). Because Danelli failed to p roffer any persuasive

evidence show ing that Tony ' s conduct was based on her sex, such

conduct cannot form the basis of a hos tile work environment

claim.

78 . Similarly, Danelli has not shown that she was

subjected to harassing behavior because of her age. There is no

persuasive evidence indicat ing that any of Tony ' s behavior w as

taken because of Danelli ' s age. Moreover, the evidence shows

that Tony behaved the same way in front of others, without

regard to the ir age s.

79 . Along with failing to show that the alleged harassment

was based on her sex or ag e, Danelli failed to prove that the

harassment was sufficiently severe or pervasive to alter a

" term, condition, or privilege " of employment and create an

abusive working environment. Danelli primarily takes issue with

the incidents that transpired on April 6 and 7 , 201 6 , plus some

additional rude comments by Tony about Mr. Morgan and the denial

of shelf space. Such harassment is not objectively severe

enough to alter her employment terms and condition s. See

Muggleton v. Univar USA, Inc. , 249 F. App ' x 160, 163 (11th Cir.

2007) (noting that one incident with a few comments was not

sufficiently " severe " to constitute actionable age - based

harassment); see also Willets v. Interstate Hotels, LLC , 204

F. Supp. 2d 1334, 1337 (M.D. Fla. 2002)(supervisor hugg ed

plaintiff three times a year, rubbed her head and shoulders,

frequently indicated his love for her, grabbed her buttocks,

kissed her, and placed his hand on her inner thig h ÏÏ not severe

enough f or actio nable harassment).

80 . Nor was the purported harassment " pervasive. "

Publix #1049 was not added to Danelli ' s route until

November 2015. Thus, all of her interaction s with Tony took

place between November 2015 and April 2016. A few isolated

incidents during a five - month period do not amount to pervasive

harassment . See Johnson v. Rice , 237 F. Supp. 2d 1330 (M.D.

Fla. 2 002)(harasser ' s conduct held not to be objectively

pervasive whe re he made sexual comments and jokes over a period

of six months).

81 . In sum, Danelli ' s hostile work environment claim fails

because she did not prove by the greater weight of the evidence

that: (i) Tony ' s alleged harassment was based on her sex, age,

or any protected characteristic ; and (ii) the harassment was

severe or pervasive enough to alter a " term, condition, or

privilege " of employment and create an abusive working

environment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the F lorida Commission on Human

Relations enter a final order finding Frito - Lay not liable for

gender or age discrimination, retaliation, or creating a hostile

work environment.

DONE AND ENTERED this 11th day of July , 201 8 , in

Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 11th day of July , 201 8 .

ENDNOTES

1 / For five years during this 15 - year period, but not at the

times relevant to this proceeding, Danelli's husband held a

part - time job with Frito - Lay as a merchandiser.

2 / The undersigned does not much doubt that if it had wanted to,

Frito - Lay could have found a way to spare Danelli's job without

setting a bad precedent. It might have found, for example, that

the situation with Tony was a mitigating circumstance, which,

while not a justification for bringing along a non - employee to

work with her, provided a somewhat sympathetic explanation for

Danelli's infraction. Danelli's argument, however, presupposes,

without support, that an employee with an active Last Change

Agreement is practically entitled to such mercy.

COPIES FURNISHED :

Donald R. McCoy, Esquire

DONALD R. McCOY, P.A.

111 Southeast 12th Street

Fort Lauderdale, Florida 33316

(eServed)

Bonnie Mayfield, Esquire

Dykema Cox Smith

39577 Woodward Avenue, Suite 300

Bloomfield Hills, Michigan 48304

(eServed)

Tammy S . Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

Cheyanne M. 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 ca se.