18-004091 Nou M. Wall vs. Gordon Food Services Status: Closed Recommended Order on Wednesday, February 27, 2019.

Summary: Pet. did not prove discrimination because of gender, ethnicity (Asian-American), or age. Pet. failed to put on sufficient evidence of comparators or that discriminatory comments were severe and pervasive enough to establish hostile work environment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NOU M. WALL,

Petitioner,

vs. Case No. 18 - 4091

GORDON FOOD SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On December 17, 2018, Administrative Law Judge Hetal Desai

of the Division of Administrative Hearings (DOAH) conducted t he

final hearing in this matter in Tampa , Florida.

APPEARANCES

For Petitioner: Nou M. Wall, pro se

6519 Farris Drive

Lakeland, Florida 33811

For Respondent: Karen M. Morinelli, Esquire

Ogletree Deakins

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Respondent, Gordon Food Services, Inc. (GF S),

discriminated against Petitioner, Nou M. Wall, based on her race

(Asian), gender (female) , and age (40) in violation of the

Florid a Civil Rights Act (FCRA).

PRELIMINARY STATEMENT

On October 23, 2017, Petitioner filed an Amended Employment

Complaint of Discrimination with the Florida Commission on Human

Relations (the Commission ) alleging discrimination based on

Ð Race, Ñ Ð Sex , Ñ and Ð Age. Ñ Specifically, Petitioner alleged the

following acts were discriminatory: (1) she was wrongfully

accused of work vio lations in November 2016 and May 2017; (2) she

was wrongfully accused of gossiping and placed on a corrective

action plan in August 2017; and (3) she received disparate

treatment in her work load and discipline .

The Commission issued a Ð Determination: No Reasonable

Cause Ñ on July 6, 2018, and Petitioner timely filed a Petition

for Relief to contest the Commission Ó s determination on August 2,

2018. The Commission transmitted the Petition to DOAH , where it

was assigned to the undersigned and noticed for a f inal hearing.

Prior to the final hearing, Respondent filed a motion to

compel, which was heard on November 10, 2018, during a telephonic

pre - hearing conference. During this telephonic hearing, the

parties also discussed issues relating to the final heari ng such

as burden of proof, exhibits, and witnesses.

Petitioner presented her own testimony and offered E xhibits

P1 through P4, all of which were admitted into evidence without

objection. Respondent offered the testimony of four witnesses:

Lemonde Rush, Jim Reid, Mayra Vanacore , and Mario Bracero.

Respondent Ó s E xhibits R1 through R29 were admitted into evidence

without objection.

T he parties stipulated to a number of facts on the record a t

the final hearing , and in a Joint Pre - hearing Stipulation. Thos e

facts have been acc epted and incorporated in this R ecommended

O rder.

The Transcript was filed January 28, 2019. The parties

timely filed their Proposed R ecommended O rders (PRO s ) and both

PROs were considered in preparing this Recommended Order .

Unles s otherwise indicated, a ll statutory and administrative

rule references are to the 201 8 version of the Florida Statutes

and Florida Administrative Code .

FINDING S OF FACT

Parties

1. Ms. Wall, a 40 - year old Asian female, began employment

with GFS as a custo dian in the Maintenance Department at the

Plant City Distribution Center (Plant City Center) on January 6,

2013.

2 . As of the date of the hearing, Ms. Wall remained in this

position of custodian.

3 . GFS is in the business of distributing food products and

supplies to hospitals, schools, and restaurants. It is an

Ð employer Ñ as defined by section 760.02(7), Florida Statutes.

4 . GFS has distribution centers nationwide. The Plant City

Center worksite is one million square feet.

5 . The Plant City Cente r is staffed by approximately 265

employees. This workforce is diverse, but Ms. Wall is the only

Asian woman.

6. Lemonde Rush, an African - American male, is the Ð Director

of Warehouse Ñ at the Plant City Center. He reports to a general

manager, but overs ees the staff, budget, operations, and safety

issues related to the Plant City Center. He is involved in most

disciplinary actions, either directly or indirectly, and makes

the ultimate decisions regarding staffing, including hiring and

terminations.

7 . Mr. Jim Reid, a Caucasian male, reports to Mr. Rush. He

became Petitioner Ó s supervisor in January 2014 , and has served as

a GFS maintenance supervisor at all times relevant to Ms. WallÓs

allegations .

8 . Mr. Reid is responsible for the maintenance team which

is made up of two M aintenance Lead s, three parts personnel, eight

mechanics , and 13 custodians.

9 . Mario Bracero, a Hispanic male, was the Maintenance Lead

for Petitioner Ó s custodial team. Mr. Bracero had no authority to

hire, fire, or discipline M s. Wall . Mr. Bracero reported to

Mr. Reid.

10 . Mayra Vanacore is the Human Resources (HR) Generalist

at the Plant City Center. She reports to E.J. Laviolette, who

works at the GFS headquarters out of the state . Ms. Vanacore is

in charge of employee re lations, including investigations, leave,

workers Ó compensation, and recruiting and employee training. She

does not make any decisions regarding hiring, disciplining , or

termination, although she does facilitate and consulate with

supervisors regarding th ese actions.

Relevant Policies

11 . Although Ms. Wall executed an Acknowledgment of Receipt

for an Ð Employee eHandbook and Code of Business Conduct (with

Appendix A - Fraud Policy and Integrity Hotline Brochure), Ñ

neither part y offered the Code of Busines s Conduct or the

Employee eHandbook into evidence . No equal employment policy,

disciplinary policy, anti - discrimination policy, anti - harassment

policy, or employee complaint procedure was introduced into

evidence.

12. Based on Mr. Rush Ó s testimony , whe n GFS receives

complaints from one employee against another, he would, if

possible, facilita t e a face - to - face meeting between the

employees. If an employee is uncomfortable meeting with another

employee, he would get the complaint in writing.

13 . Sexua l harassment complaints by GFS employees are

turned over to Ms. Vanacore in Human Relations to conduct the

investigation if required . Ms. Vanacore keeps these

investigations confidential.

14 . According to the GFS Ð Human Practice HR10 Policy Ñ (HR

Policy 10), to be eligible for open positions at GFS, GFS

employees cannot have a formal documented disciplinary action

issued against them within the past six months.

Ms. Wall Ó s Job Duties

15 . There are 13 custodians at GFS who work in shifts. The

work is div ided among the custodians as equally as possible by

square footage.

16 . As a custodian, Ms. Wall Ó s job duties involved cleaning

tasks in her assigned area such as sweeping, mop p ing, addressing

spills and leaks, sorting trash into plastic and cardboard, and

emptying trash bins.

17 . GFS also evaluated its employees on Measurable

Performance Criteria in the general area of Ð communication. Ñ For

Ms. Wall, these standards involved the handling of cleaning

requests made from customers (employees from other departments)

in the Plant City Center , including those made over radios.

Specifically, included in the communication criteria was an

expectation Ð to maintain a professional demeanor with internal

customers, contractors, vendors, co - workers , and leadership. Ñ

18 . According to GFS Ó witnesses, the cleanliness of the

Plant City Center was paramount to its business. GFS is subject

to numerous food and safety standards because it distributes food

products to commercial (i. e., restaurants) and government - run

(i. e., schools and prisons) kitchens. GFS must pass regular

periodic inspections and audits by government regulators and

private auditors. GFS also keeps extensive documentation

regarding its cleaning regiment. This documentation is necessary

in case of a food recall or other irregularity so that GFS can

show how specific food products were handled and stored.

19 . As a result, the custodial staff is constantly

monitored and evaluated; their annual compensation is dependent

on how GFS rates in these inspect ions and audits.

20 . In addition to her job duties, Ms. Wall was required to

wear a GFS uniform and, when appropriate, safety equipment.

According to the Ð Basic Job Performance Expectations Ñ document

for Custodial Maintenance employees, Ms. Wall was requ ired to

wear safety glasses in designated areas, and while working with

chemicals and dangerous tools.

Ms. Wall Ó s Work History and Performance

21 . Ms. Wall had perfect attendance, p e r formed her cleaning

duties well, and was a reliable employee. She, howe ver, had a

history of insubordination and not getting along with her co -

workers.

22 . In September 2014, Ms. Wall was issued a Ð Written

Notice of Corrective Action Ñ (Corrective Action) for gossiping

about her co - workers. Ms. Wall signed the document wit hout

comment.

23 . On June 24, 2015, Ms. Wall was issued a Corrective

Action for Insubordination. As a result , she received a three -

day suspension. The disciplinary action was triggered by

Ms. Wall failing to wear safety glasses after being instructed t o

do so. Ms. Wall signed the document and stated she agreed with

the terms, but contested additional details in the Corrective

Action.

24 . On October 29, 2015, Mr. Reid held a coaching session

with Ms. Wall regarding the way she answered customer servi ce

calls. GFS considered the coaching session a mentoring

opportunity and not a disciplinary action, although it was

documented by a memorandum and placed in her file.

25 . As established by Mr. Reid Ó s testimony, he counseled

Ms. Wall because he had re ceived complaints that she had been

rude when answering custodial request calls , and he felt it would

help Ms. Wall improve in the area of communications. Subsequent

to the counseling session, Mr. Reid did not receive any

complaints regarding Ms. Wall Ó s p rofessionalism on the radio.

26 . On January 2 0, 2016, Ms. Wall received her semi - a nnual

performance review, scoring 750 points out of 800. This is

considered a good score.

27 . In the January 2016 review, Mr. Reid no ted the

following regarding work rela tionships:

Michelle, the cooperation levels between you,

customers and team members need to improve.

* * *

[Y]ou have some good qualities that you bring

to the team but you also have some qualities

that need improvement . . . . [Y] ou have

times where you struggle to meet the

expectations and lose focus of maintaining

healthy relationships.

28 . On August 9, 2017, Mr. Rush and Mr. Reid met with

Ms. Wall and issued her a Corrective Action (August 2017

Corrective Action) for gossiping and Ð harassi ng behavior that is

creating an unproductive and hostile work environment for those

that have to work with you. Ñ

29 . This disciplinary action was issued after Mr. Rush

received a complaint from a third - party vendor that Ms. Wall had

a conflict with one of its employees (a non - GFS employee) , and he

had received approximately a dozen complaints from other GFS

employees against Ms. Wall within a short timeframe. Ms. Wall

also had confrontational interactions with members of the

custodial team. Based on th ese complaints, Mr. Reid interviewed

the complainants , obtained written documentation , and drafted the

August 2017 Corrective Action with Mr. Rush.

30 . Based on the unrebutted testimony of Mr. Rush and

Ms. Vanacore, the undersigned finds GFS did receiv e complaints

about Ms. Wall, but makes no finding regarding the substance or

veracity of those complaints. 1 /

31 . The August 2017 Corrective Action was not vetted

through Human Relations or Ms. Vanacore prior to being issued to

Ms. Wall .

32. The August 2017 Corrective Action also states,

Consequences/Actions: Michelle, any future

incidents of you making derogatory comments

about your peers spreading rumor [sic] or

your participation in harassing behavior is

totally unacceptable and may be cause for

furt her disciplinary action up to and

including separation of employment.

Additionally, it warned that if there are any other Ð additional

performance or policy violation issues, you will be subject to

further disciplinary action up to and including terminati on. Ñ

33. Upon receiving the August 2017 Corrective Action from

Mr. Rush , Ms. Wall was upset and disagreed with it.

34 . In Ms. Wall Ó s next performance review on March 18,

2018, Mr. Reid instructed her to adhere to the GFS Code of

Conduct, avoid gossip, and Ð challenge yourself to get more

involved with your team members and build positive

relationship[s] with them. Ñ

35 . Other than the three - day suspension in 2015, there was

no evidence Ms. Wall lost salary or a bonus for the Corrective

Actions, counselin g session, or her performance scores.

36 . Based on the wording of the Corrective Actions, HR

Policy 10, and Ms . Vanacore Ó s testimony, all of the Corrective

Actions made Ms. Wall ineligible for other positions at GFS for

six months after they were issued. Therefore, as explained in

the Conclusion s of La w below, the undersigned finds the

Corrective Action s are f orma l discipline, and constitute adverse

employment action s .

37 . Based on the same reasoning, Ms. Wall Ó s counseling

session and the performance rev iew s do not constitute adverse

employment action s .

38 . Ms. Wall has been a good employee since the August 2017

Corrective Action.

39 . In June 2018, Mr. Rush sent Ms. Wall an email

indicating she was doing good work in her area. In October 2018 ,

Ms. Wal l was offered a change in shifts and work areas, but she

declined the move.

40 . In her PRO and at the hearing, Ms. Wall argued she

suffered from a hostile work environment based on four separat e

incidents in November 2016, March 2017, May 2017 and August 2017;

mistreatment by her superiors ; and discriminatory comments from

her co - workers.

False Accusations

41. GFS falsely accused Ms. Wall twice of violating company

policy. The first accusation was for stealing company time in

November 2016. Mr. Reid observed Ms. Wall taking a break at an

unusual time. When he checked the time clock program to see if

Ms. Wall had clocked out, it showed that she had not. Ms. Wall

insisted she had properly clocked out before going on break.

After reviewing the time c lock program again with Ms. Wall , it

showed Ms. Wall had in fact properly checked out. Mr. Reid was

not aware the time clock program had a short delay; it had not

updated itself when he had first checked it. Upon learning of

his mistake, Mr. Reid apologi zed to Ms. Wall .

42 . The second incident was in April 2017. Mr. Bracero

issued a Ð fail Ñ note on Plaintiff Ó s work order , indicating

Ms. Wall had failed to clean the smoke area and guard check area .

The note was not considered discipline, but rather , fe edback. It

was the typical type of counseling a mechanic or custodian ma y

get to alert the employee he or she need ed to improve.

43 . Upon seeing the note, Ms. Wall denied she was

responsible for the failure and offered proof that she was not

scheduled on the day the Ð fail Ñ was issued to her. Aft er a

review of the schedule, Mr. Rush determined Mr. Bracero had made

a mistake and that Ms. Wall had been on vacation on the d ate in

question. The Ð fail Ñ was removed and Mr. Bracer o and Mr. Reid

apologized to Ms . Wall .

44 . After the time clock incident, Mr. Rush counseled

Mr. Reid to familiarize himself with the time clock program .

Regarding the false Ð fail, Ñ Mr. Rush admitted Mr. B r a cero had

made a mistake in failing to take the schedule into consideration

wh en inspecting and evaluating areas for satisfactory work.

45. There was no evidence the time clock or Ð fail Ñ

incidents resulted in a Corrective Action or that Ms. Wall

suffered any discipline, demotion, or financial detriment as a

result of Mr. Reid Ó s a nd Mr. Bracero Ó s mistakes.

Increased Workload

46. On March 27 , 2017, Ms. Wall complained to Mr. Reid

about her workload. She did not claim she had more than other

workers. Rather, she complained the increased workload would not

allow her to complete he r existing duties. As a result, her work

area was eventually decreased .

47 . GFS offered credible evidence that the total workload

at the Plant City Center had increased and it was short - staffed.

As a result, all of the custodial crew had increased wor k.

48 . Ms. Wall did not offer evidence of the race, age , or

gender of any other custodian.

49. There was no credible evidence at the hearing that

Ms. Wall Ó s workload was more than any of the other custodial

workers.

Mr. Bracero Ó s Conduct

50 . Ms. Wal l also alleges that around March 2017,

Mr. Bracero was watching her work , calling her when she was in

the bathroom , and yelling at her . Although Mr. Bracero denied

this behavior, it is clear from their testimony that Mr. Bracero

an d Ms. Wall have had a l ess than friendly working relationship.

The undersigned finds Ms. Wall Ó s testimony regarding Mr. Bracero

more credible and finds Mr. Bracero got upset with Ms. Wall ,

watched Ms. Wall , and called her while she was on break.

51. There is no evidence, how ever, that Mr. Bracero Ó s

conduct was related to Ms. Wall Ó s age, ethnicity, or gender. As

a Maintenance Lead, Mr. Bracero Ó s duties were to take care of

day - to - day situations on the floor, record attendance, monitor

workflow, and assist the maintenance and custodial crews in

performing their tasks.

52. Watching the custodians, including Ms. Wall , and

calling them on the radio were part of his duties. There was no

evidence Ms. Wall had been singled out , or that Mr. Bra cero

treated other employees differen tly.

Discriminatory Comments

53. Ms. Wall alleges that Leon Bennett told her during

their work shift that he was going to go online and order two

Asian women, one for cleaning and one for his entertainment.

There was no evidence of Mr. Bennett Ó s posi tion or when he made

this statement to Ms. Wall.

54. Mike Parm had made a similar comment to Ms. Wall and

asked her repeatedly if she would clean his house. When she

declined, he told her he would order three Asian women: one for

dishes, one for vacuum ing, and one for himself. There was no

evidence of Mr. Parm Ó s position or when this statement was made.

55 . GFS offered no evidence at the hearing contradicting

Ms. Wall Ó s account of the comments made to her by Mr. Bennett and

Mr. Parm. 2/ The undersign ed finds that based on Ms. Wall Ó s

unrefuted testimony, and based on her demeanor at the hearing

that Mr. Bennett and Mr. Parm made these offensive statements to

her.

56 . At the meeting on Ms. Wall Ó s Corrective Action for

gossiping in August 2017 , Ms. Wa ll told Mr. Rush and

Mr. Reid about these comments. This was the first time she had

complained to anyone at GFS about any kind of discrimination.

57 . There is conflicting testimony about what happened

next. Mr. Rush testified he told Ms. Wall he could not act on

t he information she gave him, and it would need to be addressed

by HR. Mr. Rush states he passed the information on to HR.

58 . Ms. Vanacore Ó s testimony and the emails admitted into

evidence show that Mr. Rush did not inform HR about Ms. Wal l Ó s

allegations against Mr . Bennett and Mr. Leon. Rather,

Ms. Vanacore was on vacation during the August 9, 2017, meeting,

and was approached by Ms. Wall when she returned. The

undersigned finds it was Ms. Wall who raised the inappropriate

comments by Mr . Bennett and Mr. Parm to Ms. Vanacore after she

received the August 2017 Corrective Action.

59 . Regardless, after Ms. Wall told Ms. Vanacore she had

been verbally harassed , Ms. Vanacore took Ms. Wall Ó s statement

and asked her if she wished HR to invest igate the claims.

Ms. Wall indicated, Ð yes. Ñ

60 . As a result, Ms. V anacore alerted her supervisor,

Mr. Laviolette, and they developed an action plan related to the

investigation. During the investigation Ms. Vanacore

c ommunicated regularly with Ms. W all.

61 . On August 23, 2017, Ms. Wall relayed an additional

allegation to Ms. Vanacore that Mr. Bennett drove up to her in a

golf cart and asked her, Ð want to go for a ride on my ride. Ñ It

was in this email to Ms. Va nacore that Ms. Wall gave more detail s

about the previous comments made by Mr. Bennett and Mr. Parm.

62. Ms. Vanacore and Mr. Laviolette conducted interviews

with Mr. Bennett and Mr. Parm. Both denied making the comments

to Ms. Wall . Ms. Vanacore then asked Ms. Wall if she had any

other d etails or evidence regarding these statements. Ms. Wall

gave Ms. Vanacore mixed signals by indicating to her she did not

want anyone to kn ow she had made the allegations, but also

listing other people for HR to talk to. Eventually, HR did not

interview a ny of the people Ms. Wall provided because they were

not working at the time of the investigation.

63 . After conducting the investigation, Ms. Vanacore

believed Mr. Bennett and Mr. Parm, and concluded there was no

evidence to sustain Ms. Wall Ó s allegatio ns.

64 . The undersigned finds that o nce Ms. Wall reported these

statements to HR, GFS investigated the claims and closed the

file.

65 . There was no evidence of any further offensive comments

or adverse action after the August 2017 Corrective Action and

investigation in to the discriminatory comments. Ms. Wall

continues to work as a custodian at the Plant City Center .

CONCLUSIONS OF LAW

66 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

Florida Statutes. See Fla. Admin. Code R. 60Y - 4.016 .

67 . The FCRA protects individuals from discrimination in

the workplace. See §§ 760.10 and 760.11, Fla. Stat. Section

760.10 states, in pertinent p art:

(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 employmen t, because of such

individual Ó s race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status. (emphasis added).

68 . Because the FCRA is patterned after Title VII of the

Civil Rights Act of 1964 , as amended (Title VII), and t he Age

Discrimination in Employment Act (ADEA), Florida courts are

guided by federal decisions construing Title VII and the ADEA

when con sidering claims under the FCRA. See Thompson v. Baptist

Hosp. of Miami, Inc. , 279 F. App Ó x 884, 888 n.5 (11th Cir. 200 8)

(affirming dismissal of race discrimination FCRA claim for the

same reasons as dismissing Title VII claims); Yaro v. Israel , 242

So. 3d 1140, 1141 (Fla. 4th DCA 2018) ( Ð Appellant made his claims

under the Florida Civil Rights Act, but we apply federal c ase law

interpreting the ADEA to cases arising under the FCRA . Ñ ) .

69. The burden of proof in an administrative proceeding is

on Ms. Wall as the complainant. See Dep Ó t of Banking & Fin., Div.

of Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 93 2,

935 (Fla. 1996)( Ð The general rule is that a party asserting the

affirmative of an issue has the burden of presenting evidence as

to that issue. Ñ ). To show a violation of the FCRA, Ms. Wall must

establish, by a preponderance of the evidence, a prima fac ie case

of discrimination . See St. Louis v. Fla. Int Ó l Univ. , 60 So. 3d

455, 458 - 59 (Fla. 3d DCA 2011)(reversing jury verdict awarding

damages on FCRA racial discrimination and retaliation claims where

employee failed to show similarly situated employees outside his

protected class were treated more favorably; finding prima facie

case not established).

70 . Ð Preponderance of the evidence Ñ is the Ð greater weight Ñ

of the evidence, or evidence that Ð more likely than not Ñ tends to

prove the fact at issue. T his means that if the undersigned fou nd

the parties presented equal ly compe tent substantial evidence,

Ms. Wall would not have proved her claims by the Ð g r eater weight Ñ

of the evidence, and would not prevail in this proceeding. See

Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000) .

71 . A petitioner may establish an FCRA claim by presenting

direct evidence of discrimination, or circumstantial evidence

that creates an inference of discrimination. See Tseng v. Fla.

A&M Univ. , 380 Fed. App Ó x 908, 909 (11th Cir. 2010); Valenzuela

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

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

prove the existence of discriminatory intent behind an employment

decision without any inference or presumpt ion. Denney v. City of

Albany , 247 F.3d 1172, 1182 (11th Cir. 2001); see also Holifield

v. Reno , 115 F.3d 1555, 1561 (11th Cir. 1997). Courts have held

that ÐÒ only the most blatant remarks, whose intent could be

nothing other than to discriminate . . . Ó will constitute direct

evidence of discrimination. Ñ Damon v. Fleming Supermarkets of

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

omitted). Although there is no question the alleged remarks made

by Mr. Bennett and Mr. Parm that they w ere going to order an

Asian wome n to perform various tas ks w ere blatantly

discriminatory , Mr. Bennett Ó s poorly worded offer to ride the

golf cart is not.

73 . T o constitute direct evidence of discrimination,

statements of discriminatory intent must also be made by a person

involved in the chal lenged decision. See Wheatley v. Baptist

Hosp. of Miami , 16 F. Supp. 2d 1356, 1359 - 60 (11th Cir. 1999).

Based on this record, even th ough the Ð Asian women Ñ comments are

blatantly offensive, they are Ð stray remarks, Ñ wh ich do not

c onstitute direct evidence of discrimination because the comments

were not (1) made by decision make rs or actors (Mr. Rush ,

Mr. B r a cero, or Mr. Reid) responsible for the alleged

discrimination ; and (2) made in the context of the challenged

decis ion. See Vickers v. Fed. Express Corp. , 132 F. Supp. 2d

1371 (S.D. Fla. 2000).

74 . A lthough the alleged comments made by Mr. Parm and

Mr. Bennett were boorish and insensitive, neither Mr. Parm nor

Mr. Bennett were involved in any of the actions Ms. W all

complains about Î - the false accusations, the Corrective Actions,

or her workload. Therefore, these statements cannot be

considered direct evidence of discriminatory intent.

75 . Alternatively, Ms. Wall can establish her case through

circumstantial p roof following the framework set forth in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 - 04, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973) . In this case, the framework

involves a three - step process. First, Ms. Wall must establish a

prim a facie case of dis crimination based on her gender,

race/ ethnicity , and age; i f Ms. Wall does so, a presumption of

disc rimination arises against Respondent . If Ms. Wall completes

step one, Respondent has the burden to present a legitimate, non -

discriminatory reason for its employment actions; if Respondent

can put forth such a reason, Petitioner Ó s presumption of

discrimination evaporates. Finally, if Respondent can complete

the second step, Ms. Wall has the burden of proving the reason

established by Respondent was a pretex t for discrimination. A

Ð pretext Ñ is a reason giv en in justification for conduct that is

not the real reason . McDonnell Douglas Corp. , 411 U.S. at 802;

Scholz v. RDV Sports, Inc. , 710 So. 2d 618, 624 ( Fla. 5th DCA

1998)( evaluating race discrimination cla im under FCRA ).

76. Although these burdens of production shift back and

forth, th e ultimate burden of persuasion that GFS intentionally

discriminated against her remains at all times with Ms. Wall . See

EEOC v. Joe Ó s Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir.

2002); Byrd v. RT Foods, Inc. , 948 So. 2d 921, 927 (Fla. 4th DCA

2007) ( noting under FCRA t he ultimate burden of proving intentional

discrimination remains with the plaintiff at all times.) .

Age Discrimination

77 . To prevail on her age discrimi nation claim, Ms. Wall

must prove by a preponderance o f the evidence that 1) s he is a

member of a protected class; 2) s he was qualified for t his

position; 3) s he was subjected to an adver se employment action;

and 4) GFS treated employees of a different age more favorably

than s he was treated. 3 / Moreover, she must show that she suffered

from an adverse employment action that would not have o ccurred

Ð but for Ñ her age. Gross v. FBL F in. Servs., Inc. , 557 U.S. 167,

180, 129 S. Ct. 2343, 2352, 174 L. Ed. 2d 11 9 (2009).

78 . Here, Ms. Wall testified she was 40 years old, but

there was no evidence regarding the ages of any of the other

employees . There was no evidence -- direct or otherwise -- that

any comments made to her or any action taken against her was

bas ed on her age. As such, Ms. Wall has failed to show that any

actions by GFS would not have been taken Ð but for Ñ her age, and

her age discrimination claim fails.

Race/Ethnic and Gender Discrimination

A. Disparate Treatment

79. To establish a prima faci e case of gender or ethnic

discrimination, the burden is on Ms. Wall to show: (1) she

belongs to a protected class; (2) she is qualified to perform the

job; (3) she suffered an adverse employment action; and (4) GFS

treated similarly situated employees ou tside the employee Ó s

protected class more favorably. Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997); Guadamuz v. Entercom Miami , LLC ,

2019 U.S. Dist. LEXIS 15678, at *20 - 21 (S.D. Fla. Jan. 29, 2019).

80 . Regarding the first prong, Ms. Wall has shown she

belongs to a protected class based on her race or ethnicity , and

her gender.

81 . As to the second prong, Respondent argues in its PRO

that Ms. Wall is not qualified because she does not get along

with her co - workers. The evidence, however, es tablishes

otherwise. Petitioner Ó s performance reviews, Mr. Rush Ó s email

commending Petitioner Ó s improvement in the area, and the offer to

allow Ms. Wall to change to another shift and area all support a

finding that Ms. Wall was and is qualified. It is d oubtful GFS

would allow unqualified employees to continue to clean the Plant

City Center facility given the detrimental results a negative

audit or inspection would have. Therefore, Ms. Wall has met the

burden of showing she was qualified for the position of

c ustodian.

82 . Ms. Wall complains of numerous actions taken by GFS. 4 /

Not everything, however, that makes an employee unhappy is an

actionable adverse action. See Davis v. Town of Lake Park , 245

F.3d 1232, 1238 (11th Cir. 2001). To constitute an a ctionable

Ð adverse employment action, Ñ the action must impact the terms,

conditions , or privileges of the job in a real or demonstrable

way. See Crawford v. Carroll , 529 F.3d 961 (11th Cir. 2008);

Town of Lake Park , 245 F.3d at 1239. In other words , the action

must require a material change in terms and conditions of

employment. See McCaw Cellular Comm. v. Kwiatek , 763 So. 2d

1063, 1066 (Fla. 4th DCA 1999).

83 . GFS argues that other than the suspe nsion she received

in 2016 for i nsubordination, Ms. Wal l did not suffer any material

change in the terms and conditions of her employment, nor did she

suffer monetarily. Ms. Wall established that the Corrective

Actions did impact her eligibility for promotions within GFS. As

such, the Corrective Actions cons titute adverse actions under the

FCRA.

84 . Finally, to meet the fourth Ð comparator Ñ element of a

disparate treatment claim, Ms. Wall must show s he is similarly

situated in all relevant respects to the employees she claims

were given preferential treatmen t. See Woods v. Cent. Fellowship

Christian Acad. , 545 F. App Ó x 939, 945 (11th Cir. 2013) ( Ð When a

Title VII plaintiff attempts to show discriminatory intent by

pointing to non - protected class members treated differe ntly, the

proffered comparator must be n early identical to the plaintiff. Ñ )

(citations omitted). More specifically, to be valid comparators

for disparate discipline they must have Ð (1) dealt with the same

supervisor, (2) been subject to the same standards, and (3)

engaged in the same conduct wi thout such differentiating or

mitigating circumstances that would distinguish their conduct or

the employer Ó s treatment of them for it. Ñ Sanguinetti v. United

Parcel Serv., Inc. , 114 F. Supp. 2d 1313, 1317 (S.D. Fla. 2000).

85 . Of the three Corrective Ac tions, Ms. Wall has only

alleged comparators relating to the one from August 2017 Î -

Mr. Bennett and Mr. Parm . Although not artfully alleged,

Ms. Wall essentially argues she was wrongfully disciplined based

on hearsay and anonymous complaints. The inve stigation against

he r, an Asian - American female, was treated differently than the

investigation of Mr. Bennett and Mr. Parm, two non - Asian males.

86. T he complaints made against Mr. Bennett and Mr. Parm

were handled differently than the complaints agains t Ms. Wall .

The Bennett/ Parm investigation was handled by HR, involved

interviews by two GFS employees (Ms. Vanacore and

Mr. Laviol e t te), and both men were allowed to give their side of

the story before the investigation was closed. In contrast, the

com plaints against Ms. Wall were not investigated by HR , but

rather , solely by Mr. Reid ( HR was not even informed until afte r

Ms. Wall had been disciplined ) ; and Ms. Wall was not given an

opportunity to respond until being issued the discipline.

87 . Applyin g the factors used to evaluate the comparability

of the actual complaints, however, is a closer call. The first

and second factors favor finding comparability. Mr. Bennett,

Mr. Parm, and Ms. Wall all reported to Mr. Reid, and all GFS

e mployees were subj ect to the same GFS Employee Code of Conduct.

88 . Regarding the third factor, however, it cannot be said

on this record that the conduct alleged against Ms. Wall was the

same kind of conduct as the conduct she alleged against

Mr. Bennett and Mr. Parm. Whereas there was only one complaint

against Mr. Parm and two complaints against Mr. Bennett in an

unknown timeframe, Ms. Wall had numerous complaints filed against

her in a short period of time by her co - workers and a third - party

vendor also complained a bout Ms. Wall Ó s conduct. Moreover , w hile

Ms. W all had a history of discipline for gossiping and

insubordination, there was no evidence her comparators had been

previously disciplined at all. As such, GFS Ó s different

treatment of Ms. Wall as compar ed with that of Mr. Bennett and

Mr. Parm cannot be said to be based on similar conduct.

89 . As such, Ms. Wall fails to make out a prima facie

discrimination case of disparate treatment because she has not

identified any similarly situated employees outside of her

protected class who were treated more favorably for similar

conduct . Because she fails to establish a prima facie case of

discrimination under the McDonnell Douglas burden - shifting

framework, it is unnecessary to discuss the other burdens

relating to non - discriminatory reasons or pretext.

B. Hostile Work Environment

90 . Ms. Wall also alleges GFS required her to work in a

hostile workplace. The FCRA protects an employee from a hostile

workplace. Se e Webb v. Worldwide Flight Serv. , 407 F.3d 1192

(11 th Cir. Fla. 2005 ).

91 . To be hostile, t he workplace must be so Ð permeated with

discriminatory intimidation, ridicule, and insult , that [it] is

sufficiently severe or pervasive to alter the conditions of the

victim Ó s employment and create an abusive wo rking environment. Ñ

Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21, 114 S.Ct. 367,

370, 126 L. Ed. 2d 295 (1993)(citations and quotation s omitted) .

The requirement that the harassment be Ð severe or pervasive Ñ

contains both a subjective and objective comp onent. Id.

(citations omitted). Thus, to be actionable, the behavior must

result in both an environment that a reasonable person would find

hostile or abusive, and an environment that the victim

subjectively perceives to be abusive. Id.

92. In evaluati ng the objectivity requirement, the Eleventh

Circuit has explained that courts should review the totality of

the circumstances and consider: (1) the frequency of the

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

i s physically threateni ng or a Ð mere offensive utterance; Ñ and

(4) whether the conduct unreasonably interferes with job

performance. Id. B ehavior amounts to a hostile work environment

when i nstances are repet itive or escalate in frequency . See

Jones v. UPS Ground Freight , 683 F.3d 1283, 1303 (11th Cir.

2012 ). Though all of these factors should be taken into account,

Ð no single factor is required. Ñ Id. Finally, in making this

determination, the court can only consider instances of

harassment that were based on a protected cl ass. See Zhou v.

Intergraph Corp. , 2019 U.S. Dist. LEXIS 2438, at *18 (N.D. Ala.

Jan. 7, 2019) (finding harassment was too infrequent where it

occurred 15 times over a three - to - four year period, but was

severe in that they were indirect propositions for se x).

93. Here, although Ms. Wall complains about Mr. Bracero Ó s

conduct and the false accusations as harassment, there is no

evidence that these actions were motivated by Ms. Wall Ó s

ethnicity or gender.

94 . The statements by Mr. Bennett and Mr. Parm, how ever ,

were certainly derogatory and based on Ms. Wall Ó s ethnicity and

gender. There is nothing in the record indicating when the two

Ð online purchase of Asian women Ñ comments were made by Mr. Parm

and Mr. Bennett. But even i f they were made within the 36 5 - day

timeframe allowable under FCRA, they are too infrequent under

Eleventh Circuit case law to qualify as severe and pervasive.

See , e.g. , Guthrie v. Waffle House , 460 F. App Ó x 803,

807 (11th Cir. 2012) (finding that Ð a few dozen comments or

actions . . . spread out over a period of eleven months Ñ was

insufficiently frequent); Mitchell v. Pope , 189 F. App Ó x 911, 913

(11th Cir. 2006 )(finding that speci fic instances of offensive

conduct over four yea rs was insufficiently frequent ).

95 . Moreover, even tho ugh Ms. Wall believes GFS should have

done more to address her complaints about the inappropriate

comments, it responded to the incident with Ð immediate and

appropriate corrective action Ñ that was Ð reasonably likely to

prevent the misconduct from recurring . Ñ See Watson v. Blue

Circle, Inc. , 324 F.3d 1252, 1260 - 61 (11th Cir. 2003); Kilgore v.

Thompson & Brock Mgmt., Inc ., 93 F.3d 752, 75 4 (11th Cir. 1996).

Thus, the undersigned finds that Ms. Wall Ó s claim of hostile work

environment b ased on her ethnicity a nd gender fail . See Gadling -

Cole v. Bd. of Trs. of the Univ. of Ala. , 2015 U.S. Dist. LEXIS

127161, at *2 (N.D. Ala. Sep. 23, 2015) (granting employer summary

judgment in race discrimination case even though employee

testified about negative behavior from co - workers and

microaggressions).

96 . Finally, the crux of Ms. Wall Ó s testimony and argument

at the hearing was that she was being treated badly by Mr. Bracero

and Mr. Reid, and the discipline taken against her was unfair

since it was based on inaccura te statements by her co - workers.

Even if the undersigned agreed that GFS handled the August 2017

Corrective Action badly, it did not violate the FCRA. See Sunbeam

TV Corp. v. Mitzel , 83 So . 3d 865, 872 (Fla. 3d DCA 2012)( Ð bad

business decisions do not ne cessarily correlate with decisions

that violate the law . Ñ ); see also Damon , 196 F.3d at 1361 ( Ð We

have repeatedly and emphatically held that a defendant may

terminate an employee for a good or bad reason without violating

federal law. . . . We are not in the business of adjudging

whether employment decisions are prudent or fair. Ñ ) ; Alexander v.

Fulton Cnty., Ga. , 207 F.3d 1303, 1341 (11th Cir. 2000)( Ð [I]t is

not the court Ó s role to second - guess the wisdom of an employer Ó s

decisions as long as the decisions are not racially motivated. Ñ ).

9 7 . Consequently, Ms. Wall did not meet h er ultimate burden

of proving by a preponderance of the evidence that GFS Ó s actions

wer e discriminatory based on her age, gender, or ethnicity. Thus,

there has been no violation of the FCRA . A ccordingly, the

Petition for Relief must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Petitioner , Nou M.

Wall, did not prove that Respondent, Gordon Food Services,

committed an unlawful em ployment practice against her ; and

dismissing h er Petition for Relief from an unlawful employment

practice.

DONE AND ENTERED this 27th day of February , 2019 , in

Tal lahassee, Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of February , 2019 .

ENDNOTE S

1/ Although GFS asserts employees threatened to quit if

Ms. Wall Ó s behavior continued, claimed employees complained that

they did not feel safe around Ms. Wall , and stated she made

comments about an employee Ó s weight, there was no credible

evidence regarding these statements. Mr. Rush Ó s testimony

regarding the substance of the comp laints is not reflected in the

August 2017 Corrective Action . Although Mr. Rush stated these

complaints were documented by Mr. Reid, these documents were not

offered into evidence by GFS. There was no evidence at the final

hearing of who made the complaints against Ms. Wall, when these

complaint s were made, to whom they were made, or the nature of

the complaints against her . Mr. Rush could not even identify the

complainants Ó race or age. As such, Mr. Rush Ó s testimony

regarding the fact that there were complaints is accepted, but

the testimony r egarding the substance of the complaints is

rejected.

2/ Ms. WallÓs testimony as to the statements made to her by her

co - workers were not offered into evidence to Ðprove the truth of

the matter assertedÑ (which was that Mr. Bennett and Mr. Parm

were goi ng to order Asian women) and , therefore , are not hearsay.

See §90.801(1)(c), Fla. Stat. Even if they were hearsay

statements , t he statements made to Ms. Wall these statements

would be considered admissions and qualify as exceptions to the

hearsay rule. Se e 90.803(18)(d), Fla. Stat. (creating an

exception to the hearsay rule for a Ð statement by the partyÓs

agent or servant concerning a matter within the scope of the

agency or employment thereof, made during the existence of the

relationship Ñ).

3/ The FCR A differs from the ADEA in that the ADEA specifically

protects employees aged 40 and older, and the FCRA does not set a

minimum age for a protected class. The Commission has determined

that the age Ð 40 Ñ has no significance in determining whether age

discr imination has occurred under the FCRA. See Ellis v. Am.

Aluminum , Case No. 14 - 5355, (DOAH July 14, 2015) modified, ( Fla.

FCHR Sep. 17, 2015). Thus, whereas under the ADEA an employee

must be 40 years old and the comparator must be significantly

younger, under the FCRA a p etitioner can simply show that

individuals similarly situated of a Ð different Ñ age were treated

more favorably.

4 / Secti on 760.11(1) allows a person alleging an FCRA

discrimination claim to file a complaint within 365 days of the

alleg ed violation. Thus, actions occurring more than 365 da ys

prior to Ms. Wall Ó s October 23, 2017 , filing of her Charge of

Discrimination are not actionable. These would include the

Corrective Actions from 2014 and 2015, the false accusation of

stealing time from 2016, and perhaps the undated comments made by

Mr. Bennett and Mr. Parm. However, because the Commission did

n ot dismiss any of Ms. Wall Ó s claims, and b ecause GFS raised

Ms. Wall Ó s work history back to her hire date , the se events are

discussed in t he context of PetitionerÓs hostile environment

claim, and evaluated by the undersigned in an effort to address

all the issues raised at the final hearing.

COPIES FURNISHED:

Cathy Tracey, Esquire

Gordon Food Service

1410 Gordon Food Service Drive

Plan t City, Florida 33563

Nou M. Wall

6519 Farris Drive

Lakeland, Florida 33811

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Karen M. Morinelli, Esquire

Ogletree Deakins

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Lara J. Peppard, Esquire

Ogletree Deakins Nash Smoak

Smoak and Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, General Counse l

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(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.