18-005335 Lucinda Hawkins vs. Allied Universal Sercurity Services Status: Closed Recommended Order on Friday, January 25, 2019.

Summary: Petitioner failed to establish that Respondent engaged in discriminatory employment practices or retaliated against Petitioner, in violation of the Florida Civil Rights Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCINDA HAWKINS,

Petitioner,

vs. Case No. 18 - 5335

ALLIED UNIVERSAL SERCURITY

SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On December 6, 2018, Admini strative Law Judge Robert J.

Telfer III, of the Florida Division of Administrative Hearings

(Division) , conducted a duly - noticed hearing in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Lucinda Hawkins , pro se

Apartment 14308

2626 East Park Avenue

Ta llahassee, Florida 32301

For Respondent: David C. Hamilton, Esquire

Martenson, Hasbrouck, & Simon LLP

Suite 400

3379 Peachtree Road

Atlanta, Georgia 30326

STATEMENT OF THE ISSUE

Whether Respondent engaged in discriminatory employment

practices or reta liated against Petitioner, in violation of the

Florida Civil Rights Act (FCRA), as alleged in the Petition for

Relief ; and , if so, the appropriate penalty.

PRELIMINARY STATEMENT

On February 13, 2018, Petitioner Lucinda Hawkins (Hawkins)

filed a Complaint w ith the Florida Commission on Human Relations

(FCHR), alleging that Respondent Allied Universal Security

Services (Allied Universal) , retaliated against her when it

reduced her pay, issued her written discipline, and did not

provide her with Ðhurricane rel iefÑ pay. Hawkins also alleged

that Allied Universal further retaliated against her when

HawkinsÓs supervisor called the desk phone at HawkinsÓs worksite,

and when her supervisor asked her to complete Allied Universal

forms and documents.

The FCHR investi gated HawkinsÓs claims, and, on August 2,

2018, issued a Determination stating that no reasonable cause

existed to believe that an unlawful practice had occurred.

Thereafter, on October 5, 2018, Hawkins filed a Petition for

Relief, alleging as follows:

Th e CommissionÓs determination does not

consider the testimony of witnesses and other

pertinent information and documentation which

shows there is a basis for this complaint.

I have been wrongfully denied wages and work

hours during the time of my illness, which I

have medical reports to clearly document my

circumstances. I have witnesses to attest

that I worked in a very hostile work

environment where I was harassed,

intimidated, threatened, and retaliated

against during the time when I was under the

do ct orÓs care and given doctorÓs [o] rders

regarding my work hours and other activities.

My evidence, including the testimony of

witness [sic] will prove that I am a very

dependable and responsible security officer

when I am performing my duties. I am well -

li ked and well - respected at my post. Even

the highest level of management at the agency

where I am assigned has given high praise and

compliments regarding my service. However,

despite the exemplary performance and high

quality of personality I demonstrate d while

at work, I continued to face hostility,

especially during my illness. This has

caused me pain and suffering which I feel

should be properly addressed though my

efforts of filing this complaint with the

Florida Commission on Human Relations

Petitio n for Relief.

The FCHR transmitted the Petition for Relief to the Division on

October 5, 2018.

Prior to the final hearing, Allied Universal filed a motion

to dismiss, contending that HawkinsÓs failed to timely file her

Petition for Relief within the 35 - day time period required under

section 760.011(7), Florida Statutes (2018). Allied Universal

argued that FCHR issued its ÐNotice of Determination: No

Reasonable CauseÑ on August 2, 2018 (FCHR Notice), and Hawkins

waited until October 5, 2018, to file her Petition for Relief,

some 64 days after FCHRÓs determination. At the final hearing,

the undersigned noted that one of the documents that FCHR

transmitted to the Division was a letter, dated

September 18, 2018, from the United States Postal Service (USPS )

to Hawkins, verifying that the USPS failed to deliver or

misdelivered a notice. Hawkins verified that this letter

concerned the USPSÓs failure to deliver the FCHR Notice, and

further testified that she eventually received the FCHR Notice at

some point i n August 2018 . Based on these circumstances, the

undersigned orally denied Allied UniversalÓs motion to dismiss at

the final hearing, as it is possible that Hawkins timely filed

her Petition for Relief. 1/

Hawkins testified on her own behalf and called no other

witnesses. PetitionerÓs Exhibits 1 through 4 were received into

evidence without objection. Allied Universal called James

Goodman and Bobby Owens as its witnesses. RespondentÓs

Exhibits 1 through 14 were received into evidence without

objectio n.

The one - volume T ranscript of the hearing was filed with the

Division on January 4, 2019. On January 14, 2019, Allied

Universal timely submitted a Proposed Recommended Order , which

the undersigned has considered in the preparation of this

Recommended Order. Hawkins did not submit a proposed recommended

order.

All statutory references are to the 2018 codification of the

Florida Statutes unless otherwise indicated.

FINDING S OF FACT

1. Allied Universal provides security officers to various

locations. It currently employs Hawkins as a sergeant (and

formerly, as a security professional) . Allied Universal has

assigned Hawkins to serve at the Florida Department of RevenueÓs

(DOR) , offices in Tallahassee, Florida. Her duties include

maintaining access co ntrol, performing regular surveillance

patrols, and providing security over persons and property.

2. Previously, Hawkins served as a security professional

for Universal Protection Services, LP, at the DOR location. In

August 2016, Universal Protection Se rvices, LP , merged with

AlliedBarton Security Services, LLC, to form Allied Universal.

3. In May 2016 (prior to the me rger), Bobby Owens (Owens),

an operations m anager for Universal Protection Services, LP, and

now Allied Universal, recommended to Tallaha ssee Branch Manager

James Goodman (Goodman) that Hawkins be promoted to Sergeant and

receive a raise in pay. Goodman, who did not have the authority

to do so, requested approval from higher - level managers.

Universal Protection Services, LP, promoted Hawk ins to Sergeant,

and increased her wages from $8.35 to $8.50 per hour, effective

May 13, 2016.

4. Hawkins, Owens, and Goodman remained in their positions

with Allied Universal after the merger.

5. Goodman testified that in 2017, he met, via conference

ca ll, with a regional vice president and southeast president of

Allied Universal, concerning Ðmarket erosion.Ñ Goodman explained

that Ðmarket erosionÑ was Ðprofit loss that we were losing based

on officers that were working at a higher pay rate than what wa s

contracted with individual clients.Ñ GoodmanÓs superiors tasked

him with identifying any employees who were being paid Ðout of

profile,Ñ i.e., higher than the contracted rate, and reducing

their wages accordingly.

6. Goodman testified that he reviewed the salaries of over

375 officers under his supervision, and identified 17 who he

determined were Ðout of profile.Ñ Hawkins was one of those

officers he determined was Ðout of profile.Ñ Goodman testified

that these 17 Ðout of profileÑ officers included i ndividuals who

were white, African American, male, female, over the age of 40,

and under the age of 40.

7. Goodman testified that Allied Universal reduced the

salaries of these 17 officers, including Hawkins. Allied

Universal reduced HawkinsÓs salary fro m $8.50 per hour to her

previous salary of $8.35 per hour ($0.15 per hour), effective

December 2017. Goodman noted that other officers received a

greater reduction in pay than Hawkins.

8. In November 2017, Allied Universal issued Hawkins a

ÐCoaching Î Co unseling Î Disciplinary NoticeÑ for failure to

follow Allied UniversalÓs attendance policy. Hawkins reported to

work two - and - a - half hours late. She testified that she informed

a DOR employee, Sam Omeke, that she had a doctorÓs appointment

that morning, b ut did not inform anyone with Allied Universal.

9. In December 2017, Hawkins requested that Allied

Universal provide or assist her with Ðhurricane reliefÑ pay for

the week in September 2017 , that the State of Florida closed her

worksite because of Hurrica ne Irma. She testified that she was

not sure if Allied Universal offered such a program, and further

testified that she ultimately never applied for any type of

compensation lost as a result of Hurricane Irma.

10. Later in December 2017, Allied Universal implemented

HawkinsÓs pay reduction. Thereafter, in January 2018, Hawkins

sent an e - mail to several employees with Allied Universal,

stating her concerns about the pay decrease. Owens testified

that he received the e - mail, which was encrypted, and calle d

Hawkins to discuss, but she did not answer her phone. They spoke

the next day, and Owens directed Hawkins to speak with another

Allied Universal employee to discuss the pay decrease.

11. In early 2018, Allied Universal implemented a new

timekeeping sys tem for its employees called ÐTeam Time,Ñ which

required employees to record their time via telephone. Owens

testified that because multiple sites encountered difficulties

with ÐTeam TimeÑ on its first day, he called all of the worksites

he supervised to determine whether those employees had

experienced issues with it. Owens testified that he called

Hawkins more than one time that day, and that she did not answer.

12. Owens testified that, on two separate occasions, he

visited HawkinsÓs worksite and aske d her to sign Allied Universal

documents, including the ÐEmployee Handbook Receipt and

Acknowledgement,Ñ and the ÐJob Safety Analysis Acknowledgement.Ñ

Owens testified that on these two separate visits, Hawkins

refused to sign them. Hawkins was the only Allied Universal

employee in Tallahassee who refused to sign these documents.

Allied Universal did not discipline Hawkins for her refusal to

sign these documents.

13. In her Charge of Discrimination, Petition for Relief,

and at the final hearing, Hawkins contends that the actions

detailed in paragraphs 7 through 12 , above , constituted

retaliation. Prior to filing the Charge of Discrimination with

FCHR in February 2018, Hawkins never complained to Allied

Universal about retaliation, harassment, or discrim ination.

14. Hawkins remains an employee of Allied Universal at the

DOR location in Tallahassee.

15. Hawkins presented no persuasive evidence that Allied

discriminated against her because she opposed an unlawful

employment practice, or because she made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under the FCRA. There is no competent,

persuasive evidence in the record, direct or circumstantial, upon

which the undersigned could make a finding of unlawful

retaliation.

CONCLUSIONS OF LAW

16. The Division has jurisdiction over the subject

matter and the parties to this proceeding in accordance with

sections 120.569, 120.57(1), and 760.11(7), Florida Statutes.

See also Fla. Admin. Code R. 60Y - 4.016 (providing that upon a

petition for relief from an unlawful employment practice, a

hearing shall be conducted by an administrative law judge).

17. The FCRA protects individuals from discrimination in

employment as a result of retaliation. See §§ 760.10 and 760.11,

Fla. Stat. Section 760.10(7) states, in pertinent part:

(7) It is an unlawful employment practice

for an employer . . . to discriminate against

any person because that person has opposed

any practice which is an unlawful employment

practice u nder this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding, or hearing under

this section.

18. Because the FCRA is patterned after federal anti -

discrimination laws, such as Title VII of the Civil Rights Act

of 1964 (Title VII), courts rely on federal Title VII cases when

analyzing race discrimination and retaliation claims brought

pursuant to the FCRA. See Ponce v. City of Naples , 2017 U.S.

Dist. LEXIS 169635, at *11 (M .D. Fla. Oct. 13, 2017); Harper v.

Blockbuster EntmÓt Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998)

(finding that the complaint fails for the same reasons under

Title VII and the FCRA); Valenzuela v. GlobeGround N. Am., LLC ,

18 So. 3d 17, 21 (Fla. 3d DCA 200 9).

19. The burden of proof in an administrative proceeding is

on Hawkins as the complainant. See DepÓt of Banking & Fin., Div.

of Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

935 (Fla. 1996)(ÐThe general rule is that a party asserting t he

affirmative of an issue has the burden of presenting evidence as

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

establish, by a preponderance of the evidence, a prima facie case

of retaliation. See St. Louis v. Fla. IntÓl 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). A

Ðprima facieÑ case means it is legally sufficient to establish a

fact or that a violation happened unless disproved.

20. The Ðpreponderance of the evidenceÑ is the Ðgreater

weightÑ of the evidence, or evidence that Ðmore likely than notÑ

tends to prove the fact at issue. This means that if the

undersigned found the parties presented equally competent

substantial evidence, Hawkins would not have proved her claims by

the Ðgreater weightÑ of the evidence, and would not prevail in

this proceeding. See Gross v. Lyon s , 763 So. 2d 276, 289 n.1

(Fla. 2000).

Retaliation

21. To establish a prima facie case of retaliation, Hawkins

must show that: (1) she was engaged in statutorily protected

expression or conduct; (2) she suffered an adverse employment

action; and (3) th ere is a causal relationship between the two

events. Holifield v. Reno , 115 F.3d 1555, 1566 (11th Cir.

1997).

22. In order to satisfy the Ðstatutorily protected

expression or conductÑ requirement, Hawkins must establish that

her opposition to unlawful e mployment practices was sufficient to

communicate to Allied Universal that she believed that Allied

Universal was engaged in unlawful discriminatory conduct. See

Murphy v. City of Aventura , 616 F. Supp. 2d 1267, 1279 (S.D.

Fla. 2009); Webb v. R&B Holding Co., Inc. , 992 F. Supp. 1382,

1389 (S.D. Fla. 1998).

23. If Hawkins establishes a prima facie case of

retaliation, the burden then shifts to Allied Universal to

articulate a legitimate, non - discriminatory reason for its

action. See Addison v. Fla. DepÓt of Corr. , 683 Fed. Appx. 770,

774 (11th Cir. 2017); Sierminski vansouth Fin. Corp. , 216

F.3d 945, 950 (11th Cir. 2000). This burden is a very light one.

See Holifield , 115 F.3d at 1564.

24. If Allied Universal meets this burden, the burden then

shi fts back to Hawkins, to show that Allied UniversalÓs proffered

reason is mere pretext. See James v. Total Sols., Inc. , 691 Fed.

Appx. 572, 574 (11th Cir. 2017); Quigg v. Thomas Cnty Sch. Dist. ,

814 F.3d 1227, 1237 (11th Cir. 2016).

25. Hawkins contends t hat Allied Universal retaliated

against her when: (a) it reduced her pay; (b) it issued the

ÐCoaching Î Counseling Î Disciplinary NoticeÑ for failing to

follow Allied UniversalÓs attendance policy; (c) it failed to

provide, or assist her with seeking, Ðhu rricane reliefÑ; and

(d) when various supervisory employees either called or visited

her worksite.

26. With respect to HawkinsÓs allegation that Allied

Universal retaliated against her when it reduced her pay, Hawkins

has failed to allege that she engage d in statutorily protected

expression or conduct. Hawkins testified that she never

complained to Allied Universal concerning retaliation,

harassment, or discrimination. Although Hawkins complained, via

e - mail, about the reduction in her pay, this complai nt does not

rise to the level of statutorily protected expression or conduct.

Additionally, Goodman credibly testified that the pay reduction

was a legitimate business decision, equally applied to 17 total

employees, regardless of race, gender, or age.

2 7. With respect to HawkinsÓs allegation that Allied

Universal retaliated against her in the form of the ÐCoaching Î

Counseling Î Disciplinary Notice,Ñ Hawkins received this form of

discipline in November 2017, before she made complaints

concerning her pay reduction in January 2018 (and before Allied

Universal made the ultimate decision to reduce her pay). Hawkins

testified that she did not inform Allied Universal of her absence

from her assigned post , which forms the basis for this

discipline. The unders igned concludes that Hawkins cannot

establish a prima facie case of retaliation with respect to this

discipline.

28. With respect to HawkinsÓs allegation that Allied

Universal failed to provide, or assist her with seeking,

Ðhurricane relief,Ñ Hawkins fail ed to provide any evidence that

required Allied Universal to pay her for time she did not work

because of Hurricane Irma, or any obligation to assist Hawkins to

seek compensation for such missed pay. Additionally, Hawkins

testified that she never sought c ompensation as a result of

Hurricane Irma.

29. With respect to HawkinsÓs allegation that Allied

Universal retaliated against her when supervisory employees

called or visited her worksite, the undersigned construes such

allegations as retaliatory harassmen t, which Ðrequires proof of

harassing acts so severe or pervasive that they altered the terms

and conditions of [HawkinsÓs] employment.Ñ Bozeman v. Per - Se

Techs., Inc. , 456 F. Supp. 2d 1282, 1345 (N.D. Ga. 2006). This

requirement Ðto prove that the haras sment was severe and

pervasive ensures that Title VII does not become a Ògeneral

civility code.ÓÑ Id . (citing Faragher v. City of Boca Raton , 524

U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2 d 662 (1998)).

30. Hawkins alleges that the retaliatory harassme nt

consisted of Owens calling her and visiting her worksite, when he

requested that Hawkins sign Allied Universal documents, including

the ÐEmployee Handbook Receipt and Acknowledgement,Ñ and the ÐJob

Safety Analysis Acknowledgement,Ñ which she refused to sign, and

for which Allied Universal never disciplined her. Hawkins

testified that she received no more than two or three calls from

Owens in a particular day. The undersigned concludes that,

rather than Ðsevere or pervasive harassing acts,Ñ these

compla ined - of acts are the type of conduct one would normally

expect of a supervisor. As Hawkins has failed to establish that

Allied Universal engaged in Ðsevere or pervasive harassing acts,Ñ

her retaliatory harassment claim must fail as a matter of law.

RECOMM ENDATION

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, Lucinda

Hawkins, did not prove that Respondent, Allied Universal Security

Services, committed unlawful employment practices, or retaliated

against her, and dismissing her Petition for Relief from unlawful

employment practices.

DONE AND ENTERED this 2 5 th day of January, 2019 , in

Tallahassee, Leon County, Florida.

S

ROBERT J. TELFER III

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 t he Clerk of the

Division of Administrative Hearings

this 2 5 th day of January, 2019 .

ENDNOTE

1/ The undersigned concludes that the doctrine of equitable

tolling applies to HawkinsÓs late - filed Petition for Relief. See

Machules v. DepÓt of Admin. , 523 S o. 2d 1132 (Fla. 1988)(applying

the equitable tolling doctrine in administrative proceedings).

Equitable tolling applies when a petitioner Ðhas been misled or

lulled into action, has in some extraordinary way been prevented

from asserting his rights, or h as timely asserted his rights

mistakenly in the wrong forum.Ñ Id . at 1134. Further, the

equitable tolling doctrine Ðfocuses on the plaintiffÓs excusable

ignorance of the limitations period and on [the] lack of

prejudice to the defendant.Ñ Brown v. DepÓt of Fin. Servs. , 899

So. 2d 1246, 1247 (Fla. 4th DCA 2005) (quoting Machules , 523 So.

2d at 1134). The undersigned finds that the USPSÓs failure to

deliver the FCHR N otice prevented Hawkins from exercising her

rights in a timely fashion. The undersigned further concludes

that consideration of HawkinsÓs Petition for Relief, which she

may have filed within 35 days of actually receiving the FCHR

N otice, does not prejudice Allied Universal.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Lucinda Hawkins

Apartment 14308

2626 East Park Avenue

Tallahassee, Florida 32301

David C. Hamilton, Esquire

Martenson, Hasbrouck, & Simon LLP

Suite 400

3379 Peach tree Road

Atlanta, Georgia 30326

(eServed)

JonVieve D. Hill

Martenson, Hasbrouck & Simon LLP

Sutie 400

3379 Peachtree Road Northeast

Atlanta, Georgia 30326

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

407 5 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 s hould be filed with the agency that

will issue the Final Order in this case.