19-005685 Desiree Brown vs. Ashley Furniture Homestore Status: Closed Recommended Order on Monday, November 9, 2020.

Summary: Petitioner failed to demonstrate that she was subjected to sexual harassment and a hostile work environment, or that she had been retaliated against for exercising rights protected under section 760.10.

S TATEMENT OF T HE I SSUE S

The issue s are whether Respondent, Ashley Furniture Homestore,

subjected Petitioner to unlawful sexual harassment and a hostile work

environment ba sed upon her sex, in violation of section 760.10, Florida

Statutes, 1 and/or whether Respondent retaliated against Petitioner for the

exercise of protected rights under section 760.10.

P RELIMINARY S TATEMENT

On May 18, 2018, Petitioner, Desiree Brown (“Ms. Brown” or “Petitioner”),

filed with the Florida Commission on Human Relations ("FCHR") an

Employment Complaint of Discrimination against Ashley Furniture Homestore (“Ashley Furniture”). Ms. Brown alleged that she had been

discriminated against in violation of chapter 760 and Title VII of the Federal

Civil Rights Act, based upon her sex, and that the Ashley Furniture had

retaliated against her, resulting in the termination of her employment.

The FCHR conducted an investigation of Ms. Brown’s allegations. On

November 13, 2018, the FCHR issued a written determination finding that

there was reasonable cause to believe that the discriminatory and/or

retaliatory acts had occurred. On December 27, 2018, the FCHR issued a written rescission of its finding of reason able cause, stating that it had been

“improperly issued.” The rescission notice stated that the FCHR “will now undertake a complete investigation of the allegations of discrimination, and

upon completion of the investigation, the Commission will issue a ne w

Determination.”

On September 17, 2019, the FCHR issued a written

determination that there was no reasonable cause to believe that an unlawful

1 C itations sh all be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has

been unchanged since 1992, save for a 2015 amendment adding p regnancy to the list of

classifications protected from discri minatory employment practices. Ch. 2015 - 68, § 6, Laws of

Fla.

practice occurred. The FCHR’s determination stated as follows, in relevant

part:

Complainant worked for Responde nt, a furniture

store, as a sales associate. Complainant claimed

that she was compelled to resign because her supervisor made unwanted sexual advances

towards her and she was subjected to a hostile

work environment after reporting her supervisor's behavior . Respondent stated that it investigated

Complainant's complaints about her supervisor and found that Complainant was not subjected to any

sexual advances. Respondent explained that

Complainant was told to leave and suspend [sic.] because she was involved in an altercation with a coworker. Complainant was reprimanded for failing to meet her sales quotas, received a Final Written

Warning when her sales did not improve, and then

resigned. The investigation did not reveal other

employees who engaged in similar conduct without

being disciplined. Complainant alleged that she

was subjected to disparate treatment based on her

sex. Complainant fails to prove a prima facie case because the investigation did not reveal evidence of similarly situated comparators outsid e Complainant's protected class who were treated

more favorably or any other evidence of

discrimination. Also, Complainant alleged that she was harassed based on her sex. Complainant fails to prove a prima facie case because the evidence does not show that Complainant suffered any

severe or pervasive conduct. In addition, Complainant alleged that Respondent retaliated against her. Assuming Complainant can prove a prima facie case, this claim still fails because

Respondent articulated a legitimate nonretalia tory

reason for disciplining Complainant and the

investigation did not reveal evidence that this reason was a pretext for retaliation. Also, Complainant alleged that she was subjected to

constructive termination. Complainant fails to

prove a prima facie ca se because the evidence does

not show, under an objective standard, that Respondent made working conditions so difficult

that a reasonable person in Complainant's position

would have felt compelled to resign.

On October 21, 2019, Ms. Brown timely filed a Petition for Relief with the

FCHR. On October 23, 2019, the FCHR referred the case to DOAH for the

assignment of an ALJ and the conduct of a formal hearing. The final hearing

was initially scheduled for December 9, 2019. A joint motion for continuance

was granted by Order dated December 4, 2019. The hearing was rescheduled

for February 18, 2020, on which date it was convened.

At the conclusion of the proceedings on February 18, 20 20 , Petitioner

moved for a continuance so that two of her witnesses who fail ed to appear for

the hearing could be heard. The undersigned granted the motion over

Respondent’s objection. The hearing was ultimately reconvened and concluded on August 27, 2020.

At the hearing, Ms. Brown testified on her own behalf and presented the

te stimony of: Ashley Furniture employee Angela DeSue; former Ashley

Furniture General Manager Lawrence “Larry” Lamb; and former Ashley Furniture Customer Service Representative Aaron Ross. Petitioner offered

her Exhibits 1 through 5 and 7 through 13, which w ere duplicative of exhibits

offered by Respondent. The parties stipulated that only Respondent’s

numeration of the exhibits would be used to avoid confusion in the record.

Respondent presented the testimony of its former Human Resources

Manager Gladys Lop ez and General Manager Julie Houser. Respondent’s Exhibits 3, 5, 7 , 8, 10 through 14, 16, 21 through 23, 26 through 30, 34, 36 ,

37, 41 through 43, 45, 47, 50, 55, 59, and 62 through 65 were entered into

evidence.

The first volume of the two - volume Transcr ipt of the final hearing was

filed with DOAH on March 11, 2020. The second volume was filed with

DOAH on October 7, 2020. Respondent timely filed its Proposed

Recommended Order on October 19, 2020. Petitioner did not file a p roposed

r ecommended o rder.

F IN DINGS OF F ACT

Based on the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. Ashley Furniture is an employer as that term is defined in

section 760.02(7). Ashley Furniture is a furniture manufacturer with r etail

stores around the world, including Gainesville, Florida.

2. Ms. Brown is an African American female.

3. Ms. Brown began working as a Retail Sales Associate (“RSA”) on

July 31, 2017, at Ashley Furniture’s Gainesville retail store. Petitioner

worked at the Gainesville store until May 13, 2018.

4. At the time she was hired, Ms. Brown’s immediate supervisor was Sales

Manager Leon Hildreth, a white male. Mr. Hildreth’s supervisor was

Lawrence Lamb, the Store Manager. 2 Mr. Lamb is a white male.

5. Ms. Brown testified that her working relationship with Mr. Hildreth

was “amazing” at first. Mr. Hildreth was always there to help and to

encourage the employees. When Ms. Brown completed a sale, she would get a

“ high five ” from Mr. Hildreth.

6. Ms. Brown testified that her relationship with Mr. Hildreth changed

after about three months. Ms. Brown did not testify as to exact dates, but her Employment Complaint of Discrimination specified “mid - October 2017.”

Mr. Hildreth hugged her in a way that made her uncomfortabl e. He would

2 The Store Manager supervised two subordinate managers: the Sales Manager, who oversaw

the RSAs; and the Office Manager, who ran th e non - sales functions of the store.

make jokes about female breasts and whisper insinuating things in her ear.

On three occasions in late 2017, Mr. Hildreth hugged her around her waist.

7. Ms. Brown testified that she c omplained to Mr. Lamb about

Mr. Hildreth’s hugging. Ms. Brown stated that Mr. Lamb told her that he had

seen Mr. Hildreth hugging women inappropriately and that he intended to

report Mr. Hildreth to Ashley Furniture’s upper management. Ms. Brown

testified that Mr. Lamb later told her that he had counseled Mr. Hildre th

about the hugging and had made a report to Ashley Furniture’s Human Resources (“HR”) department.

8. Mr. Lamb testified that Mr. Hildreth was a “charismatic” and

gregarious person, attributes that are generally desirable in a Sales Manager. Mr. Hildreth interacted well with customers and with most

employees.

9. Mr. Lamb testified that he had “a couple of situations” with

Mr. Hildreth. Mr. Hildreth liked what he called a “family atmosphere” in the

store, which included what Mr. Lamb believed to be an unpro fessional level of

physical contact. Mr. Hildreth was fond of hugging his subordinate

employees. Mr. Lamb spoke to Mr. Hildreth about the hugging and was “rebuffed.” Mr. Hildreth simply stated, “That’s how I manage.”

10. Mr. Lamb again brought up the huggi ng issue during Mr. Hildreth’s

evaluation in December 2017. Mr. Hildreth gave him the same response and

pointed to the improved sales figures in the store as evidence that his

“family” approach was effective. Mr. Lamb documented his conversations

with Mr. Hildreth in a Word document and placed the document in

Mr. Hildreth’s personnel file.

11. Mr. Lamb testified that, because he was getting nowhere with

Mr. Hildreth, he spoke with Regional Manager Aaron Leroux about the

problem. Mr. Leroux said that he wou ld tal k to Mr. Hildreth about it.

Mr. Lamb left the employ of Ashley Furniture on January 4, 2018, a few

weeks after this conversation. 3 Mr. Lamb testif ied that he did not believe

Mr. Leroux ever followed through on his promise to address the issue with

M r. Hildreth.

12. While Mr. Lamb testified as to his observations about Mr. Hildreth’s

behavior, he did not expressly confirm having a conversation with Ms. Brown

about Mr. Hildreth’s specific actions toward her. 4 Mr. Lamb also did not

specify whether Mr. H ildreth’s practice of hugging was confined to female

associates or whether he hugged RSAs of both sexes to foster a “family

atmosphere.” Mr. Lamb testified that he had no knowledge of any events that

occurred at Ashley Furniture after January 4, 2018.

13. Ms. Brown testified that things escala ted after Mr. Lamb left and

Mr. Hildreth was the only supervisor present during her shifts. She stated

that other managers would come to the store, presumably to fill in until

Mr. Lamb’s replacement was hired, but that Mr. Hildreth was careful to

approach her only when they were alone. He would approach her at the “sales

point,” i.e., the place where the RSA was stationed to greet customers, and

“tell me things like he wants to perform oral on me.”

14. Ms. Brown would tell Mr. Hildreth that such talk made her

uncomfortable. She repeatedly told him that she did not come to work to

fulfill his sexual desires. Mr. Hildreth would attempt to defuse the situation

by pretending that he was joking. However, Ms. Brown stated tha t once it

became clear that she would not accede to his sexual advances, Mr. Hildreth

became increasingly hostile toward her.

15. Ms. Brown testified that Mr. Hildreth would no longer help her with

sales. If she needed help or asked a question, Mr. Hildret h would berate her

3 Mr. Lamb’s departure was not on good terms. He had accused the company of age

discrimination and believed that it had retaliated against him, though he did not seek legal

redress. Mr. Lamb had also been accused of sexu al harassment by a subordinate employee,

but an internal investigation was resolved in his favor.

4 The undersigned notes that neither party directly asked Mr. Lamb about his conversations

with Ms. Brown.

in front of customers. Mr. Hildreth would ask if she was dumb or make snide

remarks about “rocket scientists.”

16. Ms. Brown testified that Angela “Angie” DeSue , the housekeeper in

the Gainesville store , witnessed Mr. Hildreth pull Ms. B rown’s hair in a

joking but sexual way. Ms. Brown stated that Ms. DeSue was present in the

break room when Mr. Hildreth was talking about Ms. Brown’s breasts,

comparing them to chicken breasts bec ause he liked them so much. Ms. Brown testified that Ms. DeS ue also saw Mr. Hildreth attempt to bribe

her by offering her his credit card to buy dinner.

17. Ms. Brown testified that she was afraid to say anything to HR for fear

of losing her job. She stated that she spoke to Ashley Furniture Executive Vice Presiden t Steve King at a large employees’ meeting in February 2018.

Mr. King asked her to email him the details of her complaint. Ms. Brown testified that she attempted to send Mr. King an email on March 3, 2020, but the email address he had given her was not cor rect.

18. On February 26, 2018, Julie Houser, the new Store Manager, began

work full time in the Gainesville store. Ms. Houser had been one of the managers who filled the slot temporarily after Mr. Lamb resigned.

Ms. Houser testified that when she started , Ms. Brown was notable for being

a “low writer,” i.e., an employee who fails to meet sales expectations. Two days after she arrived, Ms. Houser gave Ms. Brown two written reprimands

(“corrective action reports” or “CARs” in Ashley Furniture parlance) for

failing to meet her expected sales goals. One of the CARs covered February

2018 and the other was for January 2018. Ms. Houser did not know why

Ms. Brown had not been given the January 2018 CAR until the end of

February. She only knew that upper m anagement asked her to give

Ms. Brown the CARs.

19. On March 6, 2018, Ms. Houser met with Ms. Brown to discuss her

performance. Ms. Brown told Ms. Houser that she was under a lot of stress.

Ms. Brown described an argument with her sister that culminated in a fist

f ight and Ms. Brown ramming her sister’s car several times. The police were

called and Ms. Brown was charged with a felony. Ms. Brown stated that she

was on “parole” and that the charges would be dropped if she maintained a

clean record for three months. 5 M s. Brown told Ms. Houser that keeping her

job was a condition of staying out of jail and that she was desperate not to be

fired.

20. Ms. Houser testified that Ms. Brown also told her that Mr. Hildreth

had made sexual advances, including inappropriate touc hing, and said sexual

things to her. Ms. Houser recalled that Ms. Brown told her the touching had

occurred “a few months ago” but that she had been afraid to report it.

Ms. Houser could not recall whether Ms. Brown des cribed specific episodes of

Mr. Hildre th’s behavior.

21. Ms. Houser assured Ms. Brown that any information she shared would

be confidential and shared only with HR Manager Gladys Lopez and

Mr. Leroux, the Regional Manager.

22. On March 6, 2018, Ms. Brown forwarded to Ms. Lopez the email she

h ad attempted to send to Mr. King. The email provided as follows, in relevant

part, verbatim:

Hello, my name is Desiree Brown and I am an

employee at Ashley’s furniture on Archer road blvd

in Gainesville Fl. I am writing this letter to you because of the se xual harassment I’ve been dealing with for the past 3 months. I’ve been holding it in due to the fear of losing my job. And I don’t want to

lose my job because I love this job, and adore this

job. This job has been the best job I ever had But I can’t hold it in any longer I’ve been feeling very uncomfortable at work because starting 3 months ago he (my Manager) would tell me he want to be

with me, and make me feel so uncomfortable. He

would say thing like if he was my age I don’t know what he would do to me , and he wish he was my

5 Given that she had not gone to trial on the char ges, Ms. Brown could not have been on

“parole.” It is presumed that her continued employment was a condition of a pre - trial

diversion program, completion of which would lead to dismissal of the felony charge.

age so he could make me his. And he Kept

repeating only if he was my age, he would try to take me out to dinner, he would ask me to always

marry him, date him. He also ask to perform oral

sex on me, tell me he will love to perform o ral on me while at the job on the sales floor and even when I’m on point but as I kept turning him down he started getting angry yelling at me, threatening

me, and telling an employee Ms. Angie that I’m not

his favorite. Every time I try to get help from h im

he don’t want to help me out or be full of frustration and anger and take it out on me when he have to come and do a over ride for sales or

customer purposes. He handled a situation

unprofessionally in front of my customers once also. Mr. West[

6 ] that c ame to visit are store to help out

can vouch for it because they went up to him and told him how he handled the situation poorly and

he yelled at me pointing his finger in my face on

the sales floor in front of customers for no reason once and I was only t rying to get help with a

problem I was haveing. He also yells at me when I have a question and try to belittle me because I

don’t want to be apart of none of the sexual activity

he wants me to be apart of. Or be with him. He would say things like my custom ers think I’m

stupid or I act as if I’m stupid and Some times he would even pull my hair and then smile at me

when he walk by me. That was two weeks ago on

02 - 28 - 2018. At the private event at work he called

me in to the office and told me he wouldn’t be ab le

to start a meeting without ms. Julie because he have to have another manager in the room with

him to sign my CAR sheet but he still started the

meeting with out her and I don’t think she knew anything about it because she never came in or into the meeti ng. he was asking me questions like you

wouldn’t say I was trying to touch on you, make

you do anything that you don’t want to do sexually,

or say I yelled at you because you didn’t want to do anything sexually. And I looked at him and said

what?? And then I said no and that’s when we he

6 Ms. Brown testified that she thought “Mr. We st” was Mr. King’s son. Mr. West was not

otherwise identified in the record.

laughed and said oh ok you know how y’all females

are and rubbed me on my shoulder and we had exit the office. I am sorry but I can no longer take this

harassment and wrote this email with high hopes

that someone will help me or reach out to me. And if this letter does not help according to the policies and guidelines at Ashley furniture sexual harassment is completely unacceptable. Although I

do not want to go this route of getting an Lawyer

involved I will if there is noth ing done in regards to

my cry out for help! I feel unsafe uncomfortable and

very mistreated….

23. Ms. Lopez testified that Ms. Brown’s written statement was her first

notice of any problem between Mr. Hildreth and Ms. Brown. She stated that

Mr. Lamb had n ot told her of Ms. Brown’s allegations and that she was

unaware that Mr. Lamb had placed a written memorandum in Mr. Hildreth’s personnel file regarding his hugging of employees.

24. Ms. Lopez testified that on March 7, 2018, she spoke to Ms. Brown on

the phone. Ms. Lopez stated that Ms. Brown was “all over the place” in

describing events. Ms. Lopez understood that Ms. Brown’s distress made it

hard for her to give a coherent narrative, but Ms. Lopez also needed facts to begin an investigation. Ms. Lopez tri ed to ascertain when these incidents of

harassment took place and who was present. Ms. Lopez recalled Ms. Brown

describing Mr. Hildreth’s pulling her hair, calling her stupid on the sales flo or, and touching her shoulder. Ms. Lopez did not recall anything about

chicken breasts. Ms. Brown was able to give her the names of some potential witnesses.

25. Ms. Lopez and Ms. Houser agreed that work schedules should be

adjusted so that Ms. Brown was never working at a time when Mr. Hildreth

was her sole supervisor. After March 6, 2018, Ms. Brown worked only when

Ms. Houser was in the store. Ms. Brown made no further allegations against

Mr. Hildreth after March 6, 2018.

26. Ms. Houser wrote a memorandum to Ms. Lopez on March 8, 2018. The

memorandum described Ms. Hous er’s conversation with Ms. Brown on

M arch 6, 2018, including the counseling as to Ms. Brown’s poor job

performance and a description of the incident between Ms. Brown and her

sister. As to the allegations against Mr. Hildreth, Ms. Houser wrote:

Desiree tol d me that she has also been dealing with

stress in the store and that Leon had touched her

inappropriately and also stated that he had touched another employee named Angie inappropriately. She said she was too scared to tell

anyone for fear of losing her j ob. I asked her when

this happened and she said a few months ago.

Leon and I distributed quite a few CARS last week

and 2 were given to Desiree. She is on her final for

poor performance. I was in the room while Leon

issued the CAR to Desiree and we all si gned it.

27. On March 15, 2018, Ms. Lopez came to the Gainesville store to conduct

witness interviews and take written statements. Ms. Lopez interviewed RSAs

Roddrick Chandler, Shawon Shorter, Justin Terry, Travis Glenney, and

Shoaeb Basa. She also inter viewed Ms. Houser, Ms. DeSue, Mr. Hildreth, and

Office Manager Amy O’Neill.

28. None of the RSAs corroborate d Ms. Brown’s all egations against

Mr. Hildreth. Ms. Lopez noted that most of the R SAs were generally aware of

Ms. Brown’s allegations.

7 They told M s. Lopez that they learned about the

allegations from Ms. Brown, though she ha d agreed with Ms. Lopez and

Ms. Houser to keep the matter confidential pending Ms. Lopez’ s

investigation.

29. Ms. DeSue testified at the hearing. She stated that on one occasion in

the break room, an RSA expressed an interest in dating Ms. Bro wn.

7 The written statements of two RSAs, Shawon Shorter a nd Justin Terry, state that

Ms. Brown told them that Mr. Hildreth was treating her differently since she turned down

his dinn er invitation. She apparently made no other allegations in her conversations with

these RSAs.

Mr. Hildreth told the RSA that he couldn’t have Ms. Brown because

Mr. Hildreth was saving her for his son. Ms. D eSue testified that she once

saw Mr. Hildreth give Ms. Brown his debit card and tell her to go out and buy

lunch for them both.

30. Ms. DeSue stated that Mr. Hildreth had talked to her and to other

employees beside s Ms. Brown. In context, “talked” plainly meant that

Mr. Hildreth had made romantic and/or sexual overtures. Ms. DeSu e testified

that Mr. Hildreth had once given her his debit card, and that he was dating

two Ashley Furniture employees at one time.

31. Ms. DeSue testified that staff had Publix fried chicken for lunch one

day. Mr. Hildreth said, “ g uess which piece I like out of the seven pieces…. I

like the two breasts.” Ms. DeSue did not testify that this statement was

directed at anyone in particular.

32. Ms. DeSue testified that she saw everyone in the store treat

Ms. Brown differently after her allegations against Mr. Hildreth became

known. Ms. DeSue stated that she wanted to come forward in suppor t of

Ms. Brown, but was afraid because she feared retribution from Mr. Hildreth

and being ostracized by her fellow employees.

33. On March 26, 2018, Ms. Lopez conducted her final interview with

Mr. Hildreth, who denied all the allegations. Ms. Lopez stated that

Mr. Hildreth seemed sad and disappointed when he learned of Ms. Brown’s

accusations. Ms. Lopez described him as being “kind of in shock” and

“emotionally visibly charg ed” during the interview. Mr. Hildreth vehemently

denied Ms. Brown’s accusations and offered to take a polygraph test.

34. Neither party called Mr. Hildreth as a witness. An email written by

Mr. Hildreth to Ms. Lopez following his interview on March 26, 20 20, was

admitted without objection as a hearsay document. The text of the email is

consistent with Ms. Lopez’ s description of her interview with Mr. Hildreth.

He denies all of Ms. Brown’s accusations as well as Ms. DeSue’s allegation

that he dated Ashley F urniture employees. The email is accepted as

corroborative of Ms. Lopez’ s testimony that Mr. Hildreth denied the

allegations. The e mail has been disregarded as to the truth of Mr. Hildreth’s

denial, as it does not supplement or explain other admissible evi dence on that

point.

35. As the investigation continued, it became apparent to Ms. Houser that

Ms. Brown was speaking to potential witnesses about her allegations and

trying to influence their statements to Ms. Lopez. On March 26, 2018,

Beth - Anne McDeavit t of AcceptanceNOW 8 approached Ms. Houser to

complain that Ms. Brown was trying to induce her to make false statements.

Ms. Houser also learned that Ms. Brown had typed her witness statement on

the break room computer, purposely leaving it up on the screen for the other

RSAs to read.

36. On March 25, 2018, RSA Roddrick Chandler reported to Ms. Houser

that while lying down in the break room wi th a headache, he overheard

Ms. Brown speaking to someone on the phone. In the words of Mr. Chandler’s

written state ment , verbatim , Ms. Brown said “she was going to get leon and

Julie fired and said that she was going to say leon sexual ask her favors Julie

was stank bitch no good hoe and she was going to fram them to get them fired.”

37. Ms. Houser reported Ms. Brown’s actions to Ms. Lopez. Ms. Houser

believed that Ms. Brown was creating a hostile work environment by

spreading the substance of her allegations throughout the store. Her actions

were creating animosity as employees took sides in the matter.

38. Ms. Houser told Ms. Lopez that she feared disciplining Ms. Brown for

unrelated matters such as poor sales. Both Ms. Houser and Mr. Hildreth felt they were walking on eggshells because Ms. Brown would threaten a lawsuit

whenever an issue arose as to her job performan ce.

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Ashley Furniture to finance customer purchases.

39. After interviewing the employees in the Gainesville store and hearing

from Ms. Houser about Ms. Brown’s actions, Ms. Lopez spoke with Ms. Brown

to remind her not to interfere in the investigation. Ms. Lopez testified that

another reason for speaki ng with Ms. Brown was to calm her down.

Ms. Brown was livid when she learned that Ms. Houser reported being

present at the February 28 CAR meeting at which Ms. Brown claimed to have been alone with Mr. Hildreth.

40. Ms. Lopez concluded that she could not substantiate the allegations

made by Ms. Brown. Despite this conclusion, Ms. Lopez and Ms. Houser

continued the practice of having Ms. Brown work only when Ms. Houser was

also present. Ms. Lopez believed this practice was necessary to prevent either

Ms. Br own or Mr. Hildreth from feeling uncomfortable in the workplace.

Transferring one or the other of the employees was not an option because

Ashley Furniture did not have another store in the Gainesville area.

41. Ms. Lopez testified that the scheduling adjus tment was probably

unnecessary because Mr. Hildreth avoided Ms. Brown as much as he possibly

could. Mr. Hildreth was uncomfortable in her presence.

42. Mr. Hildreth was not disciplined. He remained nominally Ms. Brown’s

manager, but he did not supervise he r directly. He was not involved in her

sales , and other managers would provide Ms. Brown with any supervisory

assistance she needed.

43. Though her sales improved briefly after she reported her allegations

against Mr. Hildreth on March 6, 2018, Ms. Brown s oon resumed the

problematic performance that on February 28, 2018, had led to an admonition that the next CAR for poor sales would be her last. As March

2018 progressed, Ms. Brown began coming in late or missing shifts altogether

without calling management . On March 11, 2018, she was scheduled to begin

work at 10:30 a.m. She did not arrive until 12:20 p.m., her only excuse being that she thought she was supposed to c ome in late. Ms. Houser and

Ms. O’Neill counseled her and Ms. Brown told them it would not h appen

again.

44. Ashley Furniture attendance records indicated that Ms. Brown called

in sick on March 20, 2018, but failed to submit a physician’s note to document

her illness. She failed to appear for work on March 23, 2018, and left work

early without pe rmission on March 24, 2018. Ms. Brown later submitted a

note stating that she had missed work because she was taking care of a

situation involving her driver’s license. Ms. Brown told Ms. Houser that a

friend of hers had rented a car. The car had “bad tags .” The friend had an

accident in the car and handed the police officer Ms. Brown’s identification.

In a summary memorandum to Ms. Lopez, dated March 26, 2018, Ms. Houser

wrote, “From what I can see, none of this makes sense.”

45. In a memorandum to Ms. Lop ez and Mr. Leroux sent the previous day,

March 25, 2018, Ms. Houser had recounted her meeting with Ms. Brown about the incident with the car and wrote, “I explained to her that she is

missing a lot of hours and this is a personal issue not medical. Also di scussed

her numbers for the month and she said, ‘I can’t do my job in this work

atmosphere with the sexual harassment.’ I have her on my schedule and have

for the past 2 weeks.”

46. Later on March 25, 2018, Ms. Houser sent a second memorandum to

Ms. Lopez and Mr. Leroux that read as follows, verbatim:

Today I was trying to do a coaching session with

Desiree discussing her numbers and how her

volume was so low compared to the rest of the store.

Also that this was a 5 week month. She said it was

probably bec ause she had taken time off. I

mentioned that it was only a few days that she had

taken off, but she had called out quite a bit because of personal problems

She also said that it was difficult to work in this

environment having been sexually harassed. I

mentioned to that I had changed the schedule to

put her on my schedule the past couple of weeks and asked her if anything had happened in that

time and she said no. I also asked her if there was

anything I could do to help. She said it was hard to work in this atmosphere. When I asked her to write what she wanted in the RSA comments, she was reluctant as she said that it was due to sexual

harassment by Leon. That since the time I first

came here, when Leon was alone in the room with her giving her 2 Correct ive Actions. I mentioned

that I was in the room also, but had to get up to go and do and over ride but came back when he put

the 2 sheets in front of her and told her what they

were for (which was poor performance). She signed, Leon signed and I signed. Sh e then went a little

crazy and said that I was never in the room and how could I do this having 22 year old daughters

myself? How would I like it if someone asked them

for sexual favors and sexually harassed them? I told her that I remember that day. She t hen got really angry and turned a totally different person and said I can’t believe this! I can’t stay here. She

left the room and I went to see where she went and

she said that she was calling Gladys [Lopez]. She

came back in a totally different person an d came

and asked me for an over ride like nothing had happened 5 minutes before.

Gladys and I spoke after that.

While I was typing this letter, Rod [Roddrick Chandler] came in to get me as he heard Desiree on

her phone calling me some pretty nasty words to

someone on her phone and talking about Leon and how she was going to make up stuff about us to get us fired. I called Gladys and handed Rod the phone to tell Gladys exactly what he heard in the

breakroom….

47. Ms. Houser testified that on May 13, 2018, she witnessed an

altercation at the customer service desk between Ms. Brown and RSA

Courtney Gillard. Ms. Brown snatched some sales paperwork from

Mr. Gillard’s hands and he yanked it back.

48. Under Ashley Furniture’s sales floor protocol, RSAs who coll aborate on

a sale are expected to split the commission for the sale. If one RSA drops a

customer, then another RSA can pick up that customer and keep all of the

commission generated by any sales to that customer.

49. The altercation on May 13 came about b ecause Mr. Gillard incorrectly

believed that Ms. Brown had dropped a customer. Ms. Brown snatched the

paperwork in an effort to see whether Mr. Gillard had split the sale with her.

50. Ms. Houser separated the two employees. She took Mr. Gillard aside

to c alm him down and make sure the sale was split. While this was occurring,

Ms. Brown walked away with a customer. When she returned, she began

yelling at Ms. Houser that Mr. Gillard had done the same thing the previous

day. Ms. Brown refused to talk to Ms. H ouser about the situation.

51. Ms. Houser phoned Ms. Lopez for advice. Ms. Lopez told her to call

Ms. O’Neill, the Office Manager, and ha ve her come in and speak to

Ms. Brown. Ms. Houser noted that this was Mother’s Day and Ms. O’Neill

was not scheduled to work, but she called her in nonetheless.

52. When Ms. O’Neill arrived, she and Ms. Houser first talked to

Mr. Gillard. They told him they were sending him home for the rest of the

day because of his behavior on the sales floor. Mr. Gillard apologized and left

without further incident.

53. Ms. O’Neill next approached Ms. Brown to give her the same

reprimand and send her home. Ms. Brown refused to go home. Ms. Brown testified that an investigator with the City of Gainesville’s Office of Equal

Opportunity

9 h ad told her that her employer could not make her go home if

she had done nothing wrong. She claimed the investigator told her that

9 Ms. Brown had filed a comp laint with this office on April 3, 2018 .

sending her home would be an act of retaliation on the part of Ashley

Furniture.

54. Ms. Brown denied having snatched the p apers from Mr. Gillard’s

hands. She told Ms. O’Neill that RSAs Shawon Shorter and Aaron Ross were

at the counter during her altercation with Mr. Gillard and could verify her

version of events.

55. Ms. Houser recollected that Ms. Shorter said she didn’t hea r anything

and that Mr. Ross saw the same thing that Ms. Houser did, i.e., a back - and -

forth snatching of the paperwork. When he testified at the hearing, Mr. Ross

could recall no details of the altercation between Ms. Brown and Mr. Gillard.

56. Ms. Houser and Ms. O’Neill reco nnoitered on the phone with

Ms. Lopez. The decision was made to suspend Ms. Brown pending an

investigation of the incident and have the police escort her from the store.

57. On May 23, 2018, Mr. Gillard was issued a CAR for his unprofe ssional

behavior on the sales floor on May 13, 2018.

58. Ms. Brown never returned to work at Ashley Furniture after May 13,

2018. On May 18, 2018, she filed with the FCHR her Employment Complaint

of Discrimination against Ashley Furniture.

59. On May 25 , 2018, Ms. O’Neill phoned Ms. Brown at the request of

Ms. Houser and asked her to come in for a meeting with Mr. Leroux, the

Regional Manager. Ms. Brown agreed to come in and exchanged a few

pleasantries with Ms. O’Neill during their short conversation. T hirty minutes

later, Ms. Brown called Ms. O’Neill back to inquire what the meeting was

about. Ms. O’Neill responded that she was making the call at Ms. Houser’s request and did not know the nature of the meeting. She told Ms. Brown she

would find out and c all her back.

60. Ms. O’Neill called Ms. Brown back and told her that the meeting was

to discuss in - store issues, including her suspension. Ms. Brown stated that

she was not coming in for such a meeting. She did not trust Mr. Leroux because, in her words, he and Mr. Hildreth were “besties.”

61. Ms. Brown told Ms. O’Neill that she did not work for Ashley Furniture

anymore. Ms. O’Neill asked what she meant by that. Ms. Brown stated that

she quit. Ms. O’Neill asked her repeatedly if she meant what she was say ing

and would not be coming back to work. Ms. Brown confirmed that she would

not be “lifting a finger” for Ashley Furniture and hung up on Ms. O’Neill.

62. Ms. Brown did not allege that her separation from employment with

Ashley Furniture was anything othe r than a voluntary resignation. 10 The

Petition does allege that Ms. Brown’s treatment in connection with the events

of May 13, 2018, constituted retaliation by Ashley Furniture.

63. To the extent that her testimony is credible, Ms. DeSue corroborated

Ms. Br own’s testimony that Mr. Hildreth hugged her and gave her his debit

card to buy lunch. Mr. Lamb corroborated that Mr. Hildreth was prone to

hugging employees.

64. However, the more lurid accusations against Mr. Hildreth are

supported only by Ms. Brown’s te stimony. Her testimony would be sufficient

if she could be deemed a reliable witness, but there are at least two broad

indications that Ms. Brown is not a credible witness.

65. First, the timing of her accusations was suspect. Though the alleged

statements regarding oral sex and the inappropriate touching had occurred

between October and December 2017, Ms. Brown did not make her accusations against Mr. Hildreth until after the February 28, 2018, meeting at which she learned her job was in jeopardy for poor performance. With a

felony charge pending against her, Ms. Brown stood a chance of going to jail

if she lost her job.

66. Ms. Brown claimed to have reported the incidents to Mr. Lamb during

2017. Mr. Lamb did not volunteer his rec ollection on that point an d

Ms. Brown’s attorneys did not ask him about it. Given the circumstances of

10 It is noted that in her testimony, Ms. Brown twice used the odd formulation, “I resigned

because I was fired.” Ms. Brown did not elaborate and the undersigned declines to speculate

as to what she had in mind.

Mr. Lamb’s departure from Ashley Furniture, it seems unlikely that he would

shade his testimony to protect the company.

67. When she finally made her allegations to Ms. Houser on March 6,

2018, Ms. Brown stated that she had not come forward earlier because she

was afraid. However, she also stated that she had come forward to Mr. Lamb

in 2017. Both versions of this story cannot be true.

68. Second, Ms. Brown repeatedly named “witne sses” who could not

corroborate her stories. No employee other than Ms. DeSue reported first -

hand knowledge of anything untoward. Two RSAs reported hearing from

Ms. Brown only that she had declined a date with Mr. Hildreth. Ms. Brown

interfered in the inte rnal investigation of her allegations, attempting to

promote false testimony and publicizing her witness statement to her co -

workers. One employee even reported hearing Ms. Brown telling someone on

the phone that her plan was to “frame” Mr. Hildreth and Ms . Houser to get

them both fired.

69. Even Ms. DeSue did not corroborate the most serious allegations

against Mr. Hildreth. She stated that she heard the “chicken breast”

comment but did not testify that it was directed at Ms. Brown. Neither her

witness sta tements nor her testimony mentioned anything about oral sex.

The undersigned would not expect Ms. DeSue to have witnessed Mr. Hildreth

making such statements, but would expect that Ms. Brown would have told

her about them.

70. The evidence produced at hear ing establishes that Ashley Furniture

took Ms. Brown’s accusations seriously. As soon as she r eported them to

Ms. Houser, she was separated from Mr. Hildreth. Ashley Furniture’s HR

Manager interviewed every employee who could possibly have any relevant

inf ormation. Ms. Lopez ultimately concluded that she could not sustain the

allegations due to a lack of corroborating evidence. Even after the company

concluded that no adverse employment act ion should be taken against

Mr. Hildreth, it continued to adjust Ms. Brown’s schedule so that she would

never be alone under Mr. Hildreth’s supervision.

71. The evidence convincingly established that Ms. Brown was not

subjected to unlawful retaliation. She alleged that she was forced to work in a

hostile atmosphere after s he made her allegations against Mr. Hildreth, but

she offered no specific instances of Ashley Furniture acting against her for

reasons unrelated to her performance as an RSA.

72. The chief allegation regarding retaliation is that the events of May 13,

2018 , resulting in Ms. Brown’s suspension and police escort from the

premises of the Gainesville store , were retaliatory. However, the evidence

established that Mr. Gillard, the RSA with whom Ms. Brown had the

altercation over splitting a commission, was also sent home, suspended for

the remainder of his shift, and issued a CAR for unprofessional behavior.

There is no reason to infer that Ms. Brown’s discipline would have been any

different if she had not chosen to escalate the conflict by refusing to comply

wi th her supervisor’s instruction to leave the store.

73. Ms. Brown offered no evidence that she was treated differently than

any other similarly situated employee.

74. Ms. Brown offered no evidence that her separation from employment

with Ashley Furniture w as anything other than voluntary.

75. In summary, Petitioner offered insufficient credible evidence that she

was subjected to a sexually hostile work environment or sexual harassment.

Petitioner also offered no credible evidence that she was subjected to

u nlawful retaliation.

76. Petitioner offered no credible evidence disputing the legitimate,

nondiscriminatory reason given by Ashley Furniture for sending her home and suspending her employment.

77. Petitioner offered no credible evidence that Ashley Furni ture’s stated

reasons for sending Petitioner home and suspending her employment were a

pretext for discrimination based upon Petitioner’s sex or a pretext for

unlawful retaliation.

78. Petitioner offered no credible evidence that she was constructively

dis charged from her employment or that Ashley Furniture involuntarily

terminated her employment.

C ONCLUSIONS OF L AW

79. The Division of Administrative Hearings has jurisdiction of the subject

matter of and the parties to this proceeding. §§ 120.569 and 120.5 7(1), Fla.

Stat.

80. The Florida Civil Rights Act of 1992 (the "Florida Civil Rights Act" or

the "FCRA"), chapter 760, prohibits discrimination in the workplace.

81. Section 760.10 states the following, in relevant part:

(1) It is an unlawful employment p ractice for an

employer:

(a) To discharge or to fail or refuse to hire any

individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of

such individual's race, co lor, religion, sex, national

origin, age, handicap, or marital status.

* * *

(7) It is an unlawful employment practice for an

employer, an employment agency, a joint labor -

management committee, or a labor organization to

discriminate against any person b ecause that

person has opposed any practice which is an

unlawful employment practice under 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

sec tion.

82. Ashley Furniture is an "employer" as defined in section 760.02(7),

which provides the following:

(7) "Employer" means any person employing 15 or

more employees for each working day in each of 20 or more calendar weeks in the current or precedi ng

calendar year, and any agent of such a person.

83. Florida courts have determined that federal case law applies to claims

arising under the Florida Civil Rights Act, and as such, the United States

Supreme Court's model for employment discrimination cas es set forth in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973), applies to claims arising under section 760.10, absent direct

evidence of discrimination. See Harper v. Blockbuster Entm’t Corp. , 139 F.3d

1385, 1387 ( 11th Cir. 1998); Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d

1353, 1361 (S.D. Fla. 2002); Fla. State Univ. v. Sondel , 685 So. 2d 923, 925

n.1 (Fla. 1st DCA 1996); Fla. Dep’t of Cmty. Aff. v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

84. “ Direct evid ence is ‘evidence, which if believed, proves existence of fact

in issue without inference or presumption.’” Rollins v. TechSouth, Inc. , 833

F.2d 1525, 1528 n.6 (11th Cir. 1987)( quoting Black’s Law Dictionary 413 (5th

ed. 1979)). In Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), the

court stated:

This Court has held that not every comment

concerning a person's age presents direct evidence

of discrimination. [ Young v. Gen. Foods Corp . , 840

F.2d 825, 829 (11th Cir. 1988)]. The Young Court

made c lear that remarks merely referring to

characteristics associated with increasing age, or

facially neutral comments from which a plaintiff

has inferred discriminatory intent, are not directly

probative of discrimination. Id . Rather, courts have

found only t he most blatant remarks, whose intent

could be nothing other than to discriminate on the

basis of age, to constitute direct evidence of

discrimination.

Petitioner offered no credible evidence that would satisfy the stringent

standard of direct evidence of discrimination.

85. Under the McDonnell Douglas analysis for establishing discrimination

through circumstantial evidence , in employment discrimination cases,

Petitioner has the burden of establishing, by a preponderance of the evidence,

a prima facie case of unlawful d iscrimination. If the prima facie case is

established, the burden shifts to the employer to rebut this preliminary

showing by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts the prima facie

case, the burden shifts back to Petitioner to show by a preponderance of the

evidence that the employer's offered reasons for its adverse employment

decision were pretextual. See Texas Dep’t of Cmty. Aff. v. Burdine , 450 U.S.

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). “The inquiry into pretext

centers on the employer’s beliefs, not the employee’s beliefs….” Alvarez v.

Royal Atlantic Developers, Inc. , 610 F.3d 1253, 1266 (11th Cir. 2010)(the

issue is whether the employer was diss atisfied with the employee for a non -

discriminatory reason, not whether that reason was unfair or mistaken).

86. In order to prove a prima facie case of a hostile work environment

discrimination claim due to sexual harassment under chapter 760, Petitioner must establish that: (1) she belongs to a protected group; (2) she was subjected to unwelcome sexual harassment, such as sexual advances,

requests for sexual favors, and other conduct of a sexual nature; (3) the

harassment complained of was based upon her sex; (4) the harassment was

sufficiently severe or pervasive to alter the conditions of employment and

create a discriminatorily abusive working environment; and (5) there is a

basis for holding Ashley Furniture liable. See Miller v. Kenworth of Dothan ,

27 7 F.3d 1269, 1275 (11th Cir. 2002); Johnson v. Booker T. Washington

Broadcasting Serv., Inc. , 234 F.3d 501, 509 (11 th Cir. 2000); Booth v. Pasco

Cty . , 829 F.Supp.2d 1180, 1188 (M.D. Fla.2011).

87. “Harassment is severe or pervasive for Title VII purposes only if it is

both subjectively and objectively severe and pervasive.” Booker T.

Washington , 234 F.3d at 509 . The United States Supreme Court has stated:

“We have never held that workplace harassment, even harassment between

men and women, is automatically discrimination because of sex merely

because the words used have sexual content or connotations.” Oncale v.

Sundowner Offshore Serv., Inc. , 523 U.S. 75, 80 (1998).

88. In assessing whether harassment is objectively severe or pervasive,

courts typically lo ok to: (1) the frequency of the conduct; (2) the severity of the

conduct; (3) whether the conduct was physically threatening and humiliating

or just a mere utterance; and (4) whether the conduct unreasonably interferes

with the employee’s work performance. See Hulsey v. Pride Restaurants, LLC ,

367 F.3d 1238, 1247 - 48 (11th Cir. 2004). This standard is very high and is

designed to be “sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’” Faragher v. City of Boca Raton , 52 4 U.S.

775, 788 (1998) ( quoting Oncale, 523 U.S. at 80 ) . To satisfy this standard,

Petitioner must show that the workplace was “permeated with

‘discriminatory intimidation, ridicule, and insult.’” Harris v. Forklift Sys . ,

Inc. , 510 U.S. 17, 21 (1993) ( quotin g Meritor Savings Bank, FSB v. Vinson ,

477 U.S. 57, 65 (1986) ) . “[S]imple teasing, offhand comments, and isolated

incidents (unless extremely serious) will not amount to discriminatory

changes in the ‘terms or conditions of employment.’” Faragher , 524 U.S. at

788 ( quoting Oncale , 523 U.S. at 82 ) .

89. Petitioner has failed to prove a prima facie case of sexual harassment.

90. Petitioner is an African American female and is therefore a member of

a protected group.

91. Petitioner offered no credible evidence be yond her own testimony to

prove that she was subjected to unlawful harassment based upon her sex.

There were sufficient discrepancies in Petitioner’s testimony to render it

unreliable as the sole basis for concluding that she was subjected to sexual

harass ment. None of the witnesses presented at the hearing could

substantiate Petitioner’s allegations. Even Ms. DeSue, Petitioner’s most

supportive witness, corroborated only that Mr. Hildreth bought lunch with

his debit card and once made a suggestive remark a bout chicken breasts that

may or may not have been directed at Petitioner.

92. Petitioner failed to demonstrate that any harassment she suffered was

sufficiently severe or pervasive to alter the conditions of her employment and create a discriminatorily ab usive working environment. Even if Petitioner’s

allegations were accepted as proven, they amount to Mr. Hildreth’s hugging

Petitioner in a manner that made her uncomfortable and making grossly

inappropriate sexual suggestions on a few occasions betw een Oct ober and

December 2017. The question would obviously be closer had Petitioner proven

these allegations, but would still likely fall short of being so “severe or

pervasive” as to meet the standard established by the cases cited above.

93. Petitioner failed to demonstrate that there is a basis for holding

Ashley Furniture liable, whatever the sins of Mr. Hildreth. When Petitioner reported sexual advances by Mr. Hildreth, Ashley Furniture immediately

launched an investigation, which included interviewing every witness

Petitioner named , plus additional employees , and obtaining written

statements from the witnesses. Despite finding the evidence insufficient to

substantiate Petitioner’s allegations, Ashley Furniture changed the store’s

work schedule so that Petiti oner would never work alone with Mr. Hildreth

as the only manager in the store.

94. As to Petitioner’s retaliation claim, the court in Blizzard v. Appliance

Direct, Inc. , 16 So. 3d 922, 926 (Fla. 5th DCA 2009), described the elements of

such a claim as fo llows:

To establish a prima facie case of retaliation under

section 760.10(7), a plaintiff must demonstrate: (1) that he or she engaged in statutorily protected

activity; (2) that he or she suffered adverse employment action and (3) that the adverse

emplo yment action was causally related to the

protected activity. See Harper v. Blockbuster

Entm’t Corp. , 139 F.3d 1385, 1388 (11th Cir.), cert.

denied 525 U.S. 1000, 119 S. Ct. 509, 142 L.Ed.2d

422 (1998). Once the plaintiff makes a prima facie showing, the bu rden shifts and the defendant must articulate a legitimate, nondiscriminatory reason

for the adverse employment action. Wells v.

Colorado Dep't of Transp. , 325 F.3d 1205, 1212

(10th Cir. 2003). The plaintiff must then respond

by demonstrating that defendan t's asserted reasons

for the adverse action are pretextual. Id .

95. Petitioner has failed to establish a prima facie case of retaliation.

96. Petitioner established that she engaged in a statutorily protected

activity, in that she reported sexual advances to Ms. Houser on March 6,

2018, and to Ms. Lopez on March 8, 2018. She filed a Complaint of

Discrimination with the City of Gainesville ’s Office of Equal Opportunity on

April 3, 2018.

97. Petitioner established that she suffered adverse employment action, in

that she was sent home from work and suspended on May 13, 2018.

98. Petitioner failed to prove that her adverse employment action was

causally related to her statutorily protected activity. Even if she had proven the third element of the retaliation cl aim, Ashley Furniture articulated a

legitimate, nondiscriminatory reason for the adverse employment action.

Petitioner was involved in a disruptive imbroglio with another employee on

the sales floor, in full view of customers. The other employee was also

a dmonished and sent home for the rest of his shift.

99. Because Ashley Furniture articulated legitimate, non - retaliatory

reasons for sending Petitioner home from work and suspending her

employment, the burden shifts back to Petitioner to produce evidence th at

Ashley Furniture’s stated reasons are a pretext for retaliation. To establish

pretext, Petitioner must “cast sufficient doubt” on Ashley Furniture’s proffered non - retaliatory reasons “to permit a reasonable factfinder to

conclude that the employer’s pro ffered ‘legitimate reasons were not what

actually motivated its conduct.’” Combs v. Plantation Patterns , 106 F.3d 1519,

1538 (11th Cir. 1997) ( quoting Cooper - Houston v. Southern Ry. Co. , 37 F.3d

603, 605 (11 th Cir. 1994) ) .

100. Petitioner failed to produce any evidence to prove that Ashley

Furniture’s stated reasons for sending her home from work and suspending

her employment were pretextual. To the contrary, the evidence established

that Petitioner refused to leave the store after her supervisor instructed her

to do so and her disruptive behavior forced management to call the police to

escort Petitioner out of the store.

101. Petitioner’s unsupported suspicions as to motive, standing alone, are

insufficient to establish that Ms. Houser and Ms. Lopez’ s testi mony regarding

the reasons for sending Petitioner home from work and suspending her

employment are false. In the absence of evidence that Ashley Furniture’s

actions were retaliatory, the undersigned is constrained to defer to the

company’s business decisio n.

102. Petitioner failed to establish that her employment was involuntarily

terminated. Petitioner’s own testimony, consistent with her Petition, was that she resigned from Ashley Furniture.

103. Constructive discharge qualifies as an adverse employment decision.

Poole v. Country Club of Columbus, Inc. , 129 F.3d 551, 553, n.2 (11th Cir.

1997). Constructive discharge occurs when an employer deliberately makes an employee’s working conditions intolerable and thereby forces the employee

to quit his/her job. Bryant v. Jones , 575 F.3d 1281, 1298 (11th Cir. 2009). The

bar to establish a case for constructive discharge is quite high: “[a] claim for constructive discharge requires the employee to demonstrate that the work

environment and conditions of employment w ere so unbearable that a

reasonable person in that person’s position would be compelled to resign.”

Virgo v. Riviera Beach Assoc. , 30 F.3d 1350, 1363 (11th Cir. 1994). “The

standard for proving constructive discharge is higher than the standard for

proving a hostile work environment.” Hipp v. Liberty Nat. Life Ins. Co. , 252

F.3d 1208, 1231 (11th Cir. 2001).

104. Petitioner offered insufficient credible evidence to establish that her

working conditions met the legal standard s necessary to establish

construct ive discharge. She was justifiably sent home for her unprofessional

behavior in the workplace and then refused to return when contacted by

Ashley Furniture.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order finding that Ashley Furniture Homestore did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case.

D

ONE A ND E NTERED this 9th day of Novem ber , 2020 , in Tallahassee, Leon

County, Florida.

L AWRENCE P. S TEVENSON

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 9th day of November, 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 3 2399 - 7020

(eServed)

Sara G. Sanfilippo, Esquire

William Edward Grob, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Ralph Strzalkowski, Esquire

Ralph Strzalkowski, Attorney at Law

Apartment A17

320 Southeast 3rd Street

Gainesville, Florida 32601

(eServed)

Amber Robinson, Esquire

Robinson Law Office PLLC

Suite 264

695 Central Avenue

St. Petersburg, Florida 33701

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on H uman Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to t his Recommended

Order should be filed with the agency that will issue the Final Order in this case.