20-002502 Mika Kowaluk vs. Ashley Furniture Homestore Status: Closed Recommended Order on Thursday, May 6, 2021.

Summary: Petitioner failed to prove that she was discriminated against based on her race, sex, or national origin, and also failed to prove that she was subjected to sexual harassment in the workplace.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IKA K OWALUK ,

Petitioner ,

vs. Case No. 20 - 2502

A SHLEY F URNITURE H OMESTORE ,

Respondent .

/

R ECOMMENDED O RDER

Pursua nt to notice, a final hearing was conducted in this case on

January 20, 2021, via Zoom teleconference, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge (ÑALJÒ) of the Division of

Administrative Hearings (ÑDOAHÒ) .

A PPEARANCES

For Pe titioner: Mika Kowaluk, pro se

1700 Robb Street, Ap artment 15 - 306

Lakewood, Colorado 80215

For Respondent: Stephanie C. Generotti, Esquire

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

100 North Tampa Street , Suite 3600

Tampa, Florida 33602

S TATEMENT OF T HE I SSUE

The issue is whether Respondent, Ashley Furniture Homestore (ÑAshley

FurnitureÒ) , subjected Petitioner , Mika Kowaluk (ÑMs. KowalukÒ or

ÑPetitionerÒ) , to discrimination on the basis of her race, national origin, or

gender or on the basis of a sexually hostile work environment, in violation of

section 760.10, Florida Statutes. 1

P RELIMINARY S TATEMENT

On November 2, 2018, Petitioner filed with the Florida Commission on

Human Relations ("FCHR") an Employment Complaint of Discrimination

against As hley Furniture. The Employment Complaint of Discrimination

stated as follows:

I am a White female and of Polish descent. I was

discriminated against for these reasons. I began my

employment with Respondent on December 26,

2017 in Home Furnishing. I have en dured constant

harassment from my coworkers. Jonathan used

vulgar language while talking to me. Jonathan also

used the chalk from the board in a rubbing manner

on his ÑprivetsÒ while in a meeting. Dominique

shouted and talked down to me. In April 2018

Mana ger Lincoln presented inappropriate behavior

with his sexual gestures with his hand around his

ÑprivetsÒ while next to me. I have asked him

numerous times to stop; however, shortly after I

received disciplinary action. In May 2018 I was on

my lunch break a nd was sitting by the desk in

training room and eating. Susan stormed in and

approached me with her angry voice, ÑThis is my

spot my food is there.Ò She tried verbally force me

out of place that I was already setting for some

time having my lunch. I respon ded to her calmly

that she wasnÔt there and sorry, but I like to finish

my food. She replied ÑthatÔs why nobody likes you,

enjoy your lonely life.Ò In June 2018, new manager

[Luking] was behaving in a harassing way by

licking his upper lip ostentatiously. Rohan, a

salesperson was also presenting inappropriate

behavior by holding his hand on his Ñprivets.Ò

1 Citations shall be to Florida Statutes (2020) unless otherw ise specified. Section 760.10 has

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

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

Fla.

Luking was creating an abusive environment by

talking down to me while holding his hands on his

hips creating dominant posture. Luking told me as

well tha t he is not going to do overriding for me and

if I donÔt like it I can get another job.

The FCHR conducted an investigation of Ms. KowalukÔs allegations. On

April 23, 2020, the FCHR issued a written determination finding that there

was no reasonable caus e to believe that the discriminatory and/or retaliatory

acts had occurred. 2 The FCHRÔs determination stated as follows, in relevant

part:

Complainant is a white Polish female who was

employed with Respondent as a Retail Sales

Associate. Complainant alleges Respondent

harassed her and discriminated against her based

on her race, on her sex, and on her national origin.

Complainant claims her supervisors and co -

workers engaged in behaviors that included,

placing their hands on or near their own clothed

genit al areas, licking their own lips, and using

abusive and vulgar language toward Complainant.

Respondent submitted documents that reflect

Respondent terminated Complainant's employment

after Complainant repeatedly breached

Respondent's workplace rules and po licies.

Regarding the claim of disparate treatment, to

establish a prima facie case, Complainant must

2 The finding of no reasonable cause was made well after the statutory 180 - day deadline for

the FCHR Ôs making such determinations. £ 760.11(3) , Fla. Stat. Under the scheme

established by section 760.11, the FCHR should have provided Ms. Kowaluk with a notice of

its failure to reach a finding of probable cause within 180 days after the filing of the

complaint. The notice should have informed Ms. Kowaluk of her right to proceed with either

a civil action in any court of competent jurisdiction or an administrative hearing at DOAH.

§ 760.11( 8 ), Fl a. Stat. However, the FCHRÔ s failure to notify Ms. Kowaluk of her rights does

not appear to be jurisdictional under the applicable case law. Once the 180 days passed,

Ms. KowalukÔs rights under section 760.11(8) became operative regardless of the FCHR Ôs

pr oviding or failing to provide notice. She had the right to bring a civil action whether or not

the FCHR notified her of her right to do so. See Woodham v. Blue Cross and Blue Shield of

Fla., Inc. , 829 So. 2d 891 (Fla. 2002). For purposes of this Recommende d Order, Ms. Kowaluk

is presumed to have elected to proceed in the administrative forum pursuant to section

760.11(4), as referenced in section 760.11(8).

show: (1) that she belongs to a protected class;

(2) that she is qualified for the position she held

with Respondent; (3) that Complainant was

subjected to an adverse employment action; and

(4) that Respondent treated a similarly situated

person outside Complainant's protected classes

more favorably. In the present case, the

Commission's investigation did not reveal sufficient

evidence that showed Respond ent treated a

similarly situated person outside Complainant's

protected classes more favorably. Even assuming

the establishment of a prima facie case,

Respondent stated a legitimate, non - discriminatory

reason for terminating Complainant's employment,

and t he Commission's investigation did not reveal

sufficient evidence that the stated reason is pretext

for discrimination. Therefore, the claim of disparate

treatment must fail.

Regarding the claim that Respondent subjected

Complainant to unlawful, discrimina tory

harassment, Complainant must show: (1) that she

belongs to a protected class; (2) that she was

subject to unwelcome harassment; (3) that the

harassment was based on a protected

characteristic; (4) that the harassment was

sufficiently severe or pervasi ve to alter terms and

conditions of employment and create a

discriminatorily abusive working environment; and

(5) that Respondent is responsible for such

environment under a theory of vicarious or direct

liability. In the present case, the Commission's

inv estigation did not reveal sufficient evidence that

Respondent subjected Complainant to unwelcome

harassment. Therefore, the claim of harassment

must also fail.

On May 28, 2020, Ms. Kowaluk timely filed a Petition for Relief with the

FCHR. On May 29, 2020, 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 August 26, 2020. Two continuances were granted.

The hearing was rescheduled for January 20, 2021, on which d ate it was

convened and completed.

At the hearing, Ms. Kowaluk testified on her own behalf. Ms. Kowaluk

offered no exhibits directly into evidence. However, RespondentÔs E xhibits 41

through 52 were entered into evidence at the request of Ms. Kowaluk, who

had provided these documents to Respondent.

Respondent presented the testimony of Store Manager Craig Hanson and

of its former Human Resources (ÑHRÒ) Manager Gladys Lopez. RespondentÔs

Exhibits 1, 3, 7, 9, 13, 14, 21, 25, 27, 31, 36, 38, and 41 through 52 were

entered into evidence.

On January 23, 2021, Petitioner sent an email to the undersigned, with a

copy to counsel for Respondent. The email was essentially Ms. KowalukÔs

attempt to supplement her testimony with written commentary on several of

Resp ondentÔs exhibits. On January 27, 2021, Respondent filed a motion to

strike the email from the record, based on the prejudicial effect of PetitionerÔs

submitting additional testimony without giving Respondent an opportunity to

cross - examine or otherwise te st the veracity of PetitionerÔs statements.

RespondentÔs motion is hereby GRANTED. PetitionerÔs email of January 23,

2021, has not been considered in the composition of this Recommended

Order. RespondentÔs motion for attorneyÔs fees and costs associated wi th

filing its motion to strike is DENIED.

The two - volume Transcript of the final hearing was filed with DOAH on

March 8, 2021. RespondentÔs M otion for an E xtension of the T ime for F iling

Proposed Recommended Orders was granted by Order dated March 17, 20 21.

In keeping with the Order granting extension, Respondent timely filed its

Proposed Recommended Order on March 30, 2021. Petitioner did not file a

p roposed r ecommended o rder.

F INDINGS 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 retail stores

around the world, including in Altamonte Springs, Florida.

2. Ms. Kowaluk is a white female who was born in Poland.

3. Ms. Kowaluk began working as a Retail Sales Associate (ÑRSAÒ) on or

about December 26, 2017, at Ashley FurnitureÔs Altamonte Springs retail

store. Petitioner worked at the Altamonte Springs store u ntil her resignation

on July 16, 2018.

4. The chronology of events in this case is complicated because there were

two simultaneous tracks of complaints coming in to Ashley FurnitureÔs HR

department. Starting in February 2018 and continuing until her resign ation,

Ms. Kowaluk filed a steady stream of complaints regarding incidents with

fellow employees and supervisors. At the same time, several other Ashley

Furniture employees were filing their own stream of complaints with HR

regarding Ms. Kowaluk. HR Manage r Gladys Lopez testified that her office

was often conducting more than one investigation either initiated or provoked

by Ms. Kowaluk.

5. On February 1, 2018, Ms. Kowaluk filed with HR a written complaint

that a male employee was singing near her as she co mpleted some

paperwork. She shushed him. He then began a conversation with a nearby

female employee that included the ÑF - word.Ò Ms. Kowaluk admonished him

for his language and both of the other employees laughed at her. Referencing

Ms. KowalukÔs paperwork, the male employee told Ms. Kowaluk to Ñtake your

junkÒ and work elsewhere. Ms. Kowaluk took offense because she believed

the word ÑjunkÒ to be vulgar.

6. Ms. Kowaluk testified that she believed this incident and her complaint

to HR about it were the reaso n she was never accepted by the other

employees in the Altamonte Springs store. She testified that from that point

forward, management would ignore her complaints about improper language

or behavior by fellow employees. Instead, management would turn the

s ituation on its head and impose discipline on her because she had the

temerity to speak out.

7. In March 2018, Craig Hanson, an experienced manager with Ashley

Furniture, came to the Altamonte Springs store as Store Manager. He

described Ms. Kowaluk as con frontational, argumentative , and Ñkind of

rude.Ò She was disruptive in morning meetings and did not take feedback

well in terms of complying with Ashley Furniture policy.

8. On March 16, 2018, Ms. Kowaluk came to Mr. Hanson to complain

about a customer Ñbe ing inappropriate and touching himself.Ò Ms. Kowaluk

stated that when she asked the customer about it, he said, ÑWhat are you

talking about?Ò and acted as if he had done nothing wrong.

9. Mr. Hanson testified that no other employee corroborated

Ms. Kowalu kÔs account of the customerÔs inappropriate behavior. Mr. Hanson

also stated that no other employee at the Altamonte Springs store ever made

a similar complaint about a customer but that Ms. Kowaluk did so more than

once.

10. Ms. Kowaluk also raised with M r. Hanson an issue she had with

fellow RSA Dominique Jaime. Ms. Kowaluk had reported Ms. Jaime to

A ssistant M anager Lincoln Rivera on February 18, 2018, and would continue

to complain about Ms. Jaime throughout her employment with Ashley

Furniture. Ms. Kow alukÔs allegations were always variations of the complaint

that Ms. Jaime was loud, that she yelled at Ms. Kowaluk, and that she was

overly aggressive in taking the ÑpointÒ position, i.e., the RSA first in line to

greet customers entering the store.

11. O n March 16, 2018, Mr. Hanson told Ms. Kowaluk that he was

required to speak to all parties and get all of the facts before taking any

disciplinary action. Ms. Kowaluk was unsatisfied. In his memo to Ms. Lopez,

dated March 17, 2018, Mr. Hansen wrote that Ms . Kowaluk Ñasked me if I

was uncomfortable with the conversation because of my mannerisms.Ò

Mr. Hanson responded that he was not uncomfortable and that Ms. Kowaluk

should put her statement in writing.

12. Mr. Hanson characterized Ms. Kowaluk as Ñnot a team player.Ò She

had a confrontation of some kind on every shift she worked. Other employees

complained about her on a daily basis.

13. Mr. Hanson noted that Ms. Kowaluk was insubordinate and

confrontational with management. She would openly disparage compan y

policies and state her intention not to follow them. She would argue with her

managers during morning staff meetings. Mr. Hanson testified that he would

take Ms. Kowaluk aside and counsel her one - on - one after these incidents.

However, he would contact HR when Ms. Kowaluk referenced sexual

harassment, abuse, or someone being aggressive toward her.

14. HR came to the Altamonte Springs store to investigate every

complaint made by or about Ms. Kowaluk. Ms. Lopez testified that as the

regional HR Manager, she visited each of the 18 stores in her region about

once every three weeks for at least four hours per visit.

15. Ms. Lopez testified that she received approximately four complaints

from Ms. Kowaluk and about six complaints against Ms. Kowaluk in March

and April of 2018 alone. She testified that she made about five extra trips to

the Altamonte Springs store due to Ms. Kowaluk and that her subordinate

HR staff was required to make trips to the store as well. In every case,

Ms. Lopez found evidence to substant iate the allegations against

Ms. Kowaluk in terms of her belligerence and aggressiveness. She could find

no evidence to support Ms. KowalukÔs claims that other RSAs were abusive

and physically aggressive towards her.

16. Mr. Hanson testified as to a meetin g with Ms. Kowaluk on April 12,

2018, that began normally but took an odd turn. Mr. HansonÔs written

statement to Ms. Lopez, confirmed by Mr. Hanson at the hearing, was as

follows, in relevant part:

Mika asked me to meet with her today at noon to

speak abo ut her growth as a person and with the

company. It started off with her asking me about

how she can get better and what the next steps

towards management would be. I stated that first

we should focus on getting her numbers up, focus

on her process, and the n go from there. I told her

about my path and how I got to where I am at and

it came from learning and growth at the role as I

was at [sic]. This then turned into her talking

about growth as a person. She then took it to why

do customers Ñtouch their priva tesÒ and is this

acceptable in our culture. She then went on to

speak about issues and conflict that she has had

with the team and how is this still going on and

isnÔt this supposed to be a professional

environment?

Eventually she started speaking about Lincoln and

how he adjusts his pants from the front and not

from the side and how she finds this to be Ñhighly

inappropriate.Ò She went on speaking about his

hand gestures and how he uses them when talking

and how this was not professional. We spoke a bit

more and she stated that she didnÔt know if how he

adjusted his pants in front of her was intentional or

just a habit. This concerns me because I feel she is

implying that it could be on purpose just around

her. Lincoln sent me a statement that I will

forw ard to you stating his side of what happenedÈ.

17. Mr. RiveraÔs written statement to Mr. Hanson, sent on April 4, 2018,

was as follows, in relevant part:

At some point, we will need to sit down and discuss

Mika once again because I feel I have to watch

e verything that is done in front of her. I just sat

down at my desk at the end of the night to take

care of some paperwork and she approached my

desk. I adjusted my pants after sitting down

because they were sliding down when I sat. I did

not touch myself a nywhere private, I simply

grabbed my pants at the side and pulled them up.

She asked me not to do that in front of her as this

was inappropriate behavior. I told her that, at this

point, I feel uncomfortable with her here at my

desk and to please go to the back of the store in

preparation to leave. I did ask Priya to stay until

she leaves but this person is very difficult to work

around. I donÔt know what to say or do at this point

but wanted you to know the moment it happened.

18. Mr. Hanson testified tha t he never saw Mr. Rivera touch his genitals

in front of anyone and that HRÔs investigation found no evidence to

substantiate Ms. KowalukÔs allegation. The facts established that Mr. Rivera

was making an everyday movement of adjusting his belt.

19. Ms. Kow aluk described a morning staff meeting with Mr. Rivera

during which he Ñwas constantly moving his hands close to his private parts

or on his hips.Ò She testified that Mr. Rivera was not simply adjusting his

pants but would Ñ[put his] hands in front of [his ] privates and grab and adjust

that way.Ò This was Ñhighly inappropriateÒ and Ñvery bizarre.Ò Ms. Kowaluk

testified that Mr. Rivera repeated the gesture while standing next to her

during a sale. She claimed to have developed a reaction akin to post

traumat ic stress disorder from witnessing Mr. Rivera adjust his pants.

20. Ms. Kowaluk testified that she asked Mr. Hanson about the behavior

because it was so bizarre she could not understand it. She speculated that

maybe it was a nervous tic, or some psychologi cal residue from his time in the

military.

21. Mr. Hanson investigated the morning meeting. In a memo to

Ms. Lopez dated May 25, 2018, Mr. Hanson wrote, in relevant part:

Mika came to me today asking to go home and I

asked why. She said the morning meetin g and how

she felt it was abusive and offensive. She stated

that Lincolns [sic] hand gestures are around his

crotch and she find this to be unacceptable and that

he only does it around her. She feels as if she is

being bullied and that anytime we conduct a n

investigation the stories get twisted. She states

that she canÔt trust the team for this reason.

Per our conversation I had one on one meetings

with everyone who attended this morning

meetingÈ.

22. Mr. HansonÔs interviews with the three other people at the meeting

revealed that nothing untoward occurred. The witnesses uniformly described

the meeting as Ñproductive and helpful,Ò Ñvery beneficial,Ò and Ñpositive.Ò

Neither of the two other females present at the meeting noticed Mr. Rivera

doing anything th at could be deemed socially unacceptable or offensive.

23. Ms. Kowaluk also complained that another assistant manager, Luking

Martinez, was Ñlicking his upper lip sensually.Ò She believed this to be a form

of harassment and sabotage of her sales because Mr . Martinez only did it

when he was near Ms. Kowaluk and her customers. Ms. Kowaluk testified

that her problems with Mr. Martinez commenced when he placed his hand on

her shoulder while helping her with a sale and she asked him not to touch

her.

24. In a me mo to Ms. Lopez, dated July 1, 2018, Ms. Kowaluk wrote as

follows, in relevant part, verbatim:

After your visit at the Altamonte Ashley Furniture

on June 27, 2018, the situation at the store got

worst. I have experienced more harassing

behaviors from co - wo rkers and managers at the

store. In my opinion, I am not considering this as a

coincidences but it feels like itÔs creating an

intentional bullying situations by oppressors at this

company. It is very unprofessional and harassing

environment that I am work ing in.

To be more specific: Homiera is creating hostile

situations front of customer, as well as holding her

hand intentionally with inappropriate gesture front

of her privet parts. Saturday morning June 30,

2018, in store meeting I have observed that Ro han

was [holding] his left hand inappropriately on his

private parts. Another situation happened with

Lorraine and she was holding her hand

intentionally front of her privet part. I have

experienced as well inappropriate behavior from

David like sticking h is tongue out randomly in

front of me and making strange sounds.

I have experienced this same harassing gestures

from customers, man and womanÔs holding hand

front of privet parts. There was one customer at the

store and he was approaching me in inappropr iate

harassing way aggressively getting very close to

me, invading my personal space! Tiffany the person

works in office at the store told me that he is her

friend. I had conversation with her about his highly

invasive behavior. She suggest that I should t alk

about this with my managers. Well I have mention

many times similar problems to managers but with

out any problem solving solutions. Basically my

words and concerns are not going anywhere and I

have the impression that harassing culture is in

favored i nstead of proper safe and pleasant

environment for employ at Ashley Furniture in

AltamonteÈ.

25. HR investigated every allegation made by Ms. Kowaluk and could not

substantiate any of them.

26. The multiple complaints made against Ms. Kowaluk led to disci plinary

action against her. On April 18, 2018, a written warning was issued that

described her conduct as follows:

Mika Kowaluk is expected to act in accordance with

our company values and code of conduct.

You must conduct yourself in a professional

manne r and treat your peers and fellow employees

with respect.

Mika has had multiple instances of conflict with

numerous members of the team, including conflict

with management, failure to follow proper floor

etiquette, and push back on certain behavioral

initi ative that drive sales numbers.

Mik a refuses to use appropriate meeting etiquette

when speaking with management and peers. Mika

focuses on individual mannerisms and verbal tone

to the point that members of the team and

management feel uncomfortable workin g with her.

Ashley is proud of our diverse workforce and

embrace [sic] those things that make us different.

Mika must work together with her peers to

maintain a professional work environment.

Retaliation of any kind will not be accepted.

Mika, your beha viors and actions have not

demonstrated alignment with the expectations of

the RSA and Company Care Values. This has

shown up in your behaviors, communication style

and interactions with your peers and management

team within the store.

27. The written war ning set forth the following corrective action plan:

Mika is receiving a written warning due to her

failure to abide by the Company code of conduct

and values. Moving forward it is expected that

Mika is in alignment with management and

company initiatives. We will also cover our floor

rules with Mika as well as any questions she may

have on proper floor etiquette.

Mika, it is expected from you to abide by the floor

rules and etiquette moving forward. Engaging in

any further unsatisfactory behavior could re sult in

disciplinary action up to and including termination

of employment.

28. Ms. Lopez testified that she discussed the written warning with

Ms. Kowaluk at the time it was issued. Ms. Kowaluk refused to accept the

corrective action and continued to blam e her actions o n her peers. Ms. Lopez

stated that Ms. KowalukÔs behavior did not change after the written warning

was issued and that she continued to receive complaints from Ms. KowalukÔs

coworkers as to her aggressiveness, insubordination, and lack of re spect for

her peers and managers. Ms. Kowaluk likewise continued to file harassment

complaints.

29. On May 12, 2018, an incident occurred involving RSA Susan

Woodbury, whom Ms. Kowaluk had already accused of Ñphysical assaultÒ

after Ms. Woodbury bumped int o her and neglected to apologize. On May 12 ,

2018 , Ms. Woodbury had spread out her lunch on a table in the storeÔs break

room. She was about to sit down and eat when she was called to the sales

floor. She covered her food and went out of the break room.

30 . When Ms. Woodbury returned to the break room a few minutes later,

Ms. Kowaluk was sitting and eating her own lunch in the space that

Ms. Woodbury had set for herself. Ms. Woodbury asked Ms. Kowaluk to

move. Ms. Kowaluk refused. When Ms. Woodbury insisted that she had been

there first, Ms. Kowaluk said words to the effect of, ÑWhat are you going to

do? Fight me?Ò Ms. Woodbury gathered her lunch things. On her way out of

the break room, Ms. Woodbury stated, ÑThis is why no one likes you.Ò

31. Ms. Kowaluk te stified that she sat down at the table in the break

room. She saw Ms. WoodburyÔs plates on the table but sat down and began to

eat her own lunch. Ms. Woodbury then entered the room and Ñabusively

approachedÒ Ms. Kowaluk. In a ÑthreateningÒ manner, she dema nded that

Ms. Kowaluk vacate the table. Ms. Kowaluk denied that she taunted

Ms. Woodbury with the Ñwhat are you going to do?Ò statement but confirmed

that she refused to move and told Ms. Woodbury to find someplace else to sit.

32. In keeping with Ashley F urnitureÔs progressive discipline policy,

Ms. Kowaluk was issued a final written warning on May 16, 2018. As the

name indicates, a final written warning is the last step before termination of

employment. The final written warning described Ms. KowalukÔs co nduct as

follows:

Mika Kowaluk is expected to act in accordance with

our company values and code of conduct. You must

conduct yourself in a professional manner and treat

your peers and fellow employees with respect. Mik a

has continuing conflict with member s of the team,

including conflict with management. Mik a

continues to refuse to use appropriate meeting

etiquette when speaking with management and

peers.

Mik a had an incident with another manager,

Luking Martinez, on May 4 th . Mik a was on a

phone call, and after calling you two times, Luking

moved you to the bottom of the list. He informed

you that you were moved to the bottom of the list

because you were not ready to take point. At this

point you felt as if he was raising his voice at you

and he stated he was not raising his voice. He then

said that you need to be more respectful to the

team and to management. You followed this

statement with, Ñthis is America and we are all

equals.Ò

On 5/12/18 Mik a had another incident with Susan

that was a confrontation in the break room. Mika

sat in a spot that Susan had recently vacated in

which she asked her to move and she refused. This

is not against policy. You also implied what is she

going to do about it? Fight you? These are

confrontational words and is [sic] not accepted at

Ashley.

Mika, your behaviors and actions have not

demonstrated alignment with the expectations of

the RSA and Company Care Values. This has

shown up in your behaviors, communication style

and interactions with your peers and management

team w ithin the store.

As a result, Mik a Kowaluk is receiving a Final

Warning effective today.

33. The final written warning set forth the following corrective action

plan:

Mika is receiving a Final Warning due to her

failure to abide by the Company code of con duct

and values. Moving forward it is expected that

Mika is in alignment with management and

company initiatives. We will also cover our floor

rules with Mika as well as any questions she may

have on proper floor etiquette.

Mika, it will be expected from you to abide by the

floor rules and etiquette moving forward. Engaging

in any further unsatisfactory behavior could result

in disciplinary action up to and including

termination of employment.

34. Ms. Kowaluk signed the final written warning to acknowledg e her

receipt of it, but also wrote the following beneath the signature lines: ÑI donÔt

agree with this statement. The statements from Luking and Susan is not

what actually happened.Ò

35. The event that finally precipitated Ms. KowalukÔs separation from

em ployment at Ashley Furniture occurred on June 30, 2018. The most

credible version of the event is that of Mr. Hanson, who wrote the following

account in a memo to Ms. Lopez on June 30, 2018:

Today Mika had a guest that spoke primarily

Spanish. She called L uz over the intercom, but I

guess Luz was not available or didnÔt respond for

some reason. Mik a then called Luking over. Luking

was speaking with the customer, and called me

over because he noticed that the situation was

getting uncomfortable. I came over and Luking was

speaking to the guest in Spanish. He states that

they would prefer to work with someone who

speaks Spanish, so he called Lorraine, an RSA who

speaks Spanish. At this point Mika got very upset

and started talking about how she doesnÔt

appreci ate this and this is not okay in front of the

guest. She also said that the guest did not ask for

someone who spoke Spanish. Luking said that they

did, but during the conversation with Luking, they

were both speaking Spanish. When asked if she

understood S panish, Mika said no. At this point, I

advised Mika that it was best to not assume Luking

was lying and allow him to turn the sale over. She

then stated that she doesnÔt believe anything

Luking says and that he was lying and they did not

want someone who s poke Spanish. I advised her

that I was trying to help her understand how to

handle this situation, but we cannot cause a [scene]

in the middle of the showroom. She stated that I

was abusing and harassing her and was no help at

all. I then said that for the past two days more so

than usual, she has had an attitude, been

disruptive, and negative, impacting the building

[in] a very bad way. I told her that this is not

acceptable and she will need to change her attitude.

She then stated that she is frustrated a nd that is

why. She then continued to go on about how this is

unfair, she was abused, harassed, and nothing is

being done. I tried to explain to her that

investigations have been done and was trying to

help her understand. She would not take this for an

an swer and continued being rude and disrespectful.

At this point I asked her to leave the building and

told her I would call her when she can come back.

She continued to talk about her pay, and fight back

being rude and disrespectful [sic]. I asked her to

le ave again. Same result. I then asked her to leave

one more time and she walked away.

After she walked away, I saw her walking back

towards me and knew it was going to be

confrontational. I asked Janine [to] attend the

conversation. At this point, she came up to me and

told me she wanted a meeting with Steve King. [ 3 ] I

told her that she had the right to request a meeting

with whomever she wanted, but should do it

through HR. I then politely and calmly asked her to

leave the premises. She then got attitude a nd was

confrontational talking about how she was being

harassed and abused. I asked her calmly to leave

3 The record does not otherwise identify Steve King. From the context, it is presumed that

Mr. King w as an executive with Ashley Furniture.

again, and same result. I asked her one [more] time

to leave and she finally left the premises.

I personally believe she is creating a hostile work

env ironment and would suggest not having her

come back to the store until this is resolved.

After all this was done, I went to the customer that

was in question, and apologized. I then politely

asked if they were having a good experience since

the issue. The y said yes and that they were

working with Lorraine. I then asked if they did

prefer to work with someone who spoke Spanish

and [they] gestured yes, as [they] did not speak

very much English at all.

.

36. Mr. HansonÔs testimony was consistent with his stat ement. The

customers spoke little English and Ms. Kowaluk spoke no Spanish.

Mr. Hanson stated that it is Ashley FurnitureÔs policy to provide Spanish

speaking customers with an RSA who can communicate with them.

Ms. Kowaluk was upset and argumentative and finally had to be asked to

leave the store.

37. In her testimony, Ms. Kowaluk denied that the customers needed

assistance from a Spanish speaking RSA, but she nevertheless put out a call

for a Spanish speaking RSA named Luz. Ms. Kowaluk testified that she and

Luz had worked well together in the past. Ms. Kowaluk stated that she had a

good history with Luz. Ms. Kowaluk had no fear that Luz would steal the sale

rather than follow Ashley FurnitureÔs protocol and share the commission

with Ms. Kowaluk as the RSA who first assisted the customers.

38. Ms. Kowaluk testified that when Luz did not appear, she asked

Mr. Martinez if he knew her whereabouts. She said that Mr. Martinez and

the RSA identified as Lorraine Ñstormed to me.Ò Mr. Martinez began

speaking in Span ish to the customers and took over the sale. Mr. Martinez

stood, Ñputting his hands on his waistÒ and repeatedly asking Ms. Kowaluk if

she spoke Spanish. Mr. Martinez ÑmolestedÒ her and made her Ñhighly

uncomfortable.Ò She was not given an opportunity to e xplain to Mr. Hanson

what had actually happened because Mr. Martinez Ñbullied the whole

situation.Ò

39. Ms. Kowaluk adamantly held that the customers spoke English and

did not need or ask for assistance from a Spanish speaking RSA. She wanted

to involve L uz in the sale to return a favor from a prior sale and because she

knew Luz would work well with these customers.

40. Ms. Kowaluk was suspended pending HRÔs investigation of the

incident. In the July 1, 2018, memo quoted in Finding of Fact 24, supra ,

Ms. K owaluk told Ms. Lopez her version of the events of June 30, 2018:

È It was another situation created when on

Saturday I have customer looking for furniture and

they asked me to give them a space and if they

need something they will approach me with any

que stions. After some time they got back with me

asking for particular table in dark finishing. I have

show some to them and I was in process of

searching for more when I decided to TEO this

customer to Luz. [ 4 ] This customer was speaking

English and Spanish b ut [I] had this feeling that

Luz could have a better connection with them. I

called her over radio but [didnÔt have] a clear

answer do to unacceptably bad radio qualityÔs (we

have constantly problem with radio at store and the

communication is horrible uns atisfactory and

unclear).

I have called Luking that was walking next to

Lincoln desk at the time to help me with the

customer and my intention was as well to

introducing the customer to manage, He started to

approach me and Lorraine for some reason was

wa lking with Luking (I have not asked her for help

or like to have her near me or my customer. She is

presenting aggressive and not pleasant attitude for

most part when interacting with me, and I donÔt

feel comfortable around her).

4 The term ÑTEOÒ was not explained at the hearing.

I told her: thank you Lor raine but I donÔt need your

help and that I have called Luz. I was starting to

introducing the customer needs to Luking but he

interrupted me rudely starting talking in Spanish,

and then told Lorraine to help the customer

because thatÔs what they requested . It was not

really what the customer intention was. Luking

and Lorraine in my opinion created this situation

intentionally. Then Luking stared to talking to me

with intimidating voice and body gesture like

puling his jacket up and touching belt in way to

created abusive body posture. Interrogating me

with this same question few times if I speak

Spanish, to create terrorizing and bully

atmosphere.

Craig asked me then to go to training room to talk

about this instead of in show room. I have refused

because I donÔt really feel comfortable in his

present and Priya. I have experienced

unappropriated body behavior from Craig as well

all the conversations are more like interrogations

and trying to putting me down rather then to

understand and recognize the severe problem of

harassment. Actually all the conversations in the

training room that I had with management it felt to

me like harassment and threats: verbally or body

gestures, rather [than] friendly, compassionate and

understanding with intention to solve the problem.

Craig is accusing me of been aggressive which is

not the case. I was frustrated with this in my

opinion intentionally created situation to effect me

in negative way so the manager can accumulate a

fake reason to send me home again and effect my

earnings, but I have not present any aggressive

behaviorÈ.

I do apologies for any grammatically or spelling

errors, English is not my [first] language and I

appreciate your understandingÈ.

41. Ms. Lopez testified as to HRÔs investigation of this inciden t.

Ms. Kowaluk was suspended and therefore had to be interviewed by

telephone. Ms. Lopez visited the store and interviewed all of the employees

who witnessed the incident. Ms. Lopez stated that she was able to establish

that Ms. Kowaluk was the aggressor i n the incident but was not able to

establish Ms. KowalukÔs allegation of harassment.

42. Ms. Lopez testified that she never had a chance to discuss the results

of the investigation with Ms. Kowaluk because Ms. Kowaluk submitted her

resignation by email on July 16, 2018, stating that she had accepted a job

offer from another company.

43. Ms. Lopez and Mr. Hanson testified that while an employee at Ashley

Furniture, Ms. Kowaluk never alleged that she was being discriminated

against because of her sex, race, or national origin.

44. Ms. Kowaluk herself testified that she never complained to HR that

she was being discriminated against because of her sex, race, or national

origin and conceded that no one at Ashley Furniture was discriminating

against her because she was white, female, or Polish. She stated that she was

discriminated against because she stood up for herself and was not friends

with her coworkers.

45. Ms. Kowaluk testified that she has held eight jobs since she resigned

from Ashley Furniture on Jul y 16, 2018, and has been terminated from six of

those jobs. She resigned from the other two. Ms. Kowaluk testified that she

was mistreated at all of these jobs.

46. The fact that so many people Ms. Kowaluk encountered at Ashley

Furniture Ð employees and cust omers, male and female Ð appeared to engage

in odd crotch - grabbing or suggestive adjustment of their pants fatally

undermines the credibility of her testimony on this point. Ms. Kowaluk either

fantasized these behaviors or is hypersensitive to casual actions that other

people simply do not notice. Ms. KowalukÔs allegations of sexual harassment

and/or a sexually hostile workplace based on what she saw as the lewd

gestures of multiple Ashley Furniture employees, including her immediate

supervisors, were not sup ported by credible evidence.

47. The only action alleged by Ms. Kowaluk that might rise to the level of

sexual harassment was Mr. MartinezÔ s placing his hand on her shoulder.

Ms. Kowaluk testified that Mr. Martinez never touched her in an intimate

area and never proposed a sexual relationship with her. She stated that

Mr. Martinez touched her shoulder more than once. She did not state that he

persisted in touching her once she told him to stop. The weight of the

evidence established that Ms. Kowaluk is extr emely sensitive to infringement

of her personal space. It is clear that Mr. MartinezÔ s actions were unwelcome.

However, it cannot be found that his actions constituted sexual harassment

or the creation of a sexually hostile work environment under any objec tive

view of the evidence.

48. The evidence established that Ms. Kowaluk was consistently

aggressive, obstreperous, and insubordinate in the workplace. Mr. HansonÔs

statement that she was not a Ñteam playerÒ was a gross understatement.

With the exception o f the RSA identified in the record only as ÑLuz,Ò

Ms. Kowaluk had an adversarial relationship with every one of her peers and

supervisors. She functioned chiefly as a distraction and a detriment to the

sales force at Ashley Furniture.

49. The evidence prod uced at hearing establishes that Ashley Furniture

took Ms. KowalukÔs accusations seriously, even when they were outlandish on

their face. In each instance, Ms. Lopez and her staff came to the Altamonte

Springs store and interviewed every employee who could possibly have any

relevant information. In each instance, Ms. Lopez ultimately concluded that

she could not sustain Ms. KowalukÔs allegations due to a lack of corroborating

evidence. Ms. Lopez also concluded, in each instance, that the complaints

made by other employees against Ms. Kowaluk were corroborated and

sustainable.

50. Ms. KowalukÔs Petition made no allegation of retaliation as such but

Ms. Kowaluk raised the issue of retaliation at the hearing. Even if it were

found that she should be allowed to pursue a retaliation claim, the evidence

convincingly established that Ms. Kowaluk was not subjected to unlawful

retaliation. She alleged that she was forced to work in a hostile atmosphere

but the evidence established that the hostile atmosphere was large ly of her

own making. She offered no specific instances of Ashley Furniture acting

against her for reasons unrelated to her performance as an RSA or her own

poor behavior as established by the thorough investigations undertaken by

Ms. Lopez and her staff.

51. Ms. Kowaluk offered no evidence that she was treated differently than

any other similarly situated employee.

52. Ms. Kowaluk offered no evidence that her separation from

employment with Ashley Furniture was anything other than voluntary.

53. In summary , Petitioner offered no credible evidence that she was

discriminated against based on her race, sex, or national origin. Petitioner

offered insufficient credible evidence that she was subjected to a sexually

hostile work environment or sexual harassment. P etitioner also offered no

credible evidence that she was subjected to unlawful retaliation.

54. Petitioner offered no credible evidence disputing the legitimate,

nondiscriminatory reason given by Ashley Furniture for sending her home

and suspending her emp loyment.

55. Petitioner offered no credible evidence that Ashley FurnitureÔs stated

reasons for sending Petitioner home and suspending her employment were a

pretext for discrimination based upon PetitionerÔs sex, race, or national origin

or a pretext for unlawful retaliation.

C ONCLUSIONS OF L AW

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

matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat.

57. The Florida Civil Rights Act of 1992 (the Ñ Florida Civil Rights Act Ò or

the Ñ FCRA Ò ), chapter 760, prohibits discrimination in the workplace.

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

(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 employment, because of

such individual Ô s race, color, 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 because that

person has opposed any practice which is an

unlawful employm ent 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

section.

59. Ashley Furniture is an Ñ employer Ò as defined in section 760 .02(7),

which provides the following:

(7) Ñ Employer Ò means any person employing 15 or

more employees for each working day in each of 20

or more calendar weeks in the current or preceding

calendar year, and any agent of such a person.

60. Florida courts ha ve determined that federal case law applies to claims

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

Supreme Court Ô s model for employment discrimination cases 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 EntmÔt Corp. , 139 F.3d

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

1353, 1 361 (S.D. Fla. 2002); Fla. State Univ. v. Sondel , 685 So. 2d 923, 925

n.1 (Fla. 1st DCA 1996); Fla. DepÔt of Cmty. Aff. v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

61. Ñ Direct evidence is Óevidence, which if believed, proves existence of fact

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

F.2d 1525, 1528 n.6 (11th Cir. 1987)( quoting BlackÔs 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 h eld that not every comment

concerning a person's age presents direct evidence

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

Young Court

made clear that remarks merely referring to

characteristics associated with in creasing 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 the most blatant remarks, whose intent

could be nothing other than to dis criminate on the

basis of age, to constitute direct evidence of

discrimination.

Petitioner offered no evidence that would satisfy the stringent standard of

direct evidence of discrimination.

62. Under the McDonnell analysis, in employment discrimination c ases

that rely on circumstantial evidence , 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 t he employer Ô s offered reasons for its adverse employment decision were

pretextual. See Texas DepÔt of Cmty. Aff. v. Burdine , 450 U.S. 248, 101 S. Ct.

1089, 67 L. Ed. 2d 207 (1981). ÑThe inquiry into pretext centers on the

employerÔs beliefs, not the employ eeÔs beliefsÈ.Ò Alvarez v. Royal Atlantic

Developers, Inc. , 610 F.3d 1253, 1266 (11th Cir. 2010)(the issue is whether

the employer was dissatisfied with the employee for a non - discriminatory

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

63. In o rder to prove a prima facie case of unlawful employment

discrimination under chapter 760, Petitioner must establish that: (1) she is a

member of the protected group; (2) she was subject to adverse employment

action; (3) Ashley Furniture treated similarly s ituated employees outside of

her protected classifications more favorably; and (4) Petitioner was qualified

to do the job and/or was performing her job at a level that met the employerÔs

legitimate expectations. See , e.g., Jiles v.United Parcel Serv ., Inc ., 360 Fed.

Appx. 61, 64 (11th Cir. 2010); Burke - Fowler v. Orange Cty , 447 F.3d 1319,

1323 (11 th Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc ., 330 F.3d 1313,

1316 (11th Cir. 2003); Williams v. Vitro Servs. Corp ., 144 F.3d 1438, 1441

(11th Cir. 1998); McKenzie v. EAP Mgmt. Corp ., 40 F. Supp. 2d 1369, 1374 - 75

(S.D. Fla. 1999).

64. Petitioner has failed to prove a prima facie case of unlawful

employment discrimination.

65. Petitioner is a white female of Polish descent and is therefore a

member of a prot ected group.

66. Petitioner was suspended from her position with Ashley Furniture and

was therefore subject to an adverse employment action.

67. As to the question of disparate treatment, the historic standard for the

Eleventh Circuit was set forth in Mani ccia v. Brown , 171 F.3d 1364, 1368 - 69

(11th Cir. 1999):

Ñ In determining whether employees are similarly

situated for purposes of establishing a prima facie

case, it is necessary to consider whether the

employees are involved in, or accused of, the same

or similar conduct and are disciplined in different

ways. Ò Jones v. Bessemer Carraway Med. Ctr. , 137

F.3d 1306, 1311 (11 th Cir.), opinion modified by

151 F.3d 1321 (1998)(quoting Holifield v. Reno , 115

F.3d 1555, 1562 (11th Cir. 1997)). Ñ The most

important fa ctors in the disciplinary context are the

nature of the offenses committed and the nature of

the punishments imposed. Ò Id. (internal quotations

and citations omitted). We require that the quantity

and quality of the comparator Ô s misconduct be

nearly identi cal to prevent courts from second -

guessing employers Ô reasonable decisions and

confusing apples with oranges. See Dartmouth

Review v. Dartmouth College, 889 F.2d 13, 19 (1st

Cir. 1989)( Ñ Exact correlation is neither likely nor

necessary, but the cases must be fair congeners. In

other words, apples should be compared to

apples. Ò ). ( e mphasis added).

68. However, in Lewis v. City of Union City, Georgia , 918 F.3d 1213, 1224 -

26 (11 th Cir. 2019)(en banc), the court abrogated Maniccia and set forth a

slightly more relaxed standard:

We hold, instead [of the positions urged by the

parties, including reaffirmation of the Maniccia

standard] Ð without trying to force an artificial

gloss Ð that a plaintiff must show that she and her

comparators are Ñsimilarly situated in all material

respects.Ò That standard, we think, best and most

fairly implements federal statutory prohibitions on

Ñdiscrimination,Ò properly balances the need to

protect employees from invidious discrimination

with the deference owed to employersÔ rational

b usiness judgments, and sensibly serves

considerations of sound judicial administration by

making summary judgment available in

appropriate (but by no means all) cases.

* * *

Although we have employed [the Maniccia

standard] for some time now Ï albeit incon sistently Ï

the nearly - identical standard gives off the wrong

Ñvibe.Ò Despite the adverb ÑnearlyÒ Ï and our

repeated reassurances that Ñcomparators need not

be the plaintiff's doppelgangers,Ò Flowers v. Troup

County, Georgia, School District , 803 F.3d 1327,

13 40 (11th Cir. 2015), and, even more explicitly,

that ÑÓ[n]early identicalÔ ... does not mean Óexactly

identical,ÔÒ McCann v. Tillman , 526 F.3d 1370,

1374 n.4 (11th Cir. 2008) Ï there is a risk that

litigants, commentators, and (worst of all) courts

have come to believe that it requires something

akin to doppelganger - like sameness. Although we

must take care not to venture too far from the

form Ð Ñapples should be compared to applesÒ Ð we

must also remember that Ñ[e]xact correlation is

neither likely nor necessary .Ò Dartmouth Review v.

Dartmouth Coll. , 889 F.2d 13, 19 (1st Cir.

1989), overruled on other grounds by Educadores

Puertorriqueños en Acción v. Hernandez , 367 F.3d

61 (1st Cir. 2004). And we are not willing to take

the risk that the nearly - identical test is causing

courts reflexively to dismiss potentially valid

antidiscrimination cases.

69. Petitioner offered no evidence as to disparate treatment of similarly

situated employees outside of her protected classification, under the standard

enunciated in City of Union City .

70. The evidence demonstrated that Petitioner was not performing her job

at a level that met her employerÔs legitimate expectations. Ms. Kowaluk was

a constant disruptive force in the workplace. Her own supervisors did not

want to be alone w ith her for fear that she would file a complaint with HR.

She made lurid allegations against coworkers for innocent actions. In a sales

environment where cooperation is paramount, Ms. Kowaluk was a

demoralizing and distracting nuisance.

71. In order to pro ve 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 ,

277 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).

72. ÑHarassment is severe or pervasive for Title VII purposes only if it is

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

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

ÑWe 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.Ò Oncale v.

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

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

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

conduct; (3) whether the conduct was physically threatening and h umiliating

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

with the employeeÔs 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 Ñ sufficiently demanding to ensure that Title VII does not

become a Ógeneral civility code.ÔÒ Faragher v. City of Boca Raton , 524 U.S.

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

Petitioner must show that the workplace was Ñper meated with

Ódiscriminatory intimidation, ridicule, and insult.ÔÒ Harris v. Forklift Systems,

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

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

incidents (un less extremely serious) will not amount to discriminatory

changes in the Óterms or conditions of employment.ÔÒ Faragher , 524 U.S. at

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

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

or sexually hostile workplace.

75. Petitioner offered no credible evidence beyond her own questionable

testimony to prove that she was subjected to unlawful harassment based

upon her sex. Her allegations regarding pervasive lewd and suggestive

behaviors on the part o f her peers, managers, and even customers were

dubious on their face and not supported by credible evidence.

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

sufficiently severe or pervasive to alter the conditions of her employm ent and

create a discriminatorily abusive working environment. The one credible

allegation made by Petitioner amounted to no more than Mr. Martinez

touching her shoulder, perhaps more than once, as he helped her with a sale.

Ms. Kowaluk did not like being touched and told Mr. Martinez to stop. There

was no evidence that he ignored her admonition. There was nothing about

this episode so Ñsevere or pervasiveÒ as to meet the standard established by

the cases cited above.

77. Petitioner did not explicitly make a retaliation claim in her Petition,

but did make arguments at the hearing that Ashley Furniture took

retaliatory actions against her. However, even if it were found that her

retaliation claim was timely and viable, Petitioner failed to prove that Ashley

F urniture in fact retaliated against her.

78. The court in Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926 (Fla.

5th DCA 2009), described the elements of a retaliation claim as follows:

To establish a prima facie case of retaliation under

section 7 60.10(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

employment action was causally related to the

protected activity. See Harpe r v. Blockbuster

EntmÔt 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 burden shifts and the defendant must

articulate a legitimate, nondiscrim inatory 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 defendant's asserted reasons

for the adverse action are pretextual. Id .

79. P etitioner has failed to establish a prima facie case of retaliation.

80. Petitioner established that she engaged in a statutorily protected

activity, in that she made repeated complaints to Ashley FurnitureÔs HR

department about her conflicts with fellow e mployees, some of which included

allegations of actions that could be interpreted as sexual harassment.

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

that she was sent home from work and suspended on June 30, 2018.

82. Petition er 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 claim, Ashley Furniture articulated a

legitimate, nondiscriminatory reason for the adverse employment action.

Petitioner was involved in a disruptive incident with a supervisor and

another RSA on the sales floor, in full view of the customers she was

supposed to be assisting. When her Store Manager intervened to calm the

situation, Peti tioner was directly insubordinate to him and repeatedly

ignored his instruction that she leave the store until further notice.

83. Because Ashley Furniture articulated legitimate, non - retaliatory

reasons for sending Petitioner home from work and suspendin g her

employment, the burden shifts back to Petitioner to produce evidence that

Ashley FurnitureÔs stated reasons are a pretext for retaliation. To establish

pretext, Petitioner must Ñcast sufficient doubtÒ on Ashley FurnitureÔs

proffered non - retaliatory r easons Ñto permit a reasonable factfinder to

conclude that the employerÔs proffered Ólegitimate reasons were not what

actually motivated its conduct.ÔÒ 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) ) .

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

FurnitureÔs 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.

85. Petitioner failed to establish that her employment was involuntarily

terminated. PetitionerÔs own testimony and the documentary evidence

established that she resi gned from Ashley Furniture.

86. 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 emplo yeeÔs 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: Ñ[a] claim for

constructive discharge req uires the employee to demonstrate that the work

environment and conditions of employment were so unbearable that a

reasonable person in that personÔs position would be compelled to resign.Ò

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

standard for proving constructive discharge is higher than the standard for

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

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

87. Petitioner offered no credible evidence to establish that her working

conditions met the legal standard necessary to establish constructive

discharge. She was justifiably sent home for her unprofessional behavior in

the workplace and then submitted her resignation to Ashley Furniture.

R ECOMMENDATION

Based upon t he 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 6th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl. us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of May , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Mika Kowaluk

Florida Commission on Human Relations Apartment 15 - 306

Room 110 1700 Robb Street

4075 Esplanade Way Lakewood, Colorado 80215

Tallahassee, Florida 32399 - 7020

Stephanie C. Generotti, Esquire

Jimmie Morg an, Esquire Ogletree, Deakins, Nash,

Ashley Furniture Industries, Inc. Smoak & Stewart, P.C.

1670 East 8th Avenue Suite 3600

Tampa, Florida 33605 100 North Tampa Street

Tampa, Florida 33602

Chey a nne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

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 this Recommended

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

case.