21-000923 David C. Montague vs. Tractor Supply Co. Status: Closed Recommended Order on Monday, September 27, 2021.

Summary: Petitioner failed to prove that Respondent committed an unlawful employment practice by subjecting Petitioner to a racially hostile work environment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D AVID C. M ONTAGUE ,

Petitioner ,

vs. Case No. 21 - 0923

T RACTOR S UPPLY C O . ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted on June 21, 2021, via

Zoom before Garnett W. Chisenhall, a duly designated Administrative Law

Judge of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: David C. Montague, pro se

Post Office Box 471

Newberry, Florida 32669

For Respondent: Lara J. Peppard, Esquire

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

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

Kristin U. Somich, Esq uire

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

Suite 2300

201 South College Street

Charlotte, North Carolina 28244

S TATEMENT OF T HE I SSUE

Whether Respondent (ÑTractor SupplyÒ) committed an unlawful

employment practice by s ubjecting Petitioner (ÑDavid C. MontagueÒ) to a

hostile work environment.

P RELIMINARY S TATEMENT

Mr. Montague filed an Employment Complaint of Discrimination with the

Florida Commission on Human Relations (Ñthe CommissionÒ) on August 14,

2020, setting fo rth the following allegations:

I am an African American male. I was

discriminated against because of my race and sex. I

began my employment with [Tractor Supply] on

May 10, 2020, as a Team Member. On June 30,

2020, my co - worker (Daryl Whitehead) and I wer e

called to the managerÔs office [for] what seemed to

[be an] urgent [matter]. We were presented with

what appeared to be a life size African American

penis. A few minutes later, the store manager

walked out of his office and looked at me, seemingly

awaiti ng a response from me. We asked if that was

the reason we were called to the office. My

coworker called the Regional Manager as well as

law enforcement who said they would not come and

advised him to contact Human Resources. Our

hours were drastically redu ced and given the fact

that we live approximately 50 miles from where we

worked, and at the time of this writing I have not

returned to work because I do not feel safe working

there and it would create an economic hardship due

to the distance after our hou rs were cut.

The Commission issued a Notice on February 5, 2021, announcing its

determination Ñthat there is no reasonable cause to believe that an unlawful

practice occurred.Ò Mr. Montague responded by filing a Petition for Relief,

and the Commission re ferred this matter to DOAH on March 11, 2021, for a

formal administrative hearing.

The final hearing was convened on June 21, 2021. Petitioner testified on

his own behalf and did not attempt to move any exhibits into evidence.

Tractor Supply presented te stimony from Steve Todor, Alexandra Lounsbury,

Michael Davis, and Audrey Reese. RespondentÔs Exhibits 4, 9 through 17, 1

19 through 24, and 39 through 42 were accepted into evidence.

The two - volume final hearing Transcript was filed on July 29, 2021.

Mr. Montague filed a single - page, post - hearing submittal on August 6, 2021.

Tractor Supply filed a Motion on August 12, 2021, requesting that the due

date for the partiesÔ proposed recommended orders be extended to

September 9, 2021. The undersigned i ssued an Order on August 13, 2021,

granting that Motion. Tractor Supply ultimately filed a timely Proposed

Recommended Order . Both post - hearing submittals were considered in the

preparation of this Recommended Order.

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hearing,

the entire record of this proceeding, and matters subject to official

recognition, the following Findings of Fact are made:

1. Tractor Supply is a retail store chain that sells a wide variety of

prod ucts geared toward agricultural uses.

2. Mr. Montague is a 41 - year - old African American male. He has a GED

and an associateÔs degree in psychology. At the time of the final hearing in

this matter, he was five classes short of obtaining a bachelorÔs degree in

industrial psychology.

3. Since leaving high school, Mr. Montague has worked in a variety of

fields such as retail, construction, farming, and landscaping.

1 The undersig ned deferred ruling on the admissibility of RespondentÔs Exhibit 13 because it

was a hearsay statement provided by an employee of Tractor Supply. After further review,

the undersigned accepts RespondentÔs Exhibit 13 into evidence because it supplements

and /or corroborates testimony given during the final hearing.

4. Mr. Montague began working at a Tractor Supply store in Chiefland,

Florida in April or May o f 2020. His duties at Tractor Supply included

handling 50 - pound bags of feed, arranging those bags on the store shelves,

assisting customers with transporting their purchases to their vehicles, and

maintaining the storeÔs parking lot. Mr. Montague worked 4 0 hours a week

with occasional overtime.

5. Mr. Montague and his friend, Darryl Whitehead, shared rides to and

from work at the Chiefland store. They were two of the three African

Americans working there.

6. Mr. Montague, Mr. Whitehead, and Steven Todor often worked together

handling inventory. Mr. Todor is Caucasian. They frequently made off - color

comments about each other and fellow co - workers. Those comments were

often related to male genitalia and were inappropriate for a workplace.

Mr. Todor was counseled on at least one occasion after a customer overheard

the three men engaging in their usual, off - color banter. Mr. Montague had

been counseled at least once about inappropriate comments and jokes.

7. On June 30, 2020, a nondescript, unmarked w hite box, addressed to

Mr. Todor, arrived at the Chiefland store. There was no indication who had

sent the package, and it was taken to the storeÔs breakroom. The breakroom

is adjacent to another room that serves as the store managerÔs office.

8. Alexand ra Lounsbury, who was the acting manager of the Chiefland

store at the time, paged Mr. Todor over the storeÔs intercom system and

announced that he had a package in the breakroom. When Mr. Todor arrived

at the breakroom, Ms. Lounsbury, Madison Douglas, the acting assistant

store manager, and Ashley Peterson, a team leader, were in the office area

but could see the breakroom through an open door.

9. Mr. Todor arrived in the breakroom, opened the package, and

immediately recognized it as a gag gift. He saw what he described as a

Ñchocolate candy phallic objectÒ inside the package, and the bottom of the

packageÔs lid had a message that read , Ñeat a dick.Ò

10. Mr. Todor was amused by the package, and asked the three ladies

present if one of them were respons ible for sending him the package. They

were also amused by the package but denied being responsible. Mr. Todor

then suspected that Mr. Montague and Mr. Whitehead were the culprits and

asked Ms. Lounsbury to summon them to the break room:

A: And, you know, me trying to be a logical person,

one and one together, I received a chocolate phallic

object in the mail addressed to me, so I go to the

next logical, for me anyways [sic] person to ask,

and I asked Alex if she could Ï because I didnÔt

have a phone on me Ï if she could intercom Darryl

and David to the office in a hasty manner.

Because this is, like, around 10 or 11. So IÔm in

there Ï I was getting a water anyways, and so

when they made their way over, Darryl was the

first one in. And I sat there in fron t of the door, you

know, looking like an idiot, holding the box open

like so (gestures) with the lettering that says eat a

dick, more or less as a joke.

And the first thing I said is, did you send this,

when Darryl walked in. Darryl didnÔt answer me.

He s aid something along the lines of, like, what the

F is this and walked past me and sat down behind

me, smiled and shook his head.

David was not far behind Darryl. He opened the

door, saw me looking like an idiot with, you know, a

box in my hand, mumbled so mething along the

lines of, I canÔt believe this shit . . . Mumbled

something along those lines, turned around and

walked away, closed the door. DidnÔt come into the

break room. And I donÔt really remember much

after that. I think that we went on, continue d doing

a normal day.

I think I did inevitably try that chocolate and it

wasnÔt very good chocolate. I kept the box in the

freezer and then threw it away when I left or after I

got written up, should I say. Because we did get

reprimanded for this situa tion.

Q: Okay. Okay. So who else did you show this to?

A: Throughout the day I think everyone saw it. At

the end of the day everyone saw it. IÔm pretty --

I donÔt think I walked around on the floor with it.

I wasnÔt going to go to that extreme , but I think

throughout the day whoever was working that day

did in fact see that object.

Q: Did anybody admit to having sent it?

A: To this say I have no idea. I donÔt know,

Personally, I do not know.

11. Mr. Montague was appalled by Mr. TodorÔs ac tion s and felt

disrespected. He finished his shift and reported the incident via text message

the next morning to Mike Davis, the regional manager who oversaw the

Chiefland store. Mr. Davis requested that Mr. Montague transmit a

statement about the inciden t via facsimile or electronic mail, but

he failed to do so.

12. Mr. Davis told Mr. Montague that he would be at the Chiefland store

the next day and asked to meet with him. However, Mr. Montague did not

report for work at the Chiefland store on July 1 or 2, 2020. Mr. Davis

attempted to contact him via telephone, but Mr. Montague did not return the

call.

13. Mr. Davis collected statements about the incident from

Ms. Lounsbury, Ms. Peterson, Ms. Douglas, and Mr. Todor. Because

Ms. Peterson and Ms. Dougla s were new to the supervisory roles they were

filling, Mr. Davis had a coaching session with them regarding the June 30,

2020, incident. However, Ms. Lounsbury and Mr. Todor received written final

warnings stating that similar conduct in the future would r esult in

termination. 2

14. Mr. Montague never returned to the Chiefland store. He felt that the

incident on June 30, 2020, rendered working at the Chiefland store

Ñintolerable.Ò He never notified the Chiefland store that he was resigning his

position , and Tractor Supply ultimately fired Mr. Montague on July 8, 2020,

for not reporting to work.

15. Mr. Montague has failed to demonstrate that Tractor Supply should be

held responsible for the June 30, 2020 , incident . Once Mr. Davis became

aware of the incident, he promptly initiated an investigation that resulted in

particular employees being disciplined in a manner commensurate with their

involvement with the incident. Moreover, Tractor SupplyÔs response was

reasonably likely to prevent similar miscon duct from happening again.

2 Ms. LounsburyÔs written warning stated the following: ÑOn June 30, 2020 a package was

received at the Chiefland location of [Tractor Supply Company], addressed to the Receiver.

The Receiver opene d the package in the office, in the presence of the Interim Store Manager

as well as the two other Team Members. After the Receiver opened the package it was found

to be a sexually explicit piece of candy. Rather than throwing the candy away and acting in a

professional manner by apologizing to the Receiver that it had happened, Alexandra admits

to asking two additional Team Members to come to the office so the Receiver could confront

them in front of others and ask if they sent the candy. It is the policy of Tractor Supply

Company to promote a productive work environment and not accept any conduct by any

Team Member that harasses, disrupts or interferes with work performance, or that creates

an intimidating, offensive or hostile work environment.Ò

Mr. Tod orÔs written warning stated the following: ÑOn June 30, 2020 a package was received

at the Chiefland location of [Tractor Supply Company], addressed to Steven. After opening

the package Steven realized that it was [a] sexually explicit piece of candy. Rath er than

throwing the candy away Steven asked if he could approach two additional Team Members

to confront them and ask if they sent the candy. Those two Team Members denied that they

had sent the candy and they were offended at what he showed them and that they were

asked if they had sent it. While the concern noted above was being investigated, Steven

admitted that he and the Team Members he confronted had been joking with each other

inappropriately and he believed the package was connected to these inappr opriate jokes. It is

the policy of Tractor Supply Company to promote a productive work environment and not

accept any conduct by any Team Member that harasses, disrupts or interferes with work

performance, or that creates an intimidating, offensive or host ile work environment.Ò

C ONCLUSIONS OF L AW

16 . DOAH has jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57, Florida Statutes, and

Florida Administrative Code Rule 60Y - 4.016(1).

17 . The legislative scheme contained in sections 760.01 through 760.11,

Florida Statutes, is known as the Florida Civil Rights Act of 1992 (Ñthe

FCRAÒ).

18 . Section 760.10(1)(a) prohibits discrimination Ñagainst any individual

with respect to compensation, term s, conditions, or privileges of employment,

because of such individualÔs race, color, religion, sex, national origin, age,

handicap, or marital status.Ò

19 . The FCRA incorporates and adopts the legal principles and precedents

established in the federal a nti - discrimination laws specifically set forth under

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et.

seq.

20 . Florida courts have determined that federal discrimination law should

be used as guidance when construing the FCRA. See Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); Brand v.

Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

21 . In the instant case, M r . Montague has the burden of proving by a

preponderance of the evidence that Tractor Supply committed an unlawful

employment practice. See EEOC v. JoeÔs Stone Crabs, Inc. , 296 F.3d 1265,

1273 (11th Cir. 2002)(noting that a claimant bears the ultimate burden of

persuading the trier of fact that the employer intentionally discriminat ed

against the employee); § 120.57(1)(j), Fla. Stat.

22 . M r . Montague argues that he was subjected to a hostile work

environment due to h is race .

23 . ÑTitle VII is violated when the workplace is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victimÔs employment and create an

abusive working environment.Ò Coles v. Post Master Gen. United States

Postal Serv. , 711 Fed. Appx. 890, 897 (11th Cir. 2017).

24 . In order to s ubstantiate such a claim, a plaintiff must satisfy the

following criteria: (a) he or she belongs to a protected group; (b) he or she has

been subjected to unwelcome harassment; (c) the harassment was based on a

protected characteristic of the employee; (d) the harassment was sufficiently

severe or pervasive to alter the terms and conditions of employment; and

(e) the employer was responsible for the harassment under a theory of

vicarious or direct liability. See Miller v. Kenworth of Dothan, Inc. , 277 F.3d

1269, 1275 (11th Cir. 2002).

2 5. In assessing whether the employer is responsible for harassment

perpetrated by a co - worker under a theory of vicarious or direct liability, Ñan

employer is directly liable for an employeeÔs unlawful harassment if the

empl oyer was negligent with respect to the offensive behavior.Ò Vance v. Ball

State Univ. , 133 S. Ct. 2434, 2441, 186 L. Ed. 2d 565 (2013). A plaintiff must

show that the employer knew or should have known of the harassing conduct,

but failed to take prompt re medial action. Baldwin v. Blue Cross/Blue Shield

of Ala. , 480 F.3d 1287 (11th Cir. 2007).

2 6. As for the sufficiency of an employerÔs remedial action, there is no

bright - line test. ÑWhether an employerÔs response is sufficient depends on,

among other thi ngs, the effectiveness of the steps taken, and whether it was

reasonably likely to prevent the misconduct from recurring.Ò Hollon v. DAS

N.A., Inc. , 2016 WL 4501646 , at * 6 (M.D. Ala. 2016).

27. With regard to the instant case, there is no dispute that Mr . Montague

belongs to a protected group. However, even if it were assumed that

Mr. Montague was subjected to unwelcome harassment , that the harassment

was based on a protected characteristic , and that the harassment was

sufficiently severe or pervasive to alter the terms and conditions of his

employment, Mr. Montague has failed to demonstrate that Tractor Supply

was responsible for the harassment under a theory of vicarious or direct

liability. Once Mr. Davis became aware of the June 30, 2020, incident, he

promptly initiated an investigation that resulted in two employees receiving

coaching sessions and two others receiving written, final warnings that

similar misconduct in the future would result in termination. Those actions

were sufficient in that they w ere reasonably likely to prevent similar

misconduct from happening again.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order dismissing Mr . MontagueÔs Petition for Relief.

D ONE A ND E NTERED this 2 7 th day of September, 2021 , in Tallahassee,

Leon County, Florida.

S

G. W. C HISENHALL

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of September, 2021 .

C OPIES F URNISHED :

David C. Montague Tammy S. Barton, Agency Clerk

Post Office Box 471 Florida Co mmission on Human Relations

Newberry, Florida 32669 4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

Stanley Gorsica, General Counsel

Florida Commission on Human Rela tions

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

Kristin U. Somich, Esquire Lara J. Peppard, Esquire

Ogletree , Deakins , Nash , Ogletree , Deakins , Nash ,

Smoak and Stewart, P.C. Smoak and Stewart, P.C.

Suite 2300 Suite 3600

201 South College Street 100 North Tampa Street

Charlotte, North Carolina 28244 Tampa, Florida 33602

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.