LEISHA F. FICKES, )
Petitioner, ) CASE NO. 87-2605 and )
MARIAN C. NORZ, )
Petitioner, ) CASE NO. 87-2606 and )
EILEEN A. WARNER, )
Petitioner, ) CASE NO. 87-2607
vs. )
Respondents. )
The issue in this proceeding is whether the respondents violated Pinellas County Ordinance 84-10, codified as Chapter 17.5 of the Pinellas County Code, by discriminating against the petitioners with respect to employment on the basis of sex.
For Respondent: R. Grable Stoutamire, Esquire
Final hearing in this case was held in Clearwater on August 20, 1987. At final hearing, the respondents filed a Motion To Dismiss Complaints For Lack Of Jurisdiction. The petitioners responded by orally moving to strike the motion to dismiss. The motion to strike was denied, and ruling was reserved on the motion to dismiss.
At the conclusion of the hearing, the petitioners ordered the preparation of a transcript, and the parties requested 20 days after the filing of the transcript in which to file proposed recommended orders. The transcript was filed on September 3, 1987, making the parties' proposed recommended orders due to be filed on October 5, 1987. But the petitioners requested, without objection, until October 13, 1987, for the filing of proposed recommended orders. The petitioners filed their proposed recommended order on October 15, 1987. The respondents did not file a proposed recommended order.
In May, 1986, Radar Corporation, owned by Ronald Ross, bought the assets of United Water Consultants, Inc., and continued the business of selling water purifiers under the fictitious name, United Water Consultants.
As part of the agreement to purchase the United Water Consultants' assets, Ross, who had no experience in the business, insisted that the seller arrange to have an experienced manager agree to stay on and work for Radar at least until either Ross was able to learn the business adequately or could hire another suitable manager. The seller recommended, and Radar hired as manager, a man named Robert Gillette, who had about 30 years experience in the business.
One of the first orders of business for Radar and Gillette was to hire staff, including telephone solicitors, the heart of the business. Among-those Gillette hired were the petitioners--Leisha F. Fickes, Petitioner in Case No. 87-2605, hired in early June, 1986; Marian C. Norz, Petitioner in Case No. 86- 2606, hired in late May, 1986; and Eileen A. Warner, Petitioner in Case No. 86- 2607, hired approximately May 20, 1986.
Fickes, Norz and Warner (like all other United Water Consultants personnel) signed agreements shortly after they began work stating that they were independent contractors. But the main purpose of those agreements, as Gillette explained to them, was to help justify Radar's failure to take federal income tax withholding and social security out of their pay checks. Functionally, the petitioners had the attributes of employees. They were under the close supervision, direction and control of Gillette in the day-to-day details of their work. They were paid a salary based on an hourly wage, plus commissions on telephone solicitations that resulted in sales.
Soon after the petitioners began work, Gillette began making advances towards them. At first, Gillette was not too bold and some of his advances were innocent enough to be in public. He would do things like come up behind one of them and gently massage her shoulders and neck. This type touching was not entirely unwelcome, especially to someone who had been sitting in one place making telephone calls for some length of time. But very quickly, Gillette began to subject the petitioners to coarse and unwelcomed sexual advances in private.
On one occasion, Gillette came in the room where Fickes was working and, after massaging her shoulders, began to try to kiss her neck. On another occasion, Gillette loaned Fickes $20 and implied she could pay him back with sexual favors. Later, he began to take opportunities to drop pens and similar articles down her blouse and offer to retrieve them himself.
One day Gillette came up behind Warner after posting recent sales and began to rub her breasts, saying "see what I got for you?" Warner pushed him away, and he angrily stormed out of the office. On one Friday, Gillette offered Warner $20 for oral sex and asked her to think about it. On Monday, Gillette followed up his offer and, when Warner declined the offer, said he thought she probably did it for her husband for free. Later, to punish Warner for her refusal to give him sexual favors, Gillette began to give her customer lists for solicitation bearing the names of people who recently had declined to buy a water purifier, and Warner's commissions dropped. When Warner complained, Gillette hold her, "you do for me, and I'll do for you."
When Norz asked Gillette for higher commissions, Gillette also told her that he would get her more money in return for sexual favors. He also told her, when she refused his requests that they go out socially together, that he did not know why she was married to an "old man."
As Gillette's conduct worsened, all three of the petitioners separately went directly to Ross to complain. Ross said he would look into the allegations and "take care of it." In fact, Ross did nothing.
Although most of Gillette's coarser sexual advances were made in private, Norz once observed Gillette rubbing Warner's shoulders as he closed the door of the room they were in, and Warner once observed Gillette drop an article down Fickes' blouse. As they talked with one another, the petitioners began to realize the extent of Gillette's conduct and decided to approach Ross together to see if they could be more persuasive.
On July 11, 1986, the petitioners met Ross in the parking lot as he came in to work and demanded to speak to him. They reiterated the facts and demanded that Ross fire Gillette or move him out of the telephone room or they would quit. Ross asked them to come back after lunch. Meanwhile, Ross confronted Gillette for the first time, and Gillette denied the allegations. Gillette demanded a direct confrontation with the petitioners, thinking they would back down. At the meeting after lunch, the petitioners re-asserted their allegations, and Gillette angrily stormed out of the room, expressing an ultimatum that it looked like it would have to be him or them. Ross, whose business would be seriously adversely affected by the departure of Gillette, his manager, told the petitioners that he would have to discuss the situation with his "colleagues" and would get back with them. They told him that they were anxious to hear from him because they (especially Warner and Fickes) needed the work but that they would no longer work under Gillette.
When the petitioners did not hear from Ross, Fickes telephoned him and was told that they all had been fired, allegedly because a customer list had turned up missing. (If true, the petitioners had nothing to do with it.) Later, Ross would maintain that the petitioners voluntarily quit on July 11, 1986.
Fickes and Warner earned approximately $220 per week and Norz earned approximately $195 per week at United Water Consultants. Norz made no real effort to mitigate damages by seeking other employment after July 11, 1986. Warner and Fickes, both of whom were pregnant, were unable to find other employment before the birth of their babies in August and November, 1986, respectively. Warner took about six weeks off after childbirth and worked three different jobs from late October, 1986, through July, 1987, each of which paid her approximately $140 per week. Fickes did not return to work until March, 1987, when she began earning approximately $170 per week at a restaurant. /1
At least from the time Radar took over the United Water Consultants business through at least December, 1986, at least five employees worked for the business each and every week. Radar operates the United Water Consultants business out of an address located in Largo, a municipality in Pinellas County other than the City of Clearwater.
CONCLUSIONS OF LAW
Pinellas County Ordinance 84-10, codified as Chapter 17.5 in the Pinellas County Code, was enacted in 1984 for the following purposes:
To provide for execution within Pinellas County of the policies embodied in the Federal Civil Rights Act of 1964, as amended to January 15, 1979, and title VIII of the Federal Civil Rights Act of 1968, as amended to January 15, 1979; and
To secure for all individuals within Pinellas County the freedom from discrimination because of ... sex
Section 2-17.5-1, Pinellas County Code. The Ordinance is to be liberally construed. Id.
The respondents, United Water Consultants and Radar Corporation, do business in Largo, Pinellas County, Florida. Ordinance 84-10 applies to all territory within the legal boundaries of Pinellas County, including all unincorporated and incorporated areas. Section 2-17.5.12. The territorial scope of the code section includes the municipality of Largo.
The Pinellas County Board of County Commissioners is authorized to contract with official bodies to administer the Ordinance. Section 2-17.5-2 (B). The Commission has entered into such a contract with the Clearwater Office of Community Relations, as indicated by the City's reference to Ordinance 84-10 on the face of the charges in this case.
Pinellas County Ordinance 84-10 defines "employer" as "a person who employs five (5) or more employees for each working day in each of thirteen (13) or more calendar weeks in the current or preceding calendar year and any agent of such a person..." (Emphasis added.) Section 2-17.5-2 (H).
Each of Radar Corporation's workers was required to sign independent contractor agreements at the outset of employment. But, in Perry v. City of Country Club Hill, 607 F. Supp. 771 (D.C. Mo. 1983), the court considered whether a worker was an independent contractor or an employee for purposes of subjecting the employer to the jurisdiction of Title VII and held that the most important factor to consider is the extent of the employer's right to control the means and manner of the worker's performance. Under this test, the facts show Radar Corporations' "independent contractors" to have been employees for purposes of establishing jurisdiction under Ordinance 84-10.
The evidence shows conclusively that Radar Corporation employed five or more employees each week from the date of ownership through the end of calendar year 1986. It is therefore concluded that the respondents, United Water Consultants and Radar Corporation, are subject to Pinellas County Ordinance 84-10 as an "employer."
The petitioners had the burden of proving by a preponderance of the evidence that they were intentionally discriminated against on the basis of sex. Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089 (1981), on remand, Burdine v Texas Department of Community Affairs, 647 F.2d 513 (5th Cir. 1981).
In Vermett v. Hough, 627 F. Supp. 587 (W.D. Mich. 1986), the court held that a prima facie case of sexual harassment was established when the complainant demonstrated that her supervisor: made sexual advances toward her; made submission to those advances a condition of employment; the situation was a motivating factor in her termination; and male employees were not affected in
the same way by the alleged conduct. See also Harrison v. Reed Rubber Co., 603 F. Supp. 1457 (D.C. Mo. 1985).
In Meritor Savings Bank v. Vinson, U.S. 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), the United States Supreme Court affirmed the holding of the Court of Appeals for the District of Columbia and specifically held that "without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex." Id., at 106 S. Ct. at 2404. The Court adopted the "hostile environment" theory contained in EEOC guidelines and used by lower courts to define sexual harassment:
For sexual harassment to be actionable,
it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." Id., 106 S. Ct. at 2406. (Citation omitted.)
The evidence presented at hearing was sufficient to establish a prima facie case of sexual harassment. Respondent failed to carry its burden of articulating a legitimate nondiscriminatory reason for the termination of Petitioners. See Texas Department of Community Affairs, 101 S. Ct. 1089 (1981).
The Supreme Court in Meritor went on to state that, while an employer is not, under all circumstances, strictly liable for the acts of its employees, "absence of notice to an employer does not necessarily insulate that employer from liability." Id., 106 S. Ct. at 2408. Furthermore, the Court agreed with the EEOC that traditional agency principles apply to employer liability rules under Title VII:
[W]here a supervisor exercises the authority actually delegated to him by his employer, by making or threatening to make decisions affecting the employment status of his subordinates, such actions are properly imputed to the employer whose delegation of authority empowered the supervisor to undertake them. Id., 106 S. Ct. at 2407-2408.
"Employer" is defined in Title VII, as in Pinellas County Ordinance 84-10, to include any "agent" of an employer. 42 U.S.C.A. Section 2000 e (b)(1981).
Based on the facts in this case, the respondents must be held liable for the sexual harassment by Gillette. Each of the petitioners told Ross about the harassment, and nothing was done about it. When the petitioners confronted Ross together on July 11, 1986, Ross allowed himself to be influenced unduly by Gillette's importance to the business, took Gillette's side and fabricated a non-discriminatory reason for firing the petitioners (later taking the position that the petitioners voluntarily had quit.)
Pinellas County Ordinance 84-10 provides:
The commission shall have the authority to award actual damages incurred by a
party which were caused by a violation
of this Ordinance. Section 2-17.5-11 (A).
"Commission" is defined in the Ordinance as "the official body or bodies given authority by the Pinellas County Board of County Commissioners to administer this Ordinance." Section 2-17.5-2 (B).
In determining the correct measure of damages under Ordinance 84-10, it is instructive to consider the law developed under federal Title VII. Actual damage recoverable under Title VII is back pay. Patzer v. Board of Regents, University of Wisconsin System, 763 So.2d 851 (7th Cir. 1985). Back pay is recoverable under Title VII when there is a constructive discharge and the plaintiff does not seek reinstatement. Rimedio v. Revlon, Inc., 528 Supp. 1380 (D.C. Ohio 1982). Gross pay is used to calculate actual damages under Title
VII. Thurber v. Jack Reilly's, Inc., 521 F. Supp. 238 (D.C. Mass. 1981), aff'd, 717 F.2d 633 (1st Cir. 1983). Back pay is recoverable to date of judgment. Lilly v. City of Beckley, 797 F.2d 191 (4th Cir. 1986). What a plaintiff could have earned by exercise of reasonable diligence is deducted under Title VII. E.E.O.C. v. Exxon Shipping Co., 745 F.2d 967 (5th Cir. 1984).
Each of the petitioners was fired by Radar Corporation. None voluntarily left employment. But for Gillette's illegal behavior toward the petitioners, they would not have lost their jobs on July 11, 1986. None of the petitioners now seek reinstatement at Radar Corporation. Therefore, the correct measure of damages is lost gross pay through the date of judgment, less what the petitioners could have earned from other employment through the exercise of reasonable diligence.
Fickes did not reenter the work place until March, 1987. She currently earns a minimum of $50.00 per week less than she earned at United Water Consultants. She earned nothing from July 11, 1986, until March, 1987. Her actual damages are:
7/11/86-3/87 $220/wk x 27 weeks (33 minus 6 weeks
for child birth) = $5,940
3/87 to date $50/wk x 36 weeks = 1,800 Total Damages: $7,740
2/ See Footnote 1, page 6, above.
Warner returned to work in October, 1986, and has made average earnings of $140.00 per week. That amounts to $80.00 per week less than her average earnings at United Water Consultants. She earned nothing from July 11, 1986 through October, 1986. Her actual damages are therefore:
7/11/86-10/86 | $220/wk x 6 (12 weeks minus 6 weeks for |
|
| child birth) | = $1,320 |
10/86 to date | $80/wk x 57 weeks | = 4,560 |
Total Damages: |
| $5,880 |
Norz did not work from July 11, 1986, until January, 1987. She is currently not employed but has not looked for work. Not having made reasonable efforts to mitigate or avoid the consequences of the termination of her employment, Norz is not entitled to any actual damages. See E.E.O.C. v. Exxon Shipping Co., supra; Rimedio v. Revlon, Inc., supra.
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Community Relations Board of the City of Clearwater, acting as the Commission that administers Pinellas County Ordinance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a final order:
RECOMMENDED this 6th day of November, 1987, in Tallahassee, Florida.
J. LAWRENCE JOHNSON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1987.
1/ Although the evidence does not establish how much Fickes has been earning at the restaurant, Fickes conceded in proposed findings of fact that her current income is only about $50 per week less than her income at United Water Consultants. That satisfies the respondents' burden to prove what Fickes could have earned from other employment by exercise of reasonable diligence. See
E.E.O.C. V. Exxon Shipping Co., infra; Rimedio v. Revlon, Inc., infra.
Office of Community Relations c/o Ronald M. McElrath
R. Grable Stoutamire, Esquire 625 Grand Central Street Clearwater, Florida 33516
