STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARCIA MORRIS, )
)
Petitioner, )
)
vs. ) CASE NO. 89-1916
) AMERICAN EXCHANGE CAR RENTAL, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case on August 1, and October 25, 1989 in Clearwater, Florida, before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Charles E. Lykes, Esquire
300 Turner Street Clearwater, Florida 34616
For Respondent: John D. Tuthill, Esquire
4695 Ulmerton Rd., Suite 440
Clearwater, Florida 34622 STATEMENT OF THE ISSUES
The issue for consideration in this case is whether the Petitioner, Marcia Morris, was sexually harassed and improperly discharged from employment by Respondent because of her sex.
PRELIMINARY STATEMENT
On July 7, 1988, the Claimant, Marcia Morris, filed a complaint of sexual harassment on the job against Patrick Marzouca with the City of Clearwater's office of Community Relations, (City). On July 11, 1988, Ms. Morris filed an Equal Employment Opportunity Complaint against Mr. Marzouca and American Exchange Car Rentals, (American). By letter dated July 19, 1988, the Miami office of the EEOC indicated that the City had forwarded a copy of Ms. Morris' complaint to it, and that the complaint would be investigated and resolved by the City. On July 22, 1988, Mr. Marzouca's counsel wrote to the City denying the allegations of discrimination, and on July 26, 1988, the City responded to Mr. Marzouca and American, again notifying them that the complaint had been filed.
For several months thereafter, there was continued correspondence between Respondent's counsel and the City involving various requests for information and outlining the need for cooperation with the investigation. On September 15,
1988, Mr. Marzouca, through counsel, denied the City's jurisdiction, indicating that all five of the individuals who worked for him were independent contractors and not employees.
By letters dated February 8 and 14, 1989, the City requested information from Mr. Marzouca regarding its jurisdiction. The information dealt with such matters as the contracts between Mr. Marzouca and the "contractors", payroll records, evaluation sheets on the "contractors", and attendance records of the "contractors." By letter dated February 23, 1989, Mr. Marzouca's counsel denied the existence of these records.
On March 29, 1989, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on April 24, 1989, K. N. Ayers, Hearing Officer, issued a Notice of Hearing setting the case for July 5, 1989, in Clearwater. On May 19, 1989, counsel for Mr. Marzouca moved for a continuance of the scheduled hearing, which was granted by Mr. Ayers on May 23, 1989, who continued the case until August 1, 1989. On July 14, 1989, counsel for Ms. Morris filed his first notice of appearance and on August 1, 1989, the hearing was begun before the undersigned to whom the case had been assigned in the interim. After several hours of hearing, however, and before the presentation of any evidence by Respondent, the parties agreed that the matter should be adjourned to a later date because of the unavailability of witnesses who had been subpoenaed by both sides. By Order dated August 16, 1989, the undersigned, relying on the representations submitted by counsel for both parties as to proposed dates for continuation of the hearing, reset the continuation of the hearing for October 25, 1989 at which time it was held as noticed.
Petitioner testified in her own behalf and presented the testimony of Kathy Higgins, former manager at Respondent's Cleveland Street Branch; Jack Kelly, the bookkeeper at American; Patrick Marzouca, a Respondent; Gregory D. Cote and Katheryn M. King, former American employees; and Vincent L. Puglia, the owner of a neighboring business establishment. Petitioner also introduced Petitioner's Exhibits 1 and 2 and, subsequent to the hearing, filed a supplemental exhibit consisting of Petitioner's income tax returns for the years 1985 through 1987, and the IRS Forms W-2, relating to Petitioner, for the years 1985 and 1986.
Respondent, Patrick Marzouca testified in his own behalf but presented no documentary evidence. A transcript was furnished, but though both counsel submitted argument and position papers, neither party submitted Proposed Findings of Fact.
FINDINGS OF FACT
At all times pertinent to the allegations contained in the Complaint filed by Ms. Morris, she was a resident of Pinellas County, Florida.
Respondent, Patrick Marzouca, owned and operated and currently owns and operates American Exchange Car Rental with main office located in Clearwater and satellites located elsewhere in Pinellas County, Florida.
In December, 1987, Marcia Morris, Petitioner herein, answered a newspaper advertisement for rental agents placed by American Exchange Car Rental, and was interviewed for the position by Susan Johnson. Shortly thereafter, she was telephoned by Mr. Marzouca, who had been in the office at the time Ms. Morris was interviewed, and who told her to come in to work the
next day. Because Mr. Marzouca had been a bit too forward in his approach, reportedly stating, "I want you. I need you as bad as blood.", Ms. Morris declined employment at that time.
However, in March, 1988, she did start work at American exchange because of her relationship with Kathy Higgins, also an associate at American, with whom she had worked at the airport. Ms. Morris had previously worked for several rental car agencies and at the time of her employment by American, had, she claims, never been terminated from employment with any of them for cause. As shall be seen below, she was terminated from employment with one agency for failure to disclose a prior DUI conviction which rendered her ineligible for insurance to operate an automobile.
As compensation for her services to American, Ms. Morris was to receive
$250.00 for a 40 hour work week as a rental agent, and was to have the use of a company car without restriction, if available. Her work hours were from 10:00 AM to 6:00 PM. Work hours were set by the agents themselves so long as the office was covered, but the overall time each office was open, and the length of shift, was determined by Mr. Marzouca and Ms. Higgins who was the overall manager. Individual agents' times were not entered on a time card, but were determined by the agent's initials used when entering or leaving the computer at the time of beginning and ending work.
The $250.00 per week compensation was paid regardless of the number of hours worked, and each agent received a commission of 10% on charges for collision waiver sold. The $250.00 per week compensation was paid weekly, but the commission was paid every three months. The car furnished by the company was in her possession the entire time she worked there. Ms. Morris considered herself an employee of American, and was never told by anyone that she was an independent contractor. When she questioned the fact that neither withholding taxes nor social security contribution were taken from her pay, she was advised not to worry about it as the Respondent's lawyer would handle it at the end of the year.
The female rental agents were required to wear an American Exchange polo shirt, supplied by the company, and either slacks or skirts. Mr. Marzouca preferred the females wear short skirts, but Ms. Morris would not do that.
From the start, even the first day of work, Mr. Marzouca began making comments to Ms. Morris such as, "You're so beautiful, Baby, I want to marry you." He tended to use the word, "Baby" a lot and not a day went by, she claims, without his offering her his unwanted attentions. Over the time she worked there, he offered to buy her clothes so he could attend parties with her; and he offered to buy her jewelry, stating, "I can see a gold necklace around your beautiful neck", and other similar comments.
Ms. Morris contends she told Mr. Marzouca on an almost daily basis to "Leave me alone." She also complained to Ms. Higgins and to her coworkers about the situation, seeking advice as to where to draw the line. Since she was single, lived alone, and liked her income, she did not file a formal complaint at first, though she did not like what was going on, and did not like Mr. Marzouca's attentions. She never saw him behave this way or any comparable way toward a male employee.
Ms. Morris also worked at Respondent's New Port Richey office. Things were better there, as opposed to the main office, because she was not being "hit on" every day, since Mr. Marzouca did not come to that office on a daily basis.
She volunteered to staff that office primarily to get away from him, but this office did not remain open, and when it was closed, she was returned to the Cleveland Street office to work.
From time to time, Ms. Morris was requested by Mr. Marzouca to take his aged mother shopping. She claims that when she protested, she was told that she had to do it and did so at least twice during working hours in the afternoon. Mr. Marzouca, on the other hand, claims his mother and Ms. Morris had a friendly relationship until all this ill feeling started. According to him, on at least one occasion, Ms. Morris suggested that his mother spend the day with her for lunch and shopping. Ms. Morris, he claims, used to call in the evenings to talk with his mother and would often ask about her. In response, his mother would often buy small gifts for Ms. Morris. Ms. Morris, he contends, never complained to him about having to take his mother shopping and he categorically denies ever threatening her with the loss of her job if she complained about his mother to him. There is no indication he ever did threaten her, and in any case, there is little relationship between forcing his mother's company on Ms. Morris and job discrimination based on sex.
On one occasion, in June, 1988, she was in a car with Mr. Marzouca and another male employee en route to the Tarpon Springs location to shuttle cars. When the other employee went into a store to get some cigarettes, Mr. Marzouca allegedly said to Ms. Morris, "Oh Baby, I'd love to lay my head between your tits." At this time, she was seated in the front seat of the car with Mr. Marzouca. Mr. Marzouca categorically denies this happened. Considering his demonstrated proclivity toward this type of conduct, however, it is found that it did.
On another occasion, Mr. Marzouca came up behind her at the rental counter and turned her upside down by the heels. Apparently this was in response to her comment that she needed more oxygen to her brain when she was having difficulty with the computer. Mr. Marzouca admits to doing this, but claims it was done in a jocular fashion at a time when all the employees were laughing and joking together. Though he claims Ms. Morris laughed about it at the time, she, nonetheless, felt strongly enough about it to make it a portion of her complaint.
On another occasion, Ms. Morris was offered a television set as a gift by Mr. Marzouca. She had previously mentioned she was moving from one apartment to another and had no furniture or television. This comment was made in the presence of Mr. Marzouca who offered her a van to help her move. A few weeks later he took her to his car and showed her a television set he had bought for her as a gift. She declined to accept it.
On another occasion, she accepted a ride with Mr. Marzouca on his boat and claims, now, that this was a form of harassment. She did not relate, however, that, as was brought out later, her sister and her sister's children were also on the boat at the time. Ms. Morris' sister was then and still is an employee of American.
Ms. Morris also had breakfast with Mr. Marzouca on at least one occasion but never went on a date with him. Mr. Marzouca relates he has a charge account with a delicatessen located near his main office at which he has left standing orders that any employee who wishes to eat there and who cannot pay for the meal may do so at his expense.
Ms. Morris concedes Mr. Marzouca never touched her sexually throughout their relationship, He never threatened her job because she would not go out with him, but she was annoyed by his continual asking her for a date. She states that her current feelings toward him are ambivalent. She neither likes nor dislikes him but because he was "pushy", and she didn't like what he was doing with regard to her, she filed the complaint. Though she first denied it, she admitted to telling others that she did not like the Respondent because of the way he treated her.
In July, 1988, Ms. Morris' relationship with American Exchange was terminated at their request. At that time, she was told it was because she caused too much confusion in the office, and when she demurred, Mr. Marzouca advised her it was his company and he could do what he wanted. Other matters presented at the hearing indicate the termination was based on Ms. Morris' failure to remain at the office beyond the close of the business day on one occasion, July 4, 1988 to handle a rental that was to be picked up after office closing hours. When asked to stay by Ms. Higgins, her manager, she flatly refused and left the office just a few minutes after the close. As a result, the rental was not consummated. Ms. Morris claims she waited until shortly after 5:00 PM that day and then left believing that the reservation had been cancelled at three or four that afternoon, and there was no reason to stay. Immediately after their conversation, Ms. Higgins called Mr. Marzouca and reported the situation to him. In the course of that conversation, she described Ms. Morris as a "bitch" and recommended he get rid of her.
When she left the office against Ms. Higgins' request on July 4, 1988, she took a company car with her. She did not work on July 5. On July 6, the car was picked up outside her home by Mr. Marzouca and Ms. Higgins. At the time, Ms. Morris had not yet left for work, and when she called in thereafter, requesting a ride to work, Mr. Marzouca told her to stay home and that he would come to her place to talk. She refused and hung up on him. When she called back a few minutes later, Mr. Marzouca told her she was fired but later offered her a job working in the Tarpon Springs office on Sundays from 8:00 AM to 4:00 PM. She declined this offer claiming she needed a full time job.
Kathy Higgins worked for American from February, 1988 to August, 1988 as manager of the Cleveland Street office. At that time, American had four branch locations and employed 6 employees in addition to the bookkeeper.
At one point, she worked with both Ms. Morris and Mr. Marzouca, and during that period, she heard Mr. Marzouca use the word, "Fuck"; observed him pick Ms. Morris up and put her over his shoulder; make comments about her such as, "That girl has a cute ass. I'd like to fuck her." on an almost daily basis. Each time Mr. Marzouca would approach Ms. Morris in Ms. Higgins' presence, he was always rebuffed. To the best of Ms. Higgins' observation, Ms. Morris never encouraged Marzouca's conduct, and from time to time Ms. Higgins would ask him to leave the girl alone. Whenever she did this, he would go off into the other room.
Even Ms. Higgins indicates that male employees were treated differently than females in areas other than those sexually oriented. On one occasion, Mr. Portei, a male employee, left the office without permission for a couple of hours to get his taxes done, leaving the office unattended. When Ms. Higgins told Mr. Marzouca about this, he merely called Mr. Portei to ask why he had left. Nothing else was done about it.
Ms. Higgins was on vacation when Ms. Morris was terminated. She had previously discussed Ms. Morris' performance with Mr. Marzouca. At first, during their association, he appeared to like Ms. Morris, but his attitude changed and he advised Ms. Higgins he wanted Ms. Morris out because she was argumentative. As a result, Ms. Higgins talked with Ms. Morris at the New Port Richie office to try to work things out. Sometime thereafter, she advised Mr. Marzouca to stop asking Ms. Morris out, and in response, Marzouca indicated that if he continued, Ms. Morris might quit.
Mr. Marzouca admits to having Ms. Morris out on his boat with him and her sister; to having invited her to his home, which she accepted; to offering her the TV which, he claims, he had purchased for his girlfriend and which he offered to Ms. Morris when she admired it; to asking Ms. Morris out on a date once or twice; to allowing Mr. Portei to take off without discipline, but contends Portei had an entirely different type of job; and to using the "F" word "once or twice." He denies, however, having asked Ms. Morris her dress size; having suggested a sexual relationship to her; having asked her to go to Jamaica with him, as she alleged; and he doubts he ever asked Ms. Morris if he could put his head between her breasts. He had several repeated "discussions" with Ms. Morris about the way she treated customers, but did not seem to be able to get through to her and he fired her because of her attitude and because of her failure to stay at work the evening when requested. Even after that, however, he offered her several days work but then could no longer use her in the organization because business, at that time, was bad. Ms. Morris contends she never received any complaints regarding the way she treated customers, but considering the evidence on balance, it is clear that her performance over an extended period with American was below acceptable standards and was the basis for her termination.
Mr. Marzouca's "open" approach to Ms. Morris, much of which he admits to, was observed by Mr. Cote, then an employee of American and an admitted recovering alcoholic and drug abuser. The first time Cote saw Ms. Morris was when Mr. Marzouca brought her to the office where he was working and described her as his "new girl". From this introduction and the descriptions used by Mr. Marzouca, such as "pretty" and "nice" girl, he inferred that there was a personal relationship, as well as a professional one between them. Soon after this, Mr. Cote left Mr. Marzouca's employment but remained in the area in another job. He saw Mr. Marzouca in the office several times and heard the conversations between him and Ms. Morris. Mr. Marzouca's language included the regular use of curse words and it was obvious he did not treat Ms. Morris with respect. He made suggestive remarks to her which were, in Cote's opinion, out of place in an employer/employee relationship. At no time when he saw Mr. Marzouca and Ms. Morris together was Mr. Cote ever under the influence of alcohol or drugs.
Similar activity by Mr. Marzouca was observed by Mr. Puglia, Marzouca's landlord at the New Port Richey office. Mr. Marzouca introduced Ms. Morris to him as his new employee and his "future wife." Ms. Morris laughed at that. Over a period of time he noticed that whenever Mr. Marzouca would come to the office where Ms. Morris was working, he would get into an argument with her and use abusive language which Puglia found embarrassing. Mr. Puglia declined an invitation by Mr. Marzouca to go out on his boat with him and Ms. Morris but believes Ms. Morris went. He also recalls her indicating to him that Marzouca made her take his mother shopping and she didn't like it.
By the same token, Ms. Katheryn M. King, who was working for Mr. Marzouca when Ms. Morris started, frequently saw the relationship between Mr.
Marzouca and Ms. Morris. From what she observed, it was clear they were "not fond" of each other but Mr. Marzouca would flirt with her as he did with all female employees. It was obvious, however, that Ms. Morris did not like it nor did she like to be there when Mr. Marzouca was present. Ms. King was also employed by American when Ms. Morris was terminated. In her opinion, the discharge was the culmination of the bad feelings between them topped off by her refusal to stay one evening for a late pickup.
Notwithstanding Ms. Higgins' prior testimony that when she worked for American there were at least 6 employees in addition to the bookkeeper, Mr. Kelly, who fulfills that function for Mr. Marzouca at the Cleveland Street office, indicates that the staff varies, usually being 4 or 5 full time employees plus two part timers, including himself. He writes the payroll checks weekly. The rental people are paid a $250.00 per week draw or guarantee against commissions in addition to a 10% commission on the collision waiver charges. In his opinion, a rental agent can earn between $200.00 and $275.00 per week, depending on experience. However, the $250.00 has consistently been paid to the rental agents each week even if no rental commissions are earned. Hiring of agents and the setting of the draw is done by the manager. Ms. Higgins used to be the manager. Mr. Marzouca claims no knowledge of how Mr. Kelly runs the business books. He gives him only the most basic instructions and trusts Kelly implicitly to do what has to be done. Considering the evidence regarding compensation in its entirety, Mr. Marzouca's claim that he exercises little control over this matter is ingenuous at best and it is found that the $250.00 sum is salary paid to an employee, regardless that no withholding or social security contribution is taken out.
Ms. King indicated that she paid the taxes due on her earnings even though Mr. Marzouca agreed to withhold them when she spoke with him about it on several occasions. He never did. In her opinion, she was an employee of American, not an independent contractor, because she had a set number of hours to work, worked regular hours, and had no authority to come and go as she pleased. Her opinion as to her status was, on the basis of the evidence, correct.
This brings up the factual issue of the true status of the individuals who worked as rental agents. Here, the facts clearly demonstrate that each rental agent, the individuals being so considered, was paid a flat amount per week "draw" against "commissions", plus an additional 10% commission on sales of collision waiver. Mr. Kelly indicated that the draw was paid regardless of whether any "commissions" were earned and no evidence was presented by American to indicate that any "commissions" on rentals were ever calculated and applied against the draw. Consequently, it must be concluded, and it was so found, that the weekly stipend was not a draw but a salary which was supplemented by the free use of a company car.
Further, the working hours were set by the company. Though schedules may have been arranged by the individual employee, the employee was to work a set number of hours on certain days designated by management, and the facility at which they worked was open over hours dictated by management. In addition, the employee was required to wear a particular type of clothing provided by the employer. Taken together, all indicia of employment clearly lead to the conclusion that the relationship was an employer/employee relationship and not that of an independent contractor, regardless of American's possible improper failure to take withholding and Social Security contribution out of the earnings, and it is so found.
Since being terminated by American Exchange and Mr. Marzouca, Ms. Morris has been employed by several other car rental agencies, A Plus and USA Car Rentals, with compensation by both being a salary and company car. The job with USA was on an on-call basis but neither job was permanent, nor, she claims, was she fired from either. She was, however, terminated at A Plus because, due to a previous DUI conviction on her record, she was uninsurable, a prerequisite for working at a car rental agency. While working there, she earned $300.00 per week and had the use of a company car, valued at $50.00 per week. She worked there from August through November, 1988 and when she left there, applied for unemployment compensation which was initially denied because there was no record of her having been employed. Upon appeal, however, the decision to deny was reversed and she was awarded unemployment compensation for 6 weeks to 2 months.
Ms. Morris had failed to disclose her prior DUI conviction when she went to work at A Plus. Also, when she applied for employment with American, she again failed to disclose her prior conviction because, "She would have preferred to discuss it in person." This contention is without merit, however. She has not disclosed her DUI conviction to any employer since being terminated by Respondent.
At the end of 1988, Ms. Morris received a IRS Form 1099 from American but never a Form W-2. She has been working for 10 years, and in addition to the previously mentioned employment, was hired and fired by National Car Rental because, she claims, of a personality conflict with the new female manager. After that, she worked for Payless Rental Car with the old National manager, with whom she got along.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
The basis for jurisdiction of the Division of Administrative Hearings in this matter is found in Section 99.09(d), Clearwater Code, which provides, inter alia, for a request for a Hearing Officer from the state Division of Administrative Hearings to conduct a hearing into the alleged discrimination.
Section 2-17.5-1(A)(2), Pinellas County Code, is the codification of Pinellas county Ordnance 84-10, enacted in April, 1984, the purpose of which is:
To secure for all individuals within Pinellas County freedom from discrimination because of ... sex, ... in connection with employment ..., and thereby to promote the interests, rights and privileges of individuals within the county.
Section 99.16(A)(1), Clearwater Code, makes it unlawful discrimination:
For an employer, because of the ... sex,
... [of an individual] to refuse to hire or employ or to bar or to discharge from
employment such individual in compensation or in terms, conditions, or privileges of employment.
The instant charge was filed pursuant to Pinellas county Human Rights Ordnance 84-10, and the Pinellas County Commission has authorized the Clearwater Office of Community Relations to conduct an investigation into the allegations to determine whether discrimination has occurred. The administrative hearing herein is an outgrowth of that investigation, and a part of the same grant of authority.
An "employer" is defined under Section 2-17.5-2(H), Pinellas county Code, as an individual:
Who employes 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.
The evidence of record here clearly demonstrates that American qualifies as an "employer" under the county ordnance with a minimum of four or five full time and two part time workers, over the period consistent with the terms of the ordnance, according to Mr. Kelly. Whether these individuals were employees or independent contractors, as American claims, must be determined by an analysis of the facts, and when that was done, it was found that the relationship was one of employer/employee. The most important factor for consideration in determining the status of the relationship is the extent of the employer's right to control the means and manner of the worker's performance. Perry v. City of Country Club Hill, 607 F. Supp. 771 (D.C. Mo. 1983). Under this test, the facts show clearly that American's "independent contractors" were employees, making American an employer subject to the Code provisions.
Once jurisdiction attaches, the Petitioner has the burden of proving, by a preponderance of the evidence, that she was 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). She must first establish a prima facie case of discrimination after which the Respondent must show non-discriminatory reasons for its actions.
The issue of what constitutes sexual discrimination has been considered repeatedly by the Federal courts. In one case, where a complainant established that her supervisor made sexual advances toward her and made submission to those advances a condition of employment; demonstrated that the situation was a motivating factor in her termination; and showed that male employees were not affected in the same way by the alleged conduct, sexual harassment was found. Vermett v. Hough, 627 F. Supp. 587 (W. D. Mich. 1986).
In Meritor Savings Bank v. Vinson, 106 S.Ct. 2399, 91 L.Ed. 2d. 49 (1986), the Supreme Court affirmed a lower court decision specifically holding that:
Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor discriminates on the basis of sex.
In this case, the court adopted the "hostile environment" theory which is contained in the guidelines, set down by the EEOC, which are used by the courts to define sexual harassment. This theory holds:
For sexual harassment to be actionable, it must be sufficiently severe or pervasive, "to alter the condition of [the victim's] employment and create an abusive working environment."
Within the framework of the test set forth by the EEOC and the courts, one must, in determining whether sexual discrimination took place, also consider the effect that the employer's conduct has on the employee. Other courts have held that the personal proclivities of the employer, and the peculiarity of his mannerisms and conduct, which are not sexually oriented, are not necessarily prohibited if they bear no relationship to the nature of the employment. Corne
v. Bausch and Lomb, 390 F. Supp. 161 (D. C. Ariz. 1975).
By the same token, sexual conduct which takes the form of mere flirtation is not necessarily discrimination. Heelan v. Johns Manville, 451 F. Supp. 1382 (D. C. Ariz. 1978). Further, sexual conduct unrelated to termination is not actionable.
Looking at the evidence of Mr. Marzouca's "sexual discrimination", it is seen that his language could be considered opprobious; his attitudes, chauvinistic; his approach, overbearing; and his overall demeanor toward Ms. Morris, unwelcome. However, Petitioner was unable to show that his "misconduct" in any way prejudiced her job standing with him. She admits that at no time did he touch her sexually or make sexual activity with him a condition of employment. Though his actions toward her undoubtedly upset her and were disagreeable, they were not so unbearable as to cause her to resign, and the evidence regarding her discharge from employment with American clearly indicates that action was taken on the basis of her performance, her professional attitudes concerning her relationship with customers, and her failure to comply with management's wishes regarding the July 4, 1988 overtime.
Taken together, then, it is concluded that Petitioner has failed to establish, prima facie, her claim of actionable sexual discrimination and Respondent has shown clear and legitimate non-discriminatory bases for her termination.
Based on the Foregoing findings of Fact and Conclusions of law, it is, therefore:
RECOMMENDED that the Community Relations Board of the City of Clearwater, acting as the Commission administering Pinellas County Ordnance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a Final Order finding the Respondent, American Exchange Car Rental and Patrick Marzouca not guilty of actionable sexual discrimination against Marcia Morris.
RECOMMENDED this 12th day of December, 1989, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1989.
COPIES FURNISHED:
Charles D. Lykes, Esquire
300 Turner Street Clearwater, Florida 34616
John D. Tubhill, Esquire 4695 Ulmerton Road Suite 440
Clearwater, Florida 31622
Ronald McElrath, Director Office of Community Relations City of Clearwater, Florida
P.O. Box 4748
Clearwater Florida 34618-4748
| Issue Date | Proceedings |
|---|---|
| Dec. 11, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 11, 1989 | Recommended Order | Oprobrius language, chauvinistic attitudes overbearing approach do not necessarily constitute misconduct or sexual discrimination |
