STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY A. CLINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5634

)

USBI COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, through its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on December 6-8, 1995, in Melbourne, Florida.

APPEARANCES

For Petitioner: Wayne L. Allen, Esquire

700 North Wickham Road, Suite 107

Melbourne, Florida 32935

For Respondent: Patricia E. Lowrey, Esquire

Mark B. Roberts, Esquire STEEL, HECTOR and DAVIS

1900 Phillips Point West 777 South Flagler Drive

West Palm Beach, Florida 32935 STATEMENT OF THE ISSUE

Petitioner has alleged that Respondent subjected her to employment discrimination by sexual harassment and retaliation for her complaints. The issues in this proceeding are whether her claims were timely or properly filed with the Florida Commission on Human Relations (FCHR); and if so, whether the alleged discrimination occurred and what relief is appropriate.

PRELIMINARY STATEMENT

On October 7, 1994 the Florida Commission on Human Relations referred the above-styled case to the Division of Administrative Hearings for "all necessary proceedings" and a recommended order. Shortly thereafter, at the request of the parties, the case was placed in abeyance for settlement negotiations.

When those negotiations were unsuccessful and after substitution of counsel for Petitioner, the hearing officer granted a motion to amend the Petition for Relief and set the matter for hearing. The notice of hearing specifically preserved the jurisdictional issues raised in several motions to dismiss by Respondent.

At the formal evidentiary hearing, Petitioner testified in her own behalf and presented the additional testimony of George Roberts, Kathleen Hughes, Monica Teran, Joris Hines, George Smoyer, Dorothy Stokey, Nicole Hoyer, Carol DuBray, Burton Podnos, M.D., Richard Bowen and Anna Silvestri. Petitioner's exhibit nos. 2-7, 9-17, 19-26, 28-32, 34-35, 37, 39, 42-43, and 46-48 were

received in evidence; exhibits 1, 27, 36 and 40 were marked for identification only; and exhibit 41 (work-sharing agreement between FCHR and EEOC) was taken under advisement and is now admitted, with the parties' stipulation as to its authenticity.

Respondent presented the following witnesses (some also called by Petitioner): George Smoyer, Carol DuBray, Richard Bowen, Anna Silvestri, Darryl LeCanne, Kimberly Pataky, Lizabeth Seaman, Deanna Lee, Rochelle Cooper, Alfred Eastlack, Mary Anna Cline and Monica Teran. Respondent's exhibits nos. 1-2, 9, 30, 35, 45-46, 54 61-62, 64, 66, 91, 93, 96 and 98 were received in evidence; exhibit 94 was rejected; and by stipulation, exhibit no. 91 is sealed as proprietary and confidential business documents.

The hearing transcript was filed on January 8, 1996; the parties' proposed recommended orders were filed on February 21, 1996. Specific rulings on the findings of fact proposed by the parties are found in the attached appendix.

FINDINGS OF FACT

1. Petitioner, Mary Anna Cline (Ms. Cline), is a fifty-two year old female who was employed by USBI Company (USBI) from 1985 until November 15, 1994.

   
   

2. USBI refurbishes the solid rocket boosters for the space shuttle program at the Kennedy Space Center, Brevard County, Florida. It employs substantially more than fifteen full-time employees.

   
   

3. Ms. Cline was hired for the position of technical illustrator, which position is responsible for drawing mechanical components, doing illustration and charts, and preparing manuals and documents that apply to the day-to-day work of the company. She was a good employee and had excellent technical skills, as reflected in her performance evaluations and numerous commendations. At the time that she left the company, she was in a position titled "senior technical illustrator."

   
   

4. In early 1992 the company had some internal reorganization, and Ms. Cline and a group of employees were transferred from Management Services to Documentation Support. The job duties remained substantially the same, but the new group also had responsibility for the Routing of Documents (RODS) program, which involved the tracing of detailed technical drawings, to be used on a computer mainframe by the "techs" (engineers). Documentation Support generated technical documentation for the rockets, all technical manuals, standard procedures, testing, fliers and presentations - generally all of the paperwork used by the company, including verbiage and graphics.

   
   

5. The supervisor of Documentation Support, then and now, is a woman, Monica Teran. Approximately seventy-five percent of Ms. Cline's work group were women.

   
   

6. In June 1992, Richard Bowen was hired by USBI as a technical illustrator and was assigned to Documentation Support. He became a coworker of Ms. Cline and their assigned work stations were side-by-side without a partition.

7. Richard Bowen's two main hobbies are photography and computers. He was generally accepted as the computer expert in the work group; when there were problems with the computers, Richard Bowen could often work them out.

   
   

8. Bowen's interest in photography is also more than a casual avocation. He attended photography school in Chicago when he was younger and worked with a modeling agency. He holds an occupational license to conduct a photography business and performs commercial photography services that do not conflict with his 9-5 job: weddings, portraits, some modeling photographs and some work with a theme park in Orlando. He is a member of the Audubon Society and takes wildlife photographs and does computer work for the organization.

   
   

   The Photograph Incident

   
   

9. Staff in the work group were interested in Bowen's photographs. He brought samples of his pictures to work to show off. He usually left the pictures on his desk, face up, so that people could come to his work area and look at them.

   
   

10. Some time in the latter months of 1992, Bowen purchased an expensive special soft-focus lens that gives the subject a soft, romantic, mystical look and deletes the wrinkles or blemishes. He discussed the lens with a fellow photographer at work and brought in a sample of photographs he had taken with the lens.

    
    

11. Most of the pictures among the twelve to fifteen which he brought on this occasion were wildlife; there also were a few photographs of a model. She was bare-breasted, but was not exposed from the waist down. While there is no clear description of her pose in the record, she was described by some as nude and others as partially nude. None described the photographs as sexually suggestive or pornographic.

    
    

12. In the early morning before work started, some female staff members were shuffling through the photographs. Ms. Cline was part of the group looking on. Bowen said something semi-jokingly like, "You might not want to look at these; there's a bare-breasted model." One of the women replied that it was nothing that she had not seen before, and continued shuffling through the photographs. Ms. Cline saw the model's photograph, remarked that the girl had pretty eyes, and returned to her own work station.

    
    

13. Several months later, after a workshop that management had initiated to deal with problems in the workplace, Ms. Cline reported the photographs to Carol DuBray, Director of Human Resources and Darryl LeCanne, the immediate supervisor of Monica Teran. Ms. Cline was embarrassed by the photographs.

    
    

    Management's Response

    
    

14. As soon as Ms. Cline left Darryl LaCanne's office, he called Monica Teran, and the two supervisors met with Richard Bowen. They informed him that USBI had a policy of not tolerating nude photography or pin-up calendars in the workplace and that his bringing the photographs to work was unacceptable behavior. Darryl LaCanne told Richard Bowen that the next time severe disciplinary action would be taken.

    
    

15. Richard Bowen was also called in to speak with USBI's director of security, Barry Wysocki. Mr. Wysocki informed him that nude pictures were

    prohibited by USBI's regulations. Mr. Bowen received the message in clear terms that the matter was very serious. Bowen never again brought nude or semi-nude photographs to work and Ms. Cline never again saw such photographs at work.

    
    

    Offensive Shop Talk

    
    

16. Work stations in the Documentation Support unit were divided into cubicles, some separated by dividers, some (Richard Bowen's and Ms. Cline's) were side by side, facing a partition with two other workers on the opposite side. Workers interacted within a small space and moved about to use different computer equipment, printers, files, and similar work tools.

    
    

17. Among some of the workers there was occasional bawdy banter and comment about boyfriends, weekends and vacations, and the like. It was sexually oriented in a sophomoric, adolescent schoolyard manner. It included terms like "shit" and "fuck" and included conversation about "blow jobs" or "hard-ons," and other slang words involving male genitalia.

    
    

18. With one exception, the language was not directed to Ms. Cline. That exception was one occasion when Richard Bowen responded to her criticism of some work with the expletive "fuck." Both male and female workers engaged in the banter, which was overheard by Ms. Cline and others. Ms. Cline was particularly offended by banter between Bowen and a female worker, Anna Silvestri, who occupied a workstation on the other side of the partition in front of Ms. Cline and Mr. Bowen. Ms. Silvestri sometimes initiated this banter.

    
    

19. In May or June of 1993 Ms. Cline reported to her supervisor, Monica Teran, that Richard Bowen and Anna Silvestri used the word "fuck" and engaged in sexually explicit conversations. Ms. Teran went to her supervisor to see what to do about the complaint and Carol DuBray requested that Barry Wysocki conduct an investigation.

    
    

20. Barry Wysocki interviewed and took statements from employees in the Document Support Unit, including Ms. Cline. She complained that Richard Bowen created a hostile environment; that she heard him say "fuck" on one occasion in the past two months and that she heard Anna Silvestri say the word on two occasions. Ms. Cline said that Bowen and Silvestri discussed Ms. Silvestri's sex life and that on one occasion Ms. Silvestri tried to discuss her sex life with Ms. Cline, but she cut her off with a comment that it was improper. Ms. Cline reported hearing Monica Teran and Beth Seaman use the word "fuck" in the work area.

    
    

21. Bowen and Silvestri did not deny mild profanity and mildly sexual conversations. Other employees reported hearing some profanity, primarily "shit," "damn" and "bullshit."

    
    

22. Richard Bowen and Anna Silvestri were seriously reprimanded by Barry Wysocki, by Barry Smoyer, by Darryl LaCanne and by Monica Teran. Each supervisor impressed on the two employees that the use of foul language was not tolerated and was against company policy. Barry Smoyer gave the two employees a letter "for the record," documenting the counselling session and reprimand.

    
    

23. Monica Teran moved Ms. Cline to Anna Silvestri's workstation on the other side of the partition from Richard Bowen. She moved Anna Silvestri two cubicles away, with several partitions between her and Mr. Bowen. And George Roberts was placed next to Richard Bowen in Ms. Cline's former workstation. The

    intent by the supervisor was to accommodate Ms. Cline's concerns and to separate the two prime offenders.

    
    

24. In the two years that he worked for USBI, including the time that he worked next to Richard Bowen, George Roberts heard nothing more than "hell" or "damn" from Bowen.

    
    

25. Nevertheless, around August 1994, during her performance review, Ms. Cline informed Monica Teran that the sexual conversations were continuing. Ms. Teran informed her supervisors and another investigation commenced, this time by USBI's new security director, Al Eastlack. Mr. Eastlack conducted an interview with Ms. Cline, among others, and took her formal statement in September 1994.

    
    

26. Barry Smoyer reviewed a draft report of Mr. Eastlack's investigation and although he understood the results were "inconclusive," Mr. Smoyer renewed his admonishments to Richard Bowen and Anna Silvestri in separate memoranda to the two, reminding them of USBI's intolerance of sexual harassment in any form and warning them that inappropriate language would result in disciplinary action.

    
    

    Alleged Threats

    
    

27. After the photograph incident, but before she complained, Richard Bowen and Mary Anna Cline had a conflict over the use of some computer graphics software. Bowen was advocating one type of software that Ms. Cline opposed. Monica Teran had to intervene and instructed Ms. Cline to install the program and learn how to use it.

    
    

28. After she complained about the photographs, Ms. Cline became convinced that Richard Bowen was going to retaliate. She complained to Monica Teran that she was afraid of Bowen but her complaints were non-specific. She began to complain of stress and sleep problems. Ms. Teran recommended that she go to the Employee Assistance Program (EAP) counsellor or to see her own counsellor or doctor. This was around the same time that Ms. Cline complained about the offensive language and conversations, and Ms. Cline took the recommendation to mean that Ms. Teran did not believe her, or that Ms. Teran felt Ms. Cline was at fault. Ms. Teran also commented to Ms. Cline that she should simply tell Bowen to stop talking like that. Another employee, Dorothy Stokey, who was offended by Bowen's use of "fuck" had told him to stop. Ms. Cline was too intimidated by him to confront him directly.

    
    

29. Some time in the latter months of 1993, Monica Teran found Ms. Cline in the ladies' room crying and upset to the point of incoherence. Ms. Cline had overheard a conversation between Richard Bowen and Anna Silvestri involving a gun and made a connection between that and incidents of violence in the workplace and coworkers being shot.

    
    

30. With the help of Barry Smoyer, Ms. Teran was able to get Ms. Cline out of the ladies' room and calmed down. Then, at Mr. Smoyer's direction, Ms. Teran called Ms. Silvestri and Mr. Bowen into her office to find out what had happened. Mr. Bowen did not have a gun at work and he had been discussing a gun show early that morning. Ms. Teran was satisfied that the discussion had been innocuous and reported her findings to Barry Smoyer.

    
    

31. No other employee reported that Bowen had a gun or saw him with a gun. None, including Ms. Cline, ever complained that Bowen had threatened them with a gun.

    Alleged Retaliation

    
    

32. Ms. Cline contends that USBI retaliated against her for reporting sexual harassment. Specifically she claims that her job duties were shifted from work on RODS, which she liked, to word processing, which she disliked and with which she had difficulty, due to some dyslexia.

    
    

33. It is undisputed that Ms. Cline was a very competent graphics illustrator. She and Mr. Bowen and a couple of other employees in the unit were considered the core of the illustration function, and other employees in the unit preferred and were more skilled in the word processing and language component of the unit's responsibilities.

    
    

34. However, the work assignments were not so clearly divided between "illustration" and "word processing." The production and modification of company manuals required both types of work. Monica Teran was interested in cross-training her staff to do a variety of tasks.

    
    

35. There was a time, after mid-1993, when Ms. Cline's assignments involved word processing. She also continued to do a substantial amount of RODS work, as evidenced by handwritten logs maintained by the employees. Monica Teran never instructed the staffperson responsible for making assignments to remove Ms. Cline from RODS or other graphics work.

    
    

36. RODS was not considered high profile or creative work since it primarily involved tracing technical components repetitively. There was a period when RODS work was put on hold. There was another period when temporary employees, such as George Roberts, were taken in to work exclusively on RODS.

    
    

37. At no time during her employment with USBI was Ms. Cline demoted in job title or pay. In 1993 and 1994 her employment evaluations reflected a need to improve communications and attendance, but she was still rated "excellent," "good" and "acceptable" in all categories, and overall "excellent" and "good."

    
    

38. There is no evidence to indicate that anyone tampered with Ms. Cline's computer or sabotaged her computer, as she claimed. On occasion it was necessary for Monica Teran or other staff to work at Ms. Cline's and other stations, to see if programs were loaded or the machine was set up properly. Although certain equipment, such as a printer, was located at an individual workstation, other staff needed access to that equipment.

    
    

    Job-Related Stress

    
    

39. Ms. Cline's attendance did suffer and she did experience job-related stress. She went to an EAP counsellor and to a psychiatrist. She was on medication and there were problems with adjusting the type and amount of medication.

    
    

40. Ms. Cline experienced sleep disorders; she reported falling asleep at the wheel of her car and had a minor accident. She also experienced other physical phenomena such as pains in her chest and arms, or numbness.

    
    

41. Her psychiatrist diagnosed her medical condition as "adjustment reaction of adult life with mixed emotions, basically depression and anxiety." (T-415)

    Accommodation and Resignation

    
    

42. Monica Teran's staff was located in two buildings: the modular unit occupied by Ms. Cline, Mr. Bowen, Ms. Silvestri and others; and another separate building which also included other USBI employees. Ms. Teran's staff was moved around routinely, as new employees were added or other work space needs arose.

    
    

43. In Fall 1993 USBI offered to move Ms. Cline to the other building, allowing her to retain her same position and duties; she declined, and the company did not insist that she move.

    
    

44. Later, Ms. Cline was offered a lateral position at the same pay and position level. Carol DuBray met with Ms. Cline to discuss this attempt to accommodate her.

    
    

45. Ms. Cline also rejected that offer. She explained at hearing that she was afraid she would have been in line for a layoff, if she transferred. However, there is no competent evidence to support that fear. Ms. DuBray explained to Ms. Cline in their meeting that she would retain all benefits, including seniority.

    
    

46. In fact, USBI has no departmental seniority policy. Seniority is based on the date an individual is hired by the company, rather than time within a department in the company.

    
    

47. On November 15, 1994, Ms. Cline voluntarily resigned, citing "continuing stress brought on by sexual harassment, discrimination, retaliation and the flagrant disregard by USBI and its management in the handling of this problem. . . ." (Petitioner's exhibit no. 31)

    
    

    The Formal Complaints

    
    

48. At the time she resigned Ms. Cline had already filed her complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC). That charge is dated December 6, 1993.

    
    

49. The charge of discrimination alleges violations of Title VII of the Civil Rights Act, by sexual harassment and retaliation. It does not cite the Florida Civil Rights Act, Chapter 760, Florida Statutes.

    
    

50. Pursuant to a worksharing agreement between EEOC and FCHR, the charge was sent to the Florida agency for initial investigation. That workshare agreement, which refers to the FCHR as the "FEPA," provides, in pertinent part:

    
    

    1. FILING OF CHARGES OF DISCRIMINATION

       
       

       1. In order to facilitate the filing of charges of employment discrimination, the EEOC and the FEPA each designate the other as its agent for the purpose of receiving and drafting charges.

       2. The FEPA shall take all charges alleging a violation of Title VII, ADEA, EPA, or the ADA where the parties have mutual juris- diction and refer them to the EEOC for dual filing, so long as the allegations

          meet the minimum requirements of those Acts.

       3. Each Agency will inform individuals of their rights to file charges with the other Agency and to assist any person alleging employment discrimination to draft a charge in a manner which will satisfy the require- ments of both agencies to the extent of their common jurisdiction. As part of the intake duties, investigators are to verify with the charging parties if they have filed a charge of discrimination with

          other agencies prior to filing the charge.

       4. For charges that are to be dual-filed, each Agency will use EEOC Charge Form 5 (or alternatively, an employment discrim- ination charge form which within statutory limitations, is acceptable in form and content to EEOC and the FEPA) to draft charges. When a charge is taken based on disability, the nature of the disability shall not be disclosed on the face of

       the charge.

       * * *

       H. The delegation of authority to receive charges contained in Paragraph II. a. does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge.

       * * *

       
       

    2. DIVISION OF INITIAL CHARGE-PROCESSING RESPONSIBILITIES

       * * *

       D. EEOC will not defer or refer any charge for the FEPA to process that is not jurisdictional on its face with both Agencies. If it is apparent that one

       Agency might have jurisdiction when another does not, then the Charging Party will be referred to the appropriate Agency.

       * * * (Petitioner's exhibit no. 41)

       (emphasis added)

       
       

51. A notice dated December 20, 1993, on EEOC form 212, states that the FCHR has received the charge and will initially investigate the charge. The FCHR did investigate the charge and the FCHR investigator's report is dated July 13, 1994.

    
    

52. A document styled "Determination: No Cause" is dated August 25, 1994 and has the apparent signature of FCHR's Executive Director. An accompanying document, with the same date, is styled "Notice of Determination: No Cause" and informs Ms. Cline as complainant of her right to file her petition for relief within 35 days.

    
    

53. The petition for relief dated September 27, 1994, was filed with FCHR, and cites the Florida Civil Rights Act of 1992, as well as Title VII. The

    petition alleges sexual harassment and retaliation. FCHR transmitted the petition to the Division of Administrative Hearings on October 6, 1994.

    
    

54. The amended petition for relief, filed on April 10, 1995, and referenced in the order and notice of hearing dated May 16, 1995 deletes any reference to Title VII and recites instead that the claims for relief are based on Section 760.10, Florida Statutes. The amended petition does not claim constructive discharge nor does it mention that Ms. Cline left the company approximately five months earlier.

    
    

    Sexual Harassment Policy and Summary of Findings

    
    

55. USBI has, and during the relevant period had a sexual harassment policy which provides:

    
    

    The Equal Employment Opportunity Commission's amended "Guidelines on Discrimination Because of Sex" include a section prohibiting sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature when:

    1. submission to such conduct is either an explicit or implicit term or condition of employment, or

    2. submission to or rejection of such conduct is used as a basis for an employment decision affecting the person rejecting or submitting the conduct, or

    3. such conduct has the purpose or effect of unreasonably interfering with an affected person's work performance or creating an intimidating, hostile, or offensive work environment.

    
    

    Sexual harassment is unacceptable behavior by any USBI employee or outside vendor. Any form of harassment, like any conduct contrary

    to common decency or morality, cannot and will not be tolerated. The company will take whatever corrective action necessary to prevent or deal with acts of sexual harassment in the work place.

    (Respondent's exhibit no. 61)

    
    

    The policy provides names and phone numbers for persons to report sexual harassment and states that reports at that point will be confidential.

    
    

56. Employees are informed of the policy through annual letters from the company head, through posters on the facility walls and through mandatory workshops for managers and their staff.

    
    

57. USBI responded appropriately to Ms. Cline's complaints. Its response as to the photographs was effective; the sexually-themed banter, however, continued.

    
    

58. The banter did not constitute sexual harassment of Ms. Cline, nor did it create a sexually hostile work environment.

59. No one at USBI ever made a sexual advance towards Ms. Cline; no one suggested or requested sex from her or asked her for a date. No one touched her inappropriately. The sexual banter was never directed to or about her. The banter overheard by Ms. Cline, and the use of the "f word," were occasional, not daily or even weekly. The banter was not directed solely to, or about women; it was engaged in, and was overheard, by men and women, alike.

    
    

60. The work quarters were close; the unit which included Ms. Cline was in a small "modular" building with work stations divided by movable partitions. By necessity, workers moved around the office to use various equipment.

    
    

61. Coworkers of Ms. Cline did not find the environment sexually hostile, offensive or intimidating. No one else of the primarily female group complained about a sexually hostile or intimidating work environment. According to both a friend and her psychiatrist, Ms. Cline was more sensitive than most to profanity and off-color language.

    
    

62. Without question, Ms. Cline suffered from stress at work. The stress was manifest in the myriad physical symptoms which caused absenteeism and loss of performance.

    
    

63. USBI appropriately offered to Ms. Cline accommodations which would have allowed her to continue working at the same job level and salary but outside of the environment she found intolerable. She rejected the offers and voluntarily resigned. The resignation was not urged, directly or indirectly, by the company.

    
    

    CONCLUSIONS OF LAW

    
    

64. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), Florida Statutes.

    
    

    Jurisdiction

    
    

65. The FCHR has the authority to receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discrimination practice, as defined by the Florida Civil Rights Act of 1992. It also has the authority to cooperate with other agencies, including federal agencies, and to become a deferral agency for the federal government. Section 760.06(3), (5) and (10), Florida Statutes.

    
    

66. Consistent with that authority, the FCHR entered into the workshare agreement described in paragraph 50, above. Consistent with that authority, the FCHR received referral of Ms. Cline's complaint, investigated it, and issued a determination. The substance of the complaint alleged violations that offend and are within the jurisdiction of both Title VII and the Civil Rights Act of 1992: sexual harassment and retaliation. The employer was apprised from the outset of the complaint.

    
    

67. When the FCHR issued its determination of "no cause," it affected the substantial interest of Ms. Cline, and the agency appropriately informed her of the right to file a petition for relief as provided in Sections 120.57 and 760.11(7), Florida Statutes, and in Rule 60Y-5.008, Florida Administrative Code. She timely filed that petition with FCHR. Both the petition for relief and amended petition specifically reference the Florida Civil Rights Act of 1992.

68. The circumstances here are distinguishable from those in the two cases cited by USBI, Francz v. St. Mary's Hospital, 585 So.2d 1151 (Fla. 4th DCA 1991) and Kourtis v. Eastern Airlines, 409 So.2d 139 (Fla. 4th DCA 1982). If Ms. Cline's intention to pursue her state claim were not so obvious, the recent case, Andujar v. National Property and Casualty Underwriters, 659 So.2d 1214 (Fla. 4th DCA 1995) would be troubling. That case concluded that a cause of action founded on a federal statute is not the same cause of action as one founded on a state statute even when both statutes apply to the same transaction or occurrence. The court found that determination of a Title VII claim in federal court on its merits did not bar an aggrieved employee's subsequent Florida Human Rights Act claim in state court. Still, jurisdiction as to Ms. Cline's case here attached.

    
    

69. Jurisdiction did not attach, however, to Ms. Cline's claim of constructive discharge. She never made that claim in a complaint or petition before the FCHR, even though she was accorded the opportunity to amend her petition for relief. The alleged constructive discharge was not, as claimed by Ms. Cline, simply another milestone in the continuing pattern of retaliation. It was a discrete, permanent, single event which should have triggered her "awareness of and duty to assert. . . her rights. . . ." Berry v. Board of Supervisors of Louisiana State University, 783 F.2d 1270, 1273 (U.S.5th Cir. 1986), citing Berry v. Board of Supervisors, 715 F.2d 971, 981 (U.S.5th Cir. 1983).

    
    

70. Under the rules of the FCHR, Ms. Cline could have amended, but did not amend her complaint, to relate back to the original complaint. Rule 60Y-5.001, Florida Administrative Code, provides, in pertinent part:

    
    

    60Y-5.001 Complaints.

    * * *

    (4) Relation Back of Certain Complaints.

    A complaint which would not otherwise be timely may be filed if it: (a) states that another complaint naming the same respondent is properly before the Commission and identifies that other complaint, and (b) alleges the same or additional facts which describe an unlawful employment practice related to or growing out of the subject matter of the other, identified complaint, and (c) would have been timely if filed at the time of, or other time subsequent

    to, the filing of the other, identified complaint.

    * * *

    1. Amendments.

       1. A complaint may be amended to cure technical defects, or omissions, or to clarify and amplify allegations made therein. Such amendments and amendments which describe an additional unlawful employment practice related to or growing out of the subject matter of the original complaint will relate

    back to the date the complaint was first received.

    
    

    The Sexual Harassment Claim

71. Because the Florida Civil Rights Act of 1992 is patterned after Title VII, federal case law is examined for guidance. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

72. Florida law prohibits any employer from "discriminat[ing] against any individual with respect to . . . terms, conditions, or privileges of employment, because of such individual's . . . sex . . ." Section 760.10, Florida Statutes. It is uncontroverted that USBI is an "employer" as defined in Section 760.02, Florida Statutes.

    
    

73. In Henson v. City of Dundee, 682 F.2d 897, 903-905 (U.S.11th Cir. 1982), the court of appeals describes the elements a plaintiff must prove to establish a claim of sexual harassment claim under Title VII:

    
    

    1. the employee belongs to a protected group;

    2. the employee was subject to unwelcome sexual harassment;

    3. the harassment complained of was based upon sex;

    4. the harassment complained of affected a term, condition or privilege of employment; and

    5. the employer knew or should have known of the harassment and failed to take prompt remedial action.

    
    

    Although Ms. Cline was a woman and therefore a member of a protected group, the competent substantial evidence fails to establish any of the other essential elements of a claim of sexual harassment.

    
    

74. The U.S. Supreme Court has established the test for determining when conduct rises to the level of a Title VII violation: a hostile work environment exists only where the workplace "is permeated with discriminatory intimidation, ridicule and insult that is sufficiently pervasive or severe to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 370 (1993). Conduct that is merely offensive is not actionable under Title VII. Id. That is to say, the "mere utterance of an . . . epithet that engenders offensive feelings" does not rise to the level of a Title VII violation. Id. (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).

    
    

    [W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offen- sive utterance; and whether it unreasonably

    interferes with an employee's work performance.

    Id., page 371 (emphasis added)

    
    

75. Thus, "not all workplace conduct that may be described as 'harassment' affects a 'term, condition or privilege' of employment within the meaning of Title VII." Meritor, 477 U.S. at 67. In Harris, the Supreme Court ruled that a Title VII claimant, in order to prove that the alleged harassment was severe or pervasive, must demonstrate that a reasonable person would find the conduct was hostile or abusive and the victim subjectively perceived the environment to be abusive. Harris, 114 S.Ct. at 370. In order to do so, a plaintiff must show more than just that a reasonable person would find the workplace to be

    uncomfortable. Saxton v. American Telegraph and Telephone Company, 10 F.3d 526, 534-535 (U.S.7th Cir. 1993).

    
    

76. Ms. Cline's delay in reporting the semi-nude photographs erodes her claim that she, not to mention any "reasonable person," considered the photographs offensive. The pictures were not in evidence, but no one described them as provocative or even explicitly sexual in nature.

    
    

77. Ms. Cline failed to establish that the inappropriate language was more than occasional use of profanity and language containing mild sexual overtones. She concedes that only one of the alleged remarks was even directed at her, but they were purportedly overheard by her. Although at various times Documentation Support was composed primarily of women, no one else complained; other female employees testified that they did not find the work area environmentally sexually hostile, offensive, or intimidating. Ms. Cline's psychiatrist and her friend testified that she was somewhat more sensitive than most to profane language. The alleged conduct was neither pervasive nor severe enough for a reasonable person to claim a hostile work environment. The environment in the predominantly female Document Support Unit was more kin to the gender-neutral banter disregarded in Weinsheimer v. Rockwell Intern Corporation, 754 F.Supp. 1559 (M.D. Fla. 1990) than to the relentlessly graphic obscenities found actionable in Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D. Fla. 1991). Occasional vulgarity by coarse or boorish workers is not actionable. Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430 (U.S.7th Cir. 1995)

    
    

78. Ms. Cline has also failed to establish that USBI knew or should have known of the harassment and failed to take prompt remedial action." Nash v. Electrospace System, Inc., 9 F.3d 401, 404 (U.S.5th Cir. 1993). In Nash, where the allegations of sexual harassment between a supervisor and an employee could not be corroborated, the company's sexual harassment policy, coupled with the investigation and transfer of the complainant to another department with no loss of pay or benefits, "reflected a prudent response to an unpleasant situation . .

    . demonstrat[ing] a model of prompt, sensitive employer handling of these very traumatic cases." Id.

    
    

79. USBI investigated and addressed Cline's concerns. When it initially learned that allegedly inappropriate photographs had been brought into the workplace by a coworker, it immediately investigated the allegation and counselled the offending employee. Ms. Cline admits that no such photograph was ever brought into the workplace again. When Ms. Cline reported allegations of sexually-explicit language, USBI initiated two major investigations undertaken by its security department. As a consequence of the first investigation revealing some evidence of profane language and sexual innuendo, the employees involved were counselled by security and several different managers. Although it did not conclusively establish any further inappropriate language, USBI offered Ms. Cline voluntary moves to another building at the same pay and grade. Ms. Cline rejected both offers. There was also extensive testimony as to the communication of USBI's longstanding sexual harassment policy in the workforce.

    
    

80. In sum, like the company in Nash, USBI undertook the appropriate remedial steps to ensure its work environment was free from sexual harassment. See Baskerville, supra (employer's legal duty is discharged if it takes reasonable steps to discover and rectify acts of sexual harassment of its employees). Accordingly, even if Cline established all of the other elements of prima facie case (which she did not), she has failed to prove the essential element necessary to render USBI responsible for the alleged conduct.

    Retaliation

    
    

81. In order to prevail on her claim of retaliation, Ms. Cline must show that she (1) had engaged in statutorily protected activity; (2) the employer has taken an adverse employment action; and (3) a casual connection exists between the two. Canino v. United States Equal Employee Opportunity Commission, 707 F.2d. 468, 471 (U.S.11th Cir. 1983) (citations omitted).

    
    

82. The evidence fails to show that USBI took any "adverse employment action" in response to Ms. Cline's report of alleged sexual harassment. By her own admission, she held the same grade and title from 1986 through her voluntary resignation in November 1994. While she maintains that she was removed from the RODS project, the evidence does not support this claim. However, even if true, removal from the RODS project would not constitute an "adverse employment action" as a matter of law. See Ward v. Johns Hopkins University, 861 F.Supp. 367, 377 (U.S.D.C. D.Md. 1994) ("Adverse employment action" is defined to be "ultimate employment decisions" which include hiring, granting leave, discharging, promotion, and compensating; supervisor's not speaking to Plaintiff and giving her less favorable assignments in dirtier part of basement work area did not amount to adverse employment action). RODS was merely an electronic form of a technical manual; RODS was not viewed as a particularly challenging or interesting project. Furthermore, some word processing was part of the job function of a graphics illustrator. Assignment of different tasks to Ms. Cline within her job function was not an adverse employment action.

    
    

83. Even if Ms. Cline established a prima facie case of retaliation, she would still need to prove that USBI's reason for the alleged "adverse employment action" was mere pretext. See Simmons v. Camden Board of Education, 757 F.2d 1187, 1189 (U.S.11th Cir. 1986), cert. denied, 474 U.S. 981 (1985). Because Ms. Cline has not shown that she was affected by any "adverse employment action" (and consequently could not establish a "causal connection" existing between the statutorily protected activity and a purported "adverse employment action"), nor has she proven pretext, her claim for retaliation must be rejected.

    
    

    No Constructive Discharge and No Damages

    
    

84. Where an employee voluntarily leaves her employment, "she must demonstrate that she was constructively discharged in order to recover back pay as damages." Landgraf v. USI Film Products, 968 F.2d 427 (U.S.5th Cir. 1992), affirmed, 114 S.Ct. 1483 (1994). Constructive discharge was never timely raised, as discussed above, but assuming the claim should be considered, Ms. Cline falls short of her required proof. "In order to demonstrate constructive discharge, she must prove that 'working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Id.; see also, Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 905 (U.S.11th Cir. 1988) (for constructive discharge employer must deliberately make work conditions intolerable). While Ms. Cline failed to demonstrate that she was subjected to "severe and pervasive" conduct to prove a claim of sexual harassment, "[t]o prove constructive discharge, the plaintiff must demonstrate a greater severity of pervasiveness of harassment than the minimum required to prove hostile working environment." Landgraf, supra, at 430.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Ms. Cline's complaint and petitions for relief in this cause.

DONE and ENTERED this 25th day of March, 1996, in Tallahassee, Florida.

MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5634

The following constitute specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact.

1. Adopted in paragraph 2.

2. Adopted in paragraph 1.

3. Adopted in paragraph 3.

4. Adopted in paragraph 4.

5. Adopted in part in paragraph 33; otherwise rejected as unnecessary.

6. Adopted in paragraph 60.

7. Rejected as unnecessary.

8. Adopted by implication in paragraph 60.

9. Adopted in substance in paragraph 48.

10. Rejected as unnecessary.

11. Adopted in paragraph 50.

12. Adopted in paragraph 52.

13. Adopted in paragraph 53.

14. Rejected as unnecessary.

15. Rejected as contrary to the weight of evidence.

16. Subparagraphs are addressed as follows:

    Adopted in substance: a (but not the date), b, c, h, i, m, n.

    Rejected as unnecessary, immaterial or misleading: d, e, f, g, j, k, l.

17. Rejected, as to the "escalation," as unsupported by the greater weight of the evidence; adopted generally in summary in paragraph 17; but some of the specifics alleged were not established (for example, the "sucking" statement).

18. Rejected as a mischaracterization of the incident, although use of the word, "fuck," was proven.

19.-22. Rejected as not credible.

23.-24. Adopted in substance in paragraph 17.

25.-28. Rejected as contrary to the weight of evidence.

1. Adopted in part in paragraphs 39-41, but it was not proven that the stress was the result of a "hostile work environment," within the scope of gender-based discrimination.

2. Rejected as unnecessary.

31.-32. Rejected as contrary to the weight of evidence. 33.-34. Accepted that she complained, but the dates and

frequency were not established with competent evidence

35. Conclusion that the steps were "inadequate" is rejected as contrary to the weight of the evidence.

36.-41. Rejected as unnecessary, immaterial, or misleading.

42. Rejected (as to characterization of "retaliation") as contrary to the weight of evidence and the law.

43.-46. Rejected as unnecessary, given the recommended disposition.

Respondent's Proposed Findings of Fact.

14.-15. Rejected as unnecessary.

1. Adopted in substance in paragraph 34.

2. Adopted in paragraph 6.

56. Rejected as unnecessary.

57.-62. Adopted in substance in paragraphs 43 through 46.

63.-64. Adopted in part in paragraph 47; otherwise rejected as unnecessary.

65.-72. Adopted in substance in paragraphs 32 through 38.

COPIES FURNISHED:

Patricia E. Lowrey, Esquire Mark B. Roberts, Esquire STEEL HECTOR and DAVIS

1900 Phillips Point West 777 South Flagler Drive

West Palm Beach, Florida 33401

Wayne L. Allen, Esquire

700 North Wickham Road, Suite 107

Melbourne, Florida 32935

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case

Docket for Case No: 94-005634

Orders for Case No: 94-005634