STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SHARON JENSEN,
Petitioner,
vs.
TETRA TECH, INC.,
Respondent.
)
)
)
)
) Case No. 02-4583
)
)
)
)
)
RECOMMENDED ORDER
A formal hearing was conducted in this case on March 26, 2003, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Sharon Jensen, pro se
2692 Spring Lake Road Jacksonville, Florida 32210
For Respondent: Michael Mattimore, Esquire
Allen, Norton & Blue, P.A.
906 North Monroe Street, Suite 100
Tallahassee, Florida 32303 STATEMENT OF THE ISSUE
The issue is whether Respondent discriminated against Petitioner based on her sex and/or in retaliation for complaining about sexual harassment in violation of Section 760.10, Florida Statutes.
PRELIMINARY STATEMENT
On July 26, 2000, Petitioner Sharon Jensen (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged as follows:
Respondent Tetra Tech, Inc. (Respondent) allowed a co-worker to sexually harass Petitioner on several occasions; and
Respondent retaliated against Petitioner by terminating her employment because she reported the sexual harassment.
FCHR issued a Determination: No Cause on October 17, 2002.
Petitioner subsequently filed a Petition for Relief on November 22, 2002.
FCHR referred the case to the Division of Administrative Hearings on November 27, 2002.
The undersigned issued a Notice of Hearing on December 16, 2002. The notice scheduled the hearing for January 27, 2003.
On January 7, 2003, Respondent filed a Request for Continuance. After hearing oral argument in a telephone conference on January 15, 2003, the undersigned issued an Order Granting Continuance and Re-Scheduling Hearing. Pursuant to the order, the hearing was rescheduled for March 17, 2003.
On March 12, 2003, Respondent filed an Emergency Motion for Continuance. On March 14, 2003, the undersigned granted the motion and rescheduled the hearing for March 26, 2003.
During the hearing, Petitioner testified on her own behalf and presented the testimony of two witnesses. Petitioner offered nine exhibits that were accepted into evidence.
Respondent presented the testimony of four witnesses. Respondent presented six exhibits that were accepted into evidence.
The Transcript of the proceeding was filed on April 25, 2003.
On May 6, 2003, Respondent filed a Motion for Enlargement of Time. An order dated May 7, 2003, granted this motion.
Respondent filed a Proposed Recommended Order on May 9, 2003. Petitioner did not file a proposed order.
FINDINGS OF FACT
Respondent's business provides consulting and technical-services management on a contract basis. Specifically, the business involves performing environmental consulting, engineering, remediation/construction, and information technology services to both private and public entities throughout the country.
Petitioner began working for Respondent in
February 1998 as a receptionist and administrative assistant in Respondent's Jacksonville, Florida, office. Her duties included answering the phones, processing mail, filing, creating, and revising reports. Petitioner's job description also included
providing administrative support to the engineers, scientists, project managers, and geologists in the office.
Initially, Petitioner worked under the direction of Sam Patterson, Respondent's division director. After
Mr. Patterson resigned, Sam Pratt became Respondent's manager and Petitioner's supervisor in the Jacksonville office.
On or about March 24, 1998, Respondent evaluated Petitioner's work performance. The evaluation indicates that Petitioner was outstanding in the following expected behavior and performance areas: (a) knowledge; (b) initiative/problem solving; and (c) relations with others. Petitioner received an excellent rating in all other performance areas, including the following: (a) communication/marketing ability; (b) quality of work; (c) dependability; and (d) adaptability/professional development.
Respondent paid for Petitioner to attend computer courses. Petitioner completed the following courses on the following dates: (a) April 29, 1998, Beginning Power Point;
(b) September 19, 1998, Beginning Excel; (c) January 7, 1999, Beginning Word; (d) March 25, 1999, Intermediate Excel;
(e) April 9, 1999, Intermediate Word 97; and (f) April 27, 1999, Advanced Excel.
Mr. Pratt evaluated Petitioner's job performance on March 11, 1999. He found that Petitioner met the expected
behavior and performance requirements in all areas. Mr. Pratt listed her strengths as follows: (a) has good relationship with clients; (b) works long hours to meet deadlines; (c) has excellent knowledge of company resources and corporate information; and (d) has detailed filing system that allows for tracking data. Mr. Pratt listed her weaknesses as follows:
(a) has failed to contact office when unavailable to work due to family illness; (b) lacks computer skills necessary for a project assistant; (c) fails to perform a complete review of her own work; and (d) takes constructive criticism too personally. There were no areas in which Petitioner failed or exceeded her job requirements.
In July 1999, Gregg Roof became Respondent's manager and Petitioner's supervisor in the Jacksonville office.
Mr. Roof experienced problems with Petitioner's job performance, finding that she had difficulty completing simple tasks, such as copying, without making errors.
Merve Dale was a geologist who worked for Respondent.
Mr. Dale worked part-time in the field and part-time in Respondent's Jacksonville office. Petitioner found Mr. Dale's behavior offensive on several occasions.
In June 1999, Mr. Dale told Petitioner that he could not smell the toxic odor in the warehouse but he could smell her perfume, which made him want to jump her. Petitioner ignored
Mr. Dale and did not immediately report this statement to Mr. Roof.
Mr. Dale sent Petitioner an e-mail from his home on August 19, 1999. The message stated, "I have sent myself a test message and I thought of you, so here is another test to see if my e-mail works from home. Have a wonderful day."
Petitioner responded electronically that she had received the message. Petitioner then called Richard May, Respondent's senior regional manager in the Tallahassee, Florida, office. Petitioner told Mr. May that she was not happy about the content of the e-mail message or the fact that it was sent from Mr. Dale's home at 6:00 a.m. She also informed
Mr. May about Mr. Dale's prior comment about smelling her perfume. However, Petitioner did not want Mr. May to take any action against Mr. Dale. She specifically stated that she did not want to file a formal complaint pursuant to Respondent's anti-discrimination or anti-harassment policy. She wanted to deal with the situation herself.
Later that same day, Mr. Dale called the office from the field to ask Petitioner to have lunch with him. Petitioner declined the offer, stating that she usually worked through the lunch hour. Petitioner did not report this incident to Mr. Roof or Mr. May immediately.
In the afternoon, Mr. Dale asked Petitioner what he was going to get in return for giving her charge numbers for her timecard. Petitioner responded that the question was what he would not get, which was a hard time. When Mr. Dale indicated that it was not a fair exchange, Petitioner replied, "That's the way it is." Mr. Dale then gave Petitioner the information she needed for her timecard. Petitioner did not immediately report this incident to Mr. Roof or Mr. May.
On August 20, 1999, Mr. Dale was with Petitioner when another geologist asked her if she was wearing a new outfit because she really looked sharp. Petitioner laughed and responded negatively, stating that she was finally losing weight and able to wear some old clothes. At that point, Mr. Dale stated, "I told her she was really looking hot and she better watch out." Mr. Dale then reached out with a roll of drawings, five feet in length, and slapped Petitioner on her backside. Petitioner immediately told Mr. Dale to behave himself.
In a letter to Mr. Dale dated August 24, 1999, Petitioner recounted the above-referenced incidents and demanded an apology. The letter specifically informed Mr. Dale that his actions were unwanted and offensive. Petitioner furnished
Mr. Roof with a copy of the letter. Mr. Roof and Petitioner also shared her concerns with Mr. May.
Mr. Roof subsequently counseled with Mr. Dale and Petitioner. During the meeting with Mr. Roof on August 25, 2000, Petitioner rejected Mr. Dale's apology. Mr. Roof then proceeded to admonish Mr. Dale, warning him that his behavior towards Petitioner was inappropriate. Petitioner did not request Mr. Roof or Mr. May to take any further action against Mr. Dale even though she knew she could have filed a formal complaint pursuant to Respondent's policies and procedures.
On February 18, 2000, Petitioner happened to be alone in the office with Mr. Dale. She was helping him label samples for shipment to a laboratory when Mr. Dale handed Petitioner a doctor's business card. Mr. Dale stated that he found the card on the sidewalk in front of the office entrance and wondered if it might belong to Petitioner. Other than giving Petitioner the business card, Mr. Dale did not say or do anything to Petitioner.
Petitioner concedes that it was customary for staff to give found items to her as the office receptionist. However, the business card made Petitioner feel uncomfortable because it listed the name of a gynecologist who specialized in reproductive endocrinology, infertility, pelvic reconstructive surgery, and gynecology.
Petitioner kept the business card and faxed a copy of it to Mr. May in Tallahassee. When she called Mr. May, he said
he would talk to Mr. Dale. Mr. May was extremely supportive of Petitioner and took her complaints regarding the card seriously.
Petitioner requested Mr. May to report the incident to Faye Thompson, Respondent's director of Human Resources. This was the first time that Petitioner had made such a request. During the telephone conversation, Mr. May asked Petitioner if she wanted to transfer to the Tallahassee office so that he could protect her. Mr. May and Petitioner had previously discussed such a transfer because some of her duties were regional in nature. Petitioner responded that she would think about it.
In an e-mail dated February 22, 2000, Mr. May asked Petitioner to plan a luncheon for Ms. Thompson and other employees who would attend a project manager's seminar at the Jacksonville office. Petitioner responded that she would be happy to prepare the meal and other refreshments for the seminar.
On February 23, 2000, in anticipation of the seminar, Petitioner asked Mr. Roof if he was going to have the warehouse cleaned over the weekend. He responded negatively because the staff had already worked long hours.
Petitioner then stated that she would work on the weekend to organize the files and certain areas of the warehouse. Mr. Roof again responded negatively, explaining that
he did not want to pay overtime. When Petitioner continued to insist on cleaning the office for the dignitaries, she and Mr. Roof had a verbal exchange in front of other staff.
Petitioner followed Mr. Roof into his office. She then asked him what she should do with the extra electronic equipment stored in the cubicles. When Mr. Roof told her to throw it in the dumpster, Petitioner refused and began to question him about the company's policy for disposing of excess equipment.
Next, Mr. Roof closed his office door and began to explain that he was tired of having to tell Petitioner things multiple times and that he did not want her to clean the office. Although Mr. Roof inappropriately raised his voice in talking to Petitioner, there is no persuasive evidence that he blocked her exit from the office after Petitioner requested him to move.
Mr. Roof lost his temper with Petitioner, but he was not retaliating against her because she accused Mr. Dale of sexual harassment. Instead, Mr. Roof was frustrated because Petitioner would not follow his directions. Before the day was over, Mr. Roof and Petitioner had a civil discussion about the incident.
Petitioner was upset about Mr. Roof's behavior. She subsequently expressed her feelings to Mr. May in a telephone call.
On February 29, 2000, Ms. Thompson was in the Jacksonville office for the project manager's meeting. After the meeting, Ms. Thompson spoke to Petitioner about her sexual discrimination claim. During the conversation, Petitioner gave Ms. Thompson a copy of the August 24, 1999, letter to Mr. Dale and a copy of the business card.
On or about March 1, 2000, Mr. May met with Mr. Roof and Petitioner to complete Petitioner's work evaluation. During the meeting, Mr. May counseled Petitioner and Mr. Roof.
Mr. Roof again apologized to Petitioner for his losing his temper on February 23, 2000.
The written evaluation indicates that Petitioner did not meet her job requirements in the following areas:
(a) decision making; (b) reliability; and (c) quality and quantity of work. According to the evaluation, Petitioner met her job requirements in the following areas: (a) knowledge of job; (b) interpersonal and communication skills; and
(c) professional development. The only area that Petitioner exceeded job requirements was in safety.
The performance evaluation correctly reflected several areas in which Petitioner had a positive influence in the office. Some examples of her contributions include, but are not limited to, the following: (a) Petitioner successfully coordinated health and safety training for Respondent's offices
in Florida; (b) Petitioner was an excellent person to represent Respondent when performing telephone reception duties;
(c) Petitioner performed successfully as the regional human resources representative; and (d) Petitioner successfully coordinated partner meetings, including making hotel reservations and arranging for meeting rooms.
The evaluation also correctly reflected Petitioner's job performance skills that required improvement. These skills included the following: (a) Petitioner had a poor attitude toward her supervisor as indicated by her failure to follow directions and her failure to understand office hierarchy;
Petitioner had difficulty prioritizing her work;
Petitioner often seemed overwhelmed by a minimal amount of work resulting in a disorganized desk and poorly maintained files; (d) Petitioner spent too much time in personal telephone conversations; (e) Petitioner rarely made an effort to determine when assigned work was due so that it could be completed in a timely fashion; and (f) Petitioner's word processing and spreadsheet manipulation skills were below standards required for a person in her position.
Mr. May wanted all administrative personnel to work more as "project assistants," helping the professionals with the administrative tasks of particular projects. Petitioner assured
Mr. Roof and Mr. May that she would make an effort to improve her performance.
Soon thereafter, Ms. Thompson called to thank Petitioner for the luncheon and snacks during the project manager's meeting. Ms. Thompson also inquired whether Petitioner had thought more about transferring to the Tallahassee office. Petitioner said she would make the move if the company paid her expenses.
Some time after the March 2000 evaluation, Petitioner informed Mr. May that she did not believe she could sufficiently demonstrate her skills to receive the promotion and pay raise she wanted while she worked in the Jacksonville office. Mr. May again offered Petitioner an opportunity for a fresh start in the Tallahassee office working directly for him. However, Mr. May cautioned Petitioner that her work performance had to improve if she were going to accept the offer. Mr. May agreed that Respondent would reimburse Petitioner for her relocation expenses.
Petitioner moved to Tallahassee, Florida, and began working in the Tallahassee on or about May 1, 2000. In her new position, Petitioner worked as receptionist and administrative assistant. Once again her duties included providing administrative support to the professionals in the office.
At all times material here, Petitioner enjoyed working for Mr. May. She does not attribute any discriminatory or harassing behavior to him. However, immediately after her transfer, Petitioner again demonstrated deficiencies in her job performance.
Mr. May had hoped that Petitioner would become a "resource" for him. Instead, the opposite was true despite the additional training provided to Petitioner. Petitioner often went to Mr. May with questions regarding simple tasks that were part of her regular job duties. It did not take Mr. May long to confirm Mr. Pratt's and Mr. Roof's earlier complaints regarding deficiencies in Petitioner's performance.
Mr. May began to document his observations about Petitioner's job performance. On May 8, 2000, Petitioner did not get to work until 9:00 a.m. Additionally, another employee had to take the regular FedEx to the kiosk because Petitioner did not get it out on time.
On May 9, 2000, Petitioner again failed to get the regular FedEx out on time. This failure was more serious because the package contained checks in the amount of $32,000.
On May 10, 2000, Petitioner did not get to work until after 9:00 a.m. Other staff members had to interrupt their work to sign for deliveries. Later that day, Mr. May told Petitioner that she did not have to put cover sheets on all her work.
Petitioner then complained that she had to do "regional stuff" all the time.
On May 19, 2000, Petitioner did not get the FedEx delivery out on time. The package had several checks in it, as well as an important communication regarding an offer of employment for a new employee.
On May 22, 2000, Petitioner was not in the office by 9:15 a.m.
In the meantime, Petitioner began to experience interpersonal relationship problems with members of the staff. For example, problems with Karen Harnett, Respondent's systems administrator, began soon after Petitioner made the move. The evidence indicates that Ms. Harnett was a bully who routinely picked on people. Ms. Harnett's attitude caused one employee to quit her job and caused another employee to seek help from Respondent's employee assistance program. However, there is no persuasive evidence that Respondent ever condoned Ms. Harnett's behavior in retaliation for Petitioner's filing of the sexual harassment complaint.
In June 2000, Ms. Harnett and two other staff members found it amusing to harass an employee who worked for VALIC, an investment firm located in Respondent's office building. The harassment resulted in a feud over parking spaces in the
building's parking lot. Petitioner was aware of Ms. Harnett's inappropriate actions but did not participate in the harassment.
Petitioner did not know that it was customary for Respondent's receptionist to accept deliveries for VALIC when its office was closed. One day, Petitioner refused to accept a delivery of a UPS or FedEx package for VALIC. Later, the VALIC employee stormed into Respondent's office demanding to know why Petitioner had refused the delivery.
Howard Engle, one of Respondent's project managers, heard the encounter between the VALIC employee and Petitioner. He went to the front of the office to see what was going on. Jimmy Hatcher, the building's owner, later complained to Mr. May about Petitioner's refusal to accept the package.
Mr. May was not in the office with the VALIC incident took place. When he returned to the office, he heard several versions about the dispute. He concluded that Petitioner's poor decision-making and reaction to the angry VALIC employee had contributed, at least in part, to undermine Respondent's positive working relationship with Respondent's neighbor.
On or about June 14, 2000, Mr. May discussed the VALIC incident with Petitioner. During that conversation, Mr. May also counseled Petitioner regarding her working relationship with other employees. He advised her to pay more attention to details and to improve her technical skills.
Mr. May explained to Petitioner that several of the professionals in the office avoided giving her work because they lacked confidence in her work. He encouraged her to work more cooperatively with the professionals in the office.
During the conversation on June 14, 2000, Petitioner admitted that she needed to improve her computer skills. She felt that everyone was against her and that Mr. May's only option was to go ahead and fire her. Mr. May later sent
Ms. Thompson a summary of his conversation with Petitioner.
On June 16, 2000, Mr. Engle sent Mr. May an e-mail complaining about Petitioner's substandard performance. The message stated that Mr. Engle had resorted to doing his own copying because he could not depend on Petitioner. Additionally, she had misplaced an important laboratory report, which would not have been delivered in a timely manner if another employee had not discovered Petitioner's error.
Mr. Engle also complained that Petitioner had misfiled and never shown him a time-sensitive letter from the Florida Department of Environmental Protection regarding Respondent's re-certification to perform work in the state. This error could have had a calamitous impact on Respondent's business interests.
In a written correspondence dated June 29, 2000, Mr. May gave Petitioner a written warning that she would be terminated if her job performance did not improve. The
communication outlined specific job performance areas that required immediate and sustained improvement.
As of June 29, 2000, Petitioner had misdirected incoming facsimile transmissions, failed to ensure that outgoing FedEx deliveries met the regular schedule, and sent at least one FedEx delivery to the wrong location. Competent evidence indicates that Petitioner needed to pay more attention to detail.
Petitioner failed to proofread final drafts of monthly reports that she prepared. As of June 29, 2000, every such report had errors in them.
Petitioner failed to focus on directions for work assignments. She often failed to return the work in the order that it was assigned.
Petitioner failed to prioritize her work. She did not give project-related activities priority over day-to-day overhead issues. When Petitioner felt overwhelmed by an assignment, she was unwilling to shift gears to handle a higher priority activity.
Petitioner had difficulty working the office schedule.
She needed to understand that she could not work a later schedule. She also had to understand that overtime pay would not be authorized except for work directly related to client projects or for important overhead objectives.
Petitioner failed to be accountable to the professional staff that depended on her administrative assistance. At times, she was unwilling to accept work assignments from staff members other than Mr. May.
At times Petitioner was argumentative with her co-workers and inflexible regarding office procedures and protocols. She needed to moderate her behavior towards her co-workers.
Petitioner was paid at Respondent's top pay rate for the second highest administrative support grade. She should have been serving as a resource for staff members that were not expected to have expertise in word processing. However, Petitioner's computer proficiency was at a beginners level at best. At times, Mr. May had to assist Petitioner with computer skills that she should have mastered.
After receiving the written warning, Petitioner showed no improvement in her job performance or ability to work with the people in Respondent's Tallahassee office. Therefore,
Mr. May terminated Petitioner's employment on July 25, 2000, for substandard work performance.
Respondent's decision to fire Petitioner was based solely upon her poor performance record. It was not a result of any complaints she made against Mr. Dale the preceding year when she worked in the Jacksonville office. In making his decision
to terminate Petitioner, Mr. May did not receive input from anyone in the Jacksonville office or from any other of
Respondent's employees.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and 760.11, Florida Statutes.
It is an unlawful employment practice for an employer to discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's sex. Section 760.10(1)(a), Florida Statutes.
It also is an unlawful employment practice to discriminate against any person because the person opposes an unlawful employment practice or has filed a charge of an unlawful employment practice. Section 760.10(7), Florida Statutes.
The provisions of Chapter 760, Florida Statutes, are analogous to those of Title VII of the Civil Rights Act of 1964,
42 U.S.C. Sections 2000e, et seq. Cases interpreting Title VII are therefore applicable to Chapter 760, Florida Statutes. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).
Sexual Harassment
Quid Pro Quo
Sexual harassment cases based on carried-out threats by supervisors often are referred to as "quid pro quo" cases. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753 (1998).
To establish a prima facie claim for sexual harassment under a theory of quid pro quo, Petitioner has the burden of proving the following by a preponderance of the evidence:
(a) she belonged to a protected class; (b) she was subjected to unwelcome harassment; (c) the harassment was based on sex;
the employee's reaction to the harassment affected tangible aspects of the employee's compensation, terms, conditions, or privileges of employment; and (e) respondeat superior.
Hensen v. City of Dundee, 682 F.2d 897, 908 (11th Cir. 1982).
Hostile Environment
Sexual harassment cases involving bothersome attentions and sexual remarks usually are referred to as "hostile work environment" cases if the offensive conduct is sufficiently severe and pervasive. Ellerth, 524 U.S. at 753.
To establish a hostile-environment sexual-harassment claim, Petitioner must prove the following by a preponderance of the evidence: (a) she belonged to a protected class; (b) she was subjected to unwelcome harassment; (c) the harassment was
based on sex; (d) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and
a basis for holding the employer liable. Hensen, 682 F.2d at 903-905.
Employer Liability
Pursuant to Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 753 (1998), and Faragher v. City of Boca Raton,
524 U.S. 775, 807 (1998), courts should no longer use the labels "quid pro quo" and "hostile environment" to analyze claims of employer liability in sexual harassment cases. However, these terms continue to be relevant when there is a "threshold question whether a plaintiff can prove discrimination." Ellerth 524 U.S. at 743.
Instead, cases involving claims that an employer is liable for sexual harassment should be separated into two groups: (a) harassment that results in a tangible employment action such as discharge, demotion or undesirable reassignment; and (b) harassment not involving a tangible employment action but which is sufficient to constructively alter an employee's working conditions. Ellerth, 524 U.S. at 761-763; Faragher, 524
U.S. at 790, 807.
As a general proposition, only a supervisor, or other person acting with the authority of the employer, can cause an
injury that results in an adverse tangible employment action. Ellerth, 524 U.S. at 762. Therefore, an employer is automatically vicariously liable when a supervisor engages in harassment that results in an adverse tangible employment action. See Ellerth, 524 U.S. at 763; Faragher, 524 U.S. 790.
A supervisor or any other co-employee may be guilty of harassment that does not result in an adverse tangible employment action. In such a case, the employer can avoid liability by proving the following two elements as an affirmative defense: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the plaintiff employee reasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807.
The Instant Case
The facts in this case clearly indicate the following:
(a) Petitioner belonged to a protected class; (b) she was subjected to unwelcome harassment; (c) the harassment was based on sex; (d) Petitioner's reaction to the harassment did not affect tangible aspects of her compensation, terms, conditions, or privileges of employment; and (e) the harassment was sufficiently severe or pervasive to create an abusive working
environment. More importantly, Petitioner failed to prove a basis for finding Respondent liable.
Mr. Dale was not Petitioner's supervisor. To the extent that Petitioner's job required her to occasionally assist Mr. Dale and other professionals in the Jacksonville office, there is no evidence that he ever criticized her work performance or had any input into a decision-making process relative to her employment status. Petitioner has not established a quid pro quo claim for sexual harassment because Mr. Dale's unwelcome advances did not result in a carried-out threat or an adverse tangible employment action. Accordingly, Respondent cannot be vicariously liable.
This case does present facts sufficient to show that Mr. Dale's behavior created a hostile work environment. Therefore, Respondent is required to prove the Faragher/Ellerth affirmative defense, by a preponderance of the evidence, in order to avoid liability.
Respondent has met its burden. First, Petitioner did not immediately report Mr. Dale's unwelcome comment about her perfume in June 1999. Second, Mr. May explained to Petitioner the seriousness of her allegations when she first called him about the e-mail message in June 1999. He offered to initiate an internal sexual harassment claim against Mr. Dale pursuant to
Respondent's anti-harassment policies and procedures. Petitioner specifically declined this offer.
Thereafter, Petitioner did not immediately report her discomfort over Mr. Dale's invitation to lunch. Similarly, she failed to immediately report Mr. Dale's unwelcome comments regarding the charge numbers for her timecard.
Next, Mr. Roof took appropriate action in admonishing Mr. Dale after receiving Petitioner's August 24, 1999, letter, which recounted the prior unwelcome advances and stated her displeasure in being hit on the backside with Mr. Dale's roll of papers. Petitioner did not request Mr. Roof or Mr. May to take any further action against Mr. Dale. More importantly, she chose not to lodge a formal internal complaint against Mr. Dale.
Finally, Petitioner filed a formal internal complaint against Mr. Dale after he handed her the gynecologist's business card. Mr. May responded appropriately by offering to transfer Petitioner to the Tallahassee office and to pay her moving expenses in order to protect her and to provide her with a fresh start.
Under the circumstances of this case, Respondent exercised reasonable care to prevent and correct Mr. Dale's sexually harassing behavior. On the other hand, Petitioner failed to timely report some of the incidents and unreasonably failed to initiate Respondent's internal complaint procedures in
a timely manner. Therefore, Respondent has proven both elements of the affirmative defense and is not liable for Mr. Dale's inappropriate behavior.
Retaliation
To establish a prima facie claim of retaliation, Petitioner must prove the following: (a) she participated in an activity protected under law; (b) she suffered an adverse employment action; and (c) there is a causal connection between the participation in the protected activity and the adverse employment decision. Gupta v. Florida Board of Regents,
212 F.3rd 571, 587 (11th Cir. 2000). Protected expression includes internal complaints of sexual harassment to superiors, as well as complaints to FCHR. Pipkins v. City of Temple Terrace, Florida, 267 F.3rd 1197, 1201 (11th Cir. 2001).
The most persuasive evidence here indicates that Petitioner was terminated because of her poor job performance. She began receiving negative comments on her evaluations in March 1999 before she first complained about Mr. Dale's behavior. Her continuing negative evaluations were in response to well-documented job performance deficiencies.
Mr. May fired Petitioner eleven months after she gave Mr. Roof her August 24, 1999, letter, and five months after
Mr. Dale gave her the business card in February 2000. Petitioner's performance was so bad that several of the staff
members in Tallahassee lost confidence in her ability and completely stopped giving her work.
Respondent gave Petitioner every chance to succeed in her job. Respondent paid for extra training and allowed her to transfer. Moreover, during the hearing, Petitioner admitted several instances of her poor work performance. She does not allege discriminatory or retaliatory motive on the part of
Mr. May, the person who made the decision to terminate her.
Petitioner presented evidence that Ms. Harnett was "abusive" not only to her but to all of the employees who worked in the Tallahassee office, men and women. There is no evidence that Ms. Harnett's actions were in response to Petitioner's earlier complaints in Jacksonville or that Ms. Harnett even knew about those complaints.
Petitioner failed to present persuasive evidence that she was performing satisfactorily, that she was treated any differently than similarly situated male employees, or that Respondent's reason for termination was pretextural. The undisputed record demonstrates that her poor job performance warranted termination. Petitioner's dismissal was not based on a discriminatory or retaliatory motive.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That FCHR dismiss Petitioner's Petition for Relief with prejudice.
DONE AND ENTERED this 23rd day of May, 2003, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2003.
COPIES FURNISHED:
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Sharon Jensen
2692 Spring Lake Road Jacksonville, Florida 32210
Michael Mattimore, Esquire Allen, Norton & Blue, P.A.
906 North Monroe Street, Suite 100
Tallahassee, Florida 32303
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 20, 2003 | Agency Final Order | |
| May 23, 2003 | Recommended Order | Respondent not liable for sexual harassment based on theories of quid pro quo or hostile work environment. |
