MARLANA M. HULTS,
vs.
Respondent.
) Case No. 04-2710
This cause came on for formal hearing before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on December 1, 2004, in Pensacola, Florida.
For Petitioner: Marlana M. Hults, pro se
For Respondent: Elmer D. Githens, Corporate Representative Superior Bedrooms, Inc.
The issue is whether Respondent committed an act of discrimination or sexual harassment against Petitioner.
On January 13, 2003, Petitioner filed an Employment Charge of Discrimination with the Florida Commission on Human Relations ("FCHR") alleging that Respondent's employee sexually harassed her, and that she was terminated because of retaliation against her for reporting the alleged incidents. On July 1, 2004, following its investigation, the FCHR issued a Notice of Determination: No Cause. Petitioner filed a Petition for Relief pursuant to the Florida Civil Rights Act of 1992 on July 30, 2004. The Petition was referred to the Division of Administrative Hearings and assigned to the undersigned Administrative Law Judge. The hearing was originally scheduled for October 6, 2004, but was continued due to the effects of Hurricane Ivan, and rescheduled for December 1, 2004.
At the hearing, Petitioner testified herself and presented the testimony of Barbara Hoard and John D. Penfold, and offered Exhibit Nos. 1 through 4, all of which were admitted into evidence. Respondent presented the testimony of Elmer D. Githens, Serita Coefield, and Alan Reese and offered Exhibit Nos. 1 through 8, all of which were admitted into evidence.
No transcript was filed. No proposed findings of fact and conclusions of law were filed by either party.
References to statutes are to Florida Statutes (2004) unless otherwise noted.
Petitioner was employed as a payroll, accounts-payable clerk for Respondent's furniture store from May 23, 2001 until May 20, 2002.
Respondent operates a furniture store located at 6886 North 9th Avenue, Pensacola, Florida 32504-7358.
Five months after commencing her employment with Respondent, Petitioner began to look for a new job.
Petitioner believes that Mr. Alan Reese, Respondent's office manager and Petitioner's direct supervisor, began to follow her home in August 2001.
Petitioner believes that, after ceasing to follow her when she confronted him about it, Mr. Reese began to follow her home again two months later.
Petitioner accused Mr. Reese of following her home on numerous occasions, peeking into her windows, and sitting in his car and watching her while she tended to her garden.
Petitioner was permitted to come to work late during October 2001, on occasion, when she was looking for a new place to live.
Petitioner did not get along with Serita Coefield, her fellow accounting clerk at the furniture store. They often had disputes over the handling of invoices.
In May of 2002, Petitioner met with Barbara Hoard, the Escambia County/Pensacola Human Resource Coordinator, to discuss the alleged harassment by Mr. Reese. Ms. Hoard told her to inform her employer in writing of her concerns and explained the availability of filing a complaint with the FCHR or the Equal Employment Opportunity Commission.
On May 15, 2002, Petitioner delivered a memo to Mr. Reese in which she accused him of following her home, touching her improperly in the workplace, and asking her
questions about her personal life. She also sent, by certified mail, a copy of the memo to Elmer Githens, Respondent's president.
After receiving the memo, Mr. Githens conferred with Mr. Reese, then issued a memo to Petitioner on May 17, 2002, in which he set forth her work schedule for the dates of April 29 through May 16, 2002.
Petitioner's regular work hours were supposed to be 8:00 a.m. to 5:00 p.m., with an hour for lunch.
The May 17 memo, which was based upon Petitioner's actual time cards, showed that her start time at work ranged from 8:18 a.m. to 11:38 a.m. and her end time ranged from
4:01 p.m. to 6:12 p.m. Petitioner clocked in for a full eight- hour workday on only four of fourteen days during the time period reflected in the memo.
Later in the day on May 17, 2002, Mr. Githens issued a second memo to Petitioner in which he noted that Petitioner had yelled at him when he gave her the first memo, and accused Serita Coefield of "being out to get her." The memo further stated that Petitioner "has alienated every one [she] works with due to [her] attitude." The memo continued with a discussion of Petitioner's work hours which were to be 8:00 a.m. to 5:00 p.m. with at least a 30-minute lunch break every day. Petitioner was informed that this was her final warning about her tardiness and her inability to get along with her co-workers. The memo concluded with the words "[t]he next time you will be dismissed."
On Monday, May 20, 2002, Petitioner's next workday, Petitioner clocked in at 10:37 a.m. She was given a memo that day dismissing her for "willful misconduct after receiving ample warnings that termination of your employment was imminent if you continued present behavior of coming to work late, not putting lunch on your time card, clocking out after 5pm without permission and causing disturbances with fellow employees for no reason."
Petitioner claims that, on the day she was fired, she arrived at Respondent's parking lot at 8:00 a.m., but sat in her car because she was having a "panic attack" due to her belief that Mr. Reese was continuing to stalk her.
Both Petitioner and Mr. Reese live east of Respondent and travel, at least part of the way, in the same direction and on the same roads to go home after work.
Mr. Reese denies knowing the location of Petitioner's home. Mr. Reese has never been to Petitioner's home.
Mr. Reese admits he drove home in the same direction as Petitioner on numerous occasions since she drove along one of the routes he routinely took home.
No one witnessed the alleged stalking of Petitioner by Mr. Reese.
Petitioner claims to have contacted the police by telephone, but never filed a police report concerning the alleged stalking by Mr. Reese.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 760.01 et seq., Fla. Stat.
The Florida Civil Rights Act of 1992 (the "Act") is codified in Sections 760.01 through 760.11, Florida Statutes, and Section 509.092, Florida Statutes. "Because th[e] [A]ct is patterned after Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2, federal case law dealing with Title VII is
applicable." Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
Among other things, the Act makes certain acts "unlawful employment practices" and gives the FCHR the authority, if it finds, following an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes, that such an "unlawful employment practice" has occurred, to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay." §§ 760.10 and 760.11(6), Fla. Stat.
The "unlawful employment practices" prohibited by the Act include those described in Section 760.10(1)(a) and (7), Florida Statutes, which provide as follows:
It is an unlawful employment practice for an employer:[1]
(1)(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that
person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
"Sexual harassment can constitute discrimination based on sex for purposes of [Section 760.10(1)(a), Florida Statutes]. Generally, sexual harassment comes in two forms: harassment that does not result in a tangible employment action (traditionally referred to as 'hostile work environment' harassment), and harassment that does result in a tangible employment action (traditionally referred to as 'quid pro quo' harassment). All harassment by co-workers necessarily falls into the first . . . class, as co-workers cannot take employment actions against each other. Harassment by supervisors, on the other hand, can fall into either category." Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 508 (11th Cir. 2000)(citations omitted).
"Sexual harassment, like any other claim under [Section 760.10(1)(a), Florida Statutes], is a claim based on intentional discrimination." Pospicil v. Buying Office, Inc.,
71 F. Supp. 2d 1346,1356 (N.D. Ga. 1999); see also Downing v.
Board of Trustees of University of Alabama, 321 F.3d 1017, 1024 (11th Cir. 2003)("Since Cross holds that the elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same--meaning that the employee must prove that
the state actor intended to discriminate because of the employee's sex--we discern no principled basis for holding that the Equal Protection Clause is implicated in a case of opposite- sex discrimination but not in a case of same-sex discrimination.").
"To demonstrate sexual harassment, [a complainant] must show: (1) that 'she belongs to a protected group';
(2) that she 'has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature'; (3) that the harassment was 'based on [her] sex . . . .'; (4) 'that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment'; and (5) 'a basis for holding the employer liable.'" Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d at 508, quoting from, Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999).
It has been said that "[t]he fourth element--that the conduct complained of was 'sufficiently severe or pervasive to alter the conditions of employment and create an abusive work[ing] environment"--is the element that tests the mettle of most sexual harassment claims.'" Gupta v. Florida Board of Regents, 212 F.3d 571, 583 (11th Cir. 2000). To establish the existence of this "fourth element" a complainant "must establish
not only that she subjectively perceived the environment as hostile and abusive, but also that a reasonable person would perceive the environment to be hostile and abusive. Id. "In evaluating the objective severity of the harassment, [one must] consider, among other factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance." Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002).
With the respect to the "fifth element" required to make a prima facie case of sexual harassment, employer liability, "[a]n employer 'is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.' The employer will be strictly liable for the hostile environment if the supervisor takes tangible employment action against the victim. However, when an employee has established a claim for vicarious liability but where no tangible employment action was taken, a defending employer may raise as an affirmative defense to liability or damages: '(a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'" Miller v.
Kenworth of Dothan, Inc., 277 F.3d at 1278 (citations omitted). "While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, 2270 (1998); and Faragher v.
City of Boca Raton, 118 S. Ct. 2275, 2293 (1998).
To prove a prima facie case of retaliation, Petitioner must show the following: (a) she engaged in statutorily protected expression; (b) she suffered an adverse employment action such as demotion and/or assignment to a position with less responsibility; and (c) the adverse employment action was
causally related to the protected activity. See Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir.
1998).
In this case, Petitioner has failed to show that she suffered an adverse employment action for making a complaint against Mr. Reese. Respondent's president, Mr. Githens, was personally aware of Petitioner's tardiness and attitude issues, and clearly based his decision to terminate her employment on her failure to work the required hours at work, as well as her poor attitude toward her fellow employees. Petitioner believes that she was terminated from her position because she made public her perception that Mr. Reese, her immediate supervisor, was stalking her by following her home from work and watching her while she was at her home. Further, she complained of an incident in which she accused Mr. Reese of an improper touching of her in a sexual way, yet both Mr. Reese and Ms. Coefield who works side-by-side with Petitioner deny the event occurred. The greater weight of the evidence indicates that Petitioner was fired because she refused, even after explicit written warning, to work the hours assigned at her job. The evidence produced by Petitioner at hearing fails to support her claims of sexual harassment by her supervisor in the form of his allegedly following her home and the alleged improper touching.
Other than her own testimony, Petitioner provided no corroborating evidence for any of her allegations of sexual harassment in the form of the alleged stalking and improper touching by Mr. Reese. Her failure to make a formal report to the police when she claims she was stalked and harassed for months is further indication of the lack of hard evidence that any of the alleged events took place. Moreover, the only substantial evidence of how Petitioner performed on the job was a review of her time cards, which plainly demonstrated her disregard for her work hours. Petitioner's poor record of attendance and clear violation of the hours she was assigned to work clearly justify Mr. Githens' decision to terminate her employment.
enter a Final Order dismissing Petitioner's claim for relief.
DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005.
1/ An 'employer," as that term is used n the Act, is defined in Section 760.02(7), Florida Statutes, as "any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person."
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Marlana M. Hults
Elmer D. Githens, Corporate Representative Superior Bedrooms, Inc.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florid a 32301
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.
