STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GAIL C. SELVAGGIO, )
)
Petitioner, )
)
vs. ) CASE NO. 80-582
) THE KNIGHT-RIDDER PUBLISHING ) COMPANY, d/b/a THE TALLAHASSEE ) DEMOCRAT, )
)
Respondent, )
)
vs. )
)
NORMAN A. JACKSON, Executive ) Director, FLORIDA COMMISSION ON ) HUMAN RELATIONS, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 25 through 28, 1980, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Edward S. Jaffry and
S. Jack Carrouth Tallahassee, Florida
For Respondent: C. Gary Williams and
Charles L. Early, Jr. Tallahassee, Florida
For Intervenor: Marva A. Davis
Tallahassee, Florida
On March 18, 1980, Petitioner filed her Petition for Relief from an unlawful employment practice, alleging that the Respondent had subjected her to a disparity in the terms and conditions of her employment and had discharged her from its employment solely because of her sex and marital status. On March 28, 1980, the Florida Commission on Human Relations transmitted that petition to the Division of Administrative Hearings for formal proceedings pursuant to Section 120.57(1), Florida Statutes. Respondent filed an Answer to Petition for Relief and a Motion to Dismiss the Petition for Relief for Failure to State a Cause of Action. Norman A. Jackson, Executive Director of the Florida Commission on Human Relations, was permitted to intervene without objection in this matter, and the Respondent's Motion to Dismiss was denied on May 2, 1980. This cause
was scheduled for final hearing on July 1 through 3, 1980, and upon the Respondent's Motion to Continue Hearing was rescheduled to August 25 through 28, 1980.
Respondent filed a Suggestion of Withdrawal of Counsel, requesting that Marva Davis and the Office of General Counsel for the Florida Commission on Human Relations withdraw as counsel for the Commission in this proceeding since she had participated in the Commission's preliminary investigation and, therefore, might be a witness and should be deposed. In response, Marva A. Davis as Assistant General Counsel for the Florida Commission on Human Relations filed a Suggestion of Withdrawal of Counsel and Recusal, requesting that C. Gary Williams and the law firm of Ausley, McMullen, McGehee, Carothers and Proctor withdraw as counsel for the Respondent in this cause since they defended the Respondent during investigatory stages of this matter and further that the Division of Administrative Hearings, to whom the Commission had referred this matter, recuse itself since one of the Hearing Officers with the Division had once practiced with that law firm and participated in Respondent's defense.
These motions were denied without argument on July 1, 1980.
Thereafter, Respondent's Motion for Summary Judgment and Amendment to Motion for Summary Judgment were denied as was Respondent's Request for Judicial Notice seeking to introduce certain Documents and tape recordings of legislative history of bills considered by the Florida Legislature, which bills did not become law.
All parties hereto filed a Joint Response to Pre-Trial Order stipulating to the issues and evidence in this cause, and Respondent filed a First Supplement thereto, listing two additional witnesses on Respondent's behalf. At the commencement of the hearing, all parties stipulated to allowing Respondent to amend the pretrial stipulation (Joint Response) by including as an additional issue to be tried: Whether the Respondent had notice of the alleged sexual harassment? Accordingly, leave was granted to so amend the prehearing stipulation, and Respondent's Motion for Rehearing its Request for Judicial Notice was denied.
Petitioner presented the testimony of the following witnesses: Gail C. Selvaggio, the Petitioner; James E. Reeves, Petitioner's former husband; Louise Forrest, the advertising accounts supervisor at The Tallahassee Democrat and a former co-employee of the Petitioner; Arend Jan Steenblik, the former building superintendent and supply manager of The Tallahassee Democrat and a former co- employee of the Petitioner; Richard J. Kay, a former co-employee of the Petitioner; Paul V. Haney, manager-owner of the Tallahassee office of Snelling and Snelling, an employment agency; Harold Ring, an advertising salesperson at The Tallahassee Democrat and a former co-employee of the Petitioner; James Robert Green, a retail advertising sales supervisor at The Tallahassee Democrat and a former co-employee of the Petitioner; Keith R. Balon, the former retail advertising manager of The Tallahassee Democrat and a former co-employee of the Petitioner; and Ron Selvaggio, Petitioner's present husband and the former promotion director of The Tallahassee Democrat.
Respondent presented the testimony of the following witnesses: Tracy Jannette Rowe, a former personnel assistant and classified display salesperson at The Tallahassee Democrat and a former co-employee of the Petitioner; Martin Steinberg, the former advertising director at The Tallahassee Democrat and a former supervisor of the Petitioner; Rebecca Bradner, a supervisor at The Tallahassee Democrat and a former co-employee of the Petitioner; Karen Sheffield, a secretary at The Tallahassee Democrat and a former co-employee of
the Petitioner; Walter H. Harwell, Jr., the publisher of The Tallahassee Democrat; Vernelle Tucker, the former business manager and Vice President of The Tallahassee Democrat; Jean Ash Webb, a secretary at The Tallahassee Democrat and a former co-employee of the Petitioner; and Joanne G. Watson, an outside sales representative at The Tallahassee Democrat and a former co-employee of the Petitioner, by way of her deposition which was admitted into evidence.
The Intervenor's only witness was Gail C. Selvaggio.
Petitioner offered its Composite Exhibit A and Exhibits 1, Composite 2, 3 and 4; Petitioner's Exhibits 1, Composite 2, and 3 were received in evidence. Respondent offered its Composite Exhibit 1(a)-(y) and Exhibits 2, Composite 3, 4, 5, 6, Composite 7, and 8; Composite Exhibit 1(a)-(d), 1(f)-(i), 1(l), 1(n)-
, 1(q)-(r), 1(t)-(y), and Exhibits 2, Composite 3, 4, 6, Composite 7, and 8 were received in evidence. Intervenor's Composite Exhibit 1 was received in evidence.
All parties submitted post-hearing proposed findings of fact in the form of a recommended order, and Respondent submitted a memorandum of law in support thereof. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting conclusions of law.
FINDINGS OF FACT
The Petitioner is Gail C. Selvaggio, who currently resides in Palm Beach Gardens Florida, and at the time of the events complained of resided in Tallahassee, Florida.
The Respondent is the Knight-Ridder Publishing Company, doing business as The Tallahassee Democrat (hereafter "The Democrat"). The Democrat is located in Tallahassee, Florida.
The Petitioner commenced her employment with the Respondent as a secretary in its advertising department on February 13, 1978, at a salary of
$160 per week.
Petitioner's supervisor in the advertising department and the person for whom she primarily performed her secretarial duties was the advertising director, Martin Steinberg.
Petitioner was hired to replace Judy McGinnis, who had been an administrative assistant to the previous advertising director whom Steinberg had replaced. McGinnis, who had supervisory duties in her position, had terminated her employment approximately six months prior to the time Petitioner was hired.
When McGinnis left, her vacancy was advertised in August, 1977, as administrative assistant pursuant to the instructions of John Veenstra, the then advertising director. No one was hired at that time. When Veenstra left The Democrat in late 1977, the position was frozen.
When Steinberg was hired by Respondent as its advertising director, he informed Personnel that he wanted a secretary and not an administrative assistant. Personnel then contacted the people who had earlier applied for the administrative assistant position and invited them to apply again, but informed them that the position had been changed to that of a secretary.
Petitioner was referred to The Democrat on February 9, 1978, by Snelling and Snelling, an employment agency. A job counselor at that agency advised Petitioner that The Democrat had an opening for an administrative assistant, information given in a job order when McGinnis left The Democrat in August, 1977. The employment agency did not have any official business connection with The Democrat, and The Democrat had not informed the agency of any job opening when the agency referred Petitioner to The Democrat six months after the agency's job order was written.
Based upon the information given her by the agency, Petitioner completed an application for employment with The Democrat by stating that she was applying for the position of administrative assistant.
Petitioner was interviewed for employment by Tracy Rowe, who was at that time the personnel assistant at The Democrat. Ms. Rowe conducted approximately ninety percent of the initial employment interviews for The Democrat. She would then refer qualified applicants to the department head where the position was open.
Rowe informed Petitioner during the initial interview that the position was not an administrative assistant position but rather was a secretarial position. Petitioner took a typing test as part of this initial interview.
Petitioner then interviewed with Mr. Steinberg on February 9, 1978, and on February 10, 1978. Steinberg told Petitioner that the position was that of a secretary and explained to her the history of the position as it was held by Ms. McGinnis and his reasons for not wanting an administrative assistant.
Steinberg had earlier told Rebecca Bradner when she interviewed for the position that the position was secretarial. He had also earlier told Mr. Harwell, the publisher of The Democrat, that he expressly did not want an administrative assistant because he did not want anyone with that much authority. Steinberg discussed with Petitioner possibilities of advancement during both her interviews and early employment, including agreeing with Petitioner's suggestion that she might write a training manual, which she never did, and conduct a sales training program. He did not make any promises to her regarding her future advancement or assignments.
Petitioner received a salary increase to $180 per week within two weeks after beginning her employment, in accordance with her agreement with Steinberg. This was done to enable Petitioner to pay a lower fee to her employment agency. Steinberg did not promise any other pay increase to Petitioner.
Petitioner was given an orientation program at The Democrat so that she could become familiar with the various departments of the newspaper and know who to consult with if problems arose when Steinberg was not in the office.
Petitioner had no supervisory responsibilities in her position at The Democrat.
During the initial months of her employment, Petitioner was basically a satisfactory employee, although she made mistakes in typing correspondence and various monthly reports. Steinberg brought these errors to her attention during the early months of her employment.
Steinberg's practice in correcting documents and correspondence was to circle or underline the error in ink, thereby requiring the page to be retyped even if the error were minor. At times, he would sign correspondence without first reading it and later would find errors on the copy returned to him prior to filing, after the original of the letter had been mailed.
Steinberg followed the practice of marking errors in ink from the beginning of Petitioner's employment. This practice was a personal habit of his which he followed with other employees as well. This practice was not an attempt on his part to harass Petitioner. Karen Sheffield, who sometimes handled secretarial duties for Steinberg, did not interpret this practice as harassment, although she frequently retyped the same document several times because of this practice.
Petitioner made errors in the addresses and salutations of Steinberg's correspondence, which errors were especially noticeable to those to whom the letters were addressed. Several of the people with who Mr. Steinberg corresponded informed him of errors that had been made, and one person received a letter so full of typographical errors that he involved the publisher of The Democrat in the matter.
Petitioner had the responsibility to correct correspondence. Steinberg did not instruct her to leave incorrect punctuation or grammar or spelling in a letter.
Steinberg discussed Petitioner's unacceptable performance of her job duties with other management personnel, including Keith Helen, Walter Harwell, and Vernelle Tucker, on several occasions.
Mr. Harwell advised Steinberg that it was necessary for Steinberg to turn out better work and that the secretary should be more careful.
Steinberg counseled Petitioner about her mistakes and told her she needed to improve her performance on several different occasions. Petitioner was informed specifically about errors in the "Merchant letter" in May, 1978, and about errors in other letters as they occurred.
Petitioner occasionally filled in for outside salespersons and made their calls for them when they were on vacation or sick. She performed as well as could be expected, although she made more errors than the regular salespersons made.
Steinberg and Petitioner had a friendly, personal relationship in the earlier months of her employment and exchanged confidences with each other.
Petitioner is a friendly, outgoing, gregarious person, and it was not unusual for her to put her arms around male employees while at work and hug them and even kiss them. On one occasion, Tracy Rowe observed Petitioner walk up behind Steinberg when he was sitting at a desk and throw her arms around him and kiss him.
Steinberg, as a supervisor, was demanding but fair.
Petitioner had marital problems in the fall of 1978 and discussed those problems with Steinberg. Her marriage terminated in a divorce in November, 1970.
Beginning approximately in August and September, Petitioner's job performance suffered as she began to spend more time away from her desk. Part of the reason for her time away from her duties was her participation as co- chairperson of The Democrat's United Way campaign. She voluntarily assumed duties in connection with that campaign above any required of her and more than her co-chairperson. She frequently returned from United Way luncheons much later than the other employees who were in attendance at those luncheons. Although she chose to entertain at some of the luncheons, she had time to eat during the business portion of the meetings and could have returned to work sooner. During this time period, Steinberg discussed with Petitioner and with other management personnel problems with correspondence typed by Petitioner and with her tardiness.
Prior to her divorce, Petitioner began to date another employee of The Democrat, Ron Selvaggio, her present husband, who was then head of the promotion department at The Democrat. Petitioner was frequently observed in his office to an extent greater than her United Way role required. Additionally, she often went to lunch with him and frequently returned late.
Petitioner frequently socialized with others in the department. She would leave her desk to socialize with other employees, and other employees would come by her desk. Many employees noticed that Petitioner spent an unusual amount of time not working, and this fact was conveyed to Steinberg by other management personnel. The time spent by Petitioner socializing and participating in the United Way campaign prevented her from completing her work in a timely manner. Steinberg discussed this with her and with other management personnel.
There was always work to be done in the advertising department, and Petitioner's neglect of her duties was noticed by other employees of The Democrat who depended on her to get their work done.
Steinberg, complained to Vernelle Tucker that his work was not being completed because of Petitioner's activities in the United Way. Mrs. Tucker counseled Petitioner and told her that her job duties still had to be fulfilled despite her participation in the United Way campaign and that her work was priority.
Steinberg began to write private memoranda on Petitioner's performance and work habits beginning in November, 1978, at the suggestion of Mrs. Tucker. Steinberg told Tucker that he did not believe Petitioner should get a raise because of her poor work performance, and Tucker told him to start documenting problem areas. Steinberg did not show those memoranda to Petitioner, nor did he forward them immediately to the personnel office to be included in her file. However, in most of these instances, Steinberg counseled Petitioner at the time about the matters he had noted.
Other supervisors at The Democrat followed the same practice with regard to private memoranda. This practice allowed them to record their observations and counsel the offending employee in the hope that whatever problem existed might be eliminated. If the problems were not resolved in that manner, the memoranda could then become part of the employee's file. Otherwise, the memoranda could be destroyed without ever being sent to Personnel, so that temporary problems need not become a part of the employee's permanent file.
The memoranda by Steinberg were made at the time of the events recorded and were not manufactured as after-the-fact justification for Petitioner's termination.
It is the policy of The Democrat to include raises for its employees in the annual budget. The supervisors actually determine which employees will get raises and how much they will receive. The supervisors have authority to withhold any or all of the budgeted raise from an employee. Petitioner did not receive a raise budgeted for December, 1978, because her job performance did not warrant a pay raise.
The paperwork Petitioner was required to complete increased during the fall of 1975 due to the normal increase in advertising business experienced by The Democrat from the return of students to school and the Thanksgiving and Christmas holiday seasons. Other reasons for the increase in workload at that time are that budgeting and forecasting for the following year is conducted during the fall, as is preparation of the next year's rate structure. The workload increases for everyone in the advertising department at that time of year. Petitioner's workload did not increase as a result of any attempt by Steinberg to harass her.
In December, 1978, Petitioner approached Karen Sheffield about a transfer because of the increased paperwork. Sheffield was the secretary to Mrs. Tucker and Mr. Selvaggio at that time. She did not work in personnel. Petitioner did not approach anyone in Personnel about a transfer.
Petitioner was not overworked in comparison with other employees.
Petitioner was assigned the responsibility for answering a bank of telephones during the time that the advertising department was in a temporary working area due to construction in the building. Steinberg could give that task to no one else due to spacing in the temporary work area.
Petitioner was assigned the task of copying multiples because Jean Ash Webb, who had been performing the duty, had been incurring a considerable amount of overtime because of that duty together with her other duties. Steinberg reassigned this task to Petitioner to reduce that overtime. The amount of overtime worked is a matter of great importance to management at The Democrat.
Steinberg instructed Petitioner to use carbons in making copies where practicable rather than using a copying machine. He told her that the reason for using carbons was to save money. This change was effected at the direction of Mr. Harwell, the publisher, who was concerned over expenses at that time. There was a valid business reason for the use of carbons. This policy was instituted throughout The Democrat and not simply against Petitioner.
Petitioner resented being given what she considered to be menial tasks and complained to other employees about having to perform such tasks. She complained about having to collate the Belden (Building) Study. She complained about having to perform the task of copying multiples. She complained about being overworked. She complained about having to retype letters.
Petitioner's hours of employment were changed to 10:00 a.m. to 7:00 p.m., effective January 18, 1979.
Petitioner had changed her own work hours to suit her personal schedule on several occasions prior to her hours being changed to 10:00 a.m. to
7:00 p.m. Her method of changing her hours was simply to begin coming in at a different time and then to secure approval from Steinberg after he noticed the change.
The reason for the change to 10:00 a.m. to 7:00 p.m. was to provide assistance to the outside sales staff upon their return to the office in the afternoon after making sales calls. Outside salespersons in the advertising department frequently work late to finish the required paperwork and layouts for ads sold during the day. Persons used to provide such assistance to the outside sales staff after normal hours are known as "ad-assists." Petitioner was assigned ad-assist duties only for part of the day, from 5:00 p.m. to 7:00 p.m.
There had been a need for an additional person in the ad-assist position for some time. The need for an additional person in that position had been under discussion by outside salespersons and by the management of the advertising department for several months. Steinberg had discussed the problem with Petitioner and had solicited her advice on how to handle the problem. Mr. Harwell would not approve hiring a new employee for the position because of the financial pressures on The Democrat at that time. Steinberg, with Keith Balon, considered and evaluated the secretaries, clerks and others in the department to see whose hours could be changed and who had the most work flexibility. Steinberg also discussed his selection with Mr. Harwell. Petitioner's duties as secretary were more flexible and less demanding than those of Jean Ash Webb, Dianna Moyer, Becky Savilla, and Linda Crews, who were other employees of the advertising department considered for the move. Jean Ash Webb and Linda Crews could not be moved into the ad-assist position because they had specialized jobs to perform and because they had deadline functions which required their presence at a specific time in the morning and, thus, dictated their departure time in the evening. Also, Dianna Moyer worked for Keith Balon and the sales staff, and Ms. Savilla worked for other supervisors.
Steinberg did not have anyone other than Petitioner to place into the ad-assist position. Harwell agreed with Steinberg's decision. There was a legitimate business reason for changing Petitioner's hours to 10:00 a.m. to 7:00 p.m.
The Democrat is a twenty-four-hour business. Employees other than Petitioner have left the company because they would not work the hours they were assigned. Petitioner informed Steinberg and others that she would not accept the change in her hours and that she would look for another job. Petitioner complained to other employees about the change in her hours and made derogatory remarks about Steinberg.
Mr. Harwell told Steinberg that he should get a timetable for Petitioner's departure so that new people could be interviewed for the position, and he suggested a two-week period. Harwell also instructed Steinberg to caution Petitioner about "bad-mouthing" either the company or Steinberg during her remaining time at The Democrat. He instructed Steinberg that if Petitioner made statements which could hurt the morale of the department, she should be terminated immediately.
Steinberg initially advised Petitioner that she could continue to work at The Democrat until she found a new job so long as she did not make derogatory remarks about him or The Democrat. Petitioner initiated conversations with other employees in which she complained about Steinberg. These remarks were creating a morale problem in the department. She also told other employees that her telephone was being tapped.
On January 22, 1979, Steinberg asked Petitioner for a timetable for her expected departure so that plans could be made for her replacement. Petitioner refused to provide a timetable.
Petitioner continued to make derogatory remarks about Steinberg. Upon the instructions of Mrs. Tucker, Steinberg discharged Petitioner on January 23, 1979.
Upon Petitioner's termination, another person assumed the ad-assist duties in the 10:00 a.m. to 7:00 p.m. time slot.
The day Petitioner was discharged, she interviewed with Keith Balon, the retail advertising manager, for a position as an outside salesperson in the advertising department. Steinberg was aware of this interview and did nothing to prevent Petitioner from interviewing or from obtaining the position. In fact, he did not include his private memoranda in her personnel file and did not inform Mr. Balon of the existence of such memoranda or their contents.
Outside salespersons for The Democrat regularly worked until 7:00 p.m. and frequently as late as 8:30 p.m. in order to complete their duties for that day. Petitioner gave no explanation regarding how she could work those hours for Mr. Balon when she had refused to work until 7:00 p.m. for Mr. Steinberg.
Balon hired another person whom he believed to be more qualified than Petitioner. His decision was not made to discriminate against Petitioner in any way.
In October, 1978, Steinberg gave Petitioner a 3" X 5" card stating "from one who is one to one who could be one Thanx Marty." Above that notation was drawn a large six-pointed star. Steinberg gave the card to Petitioner in response to several gifts given to him by her and her statement to him that she wanted to be his "Jewish mother." The card did not have any sexual connotation, and Petitioner did not perceive any sexual connotation to the card.
Steinberg frequently worked on Saturdays after having been out of the office during the latter part of the workweek. He called Petitioner on occasion at her home on Saturday mornings when he had a question about what had happened at work. Steinberg also called his other employees at their homes on Saturday mornings for the same purpose. Although some social conversation did occur during the calls to Petitioner, the calls were not used to sexually harass her. There were no statements made about sex during these calls.
When Petitioner announced her engagement to Mr. Selvaggio, Steinberg expressed a concern since an employee of his would be married to another department head. There was no sexual connotation to this remark. By Petitioner's own testimony, this remark related to Steinberg's concern for the confidentiality of certain information concerning his department. He also discussed his concern about confidentiality with Mr. Harwell and with Mrs. Tucker during this same time period.
Steinberg once mentioned to James Reeves, Petitioner's then husband, that Petitioner was like an "office wife." Reeves did not consider the remark to have any sexual connotation but rather understood that Steinberg meant that Petitioner was his confidant.
Petitioner married Mr. Selvaggio, who was then the promotion manager of The Democrat, on December 21, 1978. There was some confusion between Steinberg and Petitioner regarding the time she was to take off for her wedding. However, Petitioner admits that this was simply a misunderstanding. This confusion was not an incident of sexual harassment.
There were two romantic interludes between Petitioner and Steinberg which occurred in the board room at The Democrat. The first incident occurred in September, 1978, when Petitioner was helping to compile and collate the Belden (Building) Study, which was an advertising research study that had been made. Petitioner complained about having to perform such a menial task although Rebecca Bradner, a supervisor, participated in the collating as did several other employees. Petitioner told Ms. Bradner that the collating was not Petitioner's job, that she was going to lunch, that she would take a long lunch, and that if Steinberg did not like that, he could come in and tell her so. Bradner relayed this information to Steinberg. Steinberg then came to the board room. While Petitioner and Steinberg were alone in the board room, he kissed her, and she kissed him. This was a voluntary act on the part of both persons.
The second incident occurred several weeks later when Steinberg invited Petitioner to walk to the board room with him. When they got there, they began kissing each other. Steinberg touched Petitioner's breasts, and Petitioner placed her hands on his genitals. Again, each participated willingly and voluntarily.
Steinberg's only superiors at The Democrat were Mrs. Tucker and Mr. Harwell. Petitioner admitted she never reported the board room incidents or any alleged incidents of sexual harassment to either of those persons, to any other management or supervisory personnel at The Democrat, or to any other employee of The Democrat. Further, neither Harwell nor Tucker, nor any other management or supervisory personnel at The Democrat had any knowledge of any alleged incidents of sexual harassment.
Petitioner admitted that Steinberg never expressly or indirectly conditioned her continued employment or any term or condition of her employment upon acceptance of sexual advances. Petitioner does not know of anyone who was ever terminated from employment at The Democrat because he or she filed a complaint about a supervisor for any reason, nor of any employee who was ever fired because of making allegations of sexual harassment against a supervisor.
On one occasion, Petitioner told Mrs. Tucker that Steinberg wanted to know where and with whom Petitioner went to lunch. This occurred in connection with the concern of Steinberg that Petitioner was returning late from United Way luncheons. Tucker agreed to speak with Steinberg about Petitioner's duties with the United Way. Petitioner told Tucker during this conversation that Steinberg was infatuated with Petitioner; however, Petitioner did not indicate that she found the alleged infatuation to be a problem for her, and she specifically did not inform Tucker of any alleged sexual advance or sexual harassment. Further, Petitioner later told Tucker that things had improved.
The Democrat conducts what are called "management coffee breaks," at which "rank and file employees" meet with the publisher, Mr. Harwell, and the personnel director, then Mrs. Tucker. Supervisors and department heads are specifically excluded from attending. These conferences are used so that the employees may present grievances, complaints, or discuss any other problems or policies that they wish. At these sessions, employees are encouraged to speak with management privately on matters that cannot be discussed in a group
meeting. Petitioner attended one of these conferences and could have used it to bring her alleged problems to management's attention.
The Tallahassee Democrat's employee handbook contains a statement of policy which prohibits discrimination.
The Democrat has a policy regarding supervisors having affairs with employees. Two supervisors, one male and one female, had previously been terminated because of sexual relationships with their employees. Other employees of The Democrat knew about these supervisors being terminated, Mr. Harwell testified that he would have taken corrective action by terminating Steinberg had Harwell known of any sexual harassment by Steinberg.
Petitioner presented no evidence of discrimination based upon her sex or marital status and failed to request any affirmative relief.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57, Florida Statutes.
Section 23.167, Florida Statutes (1979), provides, in pertinent part:
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 . . . or marital status.
The parties hereto have stipulated in their Joint Response to Pre-Trial Order that The Tallahassee Democrat is an employer within the meaning of this statute. Petitioner's claim of discrimination is twofold: sex and marital status.
Petitioner's claim of sex discrimination is not bottomed on disparate treatment by the employer of men employees and women employees; rather, the claim is that she was the victim of sexual harassment. Section 23.167, Florida Statutes (1979), does not prohibit "sexual harassment" as a form of discrimination. Although some federal courts have interpreted the federal counterpart of Florida's Human Rights Act of 1977 to impliedly include sexual harassment within the meaning of the term "sex discrimination," no authority has been cited for the proposition that Florida's Human Rights Act has also been so construed. Those federal courts which have interpreted sexual discrimination to include sexual harassment require that submission to a sexual suggestion constitute a term or condition of employment and that the employer have actual or constructive knowledge of the sexual advances. In the case at bar, Petitioner has admitted that Steinberg never expressly or indirectly conditioned her continued employment or any term or condition of her employment upon acceptance of sexual advances. Further, Petitioner admitted she never reported the board room incidents to either of Steinberg's superiors or even to any other employee of The Democrat, and Steinberg testified he told no one until long after Petitioner was terminated. Therefore, it cannot be contended that the employer had actual knowledge.
Petitioner and Intervenor argue that the employer had constructive knowledge since Petitioner told Mrs. Tucker that Steinberg might be infatuated with Petitioner. There is no basis to this argument since Petitioner in no way indicated to Tucker that she was complaining rather than bragging, and Petitioner, admittedly, never indicated to Tucker in that conversation that Steinberg had made a sexual remark or advance. Therefore, no constructive knowledge of the employer can be logically inferred.
Steinberg testified that he lied regarding the board room incidents (and the 3" X 5" card which Petitioner admits did not have a sexual connotation) in his deposition taken in this cause. But for his admission, his lie would not have been discovered. His candid admission of the board room incidents and his obvious humiliation make his explanation of those events far more believable than Petitioner's testimony.
The first board room incident arose when Petitioner was, colloquially speaking, having a temper tantrum about performing a duty which she considered too unimportant for her to perform. She intentionally sent someone to bring Steinberg to her in the board room. Who initiated the kissing which thereafter took place is unclear. Regarding the second incident, Petitioner voluntarily went to the board room with Steinberg, and, again, who initiated the kissing and fondling on that occasion is also unclear. What is clear is that these two incidents are of the type which the federal courts describe as merely an unsatisfactory personal encounter and, therefore, not actionable sexual harassment. It is also clear from Petitioner's testimony that, whichever one of them made the sexual advances, Steinberg never conditioned Petitioner's employment on her acceptance, rejection, or continuation of them. Accordingly, it is unnecessary to reach the question of whether the prohibition of sex discrimination in Florida's Human Rights Act of 1977 includes sexual harassment within that prohibition.
As with her sexual discrimination claim, Petitioner's claim of discrimination based upon her marital status would require an interpretation of Florida's Human Rights Act well beyond any prior interpretation. The conduct about which she complains took place both while she was married and not married. Obviously, Petitioner cannot be heard to complain that she was discriminated against as a member of each possible marital status. Accordingly, she argues that it is who she married which caused the discrimination. Not only did Petitioner fail to prove this contention, but also it is the contention itself which causes Petitioner's claim to fail. No authority has been cited or discovered creating a cause of action for discriminatory treatment based upon one's marital partner; rather, the statutory language is clear that discriminatory treatment is actionable only if it is based upon marital status. There is no evidence in this record to show, as is required, that Petitioner was treated differently from single persons while she was married to Reeves, differently from married persons during the one month that she was single, or differently from single persons after she married Selvaggio.
In Texas Dept. of Community Affairs v. Burdine, 101 S.Ct. 1089 (1981), the Supreme Court of the United States reexamined the burden of proof and order of proof in cases arising under the federal counterpart to Florida's Human Rights Act.
In McDonnell Douglas Corp. v. Green, 411
U.S. 7792 (1973), we set forth the basic allocation of burdens and order of pre- sentation of proof in a Title VII case
alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evi- dence a prima facie case of discrimina- tion. Second, if the plaintiff succeeds
in proving the prima facie case, the burden shifts to the defendant "to articulate
some legitimate, nondiscriminatory reason for the employee's rejection." Id., at 802, 93 S.Ct., at 1824. Third, should
the defendant carry this burden, the plain- tiff must then have an opportunity to
prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804, 93 S.Ct., at 1825.
The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all
time with the plaintiff. (footnote
omitted) At 1093.
. . . We have stated consistently that the employee's prima facie case of discrimi- nation will be rebutted if the employer articulates lawful reasons for the action, that is, to satisfy this intermediate
burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been moti- vated by discriminatory animus. . .
At 1096.
. . . When the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explain- ing clearly the nondiscriminatory reasons for its actions. . . . At 1097.
In the case at bar, Respondent's motion for dismissal of Petitioner's Petition for Relief after the close of Petitioner's evidence was denied in an abundance of caution since, frequently, proving discrimination involves proving subtleties and innuendos. However, Respondent has clearly articulated nondiscriminatory reasons for every action taken by it with regard to Petitioner, and Petitioner has failed to carry her burden to show that any of Respondent's decisions were pretextual and other than legitimate business reasons. In fact, Petitioner failed to present any further evidence after Respondent put on its evidence showing the business reasons which necessitated terminating the Petitioner's employment.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That a final order be entered by the Florida Commission on Human Relations declaring that Gail C. Selvaggio was not discriminated against on the basis of her sex or marital status and dismissing her Petition for Relief with prejudice.
RECOMMENDED this 18th day of June, 1981, in Tallahassee, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1981.
COPIES FURNISHED:
Edward S. Jaffry, Esquire
S. Jack Carrouth, Esquire Horne, Rhodes, Jaffry, Horne
& Carrouth
Post Office Box 1140 Tallahassee, Florida 32302
C. Gary Williams, Esquire
Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee,
Carothers & Proctor Post Office Box 391
Tallahassee, Florida 32302
Dana Baird, Esquire Assistant General Counsel
Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
Mr. Norman A. Jackson Executive Director
Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Nov. 15, 1990 | Final Order filed. |
| Jun. 18, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 23, 1981 | Agency Final Order | |
| Jun. 18, 1981 | Recommended Order | Dismiss with prejudice the complaint alleging sexual discrimination and sexual harassment. Petitioner failed to meet her burden of proof. |
