STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA HORD, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4083

) BELL AEROSPACE TEXTRON a/k/a ) TEXTRON MARINE SYSTEMS DIVISION ) OF TEXTRON, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on April 20, 1987, and finished the following day. Petitioner filed proposed findings of fact and conclusions of law on May 21, 1987. Respondent's proposed recommended order was filed on May 22, 1987.

The parties are represented by counsel:

For Petitioner: Alvin L. Peters, Esquire

36 Oak Avenue

Panama City, Florida 32401

For Respondent: William B. DeMeza, Jr., Esquire

Holland and Knight Post Office Box 241

Bradenton, Florida 33506

As a consequence of petitioner's complaint that respondent discriminated against her on account of her sex, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF DETERMINATION: NO CAUSE" issued June 30, 1986. Petitioner's request for redetermination occasioned a "REDETERMINATION: NO CAUSE," filed September 11, 1986. Petitioner then filed a petition for relief from an unlawful employment practice, pursuant to what is now Rule 22I-9.008(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Commission on Human Relations,

470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1986 Supp.).

ISSUES

Whether petitioner suffered sexual harassment for which respondent is answerable, or whether, on account of her sex, respondent discriminated against her by paying her unequal wages, or whether, in terminating her employment, respondent retaliated against her on account of statutorily protected activity?

FINDINGS OF FACT

1. In April, of 1982, the year after her 19-year marriage to a Mr. Powell, whose surname she originally kept, came to an end, petitioner Gloria Patricia Hord, as she has been known since her remarriage in August of 1984, began work for respondent Bell Aerospace Textron, which has since become the Textron Marine Systems Division of Textron, Inc. (Textron).

   
   

2. A defense contractor that builds landing craft air cushion vehicles and trains Navy personnel to operate them, Textron employs perhaps 130 persons in Panama City alone. Textron has a written policy against sexual harassment by or of its employees.

   
   

3. As Textron's director of logistics at its Panama City facility, George Gust Alepakos, told the petitioner she was hired on April 3, 1982. Robert L. Ormsby and Albert Eugene "Bud" Small, the supervisor of inventory control who, as her immediate supervisor, shared an office with her when she began, had already interviewed her.

   
   

4. Bell hired her as a clerk, general class III in labor grade N-6. The duties of general class III clerks are:

   
   

   Under general supervision, performs a variety of clerical work, where there is individual responsibility for the accuracy and completeness of important records and where decisions within the limits of policies or rules are required. Performs duties such as or similar to the following: supervises and works with a small group of clerks; sets up and maintains record systems of a widely varying nature, including secret or confidential material or information; prepares and issues reports as required; contacts other personnel as necessary in maintaining accurate records; reads reports, correspondence, publications, etc., and abstracts therefrom information pertaining to a particular subject; may perform miscellaneous duties relate dot office work, such as filing, operating various machines, etc. (sic). Respondent's Exhibit No. 23.

   
   

   According to Bell's job description, "demonstrated supervisory ability", is a desirable qualification for general class III clerks.

   
   

5. In addition to processing receipts and keeping inventory logs, Patty Powell, as her co-workers then called her, typed and did other secretarial chores for Textron. She worked in a trailer which housed other offices and other workers, including Carol Bjorgan, Robert L. Ormsby, Monica Mitchell, Mike Pate, Mike Smith, Betty Brandon, and George Alepakos, to whom Mr. Small reported. Mr. Alepakos was in the adjoining office.

   
   

6. Witnesses described Mr. Alepakos as personable, fun loving, happy go lucky, warm, friendly, outgoing, talkative, loud, sometimes grouchy, displaying a temper at times without being a screamer, dedicated, conscientious, a hard

   worker and a firm manager. He looked at the hearing to be in his sixties. The time Ms. Powell told him he reminded her of her grandfather, he said she had hurt his feelings.

   
   

7. One day as Ms. Powell, then 36 years old, was typing, Mr. Alepakos stood behind her and placed his hands on her shoulders, watching her finish a memorandum. Mr. Alepakos invited Ms. Powell to lunch on several occasions. He regularly took employees in his group to lunch, both male and female, individually and in groups. Conversations at lunch were "business-related" and "very professional" at first.

   
   

8. The third or fourth time they ate lunch together, however, Mr. Alepakos professed his love for Ms. Powell. Thereafter, when Mr. Small left the office, Mr. Alepakos would stop in. Within a week of declaring himself at lunch, he said, "I really mean it." He told her she would grow to love him, would learn to, and began leaving notes for her, typically like the one that said, "I love you," signed "George ." She "tried to laugh it off," questioning his sincerity. He was married, and she had a boyfriend.

   
   

9. Beginning in the summer of 1982, he asked her almost daily for lunch. He telephoned to inquire, "Have I told you today that I love you?" Sometimes she went to lunch with him during this period, but more often she declined. He promised to behave if she accepted his invitations for lunch, but, in Ms. Powell's view, he welshed on these promises.

   
   

10. She had mixed feelings about George Alepakos. She discussed with Carol Bjorgan the possibility of a relationship with him. By this time, her boyfriend Chip McDill had left her in the lurch. It would be nice to have someone older to take care of her, she mused aloud; and she felt she would be better off materially. Never once did she complain to Carol Bjorgan about Mr. Alepakos' romantic interest in her.

    
    

11. She left him notes. One note, signed "Patty" and written on notepaper depicting two smiling bees among azalea blossoms, read, "Have a wonderful vacation, then hurry back." Respondent's Exhibit No. 2.

    
    

12. One night she and Carol were drinking during "happy hour." Saying she wanted to talk to George, she telephoned his home, but hung up when his wife answered. She sometimes seemed to boast about Mr. Alepakos' taking her to lunch, asking, "Guess who I'm going to lunch with?" At Peddlers Alley one night, Mlles. Hord and Bjorgan met Mr. Alepakos for drinks. When they arrived, Ms. Hord playfully pretended to sit in Mr. Alepakos' lap, and said to Ms. Bjorgan, "We can handle it from here."

    
    

13. In December of 1982, both Mr. Alepakos and Ms. Powell attended a party at a bar or restaurant. Mr. Alepakos "didn't think much" of her going out with the 23-year old man who escorted her to the party, danced with her, kissed her while they were on the dance floor, and, later in the evening, wrestled with her in the back seat of an automobile parked outside the establishment. He felt that "it looked bad for the company." The next morning, he called her into his office, told her she had "fallen off [her] pedestal," and that somebody had said she had behaved like a slut.

    
    

14. Over the Christmas holidays she was in the hospital, and afterwards visited her mother in Atlanta. Mr. Alepakos called her there at the number she had given him, to ask about her health and to learn when she was coming back to work.

15. On her return she talked things over with Mr. Small, her immediate supervisor, although she never told him about Mr. Alepakos' touching her. He advised her to decline the luncheon invitations and avoid Mr. Alepakos as much as possible. He spoke to Mr. Ormsby about the matter, at her request. In deference to Ms. Powell, who asked that nobody say anything to Mr. Alepakos, Mr. Small spoke to Mr. Ormsby "off the record."

    
    

16. At some point, Mr. Alepakos called on Ms. Powell at the apartment she had recently moved into at Panama City Beach. She had invited him. When he arrived he found her with her daughter and stayed only about 20 minutes.

    
    

17. Eventually Patty Powell went herself to Mr. Ormsby, and Mr. Ormsby took the matter up with Clarence L. Forrest, then the vice-president in charge of Textron's Panama City operations. Messrs. Ormsby and Forrest decided to transfer Ms. Powell to a general secretarial and word processing assignment in "the training trailer."

    
    

18. The transfer was "lateral" in the sense that neither Ms. Powell's official job description nor her labor grade changed. In her new situation, she was involved in the production of training manuals. Bell hired two other word processing clerks to assist in this effort, Diane Ansell and April Dawn Day. Ms. Powell had recommended both Ms. Ansell and Ms. Day. She helped train them when they began.

    
    

19. Even after they had learned the ropes, she gave them work to do which she proofread afterwards. If she was out, Ms. Ansell would assume these duties. Ms. Powell wrote out evaluations for Ms. Ansell and Ms. Day, although she never signed them. She did once sign an overtime authorization form, but Mr. Forrest sent it back for Mr. Higgins' signature and resubmission.

    
    

20. She assumed her new duties in February of 1983, but invitations to lunch and expressions of affection continued after the transfer. One afternoon, just after Ms. Powell left the office, Mr. Alepakos said to Diane Ansell, "I love that girl," referring to Ms. Powell.

    
    

21. After she told Mr. Ormsby that Mr. Alepakos would not leave her be, Mr. Forrest instructed Mr. Alepakos to cease and desist from any activity involving Ms. Powell unrelated to professional requirements, and directed him to communicate with her, if at all, through third parties.

    
    

22. During the ensuing eight or nine months, Mr. Alepakos avoided Ms. Powell entirely. He "went the other way around when he saw her coming."

    
    

23. In the fall of 1983, however, they were both at an office party at the Long Glass. She grabbed his shirt and led him into another room, where she asked him why he had been avoiding her. According to a friend and co-worker, petitioner was not "an outward flirt," except when she drank.

    
    

24. Encouraged by the evening's events, Mr. Alepakos resumed his attentions. He telephoned several times a day, unless he was angry, and they began lunching together again. At various times, she told him she was at the point of reconciliation with her ex-husband, that she was seeing a boyfriend, and that she was gay. But she accepted a good many of his luncheon invitations, which was enough to inspire him to several proposals of marriage.

25. In November of 1983, Ms. Powell came to work early one morning and made her way in the still dark trailer to the word processing room. Suddenly Mr. Alepakos, whom she had not seen nor expected to be there, embraced her and tried to kiss her. When the lights came on, he said, "I'm sorry", and left.

    
    

26. During this period, Ms. Powell worked under the immediate supervision of Frank Higgins, who left civilian employment with the Navy and began with Textron in August of 1983. In early December of that year, Ms. Powell spoke to Mr. Higgins about Mr. Alepakos. After a second conversation on the subject, on February 9, 1984, Mr. Higgins stated, in a "Memo For the Record":

    
    

    FOR BACKGROUND, PATTY IS AN EXTREMELY QUIET, SHY PERSON WITH A RATHER "FRAGILE" QUALITY. SHE IS A DEDICATED PROFESSIONAL IN HER APPROACH TO HER JOB. SHE HAS NEVER APPEARED TO PROJECT (AVERT OR OTHERWISE) HER SEXUALITY AT WORK, DRESSES CONSERVATIVELY - AN IDEAL FEMALE WORKER IN TERMS OF NOT BEING INVOLVED TO ANY EXTENT WITH HER MALE CO- WORKERS OTHER THEN PROFESSIONALLY. SHE HAS NOT AND PROFESSES NO[T] TO WANT TO DATE ANYONE FROM WORK.

    GEORGE IS APPARENTLY "LEANING" ON HER AT WORK TO THE POINT SHE'S BECOMING EMOTIONALLY FRAZZLED OVER IT. HE PROFESSES TO BE IN LOVE AND "WANTS HER." GEORGE IS INSANELY JEALOUS OF HER BEING SURROUNDED BY ALL THESE MEN AND TOLD HER THAT DAVE STULTS, BOB NISSLEY AND MYSELF ARE OR MAY WANT TO BE ROMANTICALLY INVOLVED. HE CALLS HER SEVERAL TIMES SOME DAYS, SOMETIMES ASKING HER TO COME TO HIS OFFICE WHERE "COMMENTS ARE MADE" TO HER. SHE IS AFRAID NOT TO GO OVER TO HIS OFFICE - APPARENTLY FEELS GEORGE IS A POWER BROKER AND IF SHE GETS HIM MAD, HE'LL TAKE IT OUT ON TRAINING BY NOT SUPPORTING OUR NEEDS.

    PATTY SAYS SHE HAS TRIED EVERY CONCEIVABLE APPROACH TO TELL GEORGE SHE IS NOT INTERESTED IN HIM AND HE'S ANNOYING HER & SHE WANTS IT STOPPED. YET HE REFUSES TO LEAVE HER ALONE.

    I TOLD HER THAT SHE NEEDS TO THREATEN HIM WITH HARASSMENT CHARGES & BE WILLING TO FOLLOW UP ON THEM TO THE BITTER END - IF GEO. KNEW SHE WAS SERIOUS AND HIS JOB WAS IN DANGER, I HOPE HE WOULD BE PRUDENT ENOUGH TO BACK AWAY.

    PATTY SEEMS RELUCTANT TO PRESS CHARGES FOR FEAR THAT SHE WILL END UP BEING FIRED AND PERCEIVED AS THE CAUSE OF THE PROBLEM. SHE FEELS CASEY WILL PROTECT GEORGE AND WOULD CONSIDER GEO. MORE IMPORTANT TO BELL THAN PATTY.

    IN PREVIOUS DISCUSSIONS WITH CASEY DATING BACK TO DECEMBER, I TOO SENSED THAT EITHER CASEY WASN'T BE[ING] OBJECTIVE OR FAIR IN HIS ASSESSMENT OF PATTY OR THAT POSSIBLY GEORGE HAD BEEN FEEDING CASEY LIES AND INNUENDO

    ABOUT PATTY'S POTENTIAL INVOLVEMENT WITH PERSONNEL IN TRAINING. THE APPARENT STRATEGY IS TO CAST DOUBTS ABOUT PATTY'S CHARACTER SUCH THAT IF HIS SITUATION EVER BOILED TO THE SURFACE HE COULD BLAME IT ON HER TO SAVE HIS JOB.

    I BELIEVE THERE IS ENOUGH INFO AVAILABLE TO HAVE GEO. REPRIMANDED OR FIRED OVER THIS. THERE ARE SEVERAL PEOPLE WHO HAVE SEEN OR HEARD GEO. MAKE APPROACHES TO HER WHO I'M SURE WOULD COME FORWARD TO SUPPORT PATTY'S POSITION.

    SINCE THE DISCUSSION WAS OFF THE RECORD I AGREED NOT TO APPROACH CASEY YET. I OFFERED TO SPEAK WITH GEO. BUT IF HE PERCEIVES ME AS A COMPETITOR FOR PATTY, HE OBVIOUSLY WOULD MISCONSTRUE MY INTENTIONS.

    I DO INTEND TO SPEAK TO LENNY MORGAN "OFF THE RECORD" NEXT WEEK IN NEW ORLEANS TO GAIN SOME ADDITIONAL INSIGHT IN HANDLING THIS ISSUE.

    Petitioner's Exhibit No. 1.

    
    

    In a second "Memo For The Record," Mr. Higgins reported discussing the situation with Mr. Morgan, and summarized the latter's advice.

    
    

    * * *

    LENNY'S BOTTOM LINE WAS AS I SUSPECTED - DON'T LEAVE IT SIMMERING TAKE FIRM ACTION. BRING IT TO CASEY'S ATTENTION. LENNY INDICATED HE WOULD BE GLAD TO COME OVER AND BECOME DIRECTLY INVOLVED IN SOLVING THIS.

    * * * Petitioner's Exhibit No. 2.

    
    

    Although Mr. Higgins never showed these memoranda to "Casey" Forrest, who only learned of them after the present proceedings began, he did mention the situation to Mr. Forrest, who indicated that he wondered whether there was a "problem on both sides," but agreed to speak to Mr. Alepakos. By the time Mr. Higgins left Panama City, in July of 1984, he thought the situation had been resolved.

    
    

27. About this time, Ms. Powell told Mr. Alepakos she planned to remarry. He responded that he would be there, if it did not work out. He said he still loved her, and he did not stop asking her out, although, after she became Mrs. Hord, she consistently declined. He continued to declare his love. Mrs. Hord again complained, this time to B. L. Nissley, Textron's director of training documentation, on or about December 15, 1985. Her complaint notwithstanding, she sent Mr. Alepakos a poinsettia for Christmas. At some point, she left a note on his desk, saying "Missing you, P.H."

    
    

28. By a memorandum dated January 29, 1985, Mr. Nissley asked Mr. Forrest for a formal investigation "to assure that this problem be resolved once and for all." Respondent's Exhibit No. 6. On January 31, 1985, Mr. Forrest interviewed Mrs. Hord in Mr. Ormsby's presence. She reported the frequent invitations to lunch and a suggestion by Mr. Alepakos that they take a vacation together, but said nothing about his touching her. Messrs. Forrest and Ormsby also

    interviewed Mr. Alepakos. They decided it might be well for a disinterested third party to investigate, and asked Textron's Mr. Morgan to come over from New Orleans for the purpose.

    
    

29. Mr. Morgan interviewed Mrs. Hord for two and a half hours on February

    10 or 11, 1985. In answer to his questions, Mrs. Hord said that Mr. Alepakos had not asked her for sexual favors, and had not behaved vulgarly, lewdly or indecently. Nor did she advert to the early morning incident in the trailer, which Mr. Alepakos admitted at hearing, while denying any attempt to kiss her. When Mr. Morgan asked her if Mr. Alepakos had ever touched her, or tried to kiss her or to force himself on her, she answered no. Mr. Morgan asked Mrs. Hord to name others who could support her claim of harassment. She gave him only one name, Ms. Ansell's.

    
    

30. Mr. Morgan also interviewed George Alepakos at length, and asked him to name others who could support his assertions. Mr. Alepakos gave him some five names. After interviewing these people and Ms. Ansell, Mr. Morgan returned to New Orleans and stated his conclusions in a memorandum dated February 15, 1985.

    
    

31. Mr. Forrest wrote Mr. Alepakos a memorandum advising him that his "conduct in the matter lacked professionalism and good judgement." Petitioner's Exhibit No. 6. He was "warned to confine ... communications and relationships with Mrs. G. Hord to a professional/business environment." Id. This February 25, 1985, memorandum raised "the possibility of termination of [Alepakos'] employment," id. in the event "the cited harassments reoccur[ed]." Id. But the phrase "cited harassments" was a reference to the February 15, 1985, memorandum, Respondent's Exhibit No. 6, in which Mr. Morgan stated:

    
    

    Since the evidence indicates that the relationship was two sided, I find it difficult to describe the activity of Mr. Alepakos as one of harassment. Respondent's Exhibit No. 6, p. 2.

    
    

    Mr. Forrest did not warn or reprimand Mrs. Hord because he felt a supervisor or manager had a different responsibility in matters of this kind than an employee under supervision.

    
    

32. At no time, did Mr. Alepakos tell her off color stories, show her pornographic photographs, explicitly solicit sexual favors, or make obscene gestures to or from Mrs. Hord.

    
    

33. It fell to Messrs. Ormsby and Nissley to relay the results of Mr. Morgan's investigation to Mrs. Hord. The three of them gathered in Mr. Nissley's office, and he furnished her a copy to read. She had gotten part way through when she exclaimed, "That's a lie. I never sent him flowers. I never left notes on his desk." She threw down the report, and left the office, despite Mr. Nissley's telling her to stay. She dismissed the February 15, 1985, memorandum as a "bunch of bullshit." Mr. Nissley spoke to her afterwards and told her that he would not tolerate vulgar outbursts in the future.

    
    

34. She telephoned Mr. Morgan and complained to him about the result of the investigation. She told him she did not think the report was fair or that it reflected what had happened. She became upset and characterized the report as "bullshit." To this he replied, "Wait a minute. I'll answer any question you want to ask." But she hung up the telephone.

35. On January 30, 1985, Mrs. Hord had asked to take a leave of absence. Her request approved, she began thirty days' leave soon after she learned the results of Mr. Morgan's investigation.

    
    

36. Upon her return, Mr. Nissley told her about the results of her annual evaluation, and informed her she had been given a raise of $.20 per hour. The

    $.20 raise took effect March 16, 1985. With the raise, Mrs. Hord was paid $7.90 per hour, a dollar an hour more than Diane "Dee" Ansell was paid. And Ms.

    Ansell was paid more than April Dawn Day, the third word processing clerk who helped produce training materials for Navy personnel.

    
    

37. Mrs. Hord requested a meeting with Mr. Forrest to discuss the raise, which brought her salary to the highest authorized for her position; it was the same amount as the raise the other two word processing clerks in the training program received. But, since she was paid more than they were, the raise represented a smaller percentage of increase, and she objected.

    
    

38. On the morning of March 27, 1985, when Mrs. Hord met with Mr. Forrest, Messrs. Ormsby and Nissley were also present. She told them Bell could keep the raise. Mr. Forrest began to explain the mechanics of Bell's merit raise system, when Mrs. Hord interrupted, "It's a bunch of bullshit. You can do anything you want." As she started to leave, Mr. Forrest told her to stay, but she refused. At one point, she called her bosses "jackasses." According to Mr. Forrest's secretary, who was outside, she "had a wild look" as she slammed the door on her way out.

    
    

39. Before they dispersed, Mr. Forrest and the others decided to terminate her employment, unless Mr. Morgan advised against it. Mr. Forrest thought her language "unbecoming a lady." He certainly would not have expected a woman to use such language, and it did not affect him in the same way as it would have, if a man had used the same language. On the other hand, he would not have expected any of Bell's Panama City employees to use language of this kind in such a setting. Mr. Forrest testified under oath that Mrs. Hord was not fired because he found her language the more offensive on account of her femininity.

    
    

40. Apprised of the situation, Mr. Morgan consulted a New York lawyer, then told management in Panama City he had no objection to firing Mrs. Hord. Mr. Ormsby then caused a memorandum to be addressed to Mrs. Hord, notifying her that her employment was "terminated as of this date (27 March 1985), for gross disrespect, incertituded (sic), premeditated and continued disregard for all levels of Management ... so as to challenge the management of this company and to incite disrespect of other employees ...." Respondent's Exhibit No. 10.

    
    

    CONCLUSIONS OF LAW

    
    

41. Florida law forbids any employer, defined as any corporation or other "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," Section 760.02(6), Florida Statutes (1985), to "discharge ... or to otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's ... sex." Section 760.10(i)(a), Florida Statutes (1985). It is also an unlawful employment practice for an employer ... to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section ...." Section 760.10(7), Florida Statutes (1985).

42. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. Petitioner Hord, like plaintiffs in Title VII actions, must "bear the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982).

    
    

43. She has the burden initially to prove facts making out a prima facie case that she was harassed, discharged, or otherwise discriminated against on account of sex. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). With respect to her discharge, respondent need only articulate a legitimate, nondiscriminatory reason for the termination in order to place upon petitioner the burden of proving that the asserted reason is pretextual.

    
    

44. The Eleventh Circuit has set out in detail the elements which need to be established in order to make out a claim of sexual harassment.

    
    

    1. The employee belongs to a protected group. As in other cases of sexual discrimination, this requires a simple stipulation that the employee is a man or a woman.

    2. The employee was subject to unwelcome sexual harassment. The E.E.O.C. regulations helpfully define the type of conduct that may constitute sexual harassment: asexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature ...." 29 C.F.R. S. 1604.11(a)(1981). See also E.E.O.C. Dec. No. 81-18, 27 Fair Empl.Prac.Cas. (BNA) 1793, 1802-05 (April 3, 1981). In order to constitute harassment, this conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive. Gan v. Kepro Circuit Systems, Inc., 27 Empl.Prac.Dec. (CCH) Paragraph 32,279, at 23,648 (E.D.Mo.1982); Vinson v. Taylor, 23 Fair Empl.Prac.Cas. (BNA) 37, 42 (D.D.C.1980); 29 C.F.R. S. 1604.11(a)(1981) (only unwelcome sexual advances generate Title VII liability); Development, New EEOC Guidelines on Discrimination Because of Sex: Employer Liability for Sexual Harassment Under Title VII, 61 B.U.L.Rev. 535, 561 (1981)("[w]hether the advances are unwelcome

       ... becomes an evidentiary question well within the courts' ability to resolve").

    3. The harassment complained of was based upon sex. The essence of a disparate treatment claim under Title VII is that an employee or applicant is intentionally singled out for adverse treatment on the basis of prohibited criterion.

       * * *

    4. The harassment complained of affected a "term, condition, or privilege" of employ- ment. The former fifth circuit has held that the state of psychological well being is a term, condition, or privilege of employment within the meaning of Title VII. Rogers v. EEOC, 454 F.2d at 238. The court in Rogers made it clear, however, that the "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee does not affect the terms, conditions, or privileges of employment to a sufficiently significant degree to violate Title VII. Id. For sexual harassment to state a claim under Title VII, it must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Whether sexual harassment at the workplace is sufficiently severe and persistent to affect seriously the psychological well being of employees is a question to be determined with regard to the totality of the circumstances.

       * * *

    5. Respondeat superior. Where the plaintiff seeks to hold the employer responsible for the hostile environment created by the plaintiff's supervisor or co- worker, she must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. See Bundy v. Jackson, 641 F.2d at 943 & n.8; Vinson v. Taylor, 23 Fair Empl.Prac.Cas. (BNA) at 41-42. The employee can demonstrate that the employer knew of the harassment by showing that she complained to higher management of the harassment, Bundy v. Jackson, 641 F.2d at 943; Brown v. City of Guthrie, 22 Fair Empl.Prac.Cas. (BNA) at 1633, or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge, Taylor v. Jones, 653 F.2d 1193, 1199 (8th Cir. 1981).

Henson v. City of Dundee, 682 F.2d 897, 903- 905 (11th Cir. 1982)(footnotes omitted).

As a woman and on account of her feminity, Mrs. Hord received an uninvited and unwelcome hug from Mr. Alepakos early one fall morning. Otherwise, the evidence does not show that she received unwelcome sexual advances or requests for sexual favors or that she was the brunt of other verbal or physical conduct of a sexual nature.

1. The evidence here fell far short of proof of "harassment ... sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." Henson v. City of Dundee, 682 F.2d 897, 904 (11th

   Cir. 1982). By repeatedly accepting his invitations she encouraged Mr. Alepakos' belief that she enjoyed his company. Nor did petitioner establish that, when she complained of Mr. Alepakos' attentions, Bell failed to take prompt remedial action.

   
   

2. Petitioner also failed to prove that Bell paid different wages or assigned a different rank to her than to a man or men doing substantially equal work. See Corning Glass Works v. Brennan, 417 V.S. 188, 94 S.Ct. 2223, 41 L. Ed. 2d 1 (1974). The record is devoid of any indication that a man was doing similar work for Bell, and silent as to what he might have been paid.

   
   

3. Finally, in order to prevail on her retaliation claim, petitioner Hord has the burden, as set out in Canino v. United Stated Equal Employees Opportunity Commission, 707 F.2d 468 (11th Cir. 1983), to show that she

   
   

   1. ... had engaged in statutorily protected activity; (2) that the employer has take an adverse employment action; and (3) a causal connection exists between the two. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980) cert. den. 450 U.S. 979, 101 S. Ct. 1513, 67 L. Ed. 2d 814 (1981). 707 F.2d at 471.

      
      

      On this claim, the evidence showed that Bell terminated Mrs. Hord's employment after she complained of sexual harassment, but did not establish a causal connection. Her "statutorily protected activity" had, if anything, the opposite effect; it made her employers hesitant to fire her despite her verbal outbursts and door slamming.

      
      

4. Mr. Forrest's perhaps anachronistic views on what becomes a lady seemed for a brief moment to offer a glimmer of substance to petitioner's claim of gender discrimination. But the petition for relief alleged only that Bell "discharged her from her employment ... due to matters arising out of Mr. George Alepakos' sexual harassment ...," and the prehearing stipulation gives no hint of any claim that Bell fired her for using language it would have tolerated from a male employee. On this point, in any event, the evidence was all the other way.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That the Florida Commission on Human Relations dismiss Gloria Hord's petition for relief.

DONE AND ENTERED this 22nd day of September, 1987, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1987.

APPENDIX

Petitioner's proposed findings of fact Nos. 1, 5, 6, 7, 8, 15, 17, 18, 19,

20, 23, 24, 25, 26, 29, 30, 32, 33, 36, 37, 38, 39 and 40 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 2, the evidence showed that she worked as an acting supervisor for Columbia Research but not, as far as the hearing officer's notes reflect, for CSC.

With respect to petitioner's proposed finding of fact No. 3, the evidence showed that Mr. Small interviewed her first. Mr. Alepakos, as his supervisor, could presumably have overruled Mr. Small's choice even if Mr. Small made the "basic decision" to hire.

Petitioner's proposed finding of fact No. 4 has been adopted, in substance, except that the evidence did not establish that he placed his hands on her shoulders more than once.

With respect to petitioner's proposed findings of fact Nos. 9 and 10, the evidence did not reveal any sexual advances at this point, aside from declarations of love, which were not entirely unwelcome.

Except for the last sentence, petitioner's proposed finding of fact No. 11 has been adopted, in substance, insofar as material. With respect to the final sentence of No. 11 and the word "Again" in No. 13, it was not clear from the evidence that she went to Mr. Ormsby before Christmas.

With respect to petitioner's proposed finding of fact No. 12, Mrs. Hord did not always go "to great lengths to avoid contact with Mr. Alepakos during this time period." She not infrequently accepted his invitations to lunch.

Petitioner's proposed finding of fact No. 14 has been rejected as against the weight of the evidence.

Petitioner's proposed finding of fact No. 16 has been adopted, in substance, insofar as material, except that Mr. Alepakos was not put on any formal probation.

With respect to petitioner's proposed finding of fact Nos. 21 and 22, the evidence showed that he resumed his attentions because of her advances.

With respect to petitioner's proposed finding of fact No. 27, the evidence showed that he called, but not that he called frequently.

With respect to petitioner's proposed finding of fact No. 28, he did not come by uninvited.

With respect to petitioner's proposed finding of fact No. 31, he said she needed to see a doctor but not, in so many words, that the marriage would fail.

With respect to petitioner's proposed finding of fact No. 34, nobody placed limits on Mr. Morgan's investigation.

Petitioner's proposed finding of fact No. 35 has been rejected as contrary to the evidence. She was not told she would be reprimanded for making good faith complaints.

Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 13, 15,

16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 29, 31, 32, 33, 34, 35, 36, 37, the

first two sentences of No. 38, Nos. 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51,

52, 53, 54, 55, 56, 58, 60, 61, 62, 65, 66, 70 and 72 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 4, she lived at Panama City Beach at one point.

Respondent's proposed findings of fact Nos. 9 and 10 are immaterial or subordinate.

Respondent's proposed finding of fact No. 11 is rejected.

With respect to respondent's proposed finding of fact No. 12, Ms. Bjorgan's testimony was that she was not sure Mrs. Hord wanted to see him that night.

Respondent's proposed finding of fact No. 14 has been accepted, in substance, insofar as material, except for Small's suggested advice to change her manner of dress.

With respect to respondent's proposed finding of fact No. 25, Mrs. Hord was ambivalent about Mr. Alepakos before as after the incident.

Respondent's proposed finding of fact No. 27 is rejected.

Respondent's proposed finding of fact No. 28 blows a single incident out of proportion.

Respondent's proposed finding of fact No. 30 is rejected.

The final sentence of respondent's proposed finding of fact No. 38 is rejected, as is No. 39 to the extent it proceeds on the assumption there was any hiatus.

Respondent's proposed finding of fact No. 44 has been adopted, in substance, except that the evidence did not establish that the poinsettia was flowering.

With respect to respondent's proposed finding of fact No. 57, the epithet was "jackasses."

With respect to respondent's proposed findings of fact Nos. 59 and 64, Alepakos had no input, but the fact of her complaints was considered and inspired the call to Morgan.

Respondent's proposed finding of fact No. 63 is immaterial, except that Alepakos' attentions did not cause great mental stress.

With respect to respondent's proposed finding of fact No. 67, his overtures were romantic.

With respect to respondent's proposed finding of fact No. 68, he did propose marriage.

Respondent's proposed finding of fact No. 69 has been adopted, in substance, insofar as material, except for the final clause of the final sentence which is rejected.

Respondent's proposed finding of fact No. 71 is immaterial or subordinate.

COPIES FURNISHED:

Alvin L. Peters, Esquire

36 Oak Avenue

Panama City, Florida 32401

William B. deMeza, Jr., Esquire Holland and Knight

Post Office Box 241 Bradenton, Florida 33506

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 86-004083

Orders for Case No: 86-004083