STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SUSAN BLACKBURN, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5346
)
JOHN HANCOCK MUTUAL LIFE )
INSURANCE COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on March 22, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The representatives of the parties were as follows:
APPEARANCES
For Petitioner: Tobe Lev, Esquire
Egan, Lev & Siwica Post Office Box 2231 Orlando, Florida 32802
For Respondent: Genevieve Pluhowski, Esquire
Associate Counsel
John Hancock Mutual Life Insurance Co. John Hancock Place
Post Office Box 111 Boston, Maine 02117
By Charge of Discrimination dated August 24, 1987, Petitioner alleged that she had been employed by Respondent and had suffered discrimination by reason of sex during the course of her employment. On August 19, 1987, the Florida Commission on Human Relations entered a Determination: Cause.
At the hearing, Petitioner presented three witnesses, including herself.
Respondent presented eight witnesses. Petitioner offered into evidence 12 exhibits. Respondent offered into evidence 18 exhibits. All exhibits were admitted, except for Respondent's Exhibit Numbers 3, 10, and 18.
No transcript was filed. Petitioner and Respondent each filed a brief instead of proposed findings of fact.
FINDINGS OF FACT
At all material times, Respondent employed in Florida 15 or more employees for each working day in each of 20 or more calendar weeks.
Respondent employed Petitioner as a life insurance sales agent from January 16, 1984, to August 24, 1984. Her only relevant prior experience was selling life insurance out of her home for about one month.
Petitioner worked in Respondent's Orlando office. During 1984 about 20 sales agents worked in this office. The sales agents were divided into three staffs, which were headed by Michael Gentile, John Lowe, and Richard Ruffo. The three staff managers were supervised by the District Manager, Ron Quick, who managed the Orlando office. Mr. Quick was in turn accountable to James Stathis, who was the Regional Vice President in charge of the southeast region of the United States.
Each sales agent was responsible for a "debit." A debit was a sales area within the area covered by the Orlando office.
The success of the new sales agent is determined by the amount of premiums arising out of her new sales less the amount of lost premiums due to "lapses." New sales are sales to new customers or sales of new policies to existing customers. Lapses are policies, in the agent's debit, that policyholders fail to maintain or renew. The agent is evaluated in terms of sales credits, which is a direct measure of commissions and is thus a product of the number and size of policies sold. The agent is also evaluated in terms of net premium growth, which is the total premiums paid less premiums lost due to lapses.
The agent's compensation is based on taking sales credits reduced by lapses occurring during the first year on policies for which the agent received the sales credit. The agent also receives monthly and annual bonuses under the Sales Persistency Incentive program. The amount of each bonus is based on the sales credits and lapse rate. The lower the lapse rate, the greater the bonus. Although a new agent is expected to conserve the business existing in the debit at the time of assignment to the area, there is a guaranteed Sales Persistency Incentive bonus for the first 39 weeks of the agent's employment.
As with other new sales agents in Respondent's Orlando office, Petitioner received little formal training in such critical areas as sales techniques and generating new customers. She received no encouragement from her supervisors to take advantage of outside training opportunities, such as the new life agent's program sponsored by the National Association of Life Underwriters. Instead, as with other new agents in Respondent's Orlando office, Petitioner underwent a short period of in-office training and then went into the field under the close supervision of her staff manager, Mr. Ruffo. For a short period, Mr. Ruffo rode with Petitioner extensively and joined her on calls on customers. Thereafter, Petitioner's training opportunities were largely limited to weekly staff meetings at which the agents discussed successful sales, periodic attention from the staff manager who would from time to time ride with an agent in an effort to assist sales, and the availability of Mr. Ruffo and Mr. Quick to answer questions or help with problems.
Petitioner applied herself diligently to her new job. She scheduled three or four sit-down appointments everyday, which was at least as much as other agents scheduled. However, she was frustrated initially by her lack of success in conserving business. Her debit had previously been serviced by a sales agent who had been very popular with the customers. This agent had gone to work with another life insurance company, which offered certain policies that
compared favorably to Respondent's products. Much of Petitioner's time was spent in an unsuccessful effort to conserve this business.
Unhappy after several weeks with what she felt had been a lack of training under Mr. Ruffo, Petitioner requested that Mr. Quick assign her to another staff manager. Although such a reassignment was highly unusual, Mr. Quick, who had already discussed with Petitioner her low productivity, transferred her to Mr. Gentile on April 9, 1984.
One of the first things that Mr. Gentile did was to throw away all of Petitioner's files in which she recorded her contact with each customer. He criticized her long and straight hair style, the high pitch of her voice, and her overly polite way of dealing with people. He questioned her ability to succeed in the business. Nearly all of the criticisms were made outside of the presence of other employees.
Mr. Gentile had been a staff manager for only a few months. He had previously been a successful sales agent. His father had worked for Respondent for many years and was known to Mr. Quick and Mr. Stathis. As a staff manager, Mr. Gentile rode on a rotating basis with the 6 to 8 agents under him. During the first two weeks after Petitioner was assigned to Mr. Gentile's group, he rode with her regularly. After the first two weeks and until June 12, Mr. Gentile rode with Petitioner at least once every other week.
After being transferred to Mr. Gentile's group, Petitioner was highly reliant upon his advice due to her desire to become a successful life insurance agent. For instance, she followed his advice about quitting the union in order to please company management. She withdrew from the union by a memorandum submitted on June 4, 1984. She also accepted at face value Mr. Gentile's questioning of her ability, and she soon began to feel that he was right.
On June 12, 1984, Mr. Gentile was riding with Petitioner. After two calls, Mr. Gentile told Petitioner that he wanted to discuss the "electricity between us." He said that he had some personal problems and was attracted to her. He explained that part of the reason that he had been so critical of her was due to this attraction he felt. He suggested that they cancel their last appointment because it was an unlikely sale anyway. He advised her to quit her job and become his girlfriend. Petitioner insisted that they make the last call, which they did, and it resulted in a sale.
After the last call, they returned to the parking lot where Mr. Gentile had left his car. While still in Petitioner's car, Mr. Gentile tried to unbutton her blouse. He grabbed her head and tried to shove it into his lap.
He then exposed his penis to her. Petitioner rejected all of his advances, and he finally left her car.
Petitioner immediately drove home and called her boyfriend, to whom she recounted this incident. She was crying and very upset and confused. He suggested that she report the incident to the company, but she said that she was afraid that she would lose her job.
Shortly thereafter, Petitioner recounted the incident to another sales agent, Susan Arthur. Ms. Arthur told Petitioner to report the incident.
Petitioner did not report the incident at that time, but instead continued to work hard selling insurance in her debit. As had been true since she started working with Respondent, she did not meet with much success.
Notwithstanding this fact, Mr. Gentile did not suggest that he ride with her again until about August 6, 1984. This was an unusually long period of time for a new sales agent to go without riding with the staff manager, especially if the agent were as unproductive as Petitioner. However, it was also customary for a supervisor to ride with an agent for a few weeks and then leave the agent on her own to allow the agent to try the techniques that she had observed.
Additionally, about one week after the incident, a new agent, Charles Denham, was assigned to Mr. Gentile's group. For the next several weeks, Mr. Gentile was thus almost exclusively occupied with the training of Mr. Denham.
Neither Mr. Quick nor any of the other employees of the Orlando office who testified saw any indication of sexual harassment on the part of Mr. Gentile toward Petitioner or anyone else at anytime. Two of the witnesses at the hearing were two of the other three female sales agents working in the Orlando office during 1984. One of them, Ms. Arthur, was in the office only one day a week, and the other was in a different staff group than Petitioner. The third employee-witness, Mr. Lowe, was the manager of another staff group. Also, much of the daytime work of the sales agents and their staff manager consisted of travel outside of the office. Thus, these witnesses had limited opportunity to observe incidents of sexual harassment.
Mr. Gentile informed Petitioner on August 6 that he would be riding with her again in about three weeks. Petitioner responded that she would not do so because of his previous behavior. Petitioner felt that everything had been "okay" during the eight weeks after the incident.
Mr. Gentile immediately reported to Mr. Quick that Petitioner refused to ride with him, although he did not explain why. He and Mr. Quick agreed that Petitioner had not worked out. From Mr. Quick's point of view, this decision was reasonable because of Petitioner's ongoing lack of productivity. Mr. Quick was, at that time, unaware of the June 12 incident or the criticisms that Mr. Gentile had directed toward Petitioner, nor could he reasonably have been aware of these problems, except to the extent that an effectively communicated sex discrimination policy could have encouraged Petitioner to have reported the problems sooner to Respondent and Mr. Quick.
On August 8, 1984, Mr. Gentile informed Petitioner that she was "out." She asked what that meant, and he replied that she was fired. Mr. Gentile's announcement surprised Petitioner. She had never received any warning from either Mr. Gentile or Mr. Quick that she was in danger of losing her job. Respondent did not maintain any policy of written performance evaluations in the Orlando office, but relied instead on periodic oral exchanges between the District Manager and each sales agent.
Petitioner went to see Mr. Quick the same day as her conversation with Mr. Gentile to learn why she had been fired. Mr. Quick deftly avoided confiding that she was being fired and instead discussed her poor productivity, which Petitioner admitted. She also admitted that she had been exploring other employment opportunities and had even taken an aptitude test for one job. These facts had been previously reported to Mr. Quick from another source. She disclosed to Mr. Quick the June 12 incident. He asked her why she would want to hurt Mr. Gentile, but promised that the company would start an immediate investigation.
Mr. Quick routinely solicited resignations from unproductive agents rather than fire them. His purpose was to avoid grievances under the collective bargaining agreement, which permitted an employee to file a grievance for a
firing only after one year of service. Consistent with his practice of obtaining the resignation of poor producers in their first year, Mr. Quick concluded the August 8 conversation with Petitioner by asking that she submit her written resignation by August 10 to take effect on August 31.
In cleaning up her office in preparation for her departure, Petitioner found a management book belonging to Mr. Ruffo, who had lent it to her months earlier. She found in the book a document setting forth Respondent's policy concerning sexual harassment and the procedure for reporting acts of sexual harassment. Prior to submitting her resignation, Petitioner sent a letter dated August 8, 1984, to Respondent's Equal Employment Specialist listed in the policy statement, Patricia DiNallo-Raebel. In the letter, Petitioner described the June 12 incident, as well as the above-described criticism that she received from Mr. Gentile. After a telephone conversation between Petitioner and Ms. DiNallo-Raebel on August 10, Mr. Stathis was informed of the charges and directed on August 13 to commence an investigation.
Mr. Stathis telephoned Petitioner's home on August 14 and left a message with her sister that he would be visiting the Orlando office on August
20 and 21 in order to conduct an investigation into her charges. A couple of days later, Mr. Stathis spoke to Petitioner by telephone and told her that she was not fired and that her resignation was no longer being demanded. He also tried to make an appointment to see her on August 20, 21, or, if necessary, 22. Mr. Stathis was to be on vacation for the week beginning August 27 Petitioner told Mr. Stathis that she had an appointment with the union lawyer on the afternoon of August 21 and did not want to see Mr. Stathis before obtaining advice of counsel. Mr. Stathis replied that Respondent would not arrange its schedule to suit Suzie Blackburn, and, if she could not see him, he would close the file. She reluctantly agreed to see him, but later changed her mind and called him and said that she would not see him until she had first met with her attorney.
Mr. Stathis nevertheless proceeded to Orlando and conducted his first interview early in the morning of August 20 in his hotel room. The interview was with Mr. Quick, who recounted Petitioner's poor performance as a sales agent and reiterated her charges against Mr. Gentile. Mr. Stathis and Mr. Quick then drove to the Orlando office where they happened to find Petitioner. In a brief exchange, Petitioner told Mr. Stathis that she could not talk to him before seeing her attorney. Mr. Stathis again expressed his displeasure with her refusal to speak with him at that time.
The remainder of Mr. Stathis' investigation consisted of interviews of four sales agents and Mr. Gentile. The interviews were short, lasting from 20 to 30 minutes. Each interview was conducted in the office and presence of Mr. Quick. The only agent interviewed who was in Petitioner's staff group was Ms. Arthur, who was infrequently in the office or in contact with Mr. Gentile.
Being in different staff groups, the other agents had limited opportunity to observe Mr. Gentile's behavior with respect to Petitioner.
Ms. Arthur, who was the top sales agent in the Orlando office, told Mr. Stathis that Petitioner informed her of the matter shortly after the June 12 incident. Another female agent, Sherry Andrews, told Mr. Stathis that Petitioner told her of the incident in late July--well before Petitioner rejected Mr. Gentile's order that they ride together. In his interview, Mr. Gentile denied that the incident had taken place, as he had previously when asked about it by Mr. Quick.
The next day, August 21, Petitioner cancelled a meeting that was to take place between her and Mr. Stathis late in the afternoon after she had had an opportunity to meet with she union lawyer. Mr. Stathis transferred Petitioner on August 22 to Mr. Lowe's staff group and informed Mr. Lowe to supervise her carefully. Ending his investigation at this time, Mr. Stathis concluded that Petitioner's allegations were without merit.
Late in the day on August 23, Petitioner informed Mr. Lowe that she wanted to be treated as a new agent with respect to a guaranteed salary and lapse relief under the Sales Persistency Incentive bonus plan. She told him that he should inform management of her desires. Mr. Lowe asked her to come to the office that evening to call prospects, but she never did.
On the morning of August 24, prior to learning of any response to her demands of the prior afternoon, Petitioner turned in her employee materials and indicated that she would not be back. She had previously secured employment with another life insurance company at a higher rate of pay than the $88.21 per week that she was making at the time of her departure from Respondent. Although this job was originally due to start on September 1, 1984, her new employer was later required to postpone her starting date to October 1, 1984.
At his request, Mr. Gentile was returned to sales agent status in early December 1984. He is no longer employed by Respondent.
Petitioner's productivity was poor before and after the June 12 incident. Her total 1984 sales credits were only $153,901, which, at the time of her departure, were the lowest among the other seventeen sales agents in the Orlando office, except for one who had been working for only nine weeks at the time of Petitioner's departure and another who had been on disability leave for four months. She had the highest rate of first-year lapses in the office, which reflected a poor success rate in keeping her own business. By contrast, another new sales agent, who had some prior disability insurance sales background, earned during the same period sales credits of $792,968 and had a first-year lapse rate only one-tenth that of Petitioner.
Attrition is not uncommon among first-year life insurance sales agents in the Orlando office. Respondent's attrition rate among first-year agents is 30% to 40%. In December 1983, Arturo Pagan, a male sales agent in the Orlando office, quit after earning only $103,019 in sales credits after 29 weeks for an average of $3552 per week. Considering Petitioner's average through August 17 rather than August 24 in order to account somewhat for the distractions of her last days on the job, Petitioner averaged sales credits of $4900 per week-- better than Mr. Arturo but still well below all of her coworkers at the time of her departure.
The two other male sales agents cited by Petitioner in her Petition as having lower productivity also terminated. John Plummer resigned on June 23, 1984. In 20 weeks, he earned sales credits of $100,398 for an average of $5000 per week, which is slightly better than Petitioner's average. He also had a much lower first-year lapse rate. Charles Denham resigned in early October 1984, after only about three months service that was characterized by low productivity.
Respondent's investigation was deficient in several respects and not conducted in good faith. Mr. Stathis, who exhibits a "take charge," confrontational attitude, undoubtedly intimidated Petitioner, who is shy and was, at the time, inexperienced and somewhat naive. When Mr. Stathis bullied
Petitioner into scheduling an appointment on short notice, he explicitly told her that her needs were subordinate to those of Respondent and, in light of his pressing vacation plans, even Mr. Stathis. Mr. Stathis disingenuously cited Petitioner's uncooperativeness as a prime reason for closing the investigation and concluding that her charges were unfounded.
At all times material hereto, Respondent maintained a policy condemning both quid pro quo and hostile working environment sexual harassment. This policy encouraged any person who felt that he or she had been the subject of sexual harassment to report it to Ms. DiNallo-Raebel and assured such person that he or she would suffer no retaliation. A copy of this policy statement was contained in the management book that Mr. Ruffo had happened to lend to Petitioner. Otherwise, copies of this statement were not distributed to employees or posted in a prominent place. The collective bargaining agreement did not clearly provide for arbitration of grievances involving claims of sexual harassment.
Following her departure from Respondent, Petitioner commenced proceedings with the Florida Commission on Human Relations. Negotiations ensued, but no agreement was ever reached between the parties. The cause determination was not based on the merits, but was the result of a misunderstanding by the Commission that Respondent had elected to discontinue its participation in the investigation. The determination was based on a file lacking certain documents that Respondent intended to produce.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
It is an unlawful employment practice for an employer to discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's sex. Section 760.10(1)(a), Florida Statutes. It is also an unlawful employment practice to discriminate against any person because that person opposes an unlawful employment practice or has filed a charge of an unlawful employment practice. Section 760.10(7), Florida Statutes.
The Florida Commission on Human Relations is vested with jurisdiction to enforce the law prohibiting employment practices involving unlawful discrimination. Section 760.06(5), Florida Statutes. Respondent is an employer within the meaning of the statute and is thus subject to the jurisdiction of the Commission. Section 760.02(6), Florida Statutes.
The provisions of Chapter 760 are analogous to those of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e et seq. Cases interpreting Title VII are therefore applicable to Chapter 760. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981)
A prima facie case of quid pro quo sexual harassment exists when: a) the employee is in a protected class; b) the employee is subject to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors;
c) the harassment is based on sex; d) the employee's submission to unwelcome advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to a supervisor's sexual demands resulted in a tangible job detriment; and e) respondent superior liability exists. Highlander
v. K.F.C. National Management Co., 805 F.2d 644 (6th Cir. 1986).
Petitioner has the burden of proving the prima facie elements of quid pro quo sexual harassment by a preponderance of the evidence. If Petitioner meets its burden, Respondent then has the burden to show that its actions were for legitimate, nondiscriminatory reasons. If Respondent meets its burden, Petitioner must prove that the offered reasons are pretextual. See, e.g., Texas Department of Community Affairs v. Burdine, 450 U.S. 792, 101 S. Ct. 1089, 67 L.Ed. 2d 207 (1981) Neville v. Taft Broadcasting Co., F. Supp. , 42 FEP Case 1413 (W.D.N.Y. 1987); Broderick v. Ruder, F. Supp. , 46 EPD Paragraph 37,963 (D.D.C. 1988).
Mr. Gentile clearly did not offer job benefits in exchange for sex.
To the contrary, he suggested to Petitioner that she quit and become his girlfriend. The question is closer as to whether Petitioner's refusal to submit to Mr. Gentile's sexual demands resulted in a tangible job detriment.
Petitioner clearly was not denied a raise or promotion following her refusal to have sex with Mr. Gentile. Her departure on August 24 was voluntary and not the result of being fired. Her solicited resignation on August 8 represents a tangible job detriment, but the detriment did not result from her refusal to have sex with Mr. Gentile. Although Mr. Gentile influenced Mr. Quick's decision to solicit Petitioner's resignation, Mr. Quick's decision was made in good faith and, more important, justified under the circumstances.
Even if Petitioner had been able to prove a prima facie case of quid pro quo sexual harassment with respect to her solicited resignation, Respondent proved that a legitimate, nondiscriminatory reason existed for Mr. Quick's action, and Petitioner failed to prove that this reason was pretextual. Petitioner's performance was poor. Male agents with similar records at a similar stage were invited to resign. Petitioner's performance was poor before she was assigned to Mr. Gentile. Thus, Respondent may offer the defense of a diminished work performance because Mr. Gentile's acts were not the direct result of the poor work. See, e.g., Shrout v. Black Clawson Company, F. Supp. , 46 EPD Paragraph 37,994 (S.D. Ohio 1988).
The elements of hostile work environment (HWE) sexual harassment are:
a) the employee is in a protected class; b) the employee is subject to unwelcome sexual harassment; c) the harassment is based on sex; d) the harassment affects a term, condition, or privilege of employment; and e) respondent superior liability exists. See, e.g., Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982)
The Court in Meritor Savings Bank, F.S.B. v. Vinson, U.S. ,
106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) discussed the fourth HWE element concerning whether harassment affects a term, condition, or privilege of employment. Agreeing with Henson, the Court stated that, to be actionable, HWE sexual harassment "must be sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" 106 S. Ct. at 2406 (citing Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). The Meritor Court suggested that harassment is sufficiently severe or pervasive when a supervisor had sexual intercourse with a subordinate 40 to 50 times over several years during and after business hours, fondled her in front of employees, and followed her into the restroom where he exposed himself and raped her on several occasions.
The Henson court, recognizing that psychological well-being is a term, condition, or privilege of employment, stated that whether sexual harassment is "sufficiently severe and pervasive" as to "affect seriously" the psychological
well-being of an employee depends on the totality of the circumstances. 682 F.2d at 904. The court held that harassment is sufficiently severe and pervasive when the supervisor subjected two employees to numerous harangues of demeaning sexual inquiries and vulgarities during the two years that the women were employed, as well as repeated requests for sexual relations.
In Bundy v. Jackson, 641 F.2d 934, 944 (D.C. Cir. 1981), the "psychological and emotional" work environment was illegally "poisoned" when one supervisor repeatedly called an employee into the supervisor's office and by telephone to ask her to spend the afternoon with him at his apartment and to question her about her sexual proclivities, another supervisor asked her to join him at a motel and pleasure trip to the Bahamas, and the supervisor of these supervisors, upon learning of this harassment, told the employee that any man would want to "rape" her and invited her to his apartment for a sexual encounter.
In Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983), the court found that the harassment "pervaded the workplace" when an employee was personally the object of "extremely vulgar and offensive sexually related epithets" from her supervisors and coworkers.
In Rabidue v. Osceola Refining Company, 805 F.2d 611 (6th Cir. 1986), which was decided after Meritor, the court explained the fourth HWE element as follows: "the charged sexual harassment had the effect of unreasonably interfering with the Plaintiff's work performance and creating an intimidating, hostile, or offensive working environment that affects seriously the psychological well being of the Plaintiff." Id. at 619. The court required the Plaintiff to show that the injury resulted from "incidents, comments, or conduct that occurred with some frequency," not a single or isolated incident, comment, or conduct. Id. at 620. In evaluating the complained-of behavior, the court must first adopt a "reasonable person's reaction. Then, if the Plaintiff shows that the behavior would have interfered with a reasonable person's work performance and would have affected seriously the psychological well-being of a reasonable employee, the Plaintiff must then show that she was actually offended and suffered some degree of injury as a result of the HWE. Id. In Rabidue, the obscene comments from a vulgar and crude coworker, who typically directed his verbal assault on women in general and not the plaintiff in particular, were not so "startling as to affect seriously the psyches of female employees or the totality of the workplace. Posters of nude or scantily clad women, which were displayed in the offices of various male employees, had to be considered in the context of the relaxed standards of today's society. Holding that the Plaintiff had failed to prove the fourth HWE element, the court distinguished the facts from those in Bundy, Henson, and Katz, insofar as Rabidue involved "no sexual propositions, offensive touchings, or sexual conduct of a similar nature that was systematically directed to the Plaintiff over a protracted period of time." Id. at 622, n.7. The court also stated:
Unlike quid pro quo sexual harassment which may evolve from a single incident, sexually hostile or intimidating environments are characterized by multiple and varied combinations and frequencies of offensive exposures. Id. at 620.
Applying this requirement, the court in Neville v. Taft Broadcasting Company, F. Supp. , 42 FEP Case 1314 (W.D.N.Y. 1987) found that a single grab and kiss could not provide the basis for a HWE claim.
The Meritor court considered the last Huff element concerning the circumstances under which an employer may be held liable for HWE sexual harassment. The Court stated that employers are not always strictly liable for the sexual harassment by their supervisors, but that the existence of a grievance procedure and policy against discrimination, coupled with the complainant's failure to invoke the procedure, does not always insulate the employer from liability. The Court suggested instead that agency principles provide guidance in this area. 106 S. Ct. at 2408-09.
In Hicks v. Gates Rubber Company, 833 F.2d 1406, 1418 (10th Cir. 1987), the court stated that the requisite agency exists if: a) the employer were negligent or reckless or b) the offending employee purported to act or speak on behalf of the employer and the victim relied on his apparent authority or the offending employee was aided in his act by the existence of his relationship with the employer.
The Rabidue court stated that the plaintiff must prove respondent superior liability by showing that the employer, through its agents or supervisors, knew or should have known of the complained-of sexual harassment and failed to implement prompt and appropriate corrective action. 805 F.2d at 621. However, the court noted that the case before it involved a coworker, not a supervisor, and the court expressed no view as to the scope of respondent superior liability in the case of a harassing supervisor. Id. at n.6.
Cases of HWE harassment do not utilize the three-step allocations of proof set forth in McDonnell Douglas and used in cases of quid pro quo harassment. Although a tangible job detriment may be justified by a legitimate, nondiscriminatory reason, HWE sexual harassment, by its nature, precludes such justification. Courts have suggested the use of the normal order of proof under which the claimant presents her case, the employer may present a defense, and the claimant may rebut the defense. See, e.g.,, Henson v. City of Dundee, 682 F.2d 897, 905 n.11. (11th Cir. 1982); Rabidue v. Osceola Refining Co., 805 F.2d 611, 621 (6th Cir. 1986); Katz v. Dole, 709 F.2d 251, 256 (D.C. Cir. 1983).
The first question in the present case concerning Petitioner's allegations of HWE is whether, under the totality of the circumstances, the conduct of Mr. Gentile unreasonably interfered with Petitioner's work performance and created an intimidating, hostile, or offensive working environment.
The June 12 incident actually consists of two incidents separated by the last sales call of the day. In the first, Mr. Gentile confessed to Petitioner that he was attracted toward her and felt that there was some "electricity" between them. He asked her to quit her job and become his girlfriend. Mr.
Gentile's confession and request were unwelcome by Petitioner. However, they did not constitute a sexual advance. At the time, the emphasis appeared to be on the creation of a relationship that was not limited to or predominated by sexual relations.
The incident following the sales call was quite different. After the sales call, and alone together in a parked car, Mr. Gentile tried forcibly to unbutton Petitioner's blouse and grab her head and force it into his lap. He also exposed his penis to Petitioner. This conduct was unwelcome and a sexual advance. It was hostile, abusive, and offensive.
The only other potentially abusive, hostile, or offensive behavior involved Mr. Gentile's conduct when Petitioner was first assigned to his group. Mr.
Gentile admitted to Petitioner that some of this behavior was due to the attraction he felt toward her. However, it is impossible to discern which behavior was offensive and which was work-related. Discarding Petitioner's files may have been an attempt to exercise authority over Petitioner in an improper attempt to impress her. On the other hand, Mr. Gentile may reasonably have felt that the shy and somewhat introspective Petitioner was wasting her time logging such information. After all, her log entries and diligence had not paid off in sales. Mr. Gentile may have only been forcing her into his image of a successful life insurance sales person--bold, confident, aggressive, and certainly not a filekeeper.
Mr. Gentile's comments concerning Petitioner's hairstyle, tone of voice and politeness similarly allow two different interpretations. His questioning of her ability to succeed could as likely have been an attempt at motivation as part of a plan to cause Petitioner to quit and become his girlfriend.
The sum of Mr. Gentile's abusive, hostile, or offensive behavior therefore exists in his actions after the sales call on June 12. Even if his comment and request prior to the sales call are added to the incident, Petitioner's case suffers due to the lack of multiple and varying combinations and frequencies of offensive exposures.
The existence of a sexually abusive, hostile, or offensive work environment is a fact question. Less offensive behavior may require greater frequency to meet the test. Highly abusive behavior may require less frequency. But Title VII and Chapter 760 are not intended to replace the criminal and civil remedies available to Petitioner against Mr. Gentile. The question in this case is whether a HWE existed at Respondent's Orlando office. The courts have not recognized that a single incident, however egregious, itself may generate a HWE.
Even if Petitioner were able to prove that the June 12 incident were sufficiently abusive, hostile, or offensive to satisfy the fourth HWE element, she would still need to establish respondent superior liability of Respondent.
The Meritor Court held that an employer was not strictly liable for the abusive behavior of one of its supervisors. It also held that an employer is not necessarily insulated from liability by the existence of a policy prohibiting sexual discrimination and a procedure to process claims.
The investigation was poorly planned and executed. Respondent may find no solace in its transparent effort to satisfy one requirement of Title VII case law in a procedure that, by design or reasonably foreseeable effect, discourages the complainant from full and active participation in the process.
Respondent likewise may not find solace in its sex discrimination policy.
It is problematic whether a policy that is tainted by a grossly inadequate investigation can be an effective policy. Respondent's policy fails in this case because it was not effectively communicated to Petitioner. Cf. Shrout v. Black Clawson Company, F. Supp. , 46 EPD Paragraph 37, 994 (S.D. Ohio 1988)
Petitioner must nevertheless show some agency relationship where, as here, Mr. Gentile's supervisor, and thus Respondent, were not negligent or reckless in making Mr. Gentile a staff manager. Neither Mr. Quick or Respondent had any reason to know of the June 12 incident. The shortcomings of a single incident HWE are evident here. No one can reasonably demand that Mr. Quick and Respondent have knowledge of the June 12 incident as it occurred, especially
given its apparent suddenness. Because Mr. Gentile showed no proclivity toward this behavior, it is indisputable that Mr. Quick and Respondent could not reasonably have known that the incident would take place. Even given the deficiencies in Respondent's investigation and policy, nothing short of strict liability for the acts of an agent could visit liability upon Respondent for Mr. Gentile's behavior. Although a supervisor's sexually abusive treatment of an employee is ordinarily outside the scope of his employment, this is especially true where, as here, the isolated incident is as egregious as exposing oneself.
Nor has any one of the Hicks criteria been met. Although Mr. Gentile probably would not have been in the car with Petitioner had he not been her supervisor, he had clearly stepped out of this role when he suggested that they skip the last call and that she should quit working for Respondent and become his girlfriend.
Petitioner has not proven a case of retaliatory termination. A prima facie case of retaliatory termination exists when: a) the employee is engaged in a protected activity; b) the employee was subject to adverse action by her employer after engaging in a protected activity; and c) there is a causal connection between the adverse action and the -protected activity. See, e.g., Broderick v. Ruder, F. Supp., , 46 EPD Paragraph 37,963 (D.D.C. 1988).
Even equating Mr. Quick's actions on August 8 as an involuntary termination, there was no causal connection between the firing and the protected activity. Mr. Quick had already decided to effect Petitioner's departure prior to learning of Petitioner's charges against Mr. Gentile. Moreover, Mr. Quick's decision was justified based on Petitioner's work performance.
Respondent may have created the possibility of a retaliatory termination when it informed Petitioner that the resignation solicited by Mr. Quick was not accepted. However, it is clear that Petitioner voluntarily resigned on August
24. She had already obtained another job. She decided not to wait for Respondent to reply to her demand, made the prior afternoon, for the pay and benefits accorded new agents. No one had threatened her. She reasonably concluded that the "sink or swim" environment of Respondent's Orlando office was not conducive to her development as a sales agent. Undoubtedly, the June 12 incident and investigation of Mr. Stathis did little to encourage her to stay, but, without more, Petitioner has not proven that her voluntary resignation was dictated by "intolerable and illegal employment requirements" to which she was subjected by reason of her sex. Henson v. City of Dundee, 682 F.2d 897, 907 (11th Cir. 1982)
In view of the foregoing, it is recommended that the Florida Commission on Human Relations enter a Final Order finding Respondent not guilty of sex discrimination in employment.
ENTERED this 13th day of July 1988, in Tallahassee, Florida.
ROBERT E. MEALE
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 13th day of July 1988.
COPIES FURNISHED:
Tobe Lev, Esquire Egan, Lev & Siwica Post Office Box 2231 Orlando, Florida 32802
Genevieve Pluhowski, Esquire Associate Counsel
John Hancock Mutual Life Insurance Company Post Office Boy 1
Boston, MA 02117
Dana Baird General Counsel
Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1570
Donald A. Griffin Executive Director
Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1570
Margaret Agerton Clerk
Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1570
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
SUSAN BLACKBURN,
Petitioner,
EEOC CASE NO. 046842356
FCHR CASE NO. 84-0711
DOAH CASE NO. 87-5346
JOHN HANCOCK MUTUAL LIFE FCHR ORDER NO. 89-008 INSURANCE COMPANY,
Respondent.
/
ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE
Panel of Commissioners
The following three Commissioners participated in the disposition of this matter:
Commissioner Robert L. Billingslea, Panel Chairperson;
Commissioner Robert R. Joyce; and Commissioner Learna G. Ramsey
Appearances For Petitioner Susan Blackburn:
Tobe Lev, Esquire Egan, Lev & Siwica Post Office Box 2231 Orlando, Florida 32802
For Respondent John Hancock Mutual Life Insurance Company: 1/ Genevieve Pluhowski, Esquire
Associate Counsel
John Hancock Mutual Life Insurance John Hancock Place
Post Office Box 111
Boston, Massachusetts 02117
Findings of Fact
Susan Blackburn, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1987), 2/ alleging that John Hancock Mutual Life Insurance Company, Respondent herein, unlawfully discriminated against her on the basis of sex (sexual harassment) and in retaliation for opposing unlawful employment practices.
In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint were investigated and a report of said investigation was submitted to the Executive Director. On August 19, 1987, the Executive Director issued his determination finding reasonable cause to believe that an unlawful employment practice occurred. A Redetermination: Cause was issued on October 5, 1987.
The Petitioner thereafter filed a petition for relief from an unlawful employment practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.016(1). The formal proceeding was hold on March 22, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer, who entered a recommended order in this matter on July 13, 1988.
Petitioner filed exceptions to the recommended order. Respondent submitted a response to the exceptions and also filed cross-exceptions to the recommended order. Respondent's cross-exceptions are untimely.
Pursuant to notice, public deliberations were held on January 19, 1989, in Tallahassee, Florida, before the aforementioned panel of Commissioners, at which deliberations the panel determined the action to be taken upon the petition.
Petitioner's Exceptions and Rulings
Exceptions
Each of Petitioner's exceptions is directed to the hearing officer's conclusions of law. 3/
In Exceptions 1 and 2, Petitioner argues that the hearing officer errs as a matter of law in concluding that the harassment complained of was not sufficiently severe or pervasive to alter the conditions of Petitioner's employment and create an abusive working environment.
In Exception 3, Petitioner argues that under the theory of respondeat superior, Respondent is liable for the sexual harassment done by Petitioner's immediate supervisor. Petitioner contends that the hearing officer errs as a matter of law in concluding otherwise.
In Exception 4, Petitioner argues that the hearing officer errs as a matter of law in concluding that Petitioner's separation from her employment did not come about as a result of retaliatory discharge. Petitioner contends that there was a causal nexus between her protected activity of opposing sexual harassment and her eventual separation from employment.
In Exception 5, Petitioner argues that she was constructively discharged due to the intolerable and illegal conditions of employment. Petitioner says that the hearing officer err as a matter of law in failing to reach this conclusion.
In Exceptions 6 and 7, Petitioner argues that she was discharged on August 8, 1984, by her immediate supervisor. Petitioner maintains that her discharge from employment, following her rejection of the supervisor's sexual advance, establishes sexual harassment in terms of quid pro quo. Petitioner contends that the hearing officer errs as a matter of lab in failing to reach this conclusion.
Rulings
Exception 1 is denied. Other than the events of June 12, 1984, there was little or no offensive behavior exhibited by the immediate supervisor.
Exception 2, however, has merit and clarification is necessary. The hearing officer concludes, albeit by implication only, that no hostile environment existed. In the lost sentence of paragraph 13, the hearing officer states, "The courts have not recognized that a single incident, however egregious, itself may generate a HWE." Then in the first sentence of paragraph 14, the hearing officer states, "Even if Petitioner were able to prove the June 12th incident was sufficiently abusive, hostile or offensive to satisfy the fourth HEW element,..." The occurrence of a single incident does not preclude a finding that a work environment was hostile. An egregious incident, such as the one described in the findings fact, does create a hostile environment. For example in Barrett v. Omaha National Bank, 726 F.2d 424 (8th Cir. 1984), the court held that one incident constituted actionable sexual harassment. The harasser talked to the plaintiff about sexual activities and touched her in an offensive manner while they were inside an automobile from which she could not escape. See also, Gilardi v. Schroeder, 833 F.2d 1226 (7th Cir. 1987).
Exception 3 is denied. In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the Court stated that employers are not always strictly liable for the sexual harassment by their supervisors. Liability would attach in a hostile environment case if the employer knew or should have known of the sexual harassment and if the employer failed to take immediate and appropriate corrective action or if the harassing supervisor was acting in an agency capacity. For the reasons expressed in the recommended order, no liability attaches to Respondent in this case.
Exceptions 4 and 5 are denied. On August 24, 1984, when Petitioner resigned, all efforts to cause her resignation had been rescinded and corrective actions had been instituted to eliminate any adverse working conditions.
Neither retaliatory nor constructive discharge occurred. See Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307 (5th Cir. 1987), where the court held that the female employee who complained to the employer about a coworkers alleged sexual harassment and who was told that she would not have to work with the coworker after the current project ended in one an half days, was not constructively discharged.
Exceptions 6 and 7 are denied. No discharge occurred on August 8, 1984, and hence sexual harassment in the form of quid pro quo did not occur.
Petitioner voluntarily resigned without notice on August 24, 1984.
FINDINGS OF FACT
Having considered the hearing officer's findings of fact, and being particularly mindful that the Commission may not reverse such finding without a complete review of the record and in the absence of either part providing the Commission with a written transcript of the formal proceedings, the panel will not disturb the hearing officer's findings of fact. Section 120.57(1)(b)10, Fla. Stat.; Rule 22T-8.25. The hearing officer's findings of fact are hereby adopted.
Conclusions of Law
The hearing officer's conclusions of law, based upon his findings of fact, are a correct application of law with one exception.
Contrary to the hearing officer's implied holding, the occurrence of a single incident does not preclude a finding that a hostile working environment existed. The June 12th incident created a hostile environment even though no liability to Respondent attaches under the circumstance of this case. The hearing officer's conclusions of law, as modified, are adopted.
Dismissal
The hearing officer's recommendation is adopted and his recommended order is incorporated herein by reference.
Accordingly, the petition for relief from an unlawful employment practiced and the complaint of discrimination are hereby DISMISSED with prejudice.
Petitioner is advised of her right to petition the Florida District Court of Appeal for review of this Order within 30 days of the date that this Order is filed with the Clerk of the Commission. Section 120.65 Stat.; Fla. R. App. P.
9.110(b).
It is so ORDERED.
DATED this 18th day of April, 1989.
FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
Commissioner Robert L. Billingslea, Panel Chairperson;
Commissioner Robert R. Joyce; and Commissioner Learna G. Ramsey
FILED this 21st day of April, 1989, in Tallahassee, Florida.
Margaret Agerton
Clerk of the Commission
ENDNOTES
1/ Attorney Karen Morton presented legal argument on behalf of Respondent during the deliberation by the Commissioners on January 19, 1987.
2/ Unless otherwise indicated, all statutory references are to Florida Statutes (1987), and all rule references are to Florida Administrative Code.
3/ Since no transcript is provided any exception to findings of fact would be inappropriate.
COPIES FURNISHED:
Tobe Lev, Attorney for Petitioner Genevieve Pluhoski, Attorney for Respondent
Harden King, Legal Advisor for Commission Panel Robert E. Meale, DOAH Hearing Officer
| Issue Date | Proceedings |
|---|---|
| Jul. 13, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 18, 1989 | Agency Final Order | |
| Jul. 13, 1988 | Recommended Order | No sex discrimination where supervisor tried to unbutton blouse of subordinate and then exposed his penis as his actions not attributable to employer |
