vs. ) DOAH CASE NO. 90-4806
) CASE NO. P.C.O. 8906-00789
Respondents. )
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 4, 1990, in Clearwater, Florida. The following appearances were entered:
For Petitioner: Patricia F. Anderson, Esquire
233 Third Street North St. Petersburg, Florida
For Respondent: J. David Haynes, Esquire
Whether Petitioner was discharged from her employment in retaliation for her opposition to Respondent's alleged discriminatory employment practices: to- wit, sexual harassment creating a hostile work environment, on the basis of her sex (female), in violation of Pinellas County Ordinance No. 84-10, codified as Chapter 2-17.5, Pinellas County Code.
Petitioner filed a Charge of Discrimination from an unlawful employment practice with the Clearwater Office of Community Relations on June 22, 1989, charging Frank Brown and Mother & Daughter Cleaning Service. Frank Brown accepted service of the Charge of Discrimination on behalf of the corporation on July 25, 1989. The Clearwater Office of Community Relations investigated the charges against Mother & Daughter Cleaning Service. Frank Brown replied to the charges on behalf of the corporation by letter, dated July 20, 1989, and denied the allegations. The matter was referred to the Division of Administrative
Hearings for a hearing de nova and the submission of a recommended order to the Community Relations Board, on July 30, 1990. Upon proper notice, a formal hearing was conducted in Clearwater, Florida, on October 4, 1990.
At the hearing, Petitioner testified in her own behalf and called as witnesses Jo Ann Goodale, Kelly Goodale, Evelyn Engle and Frank Brown, and offered one exhibit into evidence. Respondent called as witnesses Frank Brown, Lori Brady and Paula Novak. Respondent did not offer any exhibits in evidence.
Upon conclusion of the hearing, the parties waived the ten-day rule and were provided the opportunity to submit proposed findings of fact, conclusions of law and legal argument within twenty days of the filing of the transcript. The transcript was filed on November 5, 1990. Petitioner has filed proposed findings which were received on November 28, 1990.
Respondent filed its proposed findings on November 29, 1990. The parties' proposed findings of fact conclusions of law and argument have been given careful consideration, and my specific rulings on the proposed findings of fact are addressed in the Appendix attached hereto.
Based upon all of the evidence, the following findings of fact are determined.
Mother & Daughter Cleaning Service, Inc. (Mother & Daughter) is a Florida corporation. Frank Brown, age 65, is the Vice President, Secretary and Treasurer of the corporation, and his wife, Betty Brown, is the corporation's president.
The corporation provides house cleaning services to its customers. In addition to Mr. and Mrs. Brown, who serve as the cleaning crew leaders, the corporation has employed numerous other laborers, mostly women, over the past five years and employs five or more employees on a regular basis.
The Petitioner was hired to perform cleaning services for Mother & Daughter clients as part of a two or three person cleaning crew on March 13, 1989.
The Petitioner, Lisa Glennon, age 26, was initially interviewed for this position in the Brown home by Mrs. Brown and was offered employment. However, the offer was withdrawn when the Petitioner revealed that she did not own her own car. Then, after some discussion between Mr. and Mrs. Brown, the Petitioner was hired in spite of this circumstance.
Initially, the Petitioner was trained and supervised by Mrs. Brown as part of her crew, but after about a month she was transferred to the crew led by Mr. Brown (Brown). Evelyn Engle was the other regular member of this crew, although there were a few occasions when Engle did not come to work. There was also a period of about a week when Lori Kent Brady filled in for Engle. Petitioner worked as a part of Brown's crew until June 16, 1989, when she was fired.
Mother & Daughter employees would usually report to work at the Brown home. Brown's crew members were transported to various job sites, including private residences, in a van owned and driven by Brown. The crew would take a lunch break, usually at a fast food establishment such as Burger King, and would
then proceed to the next job site, although not always directly. The routes to many of Mother & Daughter clients took the crew within the vicinity of the beach or causeway.
On many occasions over the period of Petitioner's employment, Brown, while transporting the work crew in the van, would stare at and remark upon the physical appearance of women he would see walking in the beach area. These remarks concerned a woman's breasts or "tits"--that she was a "well-built" or "well-stacked" woman, her rear end, or figure in a T-back swimsuit. These remarks were sometimes accompanied by lip licking or growling sounds. Petitioner informed Brown that this behavior was "rude."
Petitioner was offended by these remarks.
In addition to drives down the beach enroute to a job site, Brown, frequently between jobs and normally after the lunch break, drove his crew to the beach or causeway to park and pass the time before the next job. During these "waiting times," Brown would comment on female passersby as well.
Previous Mother & Daughter employee Joanne Goodale found these parking times disconcerting and described Brown's routes to other job sites, apart from these "parking" incidents, slightly out of the way, and the amount of time spent driving on the beach abnormal for a job circumstance.
Brown frequently told off-color jokes in the presence of Petitioner and other employees.
Brown constantly commented on Petitioner's appearance and body, mostly her "lovely" breasts, and he admonished Petitioner not to fuss with or adjust her clothing because he found it "distracting"; that on one occasion he suggested she take off her bra (she was complaining about sunburn pain to Engle at the time); that she and Engle take off their shirts while working (they had complained a resident's home was hot and asked about the air conditioning at the time); and that he once recounted to her that he and another unidentified woman had worked without shirts in a residence.
On one occasion, Brown encouraged Petitioner to appear in a swimsuit for him. The crew had completed work early and, in reply to a question from Brown, Petitioner said she would go to the beach. Brown suggested that he drive her to her house so she could change into her swimsuit, then he would drive her to her car at his home. Petitioner declined, but Brown pursued the idea, remarking "Oh, you would really want to ruin an old man's day" by not permitting him to see her in her swimsuit.
Once on a Monday, Brown told Petitioner he saw her car that weekend at the beach and considered stopping "to give her a hard time." This remark frightened Petitioner, and she protested to him.
Brown recounted to Petitioner and Engle an obscene phone call his wife and daughter received at home wherein the caller inquired whether Mrs. Brown or her daughter "spit or swallow [ed]." This was offensive to both Petitioner and Engle.
Brown discussed with Petitioner and Engle on more than one occasion his dissatisfaction with his sex life with his wife. In connection with these complaints, Brown stated his desire to find a girlfriend for whom he would provide in exchange for sex "with no strings attached." Petitioner objected to these discussions.
On several occasions, Brown displayed the centerfolds of "Playboy" magazines to these women. On one occasion, Brown displayed a "men's" magazine in a residence the three were cleaning, made "mouth noises," and remarked on the models "lips." The women understood this remark to refer to the model's genitalia, which the model was touching with her hand.
Brown on several occasions "brushed up against" his female workers that were not unintentional incidents caused by the circumstances of cleaning.
Shortly after she started on his crew, Brown swatted Petitioner's rearend in the kitchen of a residence. On the same day, Brown brushed against her hip while loading the van, and Petitioner protested saying "that's enough." Brown replied "I see I'm not going to get very far with you" and told the Petitioner to loosen up and relax.
The incidents, remarks and behavior of a sexual nature were sufficiently persistent to constitute a "hostile workplace." These were not isolated incidents described by the Petitioner or her witnesses, but an almost constant stream of discourse on the part of Brown.
Petitioner testified, that she was offended by this behavior on the part of Brown, and was disturbed by it to the point that she feared going to work, feared that Brown would approach her during non-working hours and experienced nightmares as a result of his conduct.
Brown protested that he did not intend to offend the Petitioner.
The Petitioner testified that Brown's behavior and advances were unwelcome to Petitioner, and she communicated her disgust to Brown on many occasions.
Petitioner did not casually use foul language at work, but did so when she became angry. On one or two occasions, she did say "fuck you" or some variant thereof to Brown.
The Petitioner did not dress in a revealing manner, but normally wore calf length pants, two blouses and always a brassiere to work.
Lori Brady's testimony that the Petitioner visited her home dressed in a revealing manner without a brassiere and expressed interest in dating Brady's brother is not relevant. This incident did not occur on the job or in the presence of Brown so as to solicit or incite any sexually explicit behavior on his part.
Toward the end of Petitioner's employment with Mother & Daughter, Brown complained to her that she and Engle were treating him "coldly" and that, while previously Brown had been highly complimentary concerning her job performance, he became critical of it.
On June 16, 1989, Brown criticized Petitioner's vacuuming. Petitioner questioned his criticism, and Brown instructed her to go to the van. Once all were in the van, an argument ensued, and the Petitioner may have threatened or offered to resign at this point. To which Brown replied, "If you want your job, be here Monday." The Petitioner later received a phone message that she was fired because of her "attitude."
After she was fired from her job at Mother & Daughter on June 16, 1989, Petitioner secured part-time evening employment at "Excaliber," five days a week from 5:30 p.m. to 8:30 p.m. at a wage of $4.00 an hour, on approximately June 30, 1989.
On August 17, 1989, Petitioner secured additional employment at Pinecrest Place at a wage of $4.25 per hour, working Monday through Friday from 8:00 a.m. to 4:30 p.m. She received one raise of $0.25 after three months and another raise of $0.25 after one year. Petitioner is presently employed at both jobs.
CONCLUSIONS OF LAW
Pinellas County Ordinance No. 84-10, adopted April 24, 1984, and entitled "Human Rights," codified at Chapter 2-17.5, Pinellas County Code, prohibits discriminatory practices by employers. Pinellas County Code, Section 2-17.5-3(A)(1), states:
It is a discriminatory practice for an employer to:
Fail or refuse to hire, discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions or privileges of employment because of .... sex; or
Limit, segregate or classify an employee in a way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect the status of an employee because of . sex."
Pinellas County Code, Section 2-17.5-2(H), the definition section, states:
Employer means a person who employs five or more employees for each working day in each of thirteen or more calendar weeks in the current or preceding calendar year and any agent of such a person, but such term does not include the United States or a corporation wholly owned by the U. S. Government, an Indian tribe, a private membership club, or the State of Florida.
See Pinellas County Code, Section 2-17.5- 2. (H).
A "person" under the Ordinance means one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy or receivers. Pinellas County Code, Section 2-17.5- 2.(R).
The language and purpose of this Ordinance are the same as those of Title VII, of the Civil Rights Act of 1964, and Chapter 760, of the Florida Statutes. It applies to employers with a smaller number of employees than the state or federal law. As such, it is appropriate to construe this local Ordinance in light of the cases interpreting the state and federal human rights statutes. See: Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla. 1989).
Specifically, under Title VII and Chapter 760, Florida Statutes, courts have held that allegations of sexual harassment in the workplace, such as propositions, sexual remarks and the like, state a claim cognizable under the language of those statutes. A worker need not show that she suffered economic discrimination, such as the denial of a raise or promotion, in order to state a cognizable claim. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Byrd, supra.
In these cases, the courts have held that female employees who had been the subjects of physical and verbal sexual "advances" in the workplace had stated claims cognizable under Title VII and Chapter 760, of the Florida Statutes.
Proof of sexual propositions is not the only means of prevailing on such a claim, nor is it necessary.
As the United States Supreme Court explained in Meritor, supra, both the type of sexual harassment where engaging in sexual acts or byplay is a condition of continued employment (quid pro quo harassment) and the type where the workplace is so pervaded by sexual remarks, innuendo and/or advances that the conditions of employment are materially altered ("hostile workplace" harassment) are cognizable under Title VII. In Meritor, the Court specifically held that claims of "hostile work environment" fell within the prohibition of Title VII:
[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex ...
The phrase "terms, conditions, or privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate treatment of men and women" in employment.
Meritor, supra, 477 U.S. at 64, 106 S.Ct. at 2404 (citations omitted). Thus [sexual harassment which creates a hostile or
offensive environment for members of one sex
is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.
Id. at 67, 106 S.Ct. at 2406, quoting Henson v. City of Dundee, supra, 682 F.2d at 902.
This case, rather than being a case where the Petitioner claims that she was denied equal compensation or advancement on the basis of her sex, is a case where the Petitioner complains that on a regular basis she was forced to endure sexual remarks and innuendo, jokes, stories, gestures, the touching of her person on several occasions and at least a veiled proposition. Such allegations form the classic claim of "hostile workplace" sexual harassment. See Meritor, supra; Henson, supra; Byrd, supra. Thus, the language or Pinellas County Code, Chapter 2-17.5, like the virtually identical language of Title VII and Chapter 760, Florida Statutes, should and does prohibit an employer from subjecting employees to this sort of conduct.
For "hostile workplace" harassment to be actionable, it must be sufficiently severe or pervasive to "alter the conditions of [the victim's] employment and create an abusive working environment." Meritor, supra, 477 U.S. at 67, 106 S.Ct. at 2405, quoting Henson, supra, at 904. This test may be satisfied by a showing that the harassment was sufficiently severe or persistent as to affect the employee's psychological well being, which the courts have held to be a "term, condition or privilege of employment" within the meaning of Title
VII. Henson, supra, 682 F.2d at 904. See also, Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987); Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058 (1972). This is a question of the totality of the circumstances. Henson, 682 F.2d at 904. Moreover, in order to constitute actionable harassment, the conduct must have been "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. Henson, 682 F.2d at 903. It is not a defense that the employee was not "forced" to participate in the conduct against her will. See Meritor, 477 U.S. at 68,
106 S.Ct. at 2406 (victim and supervisor had consensual sexual relationship; inquiry was not whether intercourse was voluntary). Furthermore, proof of sufficiently frequent vulgar or offensive words alone, without any evidence that the employer or supervisor laid hands upon the employee, is sufficient to establish a violation. Katz v. Dole, 709 F.2d 251 (4th Cir. 1983).
The Petitioner in this case also claims that she was fired in retaliation for her opposition to her employer's hostile work environment. Pinellas County Code, Chapter 2-17.5, renders it an unlawful discriminatory practice for a person to conspire to retaliate or discriminate against a person because he or she has opposed a discriminatory practice, or because he or she has made a charge, filed a complaint, testified, assisted or participated in an investigation, proceeding or hearing under this Ordinance. See Section 2-17.5- 8, Pinellas County Code. Again, this language is virtually the same as that contained in Title VII and Chapter 760, Florida Statutes, and therefore, should be construed in conformity with the case law interpreting those statutes. Moreover, given the language of the Pinellas County Ordinance, it is not necessary for the Petitioner to have filed a claim with the Human Relations Commission or another such body prior to being fired.
In order to prove unlawful retaliation, the Petitioner must show: (1) that she engaged in an activity protected by the ordinance; (2) that an adverse employment action was taken against her; and (3) that a causal connection exists between the activity and the adverse action. See, e.g., Rucker v. Higher Educational Aids Board, 669 F.2d 1179 (7th Cir. 1982); Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980). Proof of this prima facie case may be
direct or, as is more likely, circumstantial. West v. Fred Wright Construction Co., 756 F.2d 31 (6th Cir. 1985). The Respondent then bears the burden of producing evidence that, with reasonable specificity, articulates a legitimate, non-retaliatory reason for the adverse action. See Arnold v. Burger Queen Systems, Inc., 509 So.2d 958 (Fla. 2d DCA 1987). The Petitioner bears the overall burden of persuasion, by a preponderance of the evidence, that the articulated reason either did not exist or was not the motivating reason for the adverse action. The alleged retaliatory motive need not be the sole, or even the primary, motive for the adverse action, but it must be a "but for" motive in the sense that the adverse action would not have been taken but for the Respondent's desire to retaliate against her. McCluney v. Joseph Schlitz Brewing Co., 728 F.2d 924 (7th Cir. 1984). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). The Florida Commission on Human Relations has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985)
As a threshold matter, the Respondent argued that he is not subject to the prohibitions of Pinellas County Ordinance No. 84-10. Respondent's counsel argues that Frank Brown was not the Petitioner's employer, and thus he could not be liable for a violation of the Pinellas County Ordinance. He also argued that Brown was merely a coworker, a fellow employee of the corporation, and thus the Ordinance did not apply to him personally. These arguments have some merit, and Frank Brown individually should be dismissed. Brown was more than a mere coworker, he was Petitioner's direct supervisor and agent of the corporation. Only the company was charged and served process, and Brown responded to the Petitioner's charges as an officer of the company.
Petitioner's employer was Mother & Daughter Cleaning Service, Inc. Significantly in this case as stated above like Chapter 760, Florida Statutes, and Title VII, Pinellas County Ordinance No. 84-10, defines "employer" to include the actual employer, such as a corporation and its agents. As the Florida Supreme Court noted in Byrd v. Richardson-Greenshields Securities, Inc.,
552 So.2d 1099 (Fla. 1989), the United States Supreme Court has "endorsed the position that an actual employer may be liable for sexual harassment done by any supervisory personnel, whether or not these personnel have the authority to hire, fire, or promote, and whether or not the actual employer had an active role in the harassment." Byrd, supra, 552 So.2d at 1103, citing Meritor, supra,
477 U.S. at 64. See also, Sparks, supra, 830 F.2d at 1560 n.10 ("[A]n employer is directly liable for its supervisor's violations of Title VII because those acts are viewed as acts of the employer itself.") The evidence shows that Brown was not merely a fellow employee or coworker of Petitioner's employer. To the contrary, in the present case, the person allegedly perpetrating the harassment was both the Petitioner's supervisor and one of the two corporate officers of the Petitioner's employer.
Thus, Brown was clearly an agent of Mother & Daughter, and thus within the terms of the ordinance, and the corporation can be liable for sexual harassment or retaliation perpetrated by Brown. Furthermore, to the extent that Brown claims only he was personally named in the Petitioner's charge of discrimination, I find that he is mistaken. The charge of discrimination names Brown, "d/b/a Mother & Daughter Cleaning Service," albeit omitting "Inc." Clearly, Brown as an agent for the business entity named in the charge. The specificity demanded in a court pleading is not necessarily required in the administrative arena where a pleading need only be specific enough to inform the accused of the nature of the charges with reasonable certainty. Seminole County Board of County Commissioners v. Long, 422 So.2d 938 (Fla. 5th DCA 1982); Deel
Motors, Inc. v. Dept. of Commerce, 252 So.2d 389 (Fla. 1st DCA 1977). In addition, contrary to Brown's testimony, Brown responded as a corporate officer and on behalf of the corporation in what appears to be the initial response to the charge of discrimination on July 20, 1989. (See Exhibit 1, Letter dated 7/20/89 on Mother & Daughter Cleaning Service, Inc., letterhead signed by Brown in his official corporate capacity.) Thus, to the extent the Petitioner has proven violations of the Ordinance, the corporation is subject to the jurisdiction of the Division.
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsections 120.57(1) and 760.06(3), Florida Statutes, and Rule 22T-8.016(1), Florida Administrative Code and Pinellas County Code, Section 2-17.5.
The Petitioner in this case presented sufficient evidence through her own testimony, corroborated by that of other former employees of the Respondent, and in a number of instances by Brown's own admissions concerning his conduct, to establish that Petitioner was the victim of a hostile workplace sexual harassment.
In addition to the Petitioner, three former employees of Mother & Daughter Cleaning Service, Inc., who had been supervised by Brown testified on the Petitioner's behalf; Joanne Goodale, Joanne's 21 year old daughter, Kelly Goodale, and Evelyn Engle. Counsel for the Respondent did not object to the testimony of either Joanne or Kelly. However, he did object to the introduction of the testimony of Engle described sexual harassment similar to, but in some respects even more egregious than that described by Petitioner on the ground that it was not relevant to Petitioner's claim of discrimination. I find this objection not well taken. The courts have held the testimony of other employees who state that they too were victims of sexual harassment is relevant to another employee's efforts to show a "hostile environment." Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1532 (11th Cir. 1983); Henson v. City of Dundee, 682 F.2d 897, 912 (11th Cir. 1982). See also Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir. 1988); Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987); Jones v. Flagship International, 793 F.2d 714, 721 n.7 (5th Cir. 1986), cert. den., 107 S.Ct. 952 (1987); Bundy v. Jackson, 641 F.2d 934, 940 (D.C. Cir. 1981). Accordingly, I have considered the testimony of the other Mother & Daughter employees, including Engle. Furthermore, I am not persuaded that Engle, who settled her own charge of discrimination against Respondent, is prohibited from testifying in this proceeding by her settlement agreement. The Respondent's counsel read only a part of the agreement at the hearing and did not offer it into evidence. Moreover, the objection on this ground came so late in Engle's testimony that it was effectively waived.
The conduct and incidents described by the Petitioner or her witnesses were not isolated incidents, but an almost constant stream of discourse on the part of Brown. It is not at all difficult to conclude, as the Petitioner testified, that she was offended by this behavior on the part of Brown, and was disturbed by it to the point that she feared going to work, feared that Brown would approach her during non-working hours, and experienced nightmares as a result of his conduct. Thus, it is clear that the conduct affected the state of the Petitioner's psychological well-being, both on and off the job, to such an extent that it constituted a hostile work environment, materially affecting the conditions of her employment.
Furthermore, Brown's protestations, in response to his counsel's questions, that he did not intend to offend the Petitioner, are irrelevant. In fact, he may not have intended to offend her, but rather to entice her. Several of his remarks might reasonably be interpreted as a proposition or invitation to a sexual relationship. The test is not whether Brown intended to offend the Petitioner, but whether his behavior and advances were unwelcome. See Henson, supra. The Petitioner testified that they were unwelcome, and she communicated her disgust to Brown on many occasions.
Brown denied that he complemented Petitioner's body or breasts as "they are not appealing to me." I find this testimony not credible. Brown, who was called to testify first by the Petitioner, initially testified that he never commented on the appearance of his female employees, except when they were "improperly" dressed, i.e., in violation of the company all-white dress code. However, Ms. Goodale testified that once a week or so, he told her she looked nice. Engle also testified to compliments on her looks. When testifying in the Respondent's case, Brown then conceded he complemented female employees' appearances. He also protests too much concerning his view of the Petitioner. He says he did not find her attractive at all. At one point, Brown insisted that if Ms. Glennon were the last woman on earth and he the last man, there would be no procreation. He did admit, however, that he found and finds Engle attractive.
Brown claimed that he was subject to a "daily disgorgement of abuse" heaped upon him by Petitioner. Although this testimony is not credible, it is undisputed that Petitioner occasionally directed offensive language at Brown, and it is probable that in the final weeks of employment, Petitioner's "attitude" in her working relationship with Brown was "cold" and uncooperative. However, even disputatious employees are protected from retaliatory discharge. East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975). Bitter relations with supervisors in such a circumstance are to be expected, and opposition inherently involves an element of disloyalty or insubordination. EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983). Only when the complaining party's activity is "so excessive and so deliberately calculated to inflict needless economic hardship on the employer" is the employee unprotected in her protests. Rosser v. Laborers' Union, 616 F.2d 221 (5th Cir. 1980); cert. den., 449 U.S. 886 (1980); EEOC v. Kallir, Phillips, Ross, Inc., 401 F.Supp. 66 (S.D. N.Y. 1975). The evidence does not show that the Petitioner's activities (e.g., her "coldness" or her isolated outbursts directed toward Brown) met his standard, particularly given Brown's provocative conduct.
Brown's testimony that the Petitioner was fired because of her "attitude" is compelling. It is a reasonable inference from the evidence that the Petitioner's "attitude" was the result of the hostile working environment, rather than the result of gross insubordination, as the Respondent appears to urge. I find that the Petitioner's protests and refusal to acquiesce in Brown' behavior bore the necessary causal link to the Petitioner's discharge. As such, I find that the Petitioner was discharged in violation of Pinellas County Ordinance, Section 2-17.5.
The question then becomes the relief to which Petitioner is entitled. Pinellas County Code, Section 2-17.5-11, titled "Enforcement," states that the Community Relations Board has the authority to award actual damages caused by the violation of the Ordinance and punitive damages where the violation is found to be malicious or in bad faith.
Petitioner testified that after she was fired from her job at Mother & Daughter Cleaning Services, Inc., she secured part-time evening employment at "Excaliber," five days per week from 5:30 to 8:30 p.m., at a wage of $4.00 per hour. The Petitioner could not recall whether she started that job on June 30, 1989 or July 30, 1989. The Petitioner also testified that on August 17, 1989 she secured additional employment at Pinecrest Place at a wage of $4.25 per hour. Her hours of employment were and are 8:00 a.m. to 4:30 p.m., Monday through Friday. The Petitioner received one raise of $.25 after three months and another raise of $.25 after one year. The Petitioner testified that she is still working at both of those jobs. The Petitioner was paid $5.50 per hour for
30 hours per week at Mother & Daughter.
Given the Petitioner's burden of proof, I must accept her starting date at Excaliber as June 30, 1989. Petitioner should be awarded an amount equal to the full wages she would have earned at Mother & Daughter from June 16, 1989 to June 29, 1989. This amounts to $297.00. In addition, she should be awarded the difference between her wages at Excaliber and the wages she would have earned at Mother & Daughter from June 30, 1989 to August 17, 1989, the date she started a second job at Pinecrest Place. This amounts to $704.00.
Although Brown's behavior toward Petitioner was egregious and warrants an award of punitive damages, an ordinance authorizing an administrative award of unliquidated damages is not permitted under the law. Metropolitan Dade County Fair Housing and Employment Appeals Board v. Sunrise Village Mobile Home Park, Inc., 511 So.2d 962 (Fla. 1987) and Broward County v. LaRosa, 505 So.2d 422 (Fla. 1987).
In conclusion, I find that the Respondent, Mother & Daughter Cleaning Service, Inc., did discriminate against the Petitioner in that the Respondent maintained a hostile workplace. I also find that Petitioner protested this unlawful employment practice and was retaliated against by discharge as a result of her refusal to silently endure the atmosphere created by Respondent's agent, Frank Brown. I also find that Brown's behavior was malicious and in bad faith, and that an award of actual damages is appropriate in this case.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which in favor of Petitioner's
FURTHER RECOMMENDED Petitioner be awarded her actual damages in the total amount of $1,001.
DONE AND ENTERED this 10th day of December, 1990, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990.
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Rejected, as conclusion of law: paragraphs II and III (substantially), IV and V Proposed Findings of Fact Submitted by Respondent:
Rejected as irrelevant: paragraph 14 Rejected as against the greater weight of the evidence: paragraphs 1,9,10,11,12,13,16,19 Rejected, as a conclusion of law: paragraphs 4,5,6,15,18
Ronald M. McElrath Manager
233 Third Street North St. Petersburg, FL 33701
J. David Haynes, Esquire
