STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARITA COLL, )

)

Petitioner, )

)

vs. ) Case No. 93-1558

)

) MARTIN-MARIETTA ELECTRONICS ) INFORMATION AND MISSILES GROUP, )

)

Respondent. )

)

RECOMMENDED ORDER

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 December 7, 8 and 22, 1993 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: James Sweeting, III, Esquire

2111 East Michigan Street, Suite 100

Orlando, Florida 32806

For Respondent: Kay L. Wolf, Esquire

GARWOOD & MCKENNA, & MCKENNA, P.A.

815 North Garland Avenue Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether the Respondent intentionally committed an unlawful employment practice against the Petitioner on the basis on her national origin/Hispanic (Puerto Rican) or gender/female (sexual harassment).

Whether Petitioner, a member of a protected class, was removed from her position with the Respondent in retaliation for her filing of a sexual harassment complaint with the Florida Commission on Human Relations on March 12, 1992.

PRELIMINARY STATEMENT

Petitioner filed a Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations on March 17, 1993. The matter was referred to the Division of Administrative Hearings for a hearing de novo and the submission of a recommended order to the Florida Commission on Human Relations.

The original "Charge of Discrimination" was filed on March 12, 1992, with the City of Orlando Human Relations Department. The matter was deferred to the Florida Commission on Human Relations who conducted an investigation and issued a determination.

Respondent filed its Answer and Affirmative Defenses and discovery ensued. Following continuances requested by the parties in order to permit new counsel to prepare for hearing, a formal hearing was conducted in Orlando, Florida on December 7-8, and 22, 1993. At the hearing, Petitioner testified on her own behalf, called three witnesses, Samuel Cortez, Linda J. Reilly, and Walter B. DuBose, and offered three exhibits in evidence. Respondent offered the testimony of three witnesses, and also offered nine exhibits in evidence. Upon conclusion of the testimony on December 22, 1993, the record of proceedings was kept open in order for the deposition testimony of Sharon Savage to be taken.

Her deposition was taken on January 13, 1994. The transcript of the hearing was filed on January 12, 1994 and the transcript of the late filed deposition was filed on February 10, 1994. The record was then closed and the parties provided an opportunity to submit proposed findings of fact and conclusions of law and legal argument in support of their respective positions within twenty days of the filing of the deposition. On February 18, 1994, counsel for Petitioner moved for an extension of time in which to file proposed findings. Respondent did not object. The motion was granted, in part, and Petitioner was directed to file her proposals by March 15, 1994. Respondent filed its proposed recommended order on March 1, 1994. Petitioner filed her proposed findings on March 23, 1994. The proposals of the parties have been given careful consideration and have been adopted in substance when supported by the greater weight of relevant evidence. My specific ruling on the proposals appear in the Appendix attached hereto.

From the record of the proceedings as a whole, including the transcript of the deposition held on January 13, 1994, inclusive of the exhibits admitted into evidence and specifically weighing the testimony of the witnesses and their credibility, the following findings of fact are determined:

FINDINGS OF FACT

1. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied.

   
   

2. Respondent, Martin-Marietta Electronics Information and Missiles Group, is a foreign corporation licensed to do business in Florida which employs more than fifteen employees. Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes.

   
   

3. Petitioner, Margarita Coll, is a female, hispanic, citizen of the United States who resides in the State of Florida. Petitioner is a member of a protected class.

   
   

4. Petitioner was an employee of Hi-Tec Associates, Inc., during all relevant periods, and was a de facto employee of Respondent for approximately four and one-half years.

   
   

5. Petitioner was employed at Respondent company through a temporary agency called Associated Temporary Services and placed with the Respondent on January 5, 1987 as a receptionist/secretary in Martin-Marietta's Fleet Administration Department off Sand Lake Road, Orlando, Florida. Her

   responsibilities included record keeping, filing and helping Respondent's employees with company vehicles. Petitioner reported to the Respondent's Fleet Manager, Linda Reilly. Her day to day work assignments and supervision were received exclusively from the Fleet Manager. Petitioner worked in her position at the pleasure of the Respondent. She was assigned a "buyer" at Martin- Marietta who worked with the requesting department to fashion a position to meet the department's needs. The work was bidded out and awarded to the temporary employment agency who best met Respondent's criteria, on an annual basis.

   
   

6. Over time, Petitioner assumed additional job responsibilities and in June, 1988 received a commendation for exceptional performance from Respondent's supervisors. In an effort to reward her efforts, Reilly successfully upgraded her position, first to Administrative Assistant and then to Fleet Analyst. When she was reclassified as a Fleet Analyst, the contract for her position was awarded to Hi-Tec Associates, Inc., since Associated Temporary Services did not provide technical employees under their contract with Respondent.

   
   

7. Petitioner always worked at Martin-Marietta as a temporary employee and was never employed as a regular employee of the company. As such, she had no company benefits; she was classified as a contract laborer and her services were purchased by purchase order. Petitioner completed no company employment application, was not subject to Martin-Marietta performance appraisals and had no Martin-Marietta employment records or personnel file, other than her contract labor time slips. Petitioner received her pay from Hi-Tec.

   
   

8. In June, 1990, Marilyn Quinonez was placed in the Fleet Administration Department as a Fleet Administrative Assistant by a temporary employment agency. Friction quickly developed between Petitioner and Quinonez. Petitioner believed that Quinonez was hired to assist her and became upset when she would not follow Petitioner's supervision or directions. Quinonez understood that she was to report to the Fleet Manager, and objected to the way Petitioner treated her.

   
   

9. On November 15, 1990, Reilly was laid off by Respondent as part of a reduction in force and was replaced by Joseph LaPak. LaPak observed the bickering between Petitioner and Quinonez and that it continued to escalate over time. In December, 1990, the temporary positions in the department were reevaluated and the contract requirements for both positions were rewritten.

   The titles of both Petitioner and Quinonez were changed to that of Fleet Administrative Assistant. Any language in the contract which called for Petitioner to direct the clerical duties of the department were eliminated.

   
   

10. In the fall of 1991, Quinonez met with LaPak and Wally DuBose to clarify her reporting responsibilities. It was confirmed that Quinonez and Petitioner were to report to the Fleet Manager, and that Petitioner did not have supervisory authority over Quinonez.

    
    

11. Nevertheless, disputes between Petitioner and Quinonez continued. Attempts by management to resolve the problems were unsuccessful.

    
    

12. On February 17, 1992, during the normal lunch hour, an altercation occurred between Petitioner and Quinonez. When Quinonez returned from lunch, she found Petitioner at her computer terminal. Quinonez asked for it back. Petitioner refused and an argument ensued. The two women became so angry and loud that a neighboring supervisor had to come over and separate them. Wally DuBose sent both Petitioner and Quinonez home for the day. Petitioner's immediate supervisor, LaPak was not in the office at the time.

13. DuBose then discussed the matter with his supervisor, Paul Smilgen, and it was decided that Petitioner would be removed from the contract for her failure to work with fellow employees and management, and for general insubordination. LaPak was not involved in the decision to remove Petitioner.

    
    

14. The decision was communicated to Hi-Tec. They, in turn, notified Petitioner that same evening that she was being replaced on the contract and not return to the Fleet Administration Department. Hi-Tec offered to attempt to place Petitioner elsewhere at Martin-Marietta but Petitioner refused because the openings available at the time paid less that the Fleet Administrative Assistant position.

    
    

15. When LaPak first became the Fleet Manager in November of 1990, Petitioner and Quinonez worked in a very small work space. While Petitioner was training LaPak and working on the computer, LaPak's body was frequently close to Petitioner's and she felt pinned in a corner by him. After the initial working relationship was established and LaPak came into Petitioner's work area, he would touch her on her arms or shoulder in order to get her attention.

    
    

16. In December, 1990, Petitioner complained to DuBose about LaPak touching her and making her uncomfortable. Both Petitioner and DuBose talked to LaPak about the fact that Petitioner did not want LaPak to touch her. LaPak honored that request and did not touch her again. He made every reasonable effort to get her attention when he needed to talk to her without touching her.

    
    

17. In October, 1991, Petitioner complained to the Martin-Marietta EEO office that LaPak was sexually harassing her by inappropriate touching. Respondent then conducted an immediate investigation into the allegations and attempted to resolve the matter through internal mediation.

    
    

18. Petitioner's testimony and other witnesses' testimony concerning sexual comments, innuendoes or propositions and inappropriate touching allegedly made by LaPak that occurred between December, 1990 and October, 1991 were inconsistent and are not credible.

    
    

19. Petitioner presented no relevant or material evidence to show that Petitioner was the victim of national origin discrimination.

    
    

20. Respondent's articulated reason for its decision to remove Petitioner from her contract labor position was not based on gender discrimination or national origin discrimination, nor was it pretextual.

    
    

21. Petitioner failed to prove that her termination of employment at the Respondent's company was in retaliation for her complaints of sexual harassment or national origin discrimination.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes and Rule 60Y-4.016(1), Florida Administrative Code.

    
    

23. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964 as amended, 42 USC Section

    2000e et seq. The Florida law prohibiting retaliation is found in Section 760.10(7), Florida Statutes, which essentially narrows the "opposition clause" of the retaliation prohibition found in Section 704(a) of Title VII.

    
    

    I.

    
    

24. The predicate issue that must be resolved in this case, before addressing the merits of Petitioner's discrimination charge, is whether Coll meets the definition of an employee under Title VII. An employee for purposes of Title VII is "an individual employed by an employer . . . ." The definition of the term employee is not restrictive and must turn on the facts of that particular case. E.E.O.C. v. Pettegrove Truck Service, Inc., 716 F.Supp. 1430 (S.D. Fla. 1989). In Pettegrove the court explained that an "economic realities" test is used to determine employee status. Under the test, one important factor for the court to consider is the amount of control the worker has over his or her job. Other relevant considerations include the kind of occupation, whether the work is usually done under a supervisor or is done by a specialist without supervision; the skill required; who furnished the equipment used in the place of work; method of payment; and benefits accumulated. Pettegrove at 1433.

    
    

25. In Barnes v. Colonial Life and Acc. Ins. Co., 818 F.Supp. 978 (N.D. Tex. 1993) the court ruled that the evidence did not establish that an insurance agent was an "employee of the company, thereby barring an employment discrimination claim under Title VII." In Barnes, the court considered the following factors when deciding whether Plaintiff was an employee under Title VII;

    
    

    1. kind of occupation, with reference to whether the work is done under the direction of a supervisor or is done by a specialist without supervision;

    2. skill required in the particular occupation;

    3. source of payment for the office and equipment;

    4. length of time the claimant has worked;

    5. method of payment, whether by time or by the job;

    6. manner in which the work relationship is terminated, whether by one or both parties; with or without notice and explanation;

    7. availability of annual leave;

    8. nature of the work, whether an integral part of the defendant's business;

    9. accumulation of retirement benefits;

    10. payment of social security taxes; and

    11. intention of the parties.

        
        

        Barnes at 980. Florida case law is compatible. Magarian vs. Southern Fruit Distributors, 1 So.2d 858 (Fla. 1941).

        
        

26. In the instant case, Petitioner was a temporary contract employee and not a regular Martin Marietta employee. Therefore, in order for Coll to maintain an action for discrimination against the Respondent, she must show that an employment relationship with Martin Marietta existed, based on the above listed factors.

27. The evidence establishes that the Petitioner was a temporary contract employee with Martin Marietta, whose services were purchased via a purchase order on a year-to-year basis. When the Petitioner began working at Martin Marietta she was placed there by her employer, Associated Temporary Services, a temporary agency, and later became employed by Hi-Tec Associates, Inc., another temporary agency. Petitioner never completed an employment application for Martin Marietta, she received no employee benefits while associated with Martin Marietta and she could be removed from the contract position at any time, based on the terms of the contract between the temporary agency and the Respondent.

    In addition, Petitioner's wages were not paid by Martin Marietta; the Respondent did not pay any social security or federal withholding taxes; and Petitioner recognized that she was not considered an employee of the Respondent and when Martin Marietta asked Hi-Tec Associates, Inc. to remove Petitioner from their contract position in Fleet Administration, Petitioner did not cease to be an employee of Hi-Tec. Following her removal, Hi-Tec offered to attempt to place Petitioner elsewhere, but because all their available openings at the time paid less than what she had been earning while placed at Martin Marietta, Petitioner refused.

    
    

28. However, in looking at the work actually performed by Petitioner, it is apparent that the job description for a Fleet Administrative Assistant was created exclusively for the benefit of Respondent and was an integral part of the Respondent's business; the work performed by Petitioner was at Respondent's facility, using equipment furnished by it, and supervised exclusively by employees of Respondent; and Petitioner worked in the same basic job category for five years. Her position was not simply a temporary fill-in position.

    
    

29. Based on the above factors, Petitioner is an employee as defined by Title VII, and Chapter 760, Florida Statutes, and therefore, has standing to maintain a discrimination charge against the Respondent.

    
    

    II.

    
    

30. Petitioner alleges that she was discriminated against in violation of Title VII based on her national origin/hispanic (Puerto Rican), her sex/female (sexual harassment) and retaliation under 704(a). The Florida Human Relations Act prescribes that employment decisions are to be made without regard to an employee's sex, race, color, religion, national origin or handicap. Section 760.10(1), Florida Statutes (1991) also makes it an unlawful employment practice for an employer to discriminate against a person because of that person's race, color, religion, sex, national origin, handicap, or marital status. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000 et. seq. School Board of Leon County v. Harris, 400 So.2d 103, 108n.2 (Fla. 1st DCA 1981). As such, federal precedent construing the similar provisions of Title VII, should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979).

    
    

31. The applicable model of proof in Title VII discrimination cases is a judicially created scheme established in McDonnell Douglas Corp. v. Green, 411

    U.S. 792, 95 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

    
    

32. Under the McDonnell Douglas model, the Petitioner bears the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination proscribed by Title VII. Petitioner's prima facie case for

    unfair treatment in discharge from employment, which is the closest scenario to the action taken in this case, i.e. the removal of the Petitioner from a contract position, is formulated as follows:

    
    

    1. An employee was a member of a protected class;

    2. the employee was performing in her position to the legitimate expectations and requirements of her employer; i.e., the employee was qualified to remain in her position;

    3. the employee was terminated from employment (or, as in this case, removed from the position);

    4. and other non-protected employees similarly situated with comparable work performance were not terminated (or removed).

       
       

33. If the Petitioner can show a prima facie case, it is the first step in the proof process, and raises a refutable inference as to the alleged discrimination. If the Petitioner succeeds in showing a prima facie case, then the burden shifts to the Respondent, who must present some legitimate, nondiscriminatory reason for Plaintiff's removal (from the contract position). The employer can meet this burden of production by articulating a legitimate, nondiscriminatory reason that is clear, reasonably specific, and worthy of credence. The employer's burden of rebuttal at step two in the proof process is one of production only and the employer does not have to persuade the fact finder that it was actually motivated by the proffered reason.

    
    

34. Once the employer satisfies this burden of articulating the legitimate nondiscriminatory reason, then the focus shifts back to the employee who must then prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. However, a showing of pretext, without more, will not support a finding of discrimination.

    
    

    III.

    
    

35. In the instant case, the essential question, is whether the Petitioner has demonstrated, by a preponderance of the evidence, that the true reason for her removal from the contract position was intentional sex or national origin discrimination or retaliation. This burden of proof was best stated in the case of Nix v. WLCY Radio, 738 F.2d 1183, 35 Fep. Cases 1104, reh. denied 747 F.2d 710 (11th Cir. 1984), as follows:

    
    

    Title VII is not a shield against harsh treatment in the work place [citation omitted] nor does the statute require the employer to have good cause for his decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason [citations omitted]. While an employer's judgement or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given

    reason was a pretext for illegal discrimination. The employers stated legitimate reason . . . does not have to be a reason the judge or jurors would act on or approve. [citations omitted].

    
    

36. The holding from the above-cited Nix decision was recently reaffirmed by the U.S. Supreme Court in St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993). In Hicks, the U.S. Supreme Court ruled that a plaintiff is not entitled to judgment as a matter of law simply because she proves her prima facie case, which shows that the employer's proffered reasons for her discharge are false. The Hicks court held that the plaintiff has the ultimate burden of persuading the fact finder that the employer intentionally discriminated against the plaintiff, and that this ultimate burden remains at all times with the plaintiff (Id at 2747).

    
    

37. In the instant case, Petitioner's claims of national origin discrimination, sex discrimination, and retaliation all fall under the above cited legal standards for proving intentional employment discrimination. It is questionable that Petitioner has a prima facie case, which is necessary as step one in the proof process for employment discrimination. Although, for the purposes of this hearing, Petitioner was an employee of Respondent, she was not performing up to the legitimate expectations required by Respondent. There is substantial record evidence showing that Petitioner did not get along with Marilyn Quinonez, another temporary employee in her department. The differences that the Petitioner had with Quinonez began soon after she came into the Petitioner's department. There is conflicting testimony between the Petitioner and the co-worker as to whose fault it was or why they did not get along. Managers of the department held several meetings with the Petitioner and Quinonez to direct them to improve their working relationship or be replaced. Petitioner, during those meetings, stated that they would not be able to improve their working relationship. Petitioner was encouraged to reconsider her position and to work things out with Quinonez. Notwithstanding this warning, Petitioner's relationship with her co-worker continued to deteriorate until the situation boiled over on February 17, 1992. On that day, Petitioner and Quinonez engaged in a verbal altercation about the Petitioner's refusal to leave her co-worker's desk and to stop working on Quinonez's computer when she returned from lunch. Based on that incident, DuBose, their second level supervisor, decided to remove the Petitioner from the Hi-Tec contract because of the disruption that she continued to cause in the department.

    
    

38. The above facts concerning the removal of Petitioner from the Hi-Tec contract position show that the Petitioner was not performing in her contract position to Martin Marietta's legitimate expectations, and that the Respondent had a legitimate, nondiscriminatory reason for removing her from the contract.

    
    

39. Based on these factors, it is the Petitioner's burden of proof to show that the Respondent was motivated by intentional discrimination when she was removed from the contract position. The evidence from the hearing fails to support Petitioner's allegations that she suffered intentional national origin or sex discrimination, and the evidence does not directly or circumstantially prove the Respondent removed her from the contract position on account of her allegations. Therefore, Petitioner has failed to satisfy her burden of proof for proving discrimination, and her claims should be dismissed.

    IV.

    
    

40. The claim of sexual harassment in violation of Title VII is based on two types of conduct:

    
    

    1. Quid pro quo sexual harassment which occurs when submission to sexual conduct is made a condition of employment; and

    2. hostile work environment harassment, which exists when sexual conduct has the purpose of effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile, or offensive working environment.

    
    

    Jones v. Wesco Investments, Inc., 846 F.2d 1154 (8th Cir. 1988). Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)

    (quoting 29 CFR Section 1604.11(a)(3)(1985).

    
    

41. In Meritor the U.S. Supreme Court held that an employee may establish a violation of Title VII by proving that an employee's employer engaged in discrimination based on sex, including sexual harassment, by showing a hostile or an abusive work environment. Under Meritor, the employee asserting a claim of hostile working environment sexual harassment must prove the following in order to establish a prima facie case:

    
    

    1. That the employee belongs to a protected group,

    2. That the employee was subject to "unwelcome" sexual harassment.

    3. That the harassment complained of was based on sex, and

    4. that the harassment complained affected a "term, condition, or privilege" of employment and that it was "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment."

    
    

    Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987) citing Meritor, 106 S.Ct. at 2406.

    
    

42. Recently, in Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the U.S. Supreme Court again addressed the standard for what constitutes an abusive work environment sufficient to show sexual harassment.

    In Harris, the U.S. Supreme Court, citing Meritor, held that a "hostile" or "abusive" work environment can only be determined by looking at all of the circumstances in the case. The factors that the Harris court listed to determine whether or not a hostile or abusive work environment exists, include: frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with the employee's work performance.

    
    

43. In the instant case, Petitioner has failed to prove a prima facie case of hostile working environment sexual harassment, and there is no evidence or even allegations which would indicate that Petitioner was subjected to the quid pro quo form of sexual harassment. The sexual harassment that the Petitioner testified she was subjected to generally concerns whether her supervisor was too close to her or touched her on her shoulders, arms and back, while he was near her. Petitioner testified that her supervisor's closeness was uncomfortable for

    her and that she was "disgusted" when he touched her. Most of the Petitioner's testimony about her supervisor's touching concerned incidents which allegedly occurred in late 1990 and early 1991, before the Petitioner confronted Joe LaPak, her supervisor, and requested that he refrain from touching her. The only other alleged incident that Petitioner testified about concerned an allegation that Petitioner's supervisor grabbed her waist and touched her back side while she was filing documents. This alleged incident occurred when the supervisor tried to pass behind Petitioner while she was filing, instead of waiting until her filing was finished. In addition to the alleged touchings, Petitioner alleges that her supervisor made some sexual remarks and that he indirectly inquired about going out with the Petitioner when she was separated from her husband.

    
    

44. The Petitioner's testimony about the alleged incidents of sexual harassment was unspecific, inconsistent and unsupported by the testimony of other credible witnesses at the hearing.

    
    

45. Under the Meritor and Harris standards for sexual harassment, the Petitioner has failed to show a prima facie case. The alleged conduct occurred infrequently, if it occurred at all; it was inoffensive as it generally concerned the mere touching of the Petitioner's shoulders, back and arms, and there is no evidence that it interfered with Petitioner's work performance. Therefore, Petitioner's claim of hostile work environment sexual harassment must be dismissed.

    
    

46. In certain instances, several alleged incidents of sexual harassment have been found not to be severe or pervasive enough to create an abusive working environment, therefore barring an employee's Title VII claim. In Weiss

    v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333 (7th Cir. 1993), an employee filed a sex discrimination claim against her former employer and former supervisor under Title VII and the Equal Pay Act. The Plaintiff claimed that her supervisor asked her for dates, called her a "dumb blonde", put his hand on her shoulder several times, placed "I love you" signs in her work area and attempted to kiss her in a bar. The court held that the employee failed to state an actionable claim under Title VII with regard to discharge or sexual harassment. The court reached its holding by concluding that the alleged acts of sexual harassment were not severe or pervasive enough to alter the conditions of the victim's employment and/or to create an abusive working environment. The court deemed the incidents in the case to be relatively isolated and, even if taken as true, not enough to support the standard for actionable sexual harassment.

    
    

47. Even if the Petitioner's allegations in the instant case are true, there is still not enough evidence to meet the standard for actionable sexual harassment, based on the above cited case law. In the instant case, Petitioner's only consistent and clear testimony claimed that LaPak would get too close to her and touched her on her shoulders, arms and back, and in the one instance, he allegedly briefly grabbed her waist as he walked behind her. If those incidents occurred as the Petitioner claimed, they would be considered isolated occurrences during a fourteen (14) month period, from November 1990 through February 1992. Thus, given the incidents' brevity, lack of severity and small number, Petitioner's claim for sexual harassment must be dismissed.

    V.

    
    

48. In determining whether an employer's response to a hostile environment sexual harassment claim was "prompt and adequate", courts consider several factors. First, they examine whether the employer investigated the alleged acts of harassment and the type of investigation that the employer conducted. In addition, the courts consider the post-investigation remedial steps that the employer took concerning the alleged harassment. Another factor considered by the courts when determining sexual harassment liability is the existence of a grievance procedure and a policy against sexual harassment. Giordano v. William Paterson College, 804 F.Supp. 637 (D.N.J. 1992) Citing Meritor, 477 U.S. at 72, 106 S.Ct. at 2408.

    
    

49. In the instant case, Respondent can not be found liable for hostile environment sexual harassment based on the Respondent's timely investigation of the Petitioner's sexual harassment claims. There is no evidence in the record which would show that the Respondent ignored or failed to investigate Petitioner's alleged discrimination. Petitioner alleges to have complained to management and to the company's EEO office about the alleged harassment. Petitioner's allegations were investigated by the Respondent, and meetings were held with the appropriate management officials who reaffirmed the company's sexual harassment policy and warned LaPak of the consequences of such touching as had been alleged by the Petitioner. The Respondent's investigation of the alleged harassment determined that there was no merit to the Petitioner's claims. In addition, the Respondent followed up with the Petitioner after its investigation to ascertain whether the alleged harassment had discontinued, at which time the Petitioner assured the Respondent's EEO officials that the harassment had stopped. Therefore, based on the Respondent's response to the allegations of sexual harassment, there is no basis to find the Respondent liable for sexual harassment.

    
    

50. Thus, there is no evidence that the Petitioner was treated any differently from employees who had not engaged in protected activity. For this reason, a causal connection has not been established between the filing of the Petitioner's charge and her subsequent discharge.

    
    

    VI.

    
    

51. Furthermore, the Petitioner apparently relies upon the fact that her termination occurred in the course of events after her filing of a charge. As proof of retaliation, however, such circumstances and even a relatively short passage of time between the filing and the subsequent termination is not sufficient without more to meet the causal link requirement of the prima facie case. McNeil v. Greyhound Line, 31 FEP Cases 1068 (S.D. Fla. 1983). The Company has provided substantial and relevant evidence to establish a valid business and nondiscriminatory reason for its decision to terminate the Petitioner and under the McDonnell Douglas-Burdine test, the burden of proof shifts to Petitioner to establish by a preponderance of the evidence that the Respondent's proffered reason for its adverse personnel action (termination) is pretextual. The Petitioner has failed to do so. The Petitioner did not establish that she was treated differently or less favorably than other employees in the same or similar circumstances. She was likewise unable to establish any other evidence or inference which would tend to prove that the reasons and purposes articulated by the Respondent were other than as presented. It follows then that Petitioner has failed to establish the requisite causal

connection between her protected activity of filing a claim on sexual harassment/national origin discrimination and her subsequent termination from employment.

RECOMMENDATION

Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is

RECOMMENDED:

That a Final Order be issued in which the Charge of Discrimination is DENIED and the Petition for Relief is DISMISSED.

DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings of Fact.

Accepted in substance: Paragraphs 1, 2, 3, 4, 5(in part), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 13, 14(except as to date of hire), 15(in part), 16(in part), 18(except as to the date of the counseling session), 19(except as to the date of the counseling session), 20, 21(in part).

Rejected as against the greater weight of evidence: paragraphs 5(in part: Petitioner was first a contract employee with Associated Temporary Services), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 15(in part), 16(in part), 17.

Rejected as immaterial, irrelevant or subsumed: paragraphs 11, 12, 21(in part).

Respondent's Proposed Findings of Fact:

Accepted in substance: paragraphs 1, 2, 3, 4(in part), 5, 6(in part), 7,

11(in part), 12, 13, 14(in part).

Rejected as argument or a conclusion of law: paragraphs: 9, 10, 15, 16,

17.

Rejected as irrelevant, immaterial or subsumed: paragraphs 4(in part), 8, 11(in part), 14(in part).

Rejected as against the greater weight of evidence: paragraph 6(in part).

COPIES FURNISHED:

Kay L. Wolf, Esquire

John M. Finnigan, Esquire GARWOOD, MCKENNA & MCKENNA, P.A.

815 North Garland Avenue Orlando, Florida 32801

James Sweeting, III, Esquire 2111 East Michigan Street Suite 100

Orlando, Florida 32806

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-001558

Orders for Case No: 93-001558