STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLVIA DEWALT, )

)

Petitioner, )

)

vs. ) Case No. 93-5974

) LOCKHEED SPACE OPERATIONS COMPANY, ) and BENNIE DOUGLAS, DERALD ROTH, ) WILLIAM E. BROWN, )

)

Respondents. )

)

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 March 2, 3, 4, and April 12, 13, 14, 1994, in Titusville and Cocoa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Susan Erlenbach, Esquire

Erlenbach & Erlenbach

503 South Palm Avenue Titusville, Florida 32976

For Respondents: Peter J. Hurtgen, Esquire Lockheed SO Co. David M. DeMaio, Esquire Bennie Douglas, Morgan, Lewis & Bockius

Derald Roth 5300 Southeast Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2339

For Respondent: William R. Clifton, Esquire William E. 412 Brevard Avenue

Brown Cocoa, Florida 32922 STATEMENT OF THE ISSUES

Whether Petitioner was sexually harassed, wrongfully transferred and denied overtime in her position at Respondent's facility because of her sex and national origin, Philippino, in violation of Section 760.10(1)(a), Florida Statutes.

Whether Petitioner was subjected to a hostile work environment condoned by Respondent, due to her sex or national origin, in violation of Section 760.10(1), Florida Statutes.

Whether Petitioner was subjected to the unlawful employment practice of retaliation for making a charge of alleged sexual and/or national origin discrimination, in violation of Section 760.10(7), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations on August 30, 1991. Following action by the Commission, a Petition for Relief, dated October 13, 1993, was filed with the Commission and was transmitted to the Division of Administrative Hearings on October 21, 1993 for hearing. Following an order granting Respondent's motion to extend time for the filing of a responsive pleading, Respondent LSOC filed its Answer and Affirmative Defenses to Petitioner's Petition on December 1, 1993. Respondents Douglas and Roth filed their responsive pleadings on December 20, 1993. Ruling on their motion to dismiss was reserved until this order. Discovery followed and this hearing was held.

At the hearing, Petitioner testified in her own behalf, called 12 witnesses, plus 3 rebuttal witnesses, and introduced 26 exhibits in evidence. Respondent's motion to exclude the testimony of two witnesses for failure to disclose during discovery was granted. Petitioner proffered their testimony but it has not been considered herein. Petitioner's exhibits (marked for ID) 12, 37, and 39 were withdrawn. Respondent's Motion in Limine was granted as to exhibits (marked for ID) 16 and 36. Respondent Brown testified in his own behalf and called one witness. Respondent LSOC offered the testimony of 9 witnesses, and entered 7 exhibits in evidence. The transcript of the proceedings was filed on July 13, 1994. The parties each filed proposed findings of fact and conclusions of law and have been given careful consideration. My specific rulings on the parties' proposals are set forth in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Lockheed Space Operations Company ("LSOC"), is an employer within the definition found in Section 760.02, Florida Statutes.

   
   

2. Sylvia Dewalt (Petitioner) is an "employee" of LSOC as defined in Section 760.02, Florida Statutes, and has been employed by LSOC since 1983.

   
   

3. Petitioner is an adult female, and a naturalized U.S. citizen of Philippino descent.

   
   

4. Petitioner works as a communications technician presently on the third shift in LC-39 Operations, which operates and maintains the voice communications system for ground operations in connection with the Space Shuttle orbiter program.

   
   

5. Dewalt worked on the first shift at that location from 1983 until November 5, 1990 (except for 8 to 10 months in 1985), and again from July, 1991 until April, 1992.

6. During the latter part of 1990, Respondent William E. Brown was Dewalt's lead technician on the first shift. A lead technician is an hourly wage employee and is not a supervisor, but is responsible for assigning work to the other technicians on the shift and insuring that it was completed in a timely manner. Brown is not an "employer" within the definition of Section 760.02, Florida Statutes, but was an agent of Respondent LSOC.

   
   

7. Vernon "Sonny" Whitten was the supervisor of the first shift and an employee and agent of LSOC at all times relevant.

   
   

8. Respondent Benny Douglas was Petitioner LSOC's second level supervisor beginning in the spring of 1990. He supervised, among others, Whitten and Len Adcock, the supervisor of the third shift. Prior to 1990, Petitioner's second level supervisor was Rod Langley, who retired.

   
   

9. Respondent Derald Roth was the Respondent LSOC's manager of voice systems and was Benny Douglas' supervisor at all times relevant.

   
   

10. Prior to October, 1990, Petitioner experienced various comments, proposals and name-calling related to her sex and national origin by other employees during her employment with Lockheed. However, she has not reported these incidents since they did not affect her position as a technician.

    
    

11. In LC-39 Operations, for many years through October of 1990, posters of women in skimpy clothes have been displayed in the locker room within the view of supervisors. A locker displaying photographs of naked and skimpily clad women was posted on the inside of a technician's locker and was left open and in full view of female employees including Petitioner, who found them to be demeaning to women.

    
    

12. Additionally, in LC-39 Operations, male technicians would refer to females as bitches, and use other negative language about women, such as "my old lady, the bitch at home, or that F woman." Frequently, they would openly discuss sexual topics regarding women.

    
    

13. Petitioner found this language offensive and occasionally reported it to her supervisors. It was commonly known that she objected to offensive language used in her presence.

    
    

14. The day shift supervisor did not chastise individuals concerning their use of degrading language about women, although the language took place in his hearing.

    
    

15. Neither the day shift supervisor nor Douglas instructed that the photographs or posters of women be taken down or covered.

    
    

16. In 1985, when both Petitioner and Respondent Brown worked together on third shift, Brown grabbed Petitioner on the inner portion of her right thigh, closer to her pelvis than to her knee. Petitioner got upset and told him not to touch her anymore.

    
    

17. After Petitioner objected to Brown about his touching her, Brown's disposition toward her changed. He became easily upset with Petitioner. He would question her response time on a job, and follow her around. Brown even appeared to be obsessed with Petitioner.

18. Petitioner left the third shift in 1985, in part, due to the problems with Brown.

    
    

19. In 1985, when Douglas was employed as an engineer, without supervisory responsibilities, he would come on the third shift on occasion to support major testing and validations.

    
    

20. Douglas jokingly asked Petitioner to sit on his lap several times. Each time Petitioner told Douglas that she was not going to sit on his lap. Sometimes she ignored Douglas and simply walked away.

    
    

21. After Douglas became a supervisor and prior to October 10, 1990, Petitioner experienced what she perceived to be additional unwanted sexual attention from Douglas. This occurred in the form of another request to sit on his lap; an invitation to go on a dive trip to the Keys with him and, during the summer of 1990, having him touch her on her arm. Petitioner objected to these actions by Douglas.

    
    

22. Petitioner's employment evaluations showed her to be a high level performer with no productivity or attendance problems. Petitioner has received numerous commendations, both individually and as a team member, during her employment with Lockheed.

    
    

23. Prior to October, 1990, Petitioner had served as a temporary lead technician numerous times, resulting in a temporary pay increase of 50 cents per hour on each occasion.

    
    

24. Prior to October 1990, for two years, Petitioner "specialized" by working on a daily basis in CCR, the communications control room, also known as "the console".

    
    

25. Other technicians who specialized were Larry Skidmore, assigned to bridges; Mike Stevens, assigned to the pad; and Jerry Bennington, assigned to OISD.

    
    

26. On October 10, 1990, Petitioner was confronted by Respondent Brown. He was upset by a rumor he had heard and called Petitioner names including "bitch, pineapple picker, and split tail." He flailed his arms at her in anger and physically backed her into a corner, causing her to feel helpless and very scared.

    
    

27. Petitioner was offended by the assault and found these terms degrading of her gender and nationality. Petitioner was able to extract herself from the room.

    
    

28. Petitioner reported Brown's actions to her supervisor Sonny Whitten about an hour later. Whitten said he would look into the situation.

    
    

29. Brown was known to be short-tempered and loud with all technicians, both male and female, whom he felt were not performing adequately. In fact, two other technicians on the first shift, Henry Eddleman and Kevin DuBois, had also complained to Whitten that Brown yelled at them. Eddleman and DuBois are white males.

30. Later that day, October 10, 1990, Brown, Whitten and Bennie Douglas met concerning several complaints they had received about Brown's demeanor toward other communications technicians. Brown demanded to "meet his accusers". Petitioner was standing in the next room and was brought in to the meeting.

    Upon being questioned, Petitioner explained in detail what had occurred earlier in the day. Brown, still upset, called Petitioner a "prima donna". He was verbally corrected for making this remark by Whitten. At the end of the meeting Brown and Petitioner were asked if they could work with each other. They said yes and the matter appeared to be resolved and the incident was not documented.

    
    

31. However, during the next two days, Brown's demeanor toward Petitioner became jittery, short-tempered, upset and snappy. He paced a lot and acted like he was ready to explode. He was constantly shifting all the time.

    
    

32. On October 12, 1990, Brown approached Petitioner, who was working on an updated prints project. He demanded that Petitioner stop what she was doing, and do a calibration run. Petitioner responded by asking if she could finish what she was doing or if Brown could get someone else to do the task. Brown became very agitated and went directly to the supervisor about her. By the time Whitten approached her, Petitioner was at a stopping point in doing the prints. Whitten simply told her she could go do the calibration run at this time, which she did. Supervisor Whitten did not reprimand or correct Petitioner.

    
    

33. During the period of time that Brown was acting in an agitated and upset manner toward her, Petitioner went to her supervisor Sonny Whitten to state that she was afraid that Brown was going to hit her due to his demeanor and past violent history.

    
    

34. Whitten's response was nonchalant and he stated, "oh well, if he hits you, it will solve all our problems."

    
    

35. Petitioner approached Whitten again the next work day and again expressed her fear of Brown. She advised Whitten that she understood that Brown had knocked the teeth out of his previous victim. Again, Whitten appeared unconcerned and stated that it doesn't take much to lose a few teeth.

    
    

36. In light of the continued threat posed by Brown, Petitioner requested at a meeting with supervisors Adcock, Whitten and Douglas, that the incident of October 10, 1990 with Brown be documented and that she be given a copy of the report. Adcock agreed that the incident should be documented. Douglas strenuously disagreed. He stated that it was a first time incident and he would not document it. Douglas further stated that he checked with EEO and they stated that the term "prima donna" was not a discriminatory statement. Adcock reminded Douglas that Brown had harassed Petitioner in the past and this was not a first time incident. Douglas still refused to document the incident.

    
    

37. Lockheed's supervisor's handbook requires that a verbal warning be documented by a memo entitled an AVO. The supervisor's handbook also lists offenses which would be grounds for termination.

    
    

38. At a separate meeting with Adcock shortly thereafter, Douglas referred to the dispute between Brown and Petitioner as "a pissing contest". He stated angrily: "That little bitch doesn't tell me what to do", referring to Petitioner. This was repeated by Douglas several times, sometimes with the term "Philippino Bitch" used.

39. Brown used derogatory language about Petitioner during this time period in the presence of Len Adcock, referring to Petitioner as "a pineapple picker, a split tail, that Philippino bitch". He repeated the comments in front of supervisor Sonny Whitten, stating "This split-tail is going to ruin the outfit." He also stated them in front of Gerry Patten, calling her a "Philippino, wet-back, green-card carrying bitch."

    
    

40. Brown's denial that he used this language in reference to Petitioner is unworthy of belief. Brown's testimony that he considered Petitioner his friend is not credible. During the period of time between July, 1990, and the fall of 1990, Brown spoke outside of the workplace about Petitioner in a negative way on a continual basis. He spread the rumor stating that Petitioner was having an affair with her supervisor and for that reason received special favors at work.

    
    

41. At this same time, late October, 1990, a rotation policy was instituted by management for the first shift in LC-39 Operations. The purpose of the policy change was to train technicians to become proficient at various tasks. Only lead technicians and one senior technician at each job experienced enough to train others were allowed to "specialize" - that is, do mostly one type of job and not rotate. This would remove Petitioner from her work assignment. She was the only technician who was specializing who would be pulled off of her normal assignment and she was the only female technician who was specializing.

    
    

42. Pursuant to Lockheed policy, Petitioner contacted her next level supervisor, Derald Roth about documenting the incident with Brown and about her concern about being the only specializing technician to be pulled from her assigned area. Roth stated that he agreed with and would support Bennie Douglas's position on both counts.

    
    

43. Petitioner next went up the chain of command to Brad Wilkinson to ask for documentation of the October 10th Brown incident and about the specialization issue.

    
    

44. Wilkinson refused to document the incident and stated that Brown had been given a verbal warning and that they would assign Brown to the pad to separate him from Petitioner. Petitioner requested a meeting with her next level of supervision and to Respondent's Equal Employment Opportunity (EEO) officer Leroy Scott and company counsel, Dennis Diemoz.

    
    

45. At the same time Petitioner was requesting a written reprimand of Brown, she began expressing to Whitten that she feared physical violence from Brown. This fear for her safety was confirmed when Petitioner's husband called Douglas a few days later.

    
    

46. Douglas moved to immediately separate the two by temporarily transferring Brown to another position in LC-39 Operations which was temporarily vacant.

    
    

47. Shortly thereafter, Douglas' supervisor, Roth, met with his superiors, employee-relations managers, and union officials to discuss a solution to the Petitioner/Brown conflict. The International Brotherhood of Electrical Workers (the Union), which represented both Petitioner and Brown, took the position that Brown could not be unilaterally transferred because he had not been found guilty

    of any offense. The Union indicated that if any transfers were to be made, both employees should be transferred, and, further, since Brown was the more senior of the two, he should be given first choice of assignments.

    
    

48. Petitioner was then called to a meeting with her union steward and Roth. Roth told her that "all of this had to stop", and that she would be transferred to the shops area for a six month's "cooling down" period. Brown was to be transferred as well.

    
    

49. Roth stated that when he said "all of this had to stop", he was referring to Petitioner's going up the chain of command asking for documentation of the incident between herself and Brown.

    
    

50. Roth viewed both transfers as a form of discipline; and stated that Petitioner being disciplined for the "allegation that was not totally proven" and that she had been insubordinate.

    
    

51. At no time did Roth communicate to Petitioner that she was being disciplined for being insubordinate. The transfer AVO stated that Petitioner was being moved to "maintain productivity and improve day-to-day operations."

    
    

52. On November 5, 1990, Brown and Petitioner were transferred out of LC-

    39 Operations. The transfers were to be for six months, at which time Brown and Petitioner would be permitted to transfer back into LC-39 Operations.

    
    

53. Petitioner was transferred to Voice Systems Shops (Shops) and Brown to the Communications Distribution and Switching Center (CD&SC). The hourly rate of pay remained the same for each following the transfer.

    
    

54. Douglas told Len Adcock that if Petitioner did not "learn who's boss, she may never come back. If she's not a good girl, learn to be a good girl and knows who's boss. . . .

    
    

55. Later, Douglas reiterated to Adcock and Whitten, that "no way we're going to bring her "Petitioner" back, shes got to be -- learn to be a good girl."

    
    

56. Roth told Len Adcock that until Petitioner had learned her lesson and was a good girl she would not come back to LC-39 Operations and referred to the dispute between Petitioner and Brown as a "pissing contest".

    
    

57. When Len Adcock again tried to talk to Douglas about Petitioner's transfer and suggested that Douglas might be motivated by Petitioner having rebuffed Douglas's past advances, Douglas threatened Adcock, saying that he [Douglas] and Roth could take care of Adcock too. They had lots of things on Adcock. He should stay out of it and behave himself.

    
    

58. The sexually aggressive acts of Douglas were reported to EEO Officer Leroy Scott by Petitioner in December, 1990 or January, 1991 and by Len Adcock in January, 1991. LeRoy Scott acknowledged these disclosures in a memo to Gene Stone, Dennis Diemoz and Frank McTernan, dated 1-23-91, but produced no internal memorandum concerning the disclosures nor did he institute any investigation.

    
    

59. Douglas threatened technician Addison in approximately January, 1991, about vocally supporting Petitioner and that if Addison continued to do so, he could figure on having problems with it.

60. The transfer of Petitioner and Brown did not result in their physical separation as intended, as they were both moved to the same end of the Space Center. Due to his new job assignment, Brown turned up in Petitioner's area two or three times per week. When Brown was in Petitioner's work area, he would walk nearby and glare at her, making her feel uncomfortable.

    
    

61. If Brown had moved and Petitioner had stayed in LC-39 Operations, they would have been separated by approximately five miles and would have had minimal or no contact.

    
    

62. Petitioner immediately objected to her transfer and requested a transfer back to LC-39 Operations.

    
    

63. Petitioner continued to object to the failure to document the Brown incident and the transfer, by seeking a meeting with the EEO officer LeRoy Scott. Scott was unable to give her a reason that she had been transferred and stated he would look into it.

    
    

64. Petitioner brought Ray Pittman and Addison with her to a meeting with Scott to document that she had previously been harassed by Brown and by Douglas, and to explain that she believed her transfer was a form of retaliation. Scott informed Petitioner for the first time at the second meeting that she had been transferred because of her "subjective fear" of Brown. Scott was advised that this was not a solution because Brown had plenty of access to Petitioner while she was in Shops.

    
    

65. In written form, Scott told Petitioner that in order to be considered for a transfer back to LC-39 Operations that she should "do the best you can in your present assignment and avoid any contact that may exacerbate the situation."

    
    

66. Petitioner next contacted company counsel, Dennis Diemoz, via the company hotline. Diemoz was informed of the history of the situation by Petitioner, including the fact that Brown had called her names, and that, after the transfer, she was still in close proximity to Brown. Petitioner was the first one to bring it to the attention of Deimoz that she was still in close proximity to Brown.

    
    

67. Nonetheless, several more months passed between Petitioner informing Deimoz of the fact that Brown was still in close proximity to her and Petitioner being moved back to LC-39 Operations.

    
    

68. Ultimately, after proceeding up the chain of command, hiring an attorney, filing a complaint with the Florida Human Relations Commission, Petitioner was returned to LC-39 Operations on July 1, 1991. The re-assignment was 8 months after she was originally transferred and at least five months after Dennis Deimoz was on notice that the transfer had not resulted in a physical separation of Brown and Petitioner.

    
    

69. In the meantime, persons with less seniority than Petitioner were allowed to transfer into LC-39 Operations, including Carole Chauncey, who had eight years less seniority than Petitioner.

    
    

70. Brown has stayed in the position at CD&SC, and has not returned to LC-

    39 Operations.

71. After returning to LC-39 Operations, Petitioner was subjected to a hostile work environment and retaliatory acts in the following manner:

    
    

    1. Douglas and Whitten treated the Petitioner in a cold unfriendly manner, ignoring her presence, and failing to offer any normal civil greetings to her.

       
       

    2. The "welcome back" banner which was hung up by Petitioner's fellow technicians was torn down by Respondent Douglas within an hour of it being put up. During the same period, a male co-worker's "welcome back" banner was left up for seven days, upon his return from Desert Storm.

       
       

    3. On July 1, 1991, the day that Petitioner returned to LC-39 Operations, supervisor Sonny Whitten began keeping a journal which focused primarily upon the activities of Petitioner. Later, after Carole Chauncey complained about misconduct by Mike Evolga, another technician, he kept a journal about Chauncey as well.

       
       

    4. Petitioner was approached and chastised by Supervisor Whitten for not being at her work station immediately at 7:30 a.m., when other coworkers who were in Room 2R14 talking and having coffee were not similarly chastised. Later in the same day, Whitten and Douglas approached Petitioner and asked if she had a problem following the rules regarding work hours.

       
       

    5. Petitioner was the only technician who was previously specializing who was subject to the "training rotation" schedule, implemented by Roth and Douglas in late October 1990. Other specializing technicians, who were all males, Jerry Bennington, Mike Stevens and Larry Skidmore, were allowed to continue to specialize and were not required to rotate work stations. Coincidentally, the rotational training program which had been in the works prior to Petitioner's transfer was not implemented until Petitioner's return to LC-39 Operations in July, 1991. None of the male technicians previously identified as specializing [Bennington, Stevens & Skidmore] were placed upon the rotation schedule and Petitioner was the only specializing technician subject to the rotation requirement.

       
       

    6. Petitioner was denied the opportunity to recoup her overtime that she would have received if she had not been involuntarily transferred, although the department had voted that anyone who had left on an involuntary basis would be able to get their hours back. A male technician who had left the department during Desert Storm was allowed to recoup his hours; Petitioner was not, under the orders of Bennie Douglas.

       
       

    7. Petitioner was twice denied to serve as temporary lead, with enhanced pay, due to a vacillation in the rules about how the temporary lead was selected. However, Petitioner was compensated for the loss in pay for the error made in the first instance.

       
       

    8. Finally, in March of 1992, Petitioner was linked to an investigation of missing "Triflow", a lubricant, which focused on some cans of the lubricant ordered by Len Adcock and allegedly picked up by Petitioner. The investigation of this matter disclosed that the Triflow had never been received in the supply department and therefore was not missing. However, the suggestion by management that she was somehow linked with allegedly stolen supplies, upset the Petitioner and induced her to transfer to third shift for protection from further retaliatory acts.

    9. The "Triflow" investigation was instituted on the same day that Lockheed employees including Sonny Whitten, Derald Roth and Bennie Douglas met with LeRoy Scott to review Petitioner's FCHR complaint and to begin to formulate their responses.

       
       

    10. Shortly after Petitioner transferred to third shift, the training rotation was discontinued.

        
        

72. Upon Petitioner's transfer to third shift, hostile acts continued as follows:

    
    

    1. The Petitioner exercised her option to work a "flex time" schedule, meaning that she would come in during the latter portion of the second shift and then leave work before the conclusion of third shift. The normal practice was for preshifters to check in with the lead technician; however, Petitioner was instructed by the shift supervisor Chuck Ehrhardt, that Ehrhardt needed to hear her voice, and that he could not accept her lead tech's word that she was on the premises.

       
       

    2. A male preshifting employee, John Wolff, was not required to personally check in with Ehrhardt on a day to day basis.

       
       

    3. Douglas came onto third shift and made inquiries about Petitioner's use of sick time, the reason for her preshifting and questioned how she got along with her coworkers. He further demanded to have Petitioner's unlisted home telephone number. Douglas did not make such inquires about any other third shift technician.

       
       

    4. Douglas harshly admonished Petitioner and threatened to write her up for insubordination because she did not correctly follow a newly implemented procedure on the handling of PRACAs. However, the procedure was not put in writing until after both of the allegedly incorrect PRACAS had been completed by Petitioner.

       
       

73. Douglas referred to Petitioner as a "non-cooperative non team playing bitch", in the presence of technician Gerry Patten. On another occasion, he referred to Petitioner as a bitch in the presence of Patten in connection with a discussion of the PRACA procedure, saying "I'm going to make this bitch do as she is told."

    
    

74. Petitioner repeatedly reported the actions she was experiencing to company counsel, Dennis Deimoz, and to LeRoy Scott.

    
    

75. Douglas used sexual innuendo, ridicule and demeaning comments about women in the presence of another female technician, Carole Chauncey, in LC-39 Operations, which caused her to feel uncomfortable and humiliated.

    
    

76. Although Carole Chauncey discussed these allegations against Douglas with LeRoy Scott of EEOC and Robert Granger of Human Resources, no formal investigation was done.

    
    

77. Carole Chauncey complained to her supervisor, Sonny Whitten, sometime in the early 1990s that Mike Evolga, another technician, was making sexual gestures to a female gate guard and that Evolga was "out of control". Douglas stated to Whitten in the presence of Chauncey several days later that gestures do not constitute harassment according to Lockheed attorneys, and no further inquiry into the matter was conducted.

78. Technician Mike Evolga referred to women as "dumb broads", and "damned broads" in the presence of supervisor Sonny Whitten without Whitten admonishing Evolga about making such denigrating remarks.

    
    

79. In November of 1991, Chauncey met with Robert Granger, of the Human Resources Department of Lockheed and made complaints about sexual joking and innuendos in LC-39 Operations and management condoning it. Granger apprised LeRoy Scott of these facts and was not instructed to conduct any further investigation.

    
    

80. Vicki Weekes, who became Sonny Whitten's secretary in November of 1993, was warned by Whitten that LC-39 Operations was a male working environment and that a lot of women had gone to EEO over a lot of little things and he did not want any of this EEO "crap".

    
    

81. Management in LC-39 Operations have been advised that photos and posters of scantily clad women, which are visible in the workplace, are offensive to women. Nevertheless, they did not see the problem and have allowed the practice to continue.

    
    

82. The Petitioner was damaged in that she lost overtime pay in an amount of approximately $7,000.00, plus interest, by virtue of being transferred out of her department and then deprived of the opportunity to recoup her overtime upon returning to the department.

    
    

83. The Petitioner has incurred attorney's fees and costs in bringing this action, of a total amount to be determined at a supplemental proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

84. 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.

    
    

85. Petitioner Sylvia Dewalt is an "aggrieved person" as defined by Florida Statutes Section 760.02(10) who is female and whose national origin is Philippino. Petitioner timely filed her Petition for Relief with the Florida Commission on Human Relations, prior to the effective date of the Florida Civil Rights Acts of 1992.

    
    

86. Respondent Lockheed Space Operations Company is an employer as defined by Section 760.02(7), in that the Company employs more than 15 persons, including those employees who work in LC-39 operations at the Kennedy Space Center.

    
    

87. Respondent Bennie Douglas is a "person" as defined by Section 760.02(6). He is the supervisor of four supervisors, including the three shift supervisors of LC-39 Operations for Respondent Lockheed. Douglas is an agent of his employer, Lockheed.

    
    

88. Respondent Derrold Roth is a "person" as defined by Section 760.02(6), and is the manager of voice systems, who is manager over Bennie Douglas. Roth is an agent of his employer, Lockheed.

89. Respondent William E. Brown is a "person" as defined by Section 760.02(6), and was the lead technician on day shift in LC-39 Operations. For purposes of this case, Brown is an agent of Respondent Lockheed.

    
    

90. Roth, Douglas and Brown are "supervisory employees" who are not subject to individual liability under Chapter 760, Florida Statutes; although they are agents of Respondent LSOC. Busbey v. City of Orlando, 931 F.2d 764, 722 (11th Cir. 1991); see also: Grant v. Lone Star Company, 21 F.3d 649 (5th Cir. 1994).

    
    

91. The Petitioner contends that she was unlawfully transferred, denied overtime and subjected to a hostile work environment by the Respondent because it unlawfully discriminated against her due to her sex (female) and national origin (Philippino). The petitioner relies on the Florida Human Rights Act of 1977, Section 760.10, et seq., Florida Statutes (1989). The Human Rights Act prohibits certain specified unlawful employment practices and provides remedies for such violations. That statute provides, in pertinent part, as follows:

    
    

    760.01 PURPOSES, CONSTRUCTION; TITLE

    ***

    1. The general purposes of Section 760.01-760.10 are to secure for all individuals within the State freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interests in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health and general welfare, and to promote the interests, rights, and privileges of individuals within the state.

    2. Section 760.01-760.10 shall be construed accord- ing to fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.

    ***

    760. Definitions.

    (7) "Employer" means any person employing 15 or more employees for each working day in each of 20 or more calender weeks in the current or preceding calender year, and any agent of such person.

    ***

    760.10 Unlawful employment practices; remedies construction

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire an individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of

    such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

92. The Florida Human Rights Act is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2. School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA, 1991).

    
    

93. In Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991), the court analyzed the types of claims under the Florida Human Rights Act. In that case, the court noted as follows:

    
    

    Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, . . ., by showing disparate treatment, and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination,

    however, as to the latter, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. [citations omitted]

    Id. at 1185 n.2

    
    

94. The Petitioner in this case has sought to establish a disparate treatment claim and a retaliation claim. The Chandler court delineated the procedure for establishing a disparate treatment claim. The Court held as follows:

    
    

    . . . The United States Supreme Court set forth the procedure essential for establishing such claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (3 S.Ct. 1817, 36 L.Ed. 2d 668 (1973),

    which was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

    Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the pre- sumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discri- minated against the employee. The employer may

    do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which

    is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production,

    not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies the burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was pretext for intentional discrimination. The employee

    may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. [citations omitted]. Id. at 1185-86.

    
    

95. In this case, Petitioner has prevailed on her sexual harassment/hostile work environment claim against Respondent LSOC by showing that:

    
    

    1. she belongs to a protected group;

    2. she was subjected to unwelcome sexual harassment; these actions in the workplace created an intimidating hostile and offensive working environment;

    3. the harassment was based on her sex (gender);

    4. the harassment affected a term, condition or privilege of her employment, by impeding her job performance, and her psychological well-being; and

    5. the employer knew or should have known of the harassment in question and failed to take appropriate remedial action.

    
    

    Hall v. Gus Construction Co., Inc., 842 F.2d 1010 (8th Cir. 1988). See: U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983); Harris v. Forklift Systems, Inc., U.S. , 114 S.Ct. 367 (1993).

    
    

96. As required in Burns v. McGregor Electronic Industries, Inc., 955 F.2d

    559 (8th Cir. 1992), the determination of whether a hostile work environment exists must be made by the trier of fact in light of the totality of circumstances. 29 C.F.R. Section 1604.11(b). Under the totality of the circumstances analysis, the work environment cannot be carved into a series of discrete incidents and then measure the harm occurring in each episode. This approach has been argued by Respondents but is incorrect. Instead, the trier of fact must keep in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes. Burns, supra.

    
    

97. This was clearly the circumstances in this case. Petitioner, has shown that she has suffered sexual harassment at the hands of William Brown. His acts of physical and verbal aggression are properly considered predicate acts underlying Petitioner's sexual harassment claim. Brown's assault on Petitioner, including his verbal denigration of her sex and her nationality, clearly constitutes an act of sexual harassment. McKinney v. Dole, 765 F.2d 1129 (D.C. Cir., 1985). Predicate acts underlying sexual harassment claim do not have to be clearly sexual in nature, where acts would not have occurred but for the fact that plaintiff was a woman. Hall, supra.

    
    

98. When Petitioner reported Brown's actions to their supervisors, Brown's actions were looked upon as minor in nature. They determined that verbal counseling of Brown was sufficient even though management knew that Brown had behaved similarly in the recent past. When Petitioner insisted that further

    action be taken, a pattern of sexual harassment developed and continued over time directed toward Petitioner. Respondent's supervisor's expected that the women working in LC-39 Operations should be "team players," a worthy goal.

    However, they demanded that Petitioner demonstrate this attitude by being "one of the guys". When Petitioner declined to conform to management's expectations of how she should behave, a hostile work environment was developed and fostered that was motivated by hostility toward her as a woman. Hall, supra, and Andrews

    v. City of Philadelphia, 895 F.2d 1469 (3rd Cir. 1990).

    
    

99. Petitioner makes her case that unlawful retaliation occurred because:

    
    

    1. Petitioner participated in a statutorily protected activity by complaining about Brown's harassment of her, complaining about her transfer, filing an FCHR Complaint, seeking assistance up the chain of command,

    2. Adverse employment actions were taken against her [the transfer was due to her request to document

       the initial incident and going up the chain of command concerning Brown's actions, as well as her well- founded fear for her safety; and many subsequent

       acts upon her return to LC-39 Operations where Petitioner was subject to a continual barrage of adverse treatment, special scrutiny, and desparate conditions]; and

    3. a causal connection existed between the two. Yates v. Avco Corp., 819 F.2d 630 (6th Cir., 1987).

    
    

100. Petitioner has been damaged in the amount of $7,000.00 due to lost over-time pay and Respondent LSOC should pay those damages and cease and desist in its unlawful conduct directed toward Petitioner.

     
     

101. Petitioner should recover her costs and attorneys fees in this action.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered as follows:

1. Respondents Douglas, Roth and Brown should be dismissed, as they are not subject to personal liability under Chapter 760, Florida Statutes;

   
   

2. Petitioner was discriminated against on the basis of her sex and national origin by being subjected to a hostile work environment;

   
   

3. Petitioner was discriminated against by Respondent LSOC by unlawful retaliation;

   
   

4. Petitioner be compensated for her damages in accordance with applicable law; and

   
   

5. Respondent LSOC be directed to cease and desist its unlawful conduct directed toward Petitioner and such other remedies as the Commission may deem appropriate; and

6. Petitioner be awarded her attorney's fees and costs incurred as a result of this action.

DONE and ENTERED this 30th day of November, 1994, in Tallahassee, 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 30th day of November, 1994.

APPENDIX

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

Petitioner's Proposed Findings of Fact:

Accepted in substance: paragraphs 1, 2, 3 (date of employment began in 1983), 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24,

25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45,

46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65,

66, 67, 68, 69, 70, 71, 72(a), (b), (c), (d), (e), (f), (g), (h), (i), (j),

73(a), (b), (c), (d), 74, 75, 76, 78, 79, 80, 81, 83, 85 in part, 86, 88 (in

part).

Rejected as irrelevant, immaterial or subsumed: paragraphs 16, 77, 82, 84,

85 (in part), 87, 88 (in part), 89.

Respondents' LSOC, Douglas and Roth Proposed Findings of Fact:

Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5, 6, 7, 8, 9 (in

part), 10, 12 (in part), 13 (in part), 14, 15, 16, 18 (in part), 19 (in part),

20, 21, 22 (in part), 23 (in part), 24 (in part), 25, 26, 27, 34, 35, 38 (in

part), 40.

Rejected as irrelevant, immaterial or subsumed: paragraphs 18 (in part), 28, 29, 30, 31, 32, 36, 37, 38 (in part), 42, 43.

Rejected as aaginst the greater weight of evidence: paragraphs 4 (in part), 9 (in part), 11, 12 (in part), 13 (in part), 17, 19 (in part), 22 (in

part), 23 (in part), 33, 39, 41.

Respondent Brown did not file separate proposed findings of fact.

COPIES FURNISHED:

Peter J. Hurtgen, Esquire David M. DeMaio, Esquire Morgan, Lewis & Bockius

5300 First Union Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2339

Susan K. W. Erlenbach, Esquire Erlenbach & Erlenbach, P.A.

503 South Palm Avenue Titusville, Florida 32796

William R. Clifton, Esquire

412 Brevard Avenue Cocoa, Florida 32922

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 the 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 consult with the agency that will issue the final order in this case concerning their 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: 93-005974

Orders for Case No: 93-005974