STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON L. ZBIKOWSKI, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5977

)

MARIO MEDERO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 3, 1994, in Ocala, Florida.

APPEARANCES

For Petitioner: Sharon L. Zbikowski, pro se

23 Juniper Pass Lane Ocala, Florida 34480

For Respondent: Edwin C. Cluster, Esquire

21 Northeast First Avenue Post Office Box 1148 Ocala, Florida 34478

STATEMENT OF THE ISSUES

Whether the Respondent, Mario Medero, discriminated against the Petitioner, Sharon L. Zbikowski, on the basis of her sex, female?

PRELIMINARY STATEMENT

The Petitioner filed a Charge of Discrimination against the Respondent with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). The Petitioner alleged that she had been "subjected to sexual harassment by Dr. Mario Medero, and also I was subjected to different terms and conditions in my employment."

The Commission subsequently determined that the Respondent had not committed a discriminatory employment practice by "Determination: No Cause" entered September 2, 1993.

On October 19, 1993, the Petitioner filed a Petition for Relief with the Commission seeking a formal administrative hearing. In the Petition Ms.

Zbikowski alleged that Dr. Medero had sexually harassed her and that Dr. Medero had caused her to be terminated from employment after she was terminated from employment by Dr. Medero. On October 22, 1993, the Commission filed the

Petition for Relief with the Division of Administrative Hearing and requested assignment of a Hearing Officer. The case was assigned to one Hearing Officer and later assigned to the undersigned.

The final hearing was scheduled for March 3, 1994, by a Notice of Hearing entered December 16, 1993.

At the final hearing the Petitioner testified on her own behalf and presented the testimony of Kimberly Boileau, Andrea Dombrowski, the Respondent and Marilyn Hartsel. One exhibit, consisting of two cassette tape recordings, was offered into evidence. The Petitioner was informed that the recordings would be relied upon to make findings of fact only to the extent that she specifically identified statements on the tapes which were contrary to testimony presented during the final hearing. The Petitioner was told that she needed to identify those statements on or before the date for filling proposed recommended orders. The Petitioner failed to comply with these instructions. Consequently, no findings of fact have been made based upon the tapes.

The Respondent presented the testimony of Barbara Redding and Rene Dickman.

The Respondent presented two exhibits, which were accepted into evidence.

A transcript of the final hearing was filed on March 15, 1994. The parties were informed at the close of the final hearing that they could file proposed recommended orders within ten days after the transcript was filed. Proposed recommended orders were due March 25, 1994. A proposed recommended order was filed by the Respondent on March 17, 1994. The Petitioner filed a letter on April 1, 1994. The Petitioner's letter does not contain proposed findings of fact.

The Respondent's proposed recommended order contains proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. The Petitioner, Sharon L. Zbikowski, is a female.

      
      

   2. The Respondent, Mario Medero, is a male. Dr. Medero is a physician. He practices medicine as a professional association.

      
      

   3. Dr. Medero is the chief executive officer and the supervisor or principal of the professional association.

      
      

   4. The professional association operates a medical office in Ocala, Florida. The medical practice performed by Dr. Medero consists primarily of treating individuals who have been injured on the job and who are covered by workers compensation insurance.

      
      

2. Ms. Zbikowski's Employment.

   
   

   1. On August 20, 1992, Ms. Zbikowski was hired for employment by Dr. Medero's professional association as the front desk receptionist at Dr. Medero's office.

   2. At the time she was hired, Ms. Zbikowski was told that she would be considered for an accounts payable clerk position at the office. The position was held by Barbara Redding if Ms. Redding left the position.

      
      

   3. Ms. Zbikowski was told at the time of her employment that her consideration for the position of accounts payable clerk was dependent upon Ms. Redding actually leaving. Ms. Redding ultimately decided not to resign her position.

      
      

   4. The evidence failed to prove that Ms. Zbikowski was hired as a bookkeeper or accounts payable clerk, or that she was not placed in the position she was hired to fill.

      
      

3. Ms. Zbikowski's Performance.

   
   

   1. Ms. Zbikowski worked initially at the front desk. Her performance was considered inadequate by Marilyn Hartsel, the office manager and Ms. Zbikowski's immediate supervisor.

      
      

   2. Ms. Zbikowski was moved to other positions within the office. She worked for a while in medical records and for approximately one day in accounts payable with Ms. Redding.

      
      

   3. Ms. Zbikowski's performance in medical records and in accounts payable was also considered inadequate by Ms. Hartsel.

      
      

   4. Within three or four weeks after Ms. Zbikowski began her employment, Ms. Hartsel had decided to recommend that Ms. Zbikowski be terminated because of the inadequacy of her work.

      
      

4. Ms. Zbikowski's Employment by Dr. Medero.

   
   

   1. At the time that Ms. Zbikowski was initially employed at Dr. Medero's office, Dr. Medero had caused the office to advertise for a housekeeper for his home.

      
      

   2. Ms. Zbikowski discussed the position with Dr. Medero. Dr. Medero agreed to employ Ms. Zbikowski as his housekeeper and Ms. Zbikowski agreed to work as Dr. Medero's housekeeper.

      
      

   3. Ms. Zbikowski agreed to clean Dr. Medero's house, run errands for him and the office, pick up his son from school and take his son to and from tennis lessons, meet Dr. Medero's former wife half way between Ocala and Tampa to pick up or to drop off Dr. Medero's daughter, who was in the custody of his former wife, and generally oversee his household.

      
      

   4. Although the evidence failed to prove that Ms. Zbikowski performed services in her capacity as housekeeper for anyone other than Dr. Medero, Ms. Zbikowski was paid for her services out of accounts of the professional association and Ms. Hartsel continued to be her immediate supervisor.

      
      

   5. The evidence failed to prove that Ms. Zbikowski was forced in any way to accept employment as Dr. Medero's housekeeper. The evidence proved that she accepted the position voluntarily and without coercion.

   6. Ms. Zbikowski continued to work as Dr. Medero's housekeeper until September 28, 1992. During her employment as Dr. Medero's housekeeper, Dr. Medero was satisfied with Ms. Zbikowski's performance.

      
      

5. Alleged Sexual Harassment.

   
   

   1. The evidence failed to prove that Dr. Medero sexually harassed Ms. Zbikowski. Ms. Zbikowski testified about very few specific alleged incidents involving Dr. Medero and the evidence failed to substantiate those incidents.

      
      

   2. Ms. Zbikowski admitted that she had had no physical contact with Dr. Medero except for one occasion when she hugged him from advancing funds to her to pay for her son's day care and on another occasion when he gave her a physical examination after being in an automobile accident. The evidence failed to prove that either incident involved improper conduct by Dr. Medero.

      
      

   3. Ms. Zbikowski's testimony that Dr. Medero evidenced a "flirtatious manner" was not substantiated by competent substantial evidence of specific incidents.

      
      

   4. The most specific incident, and the incident which led to Ms. Zbikowski's termination from employment, took place on Thursday, September 24, 1992. At lunch on that day, Ms. Zbikowski and her four year old son were in Dr. Medero's back yard. Ms. Zbikowski was cleaning lawn furniture.

      
      

   5. Dr. Medero and Ms. Redding came to Dr. Medero's house, waved at Ms. Zbikowski and went into Dr. Medero's bedroom. The curtains/blinds to the bedroom windows were closed soon after Dr. Medero and Ms. Redding went into the room.

      
      

   6. Dr. Medero and Ms. Redding, both of whom were not married at the time, were lovers. Ms. Zbikowski was aware of their relationship.

      
      

   7. At no time did Ms. Zbikowski see Dr. Medero or Ms. Redding in Dr. Medero's bedroom.

      
      

   8. Ms. Zbikowski believes that Dr. Medero and Ms. Redding engaged in sexual intercourse while in the bedroom. This belief was not, however, substantiated by competent substantial evidence. Dr. Medero and Ms. Redding, who is not longer involved personally or in a working relationship with Dr. Medero, both testified that they did not engage in sexual intercourse. Ms. Zbikowski did not see them engage in intercourse. At best, Ms. Zbikowski's belief was based upon hearing "giggling" and "these little, um, sounds and things" from the bedroom.

      
      

6. Ms. Zbikowski's Termination from Employment.

   
   

   1. On the afternoon of September 24, 1992, Ms. Zbikowski spoke with Ms. Hartsel and told her that Dr. Medero and Ms. Redding had sexual intercourse in her presence and her son's presence. Ms. Zbikowski was very upset and Ms. Hartsel told her to take the afternoon off and report to the office the next morning. Ms. Zbikowski also made other allegations, which the evidence failed to substantiate, of incidents of sexual harassment by Dr. Medero.

      
      

   2. Ms. Zbikowski left a beeper and a garage door opener she had been provided by Dr. Medero at Dr. Medero's home and left.

   3. The next morning, Friday, September 25, 1992, Ms. Zbikowski reported to the office. She was told that she would be expected to the work at the office in the mornings and then work at Dr. Medero's home in the afternoons. Ms. Zbikowski left at lunch and did not return. Ms. Zbikowski informed Ms. Hartsel that she did not intend to return that day because she did not want to return to Dr. Medero's home. Ms. Hartsel told Ms. Zbikowski that she would discuss the matter with Dr. Medero. Ms. Hartsel did not, however, order Ms. Zbikowski to return to work that day or inform her that she was not authorized to stay home.

      
      

   4. After speaking to Ms. Hartsel by telephone that weekend and being told that Ms. Hartsel had not yet discussed the matter with Dr. Medero, Ms. Zbikowski reported to work Monday, September 29, 1992.

      
      

   5. By the time that Ms. Zbikowski returned to the office on Monday, Dr. Medero had been informed of the allegations of sexual harassment she had made against him to Ms. Hartsel. Shortly after arriving at the office, Ms. Zbikowski was escorted to her automobile by Dr. Medero, Ms. Hartsel and a nurse and was told by Dr. Medero not to return. Ms. Zbikowski was, therefore, fired by Dr. Medero.

      
      

   6. Ms. Zbikowski was terminated because of the allegations she made concerning Dr. Medero and Ms. Redding and the other allegations of sexual harassment. Ms. Zbikowski was not terminated because she was not performing her duties as Dr. Medero's housekeeper in a satisfactory manner.

      
      

7. Ms. Zbikowski's Subsequent Employment.

   
   

   1. Ms. Zbikowski was employed, and eventually terminated, by other physicians after her termination from employment by Dr. Medero. The evidence failed to prove that Dr. Medero was involved in any manner in Ms. Zbikowski's subsequent terminations from employment.

      
      

8. Ms. Zbikowski's Charge of Discrimination.

1. Ms. Zbikowski filed a Charge of Discrimination against Dr. Medero with the Florida Commission on Human Relations. Ms. Zbikowski alleged that she had been discriminated against based upon the following:

   
   

   I am a female. I worked for the above named respondent since August 20, 1992, until September 28, 1992 when I was discharged from my position of maid. During my employment I was subjected to sexual harassment by Dr. Mario Medero, and also I was subjected to different terms and conditions in my employment.

   
   

   I believe I have been discriminated against because of my sex, in violation of Title VII of the Civil Rights Act of 1964, as amended.

   
   

2. On September 2, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred "

   
   

3. Ms. Zbikowski filed a Petition for Relief, requesting a formal administrative hearing on October 19, 1993.

4. In the Petition for Relief filed with the Commission Ms. Zbikowski alleged, in part, the following:

   
   

   1. Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below:

      Petitioner did not abandoned [sic] her job.

      Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position.

      
      

   2. The disputed issues of material fact, if any, are as listed below:

      Petitioner did not abandoned [sic] her job.

      Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position.

      
      

   3. The ultimate facts alleged and entitlement to relief are as listed below:

      . . . . The alleged fact memos are that Petitioner was hired for a "Bookkeeping" position but was never given the opportunity to work in this position as original Bookkeeper (Dr. Medero's girlfriend) decided not to leave her position, so Petitioner was given a less meaningful job as "Housekeeper" but was subjected to harassing sexual misconduct by Respondent.

      The relief is as follows: Petitioner has for 1 year been trying to maintain and seek employment in the Medical field, one which she has worked in for 13 years, but because of Dr. Medero's influence in the Medical field has made it very hard for Petitioner

      to continue in this field. Petitioner is seeking recovery for the discriminating position he placed her in while under his employment plus relief from the undue hardship which has been placed upon her because of his lies in this matter. . . .

      . . . .

      
      

5. Ms. Zbikowski proved the following allegations contained in her Charge of Discrimination and the Petition for Relief:

   
   

   1. "I am a female."

   2. "I worked for the above named respondent

      since August 20, 1992, until September 28, 1992, when I was discharged from my position of maid."

   3. "Petitioner did not abandoned [sic] her job."

   
   

   The remaining allegations contained in the Charge of Discrimination and the Petition for Relief were not supported by the weight of the evidence.

   
   

6. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Zbikowski.

7. Ms. Zbikowski failed to prove that any action of Dr. Medero was based upon Ms. Zbikowski's sex: she was not held to any standard or requirement based upon her sex, she was not sexually harassed and she was not terminated because of her sex.

   
   

8. Ms. Zbikowski failed to prove that any policy or standard of Dr. Medero or his office had a disparate impact on female employees.

   
   

9. Ms. Zbikowski failed to prove that she was replaced by a male or that other female employees with comparable or lessor qualifications were retained.

   
   

10. Ms. Zbikowski failed to prove that she was sexually harassed by Dr. Medero.

    
    

11. Ms. Zbikowski failed to prove that Dr. Medero or his office discriminated against her on the basis of her sex, female.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

    
    

    1. Burden of Proof.

       
       

13. Ms. Zbikowski had the ultimate burden of proving by a preponderance of the evidence that Dr. Medero intentionally discriminated against her. McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Insurance Co., 12

    F.A.L.R. 2034, 2037 (Florida Commission on Human Relations 1989); and Martin v. Monsanto Co., 10 F.A.L.R. 3886, 3896 (Florida Commission on Human Relations 1988).

    
    

14. Discriminatory motive or intent may be proved by direct evidence or statistical evidence. Additionally, since discriminatory motive or intent is seldom capable of proof by direct evidence, the United States Supreme Court has established a multi-step analytical model which allows a court to infer discriminatory motive or intent on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411 U.S. at 802-804. See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981).

    
    

15. The Commission has adopted this analytical model in analyzing cases under the Florida Human Rights Act, Section 760.01-760.10, Florida Statutes:

    
    

    1. The employee must present a prima facie case of discrimination;

    2. If the employee presents a prima facie case of discrimination, the employer must

       adequately rebut the presumption of discrimi- nation by articulating a legitimate, nondiscriminatory reason for its actions; and

    3. The employee must prove that the employer's articulated reason for its actions was merely a pretext.

    1. Ms. Zbikowski Failed to Meet Her Burden of Proof.

    
    

16. The Florida Human Rights Act provides that it is an unlawful employment practice for an employer to discharge an employee "or to otherwise discriminate against any individual with respect to . . . terms, conditions, or privileges of employment . . . " on the basis of sex. Section 760.10(1), Florida Statutes.

    
    

17. Ms. Zbikowski was an "employee" and Dr. Medero and the professional association were "employers." Ms. Zbikowski was discharged as an employee by Dr. Medero.

    
    

18. In determining whether discrimination has occurred, the Commission requires proof of the following elements, adopted from the federal courts, in order for an employee to prove a prima facie case of discriminatory conduct:

    (a) that the employee belongs to a group protected by the statute; (b) that the employee was qualified for the job; (c) that the employee was subjected to an adverse employment action; and (d) that, in the case of discharge, after the employee's termination, the employer hired a person not in the employee's protected class or retained those having comparable or lessor qualifications, not in the protected class. See McDonnell Douglas; Trumbull v. Health Care & Retirement Corporation of America, 756 F. Supp. 532 (M.D. Fla. 1991), aff'd, 949 F.2d 1162; Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); and National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).

    
    

19. Ms. Zbikowski proved that she was a female, that she was qualified for the position of housekeeper, and that she was terminated from employment. She failed to prove, however, that she was replaced by a person that was not in her protected class (a male) or that other females having comparable or lessor qualifications were retained.

    
    

20. Ms. Zbikowski also failed to prove that she was otherwise subjected to an adverse employment action. In particular, Ms. Zbikowski failed to prove that Dr. Medero sexually harassed her or that he played any role in her loss of subsequent employment. The evidence failed to prove any job benefits were related to the acceptance or rejection of sexual advances by Dr. Medero or that Ms. Zbikowski was subjected to a hostile work environment. See Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993).

    
    

21. Based upon the foregoing, it is concluded that Ms. Zbikowski failed to prove by a preponderance of the evidence, a prima facie case of discrimination based upon sex.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order dismissing Sharon L. Zbikowski's Petition for Relief.

DONE AND ENTERED this 13th day of April, 1994, in Tallahassee, Florida.

LARRY J. SARTIN

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 13th day of April, 1994.

APPENDIX

Case Number 93-5977

The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Dr. Medero's Proposed Findings of Fact

1. Accepted in 3 and 5.

2. Accepted in 3-4 and hereby accepted.

3. Accepted in 5-7 and 9-11.

4. Not relevant.

5. Accepted in 12-13, 15 and 18. See 14 and 16. The evidence failed to prove the second and fifth sentences of these proposed findings of fact.

6. The first four sentences are accepted in 22-24. The rest of these proposed findings are either not relevant or not supported by the weight of the evidence.

7. Accepted in 16, 26-27 and hereby accepted. Whether Ms. Hartsel was shocked by the allegations is not relevant.

8. Not relevant.

9. Accepted in 31-32. The evidence failed to prove that Ms. Zbikowski was terminated because of requests for additional pay or a salary advance, or for leaving work early without permission.

10. Accepted in 19-21.

11. See 19-21. The evidence failed to prove that Ms. Zbikowski was terminated because she made unreasonable requests for preferred financial treatment or because she left work without permission.

12. Accepted in 33 and hereby accepted.

COPIES FURNISHED:

Sharon L. Zbikowski

23 Juniper Pass Lane Ocala, Florida 34480

Edwin C. Cluster, Esquire Ayres, Cluster, Curry,

McCall & Briggs, P.A.

21 Northeast First Avenue Post Office Box 1148 Ocala, Florida 34478

Sharon Moultry, Clerk Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire Florida Commission on

Human Relations

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: 93-005977

Orders for Case No: 93-005977