STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUNE M. SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0896

) FLORIDA DEPARTMENT OF MANAGEMENT SERVICES, )

)

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 June 1 and 2, 1994, and August 11 and 12, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Marie A. Mattox, Esquire

1333 North Adams Street Tallahassee, Florida 32303

For Respondent: Sharon D. Larson,

Assistant General Counsel Sylvan Strickland,

Assistant General Counsel Department of Management Services Knight Building, Suite 312

2737 Centerview Drive

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Whether Respondent, Florida Department of Management Services, discriminated against Petitioner, June M. Smith, on the basis of her sex as alleged in the Petition for Relief filed by Petitioner.

PRELIMINARY STATEMENT

On or about August 10, 1993, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). Petitioner alleged that Respondent had discriminated against her on the basis of her sex. On January 13, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred.

On February 14, 1994, Petitioner filed a Petition for Relief contesting the Commission's determination and requesting a formal administrative hearing. The

petition was filed with the Division of Administrative Hearings by Transmittal of Petition on February 21, 1994.

By Order entered March 22, 1994, Petitioner was ordered to file an amended petition. An Amended Petition for Relief was filed on March 24, 1994.

At the final hearing Petitioner testified on her own behalf and presented the testimony of Lynn Folsom, Frank Callahan, Dewayne Earnest, Arthur Knight, Jr., Troy Wayne Sullivan, William Troelstrup, Charles Paul Lott, Curtis Jefferson, Shawn Lousie Smith, Darren Miller, Mary Ann Hutchinson, and Carol Broom. Petitioner, Mr. Jefferson and Mr. Earnest were also called as rebuttal witnesses. Petitioner's exhibits 1-29 were accepted into evidence.

Respondent presented the testimony of Franklin Hatcher, Glenn Abbott, Thomas A. LeDew, C. David Fulcher, Olin Collins, Jeremiah Gee, Raymond Hines, Earl Thomas, Lawrence Medlock, and H. Jack Smith. Respondent's exhibits 1-7 and 9-10 were accepted into evidence. Respondent's exhibit 8 was rejected.

On June 23, 1994, volumes I-IV of the transcript of the final hearing were filed. Volumes V-VIII of the transcript were filed on August 29, 1994. Because the undersigned was scheduled to be out of the office during the majority of the months of September and August, the parties were given until October 31, 1994, to file proposed recommended orders.

On October 31, 1994, Respondent filed a proposed recommended order.

Petitioner filed a request for additional time. That request was granted by an order entered November 2, 1994. On November 3, 1994, Petitioner filed a proposed recommended order.

The proposed recommended orders filed by the parties contain 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, June M. Smith, is a female.

      
      

   2. The Respondent, the Department of Management Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department was formerly known as the Department of Administration.

      
      

2. The Department's Division of Facilities Management.

   
   

   1. The Division of Facilities Management (hereinafter referred to as the "Division"), is a division of the Bureau of Maintenance (hereinafter referred to as the "Bureau"), a bureau of the Department.

      
      

   2. The Bureau's offices were located at Koger Executive Center (hereinafter referred to as "Koger"), in Tallahassee, Florida.

      
      

   3. The Division's Grounds Section had offices and a storage/maintenance area (hereinafter referred to as the "Grounds Section Shop"), located at 1018 South Bronough Street, Tallahassee, Florida.

   4. At all times relevant to this proceeding, the following individuals constituted the management structure immediately above the Division and the management structure of the Division:

      
      

      1. K. Wayne Smith was the Chief of the Bureau.

         
         

      2. Franklin Hatcher was the Deputy Bureau Chief of the Bureau. Mr. Hatcher left the Bureau in March of 1992.

         
         

      3. Tom LeDew was the Superintendent of Grounds. Mr. LeDew filled this position until June 20, 1991. Jack Smith became Superintendent of Grounds in March of 1992. Prior to March of 1992, Jack Smith was an "OPS" employee of the Division in charge of landscaping and irrigation.

         
         

      4. Olin Collins was under the supervision of the Superintendent of Grounds. Mr. Collins was a Supervisor III.

         
         

      5. There were three Supervisor I's under the supervision of Mr. Collins: Lawrence Medlock, Jeremiah Gee and Darren Miller.

      
      

   5. Each of the three Supervisor I's was responsible for the supervision of a crew of groundskeepers and laborers. Each crew usually consisted of between five to eight crew members.

      
      

3. The Department's Decision to Employ Ms. Smith.

   
   

   1. Prior to January of 1990, Ms. Smith worked at Koger. She was employed by the company that was responsible for landscaping and maintenance of Koger's grounds. Ms. Smith assisted in landscaping and maintaining the grounds. She was involved in weeding, planting, mulching, trimming and minor spraying.

      
      

   2. Ms. Smith worked at Koger for approximately three years. During the last year of her employment at Koger, Ms. Smith was a supervisor of two individuals.

      
      

   3. At the suggestion of an employee of the Department that had observed Ms. Smith's work at Koger, Ms. Smith expressed interest in employment with the Department.

      
      

   4. Prior to her filing an application for employment with the Department, Ms. Smith spoke with Mr. Hatcher about employment with the Division's Grounds Section. Mr. Hatcher expressed his interest as Deputy Bureau Chief in hiring Ms. Smith when a position became available.

      
      

   5. Subsequent to her conversation with Mr. Hatcher, Ms. Smith filed an application for a laborer position with the Division.

      
      

   6. Ms. Smith was hired by the Department as a laborer and began her employment on January 19, 1990. Ms. Smith was continuously employed by the Department in the Division's Grounds Section until November 30, 1992.

      
      

   7. The decision to hire Ms. Smith was made by K. Wayne Smith, Bureau Chief, Mr. Hatcher, Deputy Bureau Chief, Mr. LeDew, Superintendent of Grounds, and Lawrence Medlock, one of the Supervisor I's.

      
      

   8. Ms. Smith was hired because she was the best candidate for the position. The evidence failed to prove that anyone was forced to hire Ms.

      Smith. In particular, the evidence failed to prove that Mr. LeDew was forced to hire Ms. Smith against his will as alleged in the Amended Petition for Relief filed in this case.

      
      

   9. The evidence also failed to prove that there was any resistance to Ms. Smith's employment by the Department. The Department did not have any policy against the hiring of women in the Grounds Section of the Division. The fact that there were few women employed at any given time in the Grounds Section was based upon the fact that few women applied for positions with the Grounds Section.

      
      

   10. At best, the evidence concerning the reaction within the Division to the employment of Ms. Smith proved that there were a few crew members who expressed their displeasure with the fact that a woman had been hired in the Division.

       
       

   11. One individual made a comment after Ms. Smith was hired that indicated he did not believe a woman should be hired because a man that needed to support his family needed the job more. The evidence failed to prove, however, that the individual who made the comment was a supervisor, that the Department was aware of the comment, that Ms. Smith was aware of the comment, or that the individual who made the comment treated Ms. Smith differently because of her sex.

       
       

   12. The evidence concerning the Department's attitude about hiring Ms. Smith was very positive. It was a Department Deputy Bureau Chief that suggested she apply for a position with the Department, Mr. Hatcher encouraged Ms. Smith to apply for a position, a group of four supervisors concluded that Ms. Smith was the best candidate for the position she applied for and the Department in fact hired her the first time that a position became available.

       
       

   13. The Department also paid Ms. Smith a starting salary which was 23 percent higher than the base salary for her position. Only one other employee, a male, was hired by the Division during 1990 and 1991 at a starting salary that was above the base salary. In that instance the individual transferred from another agency and received only a 10 percent increase above base salary.

       
       

4. Ms. Smith's First Supervisor.

   
   

   1. Upon the commencement of her employment with the Department, Ms. Smith was assigned to Mr. Medlock's crew.

      
      

   2. Ms. Smith remained under Mr. Medlock's supervision for approximately 2 to 4 weeks.

      
      

   3. Very soon after Ms. Smith first began her employment under Mr. Medlock's supervision, Mr. Medlock made a comment to another employee that the work the crews performed "ain't a woman's type of work" and that a woman "ain't going to make it down here around with all these guys."

      
      

   4. The evidence failed to prove that Ms. Smith was made aware of Mr. Medlock's comments while employed by the Department. The evidence also failed to prove that Mr. Medlock treated Ms. Smith differently than he treated other employees because of her sex. Although the comments were inappropriate, the evidence failed to prove the comments had any direct or indirect impact on Ms. Smith's treatment by Mr. Medlock or the Department.

   5. On one occasion while under Mr. Medlock's supervision, Mr. Medlock took Ms. Smith by the arm. Mr. Medlock placed his hand around the back of Ms. Smith's upper arm.

      
      

   6. Although Ms. Smith described this incident as sexual and indicated that Mr. Medlock "caressed" her arm, Ms. Smith's testimony was not credible.

      
      

   7. Ms. Smith did not say anything to Mr. Medlock when he touched her or at any other time. Ms. Smith also did not report the incident to any supervisor or employee of the Department until almost three years after it took place.

      
      

   8. Mr. Medlock often took employees by the arm when he talked to them. He also had a habit of getting closer to employees than some of them would have liked when he talked to them. Mr. Medlock treated employees in this manner whether they were male or female. Mr. Medlock treated employees in this manner in an open manner. At least one supervisor, Mr. LeDew, was aware of Mr. Medlock's conduct.

      
      

   9. The evidence failed to prove that Mr. Medlock touched employees in a sexual way.

      
      

   10. The evidence also failed to prove that any employee complained to Mr. Medlock or any other supervisor about Mr. Medlock's conduct.

       
       

   11. The evidence also failed to prove that Mr. Medlock touched Ms. Smith in a sexual way.

       
       

5. Ms. Smith's Second Supervisor.

   
   

   1. Ms. Smith was transferred from Mr. Medlock's supervision to Mr. Miller's supervision approximately two to four weeks after she began her employment with the Department. She remained under Mr. Miller's supervision for approximately one year.

      
      

   2. Mr. Miller did not tell Ms. Smith or any other person that he did not want Ms. Smith or women in general working on his crew. Mr. Miller did not have any problem having a woman work on his crew.

      
      

   3. Mr. Miller's crew was responsible for landscaping and maintenance of the grounds around the Florida Capitol complex.

      
      

   4. At some point shortly after Ms. Smith was assigned to Mr. Miller's crew, a personality conflict between Mr. Miller and Ms. Smith began to develop. A number of incidents led to this conflict. The evidence failed to prove that any of those incidents, however, were attributable to Ms. Smith's sex.

      
      

   5. The conflict between Mr. Miller and Ms. Smith was caused, in part, by the fact that Ms. Smith did not believe that Mr. Miller was a good supervisor and she let Mr. Miller know how she felt:

      
      

      1. Ms. Smith frequently questioned Mr. Miller's instructions to her. Ms. Smith believed that she knew how to accomplish her assigned tasks in a manner better than the manner in which Mr. Miller instructed her to accomplish those tasks. When Ms. Smith felt that way, which was often, she let Mr. Miller know. Although Ms. Smith's actions in questioning Mr. Miller did not reach the level of insubordination, her actions did cause friction with Mr. Miller;

      2. Ms. Smith also complained to Mr. Collins and another employee about the fact that Mr. Miller suffers from epilepsy and suggested that his condition negatively impacted his ability to supervise. On more than one occasion Ms. Smith also told Mr. Miller that she had a problem with his condition;

         
         

      3. Ms. Smith believed that Mr. Miller had trouble relating to people.

      
      

   6. The conflict between Mr. Miller and Ms. Smith was also caused in part because of Mr. Miller's concern about whether he would be replaced as supervisor by Ms. Smith. This fear was based upon the following:

      
      

      1. Mr. Miller saw Mr. Hatcher speaking with Ms. Smith, and not other employees, on several occasions at the Capitol;

         
         

      2. Mr. Hatcher suggested to Mr. Miller that Ms. Smith be made a crew leader instead of other crew members that had been on Mr. Miller's crew longer than Ms. Smith;

         
         

      3. Ms. Smith was allowed to attend an educational session at Florida A & M University that other laborers did not attend. Although Ms. Smith had requested permission to attend the session, Mr. Miller was not aware of this and believed that Ms. Smith was simply receiving special treatment by management;

         
         

      4. Finally, Mr. Miller actually heard a rumor that Ms. Smith would be promoted to supervisor and that she would replace him. Mr. Miller was so concerned about the rumor that he spoke to Mr. LeDew about it. Mr. LeDew assured Mr. Miller that the rumor was not true and spoke to Mr. Miller's entire crew in an effort to squelch the rumor.

      
      

   7. Toward the end of the time that Ms. Smith was assigned to Mr. Miller's crew, Mr. Miller requested that Ms. Smith meet with him to discuss the problems they were having. Mr. Miller asked Ms. Smith what her problem with him was. Nothing was resolved between Mr. Miller and Ms. Smith as a result of this meeting.

      
      

   8. Despite the personality conflict between Mr. Miller and Ms. Smith, Mr. Miller did not take any disciplinary action against Ms. Smith.

      
      

   9. Mr. Miller did not take any action to isolate Ms. Smith or treat her differently than he treated male employees.

      
      

   10. There were times when Mr. Miller assigned Ms. Smith to perform a task by herself. Ms. Smith believed that these assignments were based upon her sex or were intended as punishment. The evidence failed to support Ms. Smith's belief. The weight of the evidence proved that Mr. Miller's assignments of Ms. Smith were based upon his judgment as to how a task should be performed.

       
       

   11. The evidence failed to prove that Mr. Miller attempted to keep other crew members away from Ms. Smith. The evidence also failed to prove that Mr. Miller attempted to turn other crew members against Ms. Smith.

       
       

   12. The evidence also failed to prove that Mr. Miller or male employees and supervisors intentionally misled Ms. Smith. In particular, Mr. Miller did not inform Ms. Smith that Mr. Hatcher did not want her to be a crew leader. Mr. Miller actually told Ms. Smith that Mr. Hatcher had suggested she be made a crew leader and that Mr. Miller did not believe it would be fair to make her a crew

       leader instead of other crew members who had been with the Division much longer than Ms. Smith.

       
       

6. Safety Meetings.

   
   

   1. For approximately three months after Ms. Smith began her employment with the Department, safety meetings were held every Tuesday. The meetings were held at the Grounds Section Shop.

      
      

   2. The safety meetings were attended by all of the grounds crews, including Ms. Smith's crew.

      
      

   3. The purpose of the safety meetings was to discuss safety issues. There were times, however, when the crew members were also reminded that cat calls and vulgar or sexual comments to females they saw while working were not appropriate. These reminders were usually made when a complaint had been received about the crews violating the policy against such conduct.

      
      

   4. There were instances when male workers used profane or vulgar language during safety meetings and Ms. Smith heard them. The evidence concerning whether supervisors of the Department were present when profanity was used during safety meetings in front of Ms. Smith was contradictory at best. The evidence presented by Ms. Smith was overly broad, lacking in specifics as to what was said, by whom comments were made, who was present and, whether supervisors that were present were also aware that Ms. Smith heard any comments. Based upon the weight of the evidence, it is concluded that supervisors of the Department did not routinely hear profanity being used by employees in Ms. Smith's presence, and, when they did, employees were not allowed by supervisors to use vulgar language while safety meetings were being conducted.

      
      

   5. On one occasion an employee used vulgar language in front of Ms. Smith during a safety meeting when a supervisor was present and the supervisor warned the employee to "watch your mouth." On other occasions, Mr. LeDew admonished one particularly troublesome employee, Bill Ojala, to not use vulgar language. Mr. Ojala was not a supervisor.

      
      

   6. Vulgar language was used by a small group of the non-supervisory employees immediately before and after safety meetings. Ms. Smith overheard employees using vulgar language before and after safety meetings on some occasions. The evidence failed to prove, however, that Ms. Smith told management of the Department about those instances when she overheard the use of vulgar language.

      
      

   7. The group safety meetings were discontinued approximately three months after Ms. Smith began her employment with the Department. The group meetings were discontinued largely because they had turned into "gripe sessions" instead of meetings to discuss safety. Separate safety meetings were continued by each ground crew.

      
      

   8. The evidence failed to prove that vulgar language was used by Ms. Smith's crew during the separate safety meetings conducted for her crew.

      
      

7. Troy Sullivan's Employment by the Department

   
   

   1. In approximately August of 1990, eight months after Ms. Smith began employment with the Department, she applied for a groundskeeper position with the Division.

   2. Troy Sullivan, a male, was another applicant for the same groundskeeper position Ms. Smith applied for.

      
      

   3. Mr. Sullivan was hired by the Division to fill the groundskeeper position. Mr. Collins made the decision to hire Mr. Sullivan.

      
      

   4. Mr. Sullivan was hired at a salary below that being paid to Ms. Smith at the time he was hired, even though his position was a higher position than Ms. Smith's.

      
      

   5. Mr. Sullivan had approximately two or three years of experience with grounds maintenance prior to being employed by the Department. Most of that experience, however, was part-time and included some time when he mowed yards while in school. Mr. Sullivan worked full-time performing landscaping and grounds maintenance for approximately three months prior to his employment by the Department.

      
      

   6. Mr. Sullivan was assigned to Ms. Smith's crew.

      
      

   7. After speaking to Mr. Sullivan about his experience, which was not as extensive as hers, Ms. Smith complained to Mr. Miller about the failure of the Division to promote her to the groundskeeper position. The evidence failed to prove that Mr. Miller or anyone else told Ms. Smith that she was not promoted because she was a female. Mr. Miller arranged a meeting for Ms. Smith with Mr. Collins.

      
      

   8. Mr. Collins met with Ms. Smith and Mr. Miller. After hearing from Ms. Smith, Mr. Collins attempted to explain that he believed that Mr. Sullivan was the best candidate because of his experience and because Mr. Miller believed that she had evidenced resistance to authority during her employment with the Department.

      
      

   9. Mr. Collins gave Ms. Smith a specific example of an incident which he believed evidenced her resistance to authority. Mr. Collins had given Ms. Smith instructions concerning spraying an ant bed. Ms. Smith did not follow those instructions. Although Ms. Smith had an explanation for why she had not sprayed the ant bed (someone else did it before she could do it), the evidence failed to prove that Ms. Smith had told Mr. Collins why she had not sprayed the bed until after the decision had been made to hire Mr. Sullivan.

      
      

   10. Ms. Smith ended the meeting before Mr. Collins could give further explanation for his decision to hire Mr. Sullivan.

       
       

   11. In addition to the specific incident Mr. Collins informed Ms. Smith of, Mr. Collins had also been told by Mr. Miller of the difficulties he was having with Ms. Smith and her resistance to his instructions.

       
       

   12. Based upon Mr. Collins' understanding of the spraying incident at the time of his decision to hire Mr. Sullivan and his understanding of the difficulties Mr. Miller had experienced with Ms. Smith, his decision to hire Mr. Sullivan and not to promote her to the groundskeeper position was reasonable.

       
       

   13. Ms. Smith also complained to Mr. LeDew about the decision not to promote her.

   14. The evidence failed to prove that the decision to hire Mr. Sullivan and not to promote Ms. Smith to groundskeeper was based upon sex.

       
       

   15. All of the laborers, including Ms. Smith, were reclassified as groundskeepers effective October 26, 1990 and received a 10 percent increase in pay.

       
       

8. Bricks in Your Pants.

1. In January of 1991 Ms. Smith was pulling a sod roller over an area around the Capitol. The roller was very heavy and Ms. Smith appeared to be having some difficulty with it.

   
   

2. Jack Smith walked past where Ms. Smith was pulling the roller. Jack Smith was an OPS worker at the time of this incident. Jack Smith said to Ms. Smith "you don't have enough bricks in your britches to pull that thing." Ms. Smith threw her hands down at her side in disgust. Jack Smith, believing that Ms. Smith was angered by his comment, apologized to Ms. Smith and indicated he did not mean to upset her. Jack Smith also told Ms. Smith that he did not have enough bricks in his britches to pull the roller by himself and suggested that there was one area where she should not attempt to pull the roller by herself.

   
   

3. Jack Smith came by Ms. Smith later and, at her request, helped her pull the roller over a small hill. Jack Smith told Ms. Smith to suggest to Mr. Miller that they use a "Toro" to pull the roller. Ultimately, the Toro was used to pull the roller.

   
   

4. Jack Smith reported his comment to Mr. LeDew.

   
   

5. Jack Smith's comment to Ms. Smith was meant to indicate that Ms. Smith did not have enough weight and strength to pull the roller. Ms. Smith's belief that the comment had a sexual connotation was unfounded.

   
   

   I. Ms. Smith's Third Supervisor.

   
   

6. In early 1991, Ms. Smith and Dewayne Earnest, a co-worker and friend of Ms. Smith, met with Mr. Hatcher, Jack Smith and Mr. Collins to complain about Mr. Miller's supervision.

   
   

7. As a result of the meeting, it was decided that Ms. Smith and Mr. Earnest would be moved to another supervisor. This decision was made because of the personal conflict that had developed between Ms. Smith and Mr. Miller. The decision to move Ms. Smith was not based upon Ms. Smith's sex.

   
   

8. The evidence failed to prove that the decision to change Ms. Smith's supervisor was made in retaliation for alleged complaints about alleged harassment and abuse of Ms. Smith by Department employees.

   
   

9. The evidence failed to prove that Ms. Smith was told during the meeting that Mr. Miller would be demoted.

   
   

10. Ms. Smith was placed under the supervision of Jeremiah Gee. Ms. Smith remained under Ms. Gee's supervision until November 16, 1992.

    
    

11. Ms. Smith testified that she did not have any problem with Mr. Gee's supervision of her. Ms. Smith complained, however, about several alleged incidents involving Mr. Gee.

12. Ms. Smith complained that, for some unspecified period of time, Mr. Gee required that she keep notes of the work performed each day. Mr. Gee, when questioned by Ms. Smith about why she was being required to keep notes, told her that she was good at keeping records. The evidence failed to prove that male employees were never required to take notes for Mr. Gee before or after Ms. Smith took notes. The evidence also failed to prove that Mr. Gee's decision to require that Ms. Smith take notes was based upon her sex.

    
    

13. Ms. Smith also complained that Mr. Gee had required that she go to the Grounds Section Shop to pick up 15 to 20 one-gallon potted plants and bring them in a truck to a landscaping site. The evidence failed to prove that this assignment was unreasonable, that it was meant to be punishment, that it was a more difficult task than Mr. Gee assigned to male workers or that the assignment was based in any way on Ms. Smith's sex. In fact, Mr. Gee had instructed Ms. Smith to request assistance if she had any difficulty lifting any objects.

    
    

14. Ms. Smith also complained about an incident that took place on a rainy day on or before September 25, 1991. Because of the rain, the crews remained at the Grounds Section Shop. Mr. Gee instructed Ms. Smith to clean machinery and tools. Mr. Gee observed Ms. Smith talking to another crew member, Mr. Holland, rather than cleaning machinery and tools.

    
    

15. Mr. Gee gave Ms. Smith a written counseling for failing to follow his instructions. Mr. Collins was also present when the written counseling was given to Ms. Smith. Ms. Smith refused to sign the counseling.

    
    

16. Ms. Smith wrote a response to Mr. Gee's written counseling alleging that she had been discriminated against.

    
    

17. The evidence failed to prove that the written counseling given Ms. Smith by Mr. Gee was based in any way upon her sex.

    
    

18. The evidence also failed to prove that Mr. Gee "continued the attitude of sex based hostility toward Petitioner."

    
    

19. The evidence also failed to prove that "Bill McCray, then-Crew Leader of Petitioner's crew, told other supervisors including Gee that they needed to be harder on Petitioner with the hope that she would quit working with the Department." There was no evidence presented to support this allegation. Additionally, "crew leaders" were informally designated supervisors without a great deal of authority and, therefore, it is unlikely that a crew leader would be giving instructions to Mr. Gee or any other Supervisor I.

    
    

    1. Slashed Tires, Vandalized Equipment and Rocks on Ms. Smith's Windshield.

       
       

20. While Ms. Smith was under Mr. Gee's supervision, Ms. Smith drove her daughter's automobile to work one day. The automobile was parked at the Grounds Section Shop. During the day a tire on her daughter's car was slashed. The evidence failed to prove who was responsible for this incident, that it was based upon Ms. Smith's sex or that the Department acted unreasonably.

    
    

21. On another occasion, the Grounds Section Shop was broken into one night. The truck that Ms. Smith's crew used had the words "bitch, bitch, bitch" spray painted on it and the word "bitch" was spray painted on a pillar in front of the truck. Jack Smith's departmental vehicle had also been spray painted.

22. The door to the restroom used by Ms. Smith and a few male employees had been kicked in.

    
    

23. Tools and equipment used by Ms. Smith's crew were thrown around the maintenance area. Other equipment had also been moved, but not to the same extent as Ms. Smith's crew's equipment. Communications equipment had also been misplaced and a telephone had been taken.

    
    

24. The Capitol police were informed of the incident and came to the Grounds Section Shop to investigate. The police were unable to determine who had caused the damage at the Grounds Section Shop.

    
    

25. Ms. Smith was very upset about the incident and talked of quitting. Jack Smith encouraged her not to quit and told Ms. Smith that she was the best worker he had.

    
    

26. It is likely that the incident was directly related to Ms. Smith and involved an employee of the Division who did not like Ms. Smith.

    
    

27. The evidence, however, failed to prove who the individual or individuals were that vandalized the Grounds Section Shop. The evidence also failed to prove that any action of the Department in response to the incident was based upon Ms. Smith's sex. The evidence also failed to prove that the Department did not respond in a reasonable manner to the incident.

    
    

28. Ms. Smith also complained that she believed that someone had gotten into her personal truck and that her purse, which she had left in the truck, had been searched. The truck, which was locked, had not been broken into and nothing was taken from her purse. She reported the incident to Mr. Collins and Mr. Medlock. The weight of the evidence failed to prove that anyone had actually gone into Ms. Smith's truck. The evidence also failed to prove that any action of the Department related to this incident was unreasonable or based on Ms. Smith's sex.

    
    

29. During the summer of 1992, Ms. Smith reported to Jack Smith that, while exiting the Grounds Section Shop at the end of work, rocks had been thrown on her vehicle when the tires on a truck driven by another employee spun out. Jack Smith spoke to the other employee, who explained that it had not been intentional. The individual indicated that he was having problems with his transmission, which Jack Smith knew to be true. Jack Smith reported back to Ms. Smith. The evidence failed to prove that this incident was related in any way to Ms. Smith's sex.

    
    

    1. The Incinerator Incident.

       
       

30. Ms. Smith reported to Jack Smith that two co-workers from another crew had been drinking alcohol. While Ms. Smith had not seen the individuals drinking, she had smelled what she believed alcohol when she walked into a room that the individuals were in. One of the workers was Earl Thomas. Jack Smith told Ms. Smith that there was nothing that he could do about employees drinking unless he actually caught them drinking. Jack Smith also told Ms. Smith that he would get the Capitol police to investigate, because he believed there was a drinking problem. Although Jack Smith asked Capitol police for assistance, none was immediately given and Jack Smith did not follow-up on his request. The evidence, however, failed to prove that Jack Smith's reaction to Ms. Smith's

    complaint, or the lack of effort to follow up on the problem, was related to her sex.

    
    

31. The Department did not simply ignore drinking. Mr. Ojala had previously been counseled about drinking alcoholic beverages during working hours.

    
    

32. Subsequent to reporting Mr. Thomas for his alleged drinking, Ms. Smith drove her crew's truck to the incinerator to drop off trash. Other crew members were with Ms. Smith. While at the incinerator she saw Mr. Thomas.

    
    

33. Mr. Thomas made the following statement: "if that fucking bitch was my fucking wife I'd kick her fucking ass." Ms. Smith overheard the statement. The evidence failed, however, to prove that any other individuals heard the statement. Mr. Earnest's testimony about this incident was not credible. Mr. Earnest and Ms. Smith discussed essentially all of their problems at the Department. It was not until the final hearing of this case that Ms. Smith heard that Mr. Earnest had allegedly overheard Mr. Thomas' statement. Because of Mr. Earnest's lack of candor concerning this matter, very little weight was given to any of Mr. Earnest's testimony.

    
    

34. Ms. Smith reported the incident to Jack Smith. Jack Smith told Ms. Smith that he "would take care of it". Jack Smith spoke to Mr. Thomas about the incident. Mr. Thomas denied that he made the comment to Ms. Smith.

    
    

35. Jack Smith believed that there was no way he could determine whether Mr. Thomas or Ms. Smith was telling the truth. Therefore, no disciplinary action was taken against Mr. Thomas. Instead, Jack Smith told Mr. Thomas that, if he did make the comment, not to make any further comments to Ms. Smith and, if he did not make the comment, he should stay away from Ms. Smith. Jack Smith did not take any disciplinary action against Mr. Thomas.

    
    

36. The evidence failed to prove that the Department's actions relating to the incident at the incinerator were based upon Ms. Smith's sex or that the Department acted unreasonably.

    
    

37. The evidence also failed to prove that a subsequent change in Ms. Smith's supervisor was based on the incinerator incident.

    
    

    1. Ms. Smith's Unspecified Complaint About an Unnamed Supervisor.

       
       

38. On or about December 16, 1991, a meeting was held at Ms. Smith's request with Ms. Smith, K. Wayne Smith, Mr. Hatcher and Mr. Collins. The meeting had been arranged after Ms. Smith told Mr. Gee that she had a problem with a supervisor and that she wanted to discuss the problem with management. She would not tell Mr. Gee who the supervisor was or what the problem was. Ms. Smith also told Mr. Gee that she did not want to see Mr. Collins.

    
    

39. During the December 16, 1991 meeting Ms. Smith indicated that she would rather not discuss her complaint with Mr. Collins present. Mr. Collins, therefore, left the meeting. After Mr. Collins left the meeting, Ms. Smith stated that there was a supervisor in the Division that hated women. When asked to identify the supervisor, she refused. The evidence failed to prove any specific incident that Ms. Smith raised other than the written counseling previously given to Ms. Smith.

40. Following a discussion of the written counseling, Ms. Smith was told that the written counseling would be returned to her and that no copy of the document would be placed in her file. Rather than the written counseling, Ms. Smith only received an oral counseling for the incident.

    
    

41. When asked if there were any other problems she was having, she replied "no".

    
    

42. Following the December 16, 1991, meeting Mr. Collins spoke to several people in an effort to determine if Ms. Smith was being discriminated against on the basis of her sex. Mr. Collins learned on one incident involving Raymond Hines.

    
    

    1. Raymond Hines' Inappropriate Comment to Ms. Smith.

       
       

43. While under Mr. Gee's supervision, Raymond Hines acted as a "crew leader". This was an informal position and Mr. Hines lacked disciplinary authority.

    
    

44. Ms. Smith and Mr. Earnest worked with Mr. Hines.

    
    

45. Mr. Hines had instructed Ms. Smith concerning how to plant daisies. Mr. Hines became upset with Ms. Smith when she questioned his instructions and made the comment that "she needed to be home taking care of her babies."

    
    

46. When Ms. Smith learned of Mr. Hines comment she reported it to Mr. Gee and Mr. Collins. Ms. Smith indicated that she did not wish to file a complaint against Mr. Hines because she did not want for him to get into any trouble.

    
    

47. Mr. Collins directed Mr. Gee not to allow Mr. Hines to act as a crew leader any longer. The next day, Mr. Hines was no longer allowed to act as a crew leader.

    
    

48. The evidence failed to prove that the Department's actions with regard to Mr. Hines' inappropriate comment to Ms. Smith were unreasonable or unresponsive.

    
    

    1. Mr. Ojala.

       
       

49. The Department had a number of problems with Mr. Ojala and three other individuals. They became known as the "Parkway 4." Ultimately, three of the Parkway 4, including Mr. Ojala, were terminated in the Spring of 1991. The fourth member was suspended in May of 1991.

    
    

50. On one occasion immediately before or after a safety meeting, Mr. Ojala pulled his shirt out to indicate "breasts" and said he did not have any of "those." These actions were directed at Ms. Smith. The evidence failed to prove that any supervisors were aware of this incident. The evidence also failed to prove that Mr. Ojala or any other employee of the Department touched Ms. Smith's breasts.

    
    

51. Mr. Ojala was reprimanded orally on March 20, 1989, for the use of profane, obscene or abusive language.

    
    

52. At some time while employed by the Department, Mr. Ojala came out of a restroom at the Grounds Section Shop. Mr. Ojala was still tucking his shirt

    into his pants when he came out of the restroom. Mr. Ojala made no effort to hide what he was doing even though Ms. Smith was present and Mr. Ojala saw her.

    
    

53. Ms. Smith reported the incident to Jack Smith. Jack Smith questioned Mr. Ojala about the incident. Mr. Ojala denied that he was coming out of the restroom when the incident occurred. Mr. Ojala stated that he was outside the building in the morning between two automobiles tucking his pants in when Ms. Smith drove past and saw him.

    
    

54. The evidence failed to prove that the Department's actions with regard to Mr. Ojala's actions around Ms. Smith were unreasonable or based upon her sex.

    
    

    1. Ms. Smith's Final Supervisor.

       
       

55. In November of 1992 Jack Smith decided to rearrange the areas each of the crews were responsible for. This decision was based upon Jack Smith's conclusion that the areas needed to be more contiguous in order to reduce the amount of travel time required by the supervisors and crews to cover their respective areas of responsibility. The evidence failed to prove that this decision was unreasonable or that it was based in any way on Ms. Smith's sex.

    
    

56. The rearrangement of areas did not change the work load or duties of the crews. Nor were the crews required to work in a significantly different work area.

    
    

57. As part of the rearrangement of work areas, Jack Smith decided to move the supervisors to different crews. As a result of this decision, Mr. Medlock became the crew leader of Ms. Smith's crew.

    
    

58. Ms. Smith and her crew were informed of the change in their supervisor by Mr. Gee. Mr. Gee informed Ms. Smith that Jack Smith had made the decision.

    
    

59. After learning of the change in supervisor, Ms. Smith asked Jack Smith not to put Mr. Medlock in charge of her crew. Jack Smith declined her request.

    
    

60. After speaking to Jack Smith, Ms. Smith asked Mr. Gee to arrange a meeting with someone that would be able to stop the change in her supervisor. A meeting was arranged.

    
    

61. On or about November 15, 1992 a meeting was held with Ms. Smith, K. Wayne Smith, Jack Smith and Glenn Abbott, a Management Review Specialist of the Department's Bureau of Personnel, Mr. Earnest and a union representative also attended the meeting.

    
    

62. Ms. Smith and Mr. Earnest stated that they did not want to be placed under Mr. Medlock's supervision. Ms. Smith gave several reasons why she was opposed to working for Mr. Medlock. Ms. Smith then stated for the first time that Mr. Medlock had touched her when she had first been employed by the Department.

    
    

63. Ms. Smith indicated that she believed the touching was sexual; that Mr. Medlock had "caressed" or "squeezed" her arm. Ms. Smith indicated that the incident had taken place almost two years earlier, that she had not previously reported it and that no further incidents had occurred during the almost two

    year period that had passed since the incident. Ms. Smith also did not report that there were any witnesses to the incident.

    
    

64. Ms. Smith only reported one incident during the November 15, 1992 meeting and in her Amended Petition for Relief, although she contended for the first time at hearing that there were two or three incidents.

    
    

65. After listening to Ms. Smith's complaint about Mr. Medlock, she was informed that the change in supervisors would still take place. K. Wayne Smith made the decision. K. Wayne Smith also told Ms. Smith to report any inappropriate actions by Mr. Medlock directly to him.

    
    

66. The decision to decline Ms. Smith's request that Mr. Medlock not be assigned as her supervisor was based upon the amount of time that had passed since the incident, the fact that there were no witnesses to the incident, the non-sexual nature of the touching and the fact that Ms. Smith had not previously reported the incident.

    
    

67. K. Wayne Smith and several other supervisors had previously met with Ms. Smith. K. Wayne Smith had asked Ms. Smith to report any problems she had experienced. Ms. Smith did not report the incident with Mr. Medlock to K. Wayne Smith or any of the other supervisors.

    
    

68. Jack Smith had, on more than one occasion, asked Ms. Smith if she had any problems. Ms. Smith never reported the touching incident.

    
    

69. Mr. Abbott reported the touching incident to the Department's personnel director. Mr. Abbott also intended to speak to Mr. Medlock about the incident, but Ms. Smith left the Department before he had an opportunity to do so.

    
    

70. During the November 15, 1992, meeting, Ms. Smith asked if there were any other positions within the Department that she could be transferred to. K. Wayne Smith told her that, based upon her education and experience, the only position she would qualify for was a "maid's job". K. Wayne Smith was referring to custodial positions available at the Department.

    
    

71. The meeting on November 15, 1992, although not uncontrollable, was somewhat heated. Despite the heated nature of the meeting, efforts were made to convince Ms. Smith of the benefits of remaining with the Department. The evidence failed to prove that Ms. Smith was told that she was a "troublemaker" or that she was told that the only way she could make it with the Department was to keep her mouth shut, her ears shut and look the other way.

    
    

72. The evidence failed to prove that any comments made during the November 15, 1992, meeting, or that the actions taken by the Department as a result thereof, were based upon Ms. Smith's sex. By the time of this meeting, Ms. Smith had made numerous complaints about a wide variety of subjects. Ms. Smith had become a source of problems for management of the Division. Many of the problems were based upon hearsay and rumor and not based upon reality. Some of those problems were caused by Ms. Smith and some were caused by others. Of significance, however, is the fact that the problems were related to personality conflicts and not Ms. Smith's sex.

    
    

73. In light of all these circumstances, the Department's actions following the November 15, 1992 meeting were reasonable and were not based upon Ms. Smith's sex.

74. The evidence failed to prove that Ms. Smith was subjected to written discipline for insubordination as a result of questioning her assignment to Mr. Medlock's supervision.

    
    

    1. Ms. Smith's Next to the Last Day of Reporting to Work.

       
       

75. On November 16, 1992 Ms. Smith was placed under Mr. Medlock's supervision.

    
    

76. Jack Smith told Mr. Medlock to have someone with him when he gave Ms. Smith and Mr. Earnest instructions.

    
    

77. Mr. Medlock's first encounter with Ms. Smith on November 16, 1992 was at the Grounds Section Shop. Mr. Medlock expected Ms. Smith and Mr. Earnest to approach him about their work assignment that morning. When they did not, Mr. Medlock eventually approached them. Ms. Smith and Mr. Earnest were still gathering their tools. When Mr. Medlock questioned them about why they were not ready to leave yet, they told him that there were too many people in the Grounds Section Shop. They also indicated that they were not paid to think and that he would have to tell them everything that they were suppose to do. Ms. Smith and Mr. Earnest were belligerent and angry. Mr. Medlock was also irritated about the situation.

    
    

78. Mr. Medlock directed Ms. Smith and Mr. Earnest to go to the Union Bank building and trim shrubs.

    
    

79. At approximately 8:20 to 8:25 a.m. Mr. Medlock and Mr. Collins drove past the Union Bank. Ms. Smith and Mr. Earnest were standing by their truck and had not yet begun working.

    
    

80. At approximately, 8:35 to 8:40 a.m. Mr. Medlock and Mr. Collins returned to the Union Bank to see if Ms. Smith and Mr. Earnest had begun to work. Mr. Earnest was working on one small plant that was part of a hedge. Ms. Smith was not working until she saw Mr. Medlock and Mr. Collins approaching.

    
    

81. When Ms. Smith saw Mr. Medlock and Mr. Collins she began to immediately work on the same small plant that Mr. Earnest was working on. Very little trimming had been done at this time. Mr. Medlock told Ms. Smith and Mr. Earnest that they needed to spread out and not work on the same small bush. Mr. Medlock demonstrated what he wanted them to do.

    
    

82. Between an hour and an hour and a half later Mr. Medlock and Mr. Collins drove past the Union Bank again. Ms. Smith and Mr. Earnest were no longer there. Their truck was also gone. It was not time for their break and the evidence proved that they were not on break. Even if they were on their break, they were suppose to remain at the job site and they were gone more than the fifteen minutes allowed for breaks.

    
    

83. Mr. Medlock and Mr. Collins looked for Ms. Smith and Mr. Earnest for thirty to forty-five minutes. They eventually saw them driving the truck back toward the Union Bank.

    
    

84. Mr. Medlock and Mr. Collins returned to the Union Bank where they found Ms. Smith and Mr. Earnest. Very little work appeared to have been done. Mr. Medlock told Ms. Smith and Mr. Earnest that he would not tolerate them driving around in the truck and not getting any work done. Mr. Earnest told Mr.

    Medlock, "Nigger, I ain't got to put up with this shit" and "I ain't going to do a damn thing." Ms. Smith was present when Mr. Earnest made these comments. Ms. Smith did not say anything to Mr. Earnest about his use of profanity or the racial slur.

    
    

85. Mr. Earnest then returned to the Grounds Section Shop and left for the day on sick leave.

    
    

86. Ms. Smith left Union Bank a short time after Mr. Earnest had left. Ms. Smith also went home on sick leave.

    
    

87. The evidence failed to prove that Mr. Medlock made any effort to touch Ms. Smith on November 16, 1992.

    
    

88. Mr. Earnest resigned on November 17, 1992. At that time, Mr. Earnest referred to Mr. Medlock as "that nigger" in Jack Smith's presence.

    
    

    1. Ms. Smith's Last Day of Employment with the Department.

       
       

89. Ms. Smith remained home on sick leave for several days trying to decide what to do. She was concerned about not having a job. She was also concerned that her position with the Department was in jeopardy.

    
    

90. Ms. Smith stayed home on sick leave for a week. The Department made no effort to question Ms. Smith's use of sick leave during this time.

    
    

91. On November 20, 1992, Ms. Smith signed a resignation form with an effective termination date of November 30, 1992. Ms. Smith asked Jack Smith what she should give as her reason for resigning. Jack Smith suggested that she could simply say "personal reasons." Jack Smith did not, however, attempt to make Ms. Smith use "personal reasons". Ms. Smith put "conflict of interest" as her reason for leaving.

    
    

92. Ms. Smith was correctly informed that she could use her accumulated leave but that State policy required that she work her last day of employment. She was allowed to take sick leave between November 20, 1992 and her resignation date even though she was not sick.

    
    

93. On Ms. Smith's last day of employment, November 30, 1992, Mr. Medlock was absent from work. Therefore, Mr. Gee was assigned to supervise Ms. Smith. Mr. Gee was not assigned to supervise Ms. Smith because of her fear of Mr. Medlock.

    
    

94. The evidence failed to prove that Ms. Smith was constructively terminated by the Department. First, the evidence failed to prove that Ms. Smith was reasonably afraid of Mr. Medlock touching her or otherwise sexually harassing her. Ms. Smith's and Mr. Earnest's relationship with the Department had simply deteriorated to the point where it was becoming difficult for Ms. Smith's employment to continue.

    
    

95. Secondly, Ms. Smith had another alternative to terminating her employment if her fear of Mr. Medlock had been the only reason why she did not believe she could return to work. Ms. Smith, as a career service employee, could file a grievance over the decision to place her under Mr. Medlock's supervision. Ms. Smith chose not to do so.

96. Subsequent to Ms. Smith's resignation, an Exit Interview Report was completed by Mr. Medlock and placed in her file. Reemployment was not recommended in the report because of "bad attitude, didn't get along well with co-workers, and she didn't like to cooperate with supervisor." Ms. Smith suggested that she had never been told any of these things. This assertion, however, is not supported by the weight of the evidence.

    
    

    1. Sexual Harassment Policy/Training.

       
       

97. During Ms. Smith's employment by the Department, sexual harassment in the workplace was not discussed with, or mentioned by management to, the employees of the Division.

    
    

98. Employees of the Division were not provided with any training concerning sexual harassment in the workplace during the time that Ms. Smith was employed by the Department.

    
    

99. The Department has promulgated rules concerning sexual harassment in the workplace. See Chapter 13J-5 (now Chapter 60-5), Florida Administrative Code. Respondent's exhibit 5.

    
    

100. The Department's rules on sexual harassment were provided to all new employees of the Department.

     
     

101. The Department's employee handbook also briefly addresses sexual harassment and refers to the Department's rules. Respondent's exhibit 6.

     
     

102. A copy of the Department's employee handbook was provided to all new Department employees.

     
     

103. Mr. Collins, the immediate supervisor of Mr. Medlock, Mr. Gee and Mr. Miller, has attended courses dealing with discrimination on the basis of race and sex. As a result of these courses and his involvement in hearings on sex discrimination and sexual harassment, Mr. Collins is mindful of the problems of discrimination on the basis of sex.

     
     

     1. The Use of Vulgar Language.

        
        

104. It was the policy of the Department that profane, obscene or abusive language was not to be used by employees of the Division. See Chapter 13J-4 (now Chapter 60-6), Florida Administrative Code. Respondent's exhibit 4. It was the standard practice of the Division to provide a copy of Chapter 13J-4 to all employees when they were hired by the Department. Ms. Smith was provided a copy of Chapter 13J-4.

     
     

105. The Department also required that all employees sign a memorandum dated January 24, 1990, which explained the Department's policy concerning profane, obscene or abusive language. The memorandum provided the following:

     
     

     The use of Profane, Obscene, or Abusive Language is a Violation of Rule 13J-4 of the State of Florida Administrative Code. Use of such language will at no time be tolerated within the Capital Center Grounds Section.

     Violation of this requirement will result in disciplinary action being taken against

     the offender. The normal progression, depending

     on the severity of the offense, of this disciplinary action will be an Oral Reprimand, Written Reprimand, Three (3)-Day Suspension, and Dismissal. The disciplinary chain is progressive and will be followed.

     
     

     See Respondent's exhibit 2. At least one employee did not sign the memorandum until April 10, 1991. Employees were, however, informed of the policy orally prior to the date of the memorandum.

     
     

106. Despite the Department's policy, profane and obscene language was used at times by employees of the Division. There were also times when profane and obscene language was used by non-supervisory employees of the Department when Ms. Smith was present.

     
     

107. Ms. Smith contended in this proceeding that she made numerous and continuous complaints about the use of profane and obscene language in her presence while she was employed by the Department and that management of the Division failed to take any action to remedy the situation. The weight of the evidence failed to prove Ms. Smith's contentions. The evidence in support of such findings was generally over-broad and lacking in specificity as to when and to whom she complained, what she alleged was said, who she alleged used profanity, whether supervisors were present, whether the person that used the profanity or supervisors were aware Ms. Smith was present, etc.

     
     

108. The evidence failed to prove that Ms. Smith complained to Mr. Hatcher about the use of profanity or the telling of off-color jokes.

     
     

109. The evidence did prove that, despite the Division's efforts to prevent the use of profanity, the use of profane or obscene language by employees of the Division was not uncommon. Words such as "damn", "shit", "bitch", and "cunt" were used. The evidence, however, failed to prove specific incidents when profanity was used in Ms. Smith's presence or the circumstances surrounding such occasions.

     
     

110. The evidence also failed to prove any incident when Ms. Smith complained to management about the use of profanity when management did not take action. For example, Ms. Smith complained to Mr. LeDew at some point between January of 1990 and June of 1991 about the use of vulgar language. Mr. LeDew instructed Ms. Smith's supervisor to make sure vulgar language was not used.

     
     

111. In approximately June of 1992 Ms. Smith also complained to Mr. Gee about an "OPS" worker telling off-color jokes. Mr. Gee reported the incident to Jack Smith who met with the OPS worker and informed him that the Division did not allow the telling of off-color jokes. The worker was also told by Jack Smith that he would be fired if he persisted in telling off-color jokes. Ms. Smith did not report any further problems with the worker.

     
     

     1. The General Treatment of Ms. Smith.

        
        

112. The evidence failed to prove that male employees of the Department became suspicious or jealous of Ms. Smith and attempted to sabotage her performance and potential promotions. Mr. Miller did not tell Ms. Smith that she should not expect any promotions because women were never promoted in the Grounds Section.

113. The evidence also failed to prove that Ms. Smith was treated differently by her supervisors at the Department than her male counterparts were treated.

     
     

114. The evidence also failed to prove that Ms. Smith was given work assignments or otherwise treated differently because of the fact that she is a female.

     
     

115. The evidence also failed to prove that Ms. Smith was held to a higher standard of performance than male workers.

     
     

116. Ms. Smith received high evaluations while employed at the Department. Ms. Smith received "exceeds" performance standards throughout her employment with the Department. She was also promoted to groundskeeper with all the other laborers and received a letter of recommendation from Jack Smith.

     
     

117. Ms. Smith was also the third highest paid employee of similar position within the Division while employed by the Department between March 16, 1990 and May 10, 1991. Ms. Smith was paid more than some equivalent employees who had more time with the Department. The two individuals that were paid more than Ms. Smith had been with the Department for 15 to 20 years each.

     
     

118. The evidence also failed to prove that Ms. Smith was not allowed to seek assistance from co-workers under circumstances similar to those when her male co-workers would seek assistance. The evidence also failed to prove that she was denied assistance when it was necessary or that she was criticized inappropriately for "needing help from others." Comments on Ms. Smith's January 19, 1991 appraisal concerning seeking assistance were intended as constructive and not disciplinary. The comments were reasonable because of Ms. Smith's unreasonable preference for working with another co-worker rather than completing the task assigned to her by her supervisors.

     
     

119. Ms. Smith was not disciplined for complaining about being assigned a task to be performed alone and she was not threatened with discipline by any supervisor for expressing her desire to work with Mr. Earnest or any other co- worker.

     
     

120. There were tasks that required two or more workers to perform. There were also tasks that, while only requiring one person to perform, two or more workers were assigned to perform. The standard procedure was, however, for workers to work in the same general area, but to be performing different tasks. There were also times when all workers, including Ms. Smith, were required to work alone and independently of others. Ms. Smith did not like to work alone or on a task by herself and frequently complained about being denied her preference to work with another employee.

     
     

121. The evidence failed to prove that Ms. Smith was segregated from her co-workers unreasonably, as retaliation or based upon her sex.

     
     

122. There were times when Ms. Smith was not allowed to perform a task with Mr. Earnest, whom she preferred to work with most of the time, or other co- workers. The evidence, however, failed to prove that on those occasions when she was required to work independently, that she was being singled out to perform a job which would require two or more employees to perform. The evidence also failed to prove that Ms. Smith's sex played any role in any decision to require Ms. Smith to work independently.

123. The evidence also failed to prove that Ms. Smith was treated with discipline for complaining about the workplace.

     
     

124. The evidence also failed to prove that working conditions became worse as a result of her complaints about an alleged sexually hostile work environment. While it is true that Ms. Smith was viewed by management as a complainer and problem employee for a large part of her employment, that perception was not based upon her sex or allegations of sexual misconduct in the Division. The Department's reaction to Ms. Smith would have most likely been the same had she been a man. This conclusion is supported by the Department's treatment of Mr. Earnest.

     
     

125. In many, although not all, respects Mr. Earnest joined Ms. Smith in the complaints raised by her to the Department. For a considerable part of the time Ms. Smith was employed with the Department, she insisted that Mr. Earnest be present when she spoke to supervisors, especially when she spoke to Jack Smith.

     
     

126. Mr. Earnest, like Ms. Smith, was resentful of management, argumentative with supervisors and was viewed toward the end of his employment as a source of problems for the Division.

     
     

127. With perfect hindsight, it would be easy to criticize some of the reactions of the Department to the complaints of Ms. Smith and Mr. Earnest. Some supervisors reacted with anger to the mounting number of complaints and accusations Ms. Smith and Mr. Earnest made. Any inappropriate reaction by

     management of the Department was not, however, based upon sex. Had it been, Mr. Earnest, a male, would not have been treated in the same general manner that Ms. Smith was treated. The fact that Mr. Earnest was treated similarly to Ms. Smith tends to refute any conclusion that the Department's actions were based upon Ms. Smith's sex.

     
     

     1. Miscellaneous Complaints.

        
        

128. The evidence failed to prove that Jack Smith asked Ms. Smith or Mr. Earnest whether they were having sex with each other.

     
     

129. The evidence failed to prove that any disciplinary or other adverse action was taken against Ms. Smith for asking Jack Smith if he had asked Mr. Earnest whether Mr. Earnest and Ms. Smith were having sex with each other.

     
     

     1. Ms. Smith's Subsequent Employment.

        
        

130. After terminating her employment with the Department, Ms. Smith filed an application for employment with the Department of Labor and Employment Security.

     
     

131. Not too long after leaving the Department, Ms. Smith moved to Virginia and lived with her sister for a relatively short period of time. She returned to Florida.

     
     

132. The evidence failed to prove how long Ms. Smith unsuccessfully made a diligent effort to find employment after leaving the Department.

133. Ms. Smith is currently employed as manager of the inside lawn and garden section of Lowe's in Tallahassee, Florida. Ms. Smith has been employed at Lowe's since February 19, 1993. She is paid more than she was being paid at the Department when she left.

     
     

     1. Ms. Smith's Complaint.

     
     

134. Ms. Smith filed a Charge of Discrimination with the Commission on or about August 10, 1993 alleging that the Department had discriminated against her on the basis of her sex.

     
     

135. On or about January 13, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred.

     
     

136. On or about February 14, 1994, Ms. Smith filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings.

     
     

137. On or about March 24, 1994, Ms. Smith filed an Amended Petition for Relief.

     
     

     CONCLUSIONS OF LAW

     
     

     1. Jurisdiction.

        
        

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

     
     

     1. The Burden of Proof.

        
        

139. The Florida Human Rights Act provides that it is an unlawful employment practice for an employer to fail or refuse to hire any individual because of the individual's sex. Section 760.10(1)(a), Florida Statutes.

     
     

140. This case involves sex discrimination based upon alleged "sexual harassment." Claims of sexual harassment are derived from the prohibition of Title VII of the Civil Rights Act of 1964 that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to the . . . terms, conditions, or privileges of employment, because of that individual's . . . sex." 42 U.S.C. Section 2e-2(a)(a). See Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986).

     
     

141. There are two different forms of sexual harassment that have been recognized by the courts: (a) quid pro quo; and (b) hostile work environment. See Meritor Savings Bank, FSB; and Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

     
     

142. Ms. Smith has alleged that the Department is guilty of sexual harassment because of a hostile work environment. She has not contended that she has been subjected to quid pro quo sexual harassment.

     
     

143. In order for an employee to prove that they have been subjected to hostile work environment sexual harassment, the employee is required to prove the following elements of sexual harassment by hostile work environment:

     1. The employee belongs to a protected group;

        
        

     2. The employee was subjected to unwelcome sexual harassment;

        
        

     3. The harassment complained of was based upon sex;

        
        

     4. The harassment complained of affected a "term, condition or privilege" of employment; and

        
        

     5. The employer knew, or should have known, of the harassment and failed to take prompt remedial action. See Henson.

     
     

144. In addition to the foregoing, Ms. Smith was also required to prove that she was "constructively discharged" and that the events complained of took place within the statute of limitations of Chapter 760, Florida Statutes.

     
     

     1. Ms. Smith Has Failed to Prove All the Elements of Sexual Harassment.

        
        

145. The evidence proved that Ms. Smith is the member of a protected group. She is a female.

     
     

146. Ms. Smith failed to prove, however, the remaining elements of sexual harassment.

     
     

147. First, Ms. Smith failed to prove that she was subjected to unwelcome harassment which was based upon sex. Almost all of the incidents that Ms. Smith has alleged in this case were not substantiated by the weight of the evidence. Where Ms. Smith did prove that an incident occurred, the evidence failed to prove that the incident constituted harassment and that the incident was based upon her sex.

     
     

148. Secondly, in those few instances where the evidence proved that an incident took place and that it was related in any way to Ms. Smith's sex, the evidence failed to prove that a "term, condition or privilege" of Ms. Smith's employment was affected.

     
     

149. Finally, the evidence failed to prove that any of the few instances that were proved by Ms. Smith were known to, or should have been known to, the Department and that the Department failed to take remedial action.

     
     

150. After working for the Department for a short period of time, the conflicts which ultimately gave rise to this proceeding began. Those conflicts continued to worsen during Ms. Smith's employment with the Department. Ms. Smith began to view relatively insignificant acts as discriminatory. Ms. Smith's discussions of rumors, which are present in most work settings, with Mr. Earnest that either of them heard, added fuel to the problem.

     
     

151. Although a conflict eventually developed between Ms. Smith and some of the Division's supervisors, with both the supervisors and Ms. Smith acting less than reasonable at times, the evidence in this case failed to prove that the Department's role in the conflict and their treatment of Ms. Smith was based in any way on her sex. Instead, the Department's role in the conflict and their treatment of Ms. Smith was based solely on her actions as an employee, just as the Department's role in the conflict that developed with Mr. Earnest and their treatment of him was based solely upon his actions as an employee.

152. Ms. Smith failed to prove that she was sexually harassed because of a hostile work environment.

     
     

     1. Statute of Limitations.

        
        

153. Pursuant to Chapter 92-177, Laws of Florida, the time within which a complaint of discrimination may be filed under Chapter 670, Florida Statutes, was extended from 180 days after the incident of discrimination to 365 days. This modification, however, only applies to conduct occurring on or after October 1, 1992. Section 13, Chapter 92-177, Laws of Florida.

     
     

154. Pursuant to Section 760.10(1), Florida Statutes (1991), conduct occurring on or before September 30, 1992, is barred unless a complaint is filed within 180 days after the incident complained of. Pursuant to Section 760.11(1), Florida Statutes (1992 Supp.), conduct occurring on or after October 1, 1992, is barred unless a complaint is filed within 365 days after the incident complained of.

     
     

155. The relevant period of time involved in this case is essentially January 1, 1990 through November 30, 1992. Most of this period of time is generally subject to the 180 day statute of limitations. Only events which took place in October and November of 1992 are subject to the 365 day statute of limitations.

     
     

156. The complaint filed by Ms. Smith in this case was filed on August 10, 1993. This date is more than 180 days after September 30, 1992, and less than

     365 days after October 1, 1992. Therefore, the events that allegedly took place in October and November of 1992 were timely raised by Ms. Smith. The events that allegedly took place between January 1, 1990 and September 30, 1992, are, however, barred by the statute of limitations applicable to that time period unless they constitute "continuing violations." See Berry v. Board of Supervisors, L.S.U., 783 F.2d 1270 (5th Cir. 1983); and Fowler v. Taco Viva, Inc., 646 F.2d 152 (S.D. Fla. 1986).

     
     

157. In this case, had Ms. Smith proved that the incidents she complained of constituted sexual harassment, many of the acts could be considered part of a "continuing violation".

     
     

158. The one exception to this conclusion is the touching incident involving Mr. Medlock. Had that incident been sexual in nature, Ms. Smith's complaint about it would be barred by the 180 day statute of limitations. This incident did not constitute part of a continuing violation because it was an isolated incident unrelated to any of the other alleged incidents (it was not an act involving the same type of alleged discrimination), it was not a frequent act and the alleged act was of such permanence that it should have triggered Ms. Smith's awareness of and duty to assert her rights. See Berry; and Sabree v. Carpenters and Joiners, 921 F.2d 396 (1st Cir. 1990).

     
     

159. Ms. Smith had been provided a copy of the Department's rules governing sexual harassment and the Department's employee handbook. Although not supported by the weight of the evidence, Ms. Smith testified at the hearing that she believed that the touching was sexual in nature. Therefore, there is no reason, had Mr. Medlock's touch been sexual in nature, for Ms. Smith not to have taken immediate action to enforce her right not to be sexually harassed in the workplace. Additionally, the incident was the only incident of touching alleged by Ms. Smith and was an act unrelated to the other alleged incidents of discrimination she has alleged in this case.

     1. Constructive Discharge.

     
     

160. Ms. Smith has alleged that she was "constructively discharged" by the Department. In order for this allegation to be substantiated, Ms. Smith was required to prove that the Department deliberately made her working conditions so intolerable that she was forced into an involuntary resignation. See Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900 (11th Cir. 1988). Ms. Smith was required to prove that her working conditions were so intolerable that a reasonable person in her position would be compelled to resign. See Morgan v. Ford, 6 F.2d 750 (11th Cir. 1993).

     
     

161. The evidence failed to prove that Ms. Smith's working conditions were made intolerable by the Department as a result of her sex. She has, therefore, failed to prove that she was constructively discharged.

ORDER

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

dismissing June H. Smith's Amended Petition for Relief.

DONE and ORDERED this 23rd day of November, 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 23rd day of November, 1994.

APPENDIX

The parties have 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.

Ms. Smith's Proposed Findings of Fact

1. Accepted in 8-9 and 13.

2. Accepted in 8-9 and hereby accepted.

3. Not relevant. The evidence failed to prove that the Department was are of these facts when they decided to hire Mr. Sullivan.

4. Accepted in 11. The allegations about what Mr. Hatcher said are not supported by the weight of the evidence.

5. Accepted in 6-7 and 21-22.

6. See 25-26. Mr. Medlock only touched Ms. Smith one time. The last sentence is accepted in 27.

7 See 44-51 and 170-177.

8 Accepted in 32, 76 and 141. The evidence failed to prove the first sentence. With regard to the last sentence, see 77.

9-11 Not supported by the weight of the evidence. The last sentence of proposed finding of fact 10 is accepted in 5.

1. Accepted in 44 and 46 and hereby accepted.

2. Not supported by the weight of the evidence. See 44-51. 14-15 See 63-64. But see 65-69.

1. Accepted in 71. The second sentence is not supported by the weight of the evidence.

2. Not supported by the weight of the evidence.

3. Not relevant. The evidence failed to prove that supervisors were aware of the fact that Ms. Smith avoided the Grounds Section Shop at any time.

4. Accepted in 52-54.

5. Accepted in 56. Ms. Sullivan's age is not relevant.

6. Not relevant.

7. Not relevant and not supported by the weight of the evidence.

8. Accepted 58-59. The evidence failed to prove that Mr. Collins told Ms. Smith she was not promoted because she could not tell someone what to do and make them do it "as a female."

9. Accepted in 64 and 66.

25-27 Not supported by the weight of the evidence.

28-29 See 15-20. The last sentence of finding of fact 29 is not supported by the weight of the evidence.

1. Not supported by the weight of the evidence.

2. Not supported by the weight of the evidence and not relevant.

3. Accepted in 72-73 and 76. See 74-75.

4. Accepted in 67. See 68 and 71.

5. Not supported by the weight of the evidence.

35-36 Not supported by the weight of the evidence and not relevant.

1. See 98-99. The evidence failed to prove that Mr. Thomas said "if she said anything about my drinking."

2. Accepted in 100. See 101-103.

39A Not supported by the weight of the evidence.

39B-C See 80-83. The last sentence of finding of fact 39B is not supported by the weight of the evidence.

1. Not relevant.

2. See 106. Ms. Smith's understanding as set out in the last sentence is not supported by the weight of the evidence.

3. See 104-108. The last sentence is not supported by the weight of the evidence.

4. Not supported by the weight of the evidence except to the extent that Ms. Smith "believed" that things were better.

44. Accepted in 91.

45-46 Not supported by the weight of the evidence.

47. Not relevant and not supported by the weight of the evidence.

1. See 86.

2. Accepted in 87.

3. Accepted in 88.

4. See 92. But see 93. The evidence failed to prove that there "was not any way" that persons not affiliated with the Department could have known where Ms. Smith's truck was parked.

52. Accepted in 78. The last sentence is not supported by the weight of the evidence.

1. See 123-124. The transfer was not related "the events described above." The implication of the last three sentences are supported by the weight of the evidence.

2. Accepted in 124-125.

3. Accepted in 126.

4. Accepted in 127-128. 57 See 121-140.

1. Accepted in 136.

2. Not supported by the weight of the evidence and not relevant. 60 See 121-140.

61 See 135.

62 Accepted in 141 and 145-147. 63 See 147-153.

64 Not supported by the weight of the evidence. 65 See 152 and 155.

66 Accepted in 156.

67 See 157.

1. Accepted in 158. The last sentence is not supported by the weight of the evidence.

2. Not supported by the weight of the evidence. 70 See 196-199.

1. Not relevant and not supported by the weight of the evidence.

2. Accepted in 162.

3. Accepted in 182.

4. Not relevant and not supported by the weight of the evidence.

5. Not supported by the weight of the evidence.

76-83 These proposed findings are an accurate summary of testimony. The individuals involved, however, were employed in 1985 and 1986. The evidence concerning these witnesses was not relevant in determining whether the incidents described by Ms. Smith were true.

84-93 These proposed findings are an accurate summary of testimony. The testimony was not, however, relevant. To the extent that the testimony involved Mr. Medlock, the testimony was either cumulative or not relevant in determining whether the incidents described by Ms. Smith were true.

1. Not supported by the weight of the evidence.

2. Not supported by the weight of the evidence. See 16-17. 96-97 Not supported by the weight of the evidence.

98-101 Not supported by the weight of the evidence. Mr. Earnest's testimony was not credible.

102 The first sentence is not supported by the weight of the evidence. The rest of the sentence is hereby accepted.

103 See 23-24.

1. Not relevant.

2. The first sentence is hereby accepted. The rest of the proposed finding is not supported by the weight of the evidence.

relevant.

The Department's Proposed Findings of Fact

1. Accepted in 13.

2. Accepted in 99 and hereby accepted.

3. Accepted in 66-67.

4. Accepted in 66 and 170.

5. Accepted in 6, 14 and 75. The last sentence is not supported by the weight of the evidence. Mr. LeDew only testified that he could not remember whether Ms. Smith contacted him concerning Mr. Sullivan.

6. Accepted in 6, 69 and hereby accepted. The last sentence is not supported by the weight of the evidence. Mr. LeDew's statement was too speculative.

7. Accepted in 6.

8. See 16. But see 17-18.

9. Accepted in 19-20. See 10 and 19.

10. See 21-22 and 32 and 34. The second sentence is not supported by the weight of the evidence. See 25-31.

11. Accepted in 54-55 and 57-66.

12. See 56.

13. Accepted in 183.

14-15 Accepted in 134.

16 Accepted 177.

17 See 170-177.

1. Accepted in 176.

2. Accepted in 44-51 and 115.

20 See 44-51 and 170-171. But see 172.

1. Accepted in 178 and 182.

2. Accepted in See 184 and hereby accepted.

3. Accepted in 33 and 178.

4. Accepted in 33.

5. Accepted in 32 and 36. 26-27 Accepted in 37.

1. Hereby accepted.

2. Accepted in 184.

3. Accepted in 179 and 184.

4. Accepted in 37 and 43.

5. Accepted in 40-41, 186-188 and hereby accepted

6. Accepted in 186.

7. Accepted in 181 and hereby accepted.

8. Hereby accepted.

9. Accepted in 188 and 191.

10. Accepted in 191. The last sentence is not relevant. 38-39 Not relevant.

1. Accepted in 67-71.

2. Accepted in 71 and hereby accepted.

3. Accepted in 116.

4. Accepted in 115, 117 and hereby accepted.

5. Accepted in 76.

6. Hereby accepted.

7. See 79.

47 Accepted in 104-105 and 107-108.

1. Accepted in 87-93.

2. Hereby accepted.

3. Accepted in 194.

4. Accepted in 195.

5. Hereby accepted.

6. Accepted in 185 and 189.

7. Accepted in 96.

8. Hereby accepted.

9. Accepted in 97.

10. Hereby accepted.

11. Accepted in 96 and 99-103.

12. Accepted in 95.

13. Not relevant.

14. Accepted in 121-123.

1. Hereby accepted.

2. Accepted in 127-134.

3. Accepted in 129. With regard to the touching incident, see 25-31.

4. Hereby accepted.

65 See 136-137.

1. Accepted in 127 and 161.

2. Accepted in 141-142.

3. Accepted in 143-153.

4. Accepted in 154.

5. Accepted in 148.

6. Accepted in 157-158, 161 and hereby accepted.

7. Accepted in 159. 73-74 Hereby accepted.

75 Accepted in 159.

76 Accepted in 36, 59, 62, 138, 162, 190 and 192.

77 See 25-31.

78 See 28.

79-82 Hereby accepted.

1. Accepted in 118.

2. Accepted in 94 and hereby accepted.

3. Hereby accepted.

4. Accepted in 36 and hereby accepted.

5. Not supported by the weight of the evidence. 88-91 Hereby accepted.

92 Accepted in 37 and hereby accepted. 93-94 Hereby accepted.

1. Accepted in 86.

2. Accepted in 78.

3. Accepted in 159.

98-99 Hereby accepted.

1. Not relevant.

2. Hereby accepted.

3. Accepted in 109-114 and hereby accepted.

4. Accepted in 188-189.

5. Not relevant.

105-108 Hereby accepted.

109 Accepted in 154.

110-114 Not relevant. Ms. Folsom's testimony concerning Mr.

Medlock's touching was cumulative.

COPIES FURNISHED:

Marie A. Mattox, Esquire 1333 North Adams Street Tallahassee, Florida 32303

Sharon D. Larson Assistant General Counsel Sylvan Strickland Assistant General Counsel

Department of Management Services Suite 312, Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-0950

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

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: 94-000896

Orders for Case No: 94-000896