STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY BOLDS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4688

) H & F ENVIRONMENTAL SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Tallahassee, Florida, on November 28, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows:

For Petitioner: Mary Bolds, pro se

Post Office Box 5742 Tallahassee, Florida 32314

For Respondent: no appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent fired Petitioner due to sex discrimination.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination dated December 12, 1993. The Florida Commission on Human Relations issued, on July 14, 1994, a Determination: No Cause.

By Petition for Relief filed August 15, 1994, Petitioner alleged that Respondent fired her because she was asked to give sexual favors to her supervisor, Raymond Baker, and refused to do so.

At the hearing, Petitioner called three witnesses and offered into evidence no exhibits. Respondent did not appear.

Petitioner did not order a transcript, and she waived her right to file a proposed recommended order.

FINDINGS OF FACT

1. In mid-October 1993, Petitioner saw a want ad in the newspaper and called the toll free number contained in the ad. She spoke with Raymond Baker of

   Respondent. He told her that Respondent performed cleaning services at Gayfers Department Store in Tallahassee. He told her to report to work at 6:30 am the following day.

   
   

2. When Petitioner reported to work the following morning, Mr. Baker told her to fill out an application and tax withholding form. After she had done so, he said that she should clean up the beauty salon.

   
   

3. At the end of her shift, Mr. Baker inspected the beauty salon and said that she had done a good job. Mr. Baker served as Petitioner's supervisor. This was the only feedback--positive or negative--that Petitioner ever received concerning her work.

   
   

4. The next day, Petitioner reported to work at the proper time. Mr. Baker assigned her to clean the lounge and offices. When she started toward these areas, Mr. Baker followed her and said, "I'd sure like to have some." When Petitioner asked him, "Some what?" he responded, "Sex with you."

   
   

5. Petitioner ignored Mr. Baker's remark. In the following days, he continued to make sexually derogatory comments toward her. He said he wanted to have sex with her due to her "boobs." Mr. Baker called Petitioner's house nightly, despite the fact that her husband would often answer the telephone.

   
   

6. At work, Mr. Baker assigned Petitioner to the dressing rooms, which were dark and isolated. He warned her, "If I ever catch you in a dark area, I will take some." Referring to the length of his penis, he stated, "I have eight and a half inches. If you don't believe it, you can take a ruler and measure it." Mr. Baker constantly brushed against Petitioner's body and often touched her shoulder and buttocks.

   
   

7. On November 16, 1993, Mr. Baker called Petitioner at home and said that Respondent was "overbudgeted" and did not need Petitioner anymore. She accepted this explanation until she later learned that Respondent hired two men after she and another female were fired.

   
   

8. Mr. Baker was Petitioner's sole supervisor. Although his supervisor occasionally came to the work site, Petitioner did not complain to her because she thought it would have been futile and would have only aggravated Mr. Baker. Mr. Baker sexually harassed other female employees during the same time period in the same manner.

   
   

9. Petitioner was earning $4.35 per hour for a 20 hour work week. She remained out of work for two months until she obtained a job paying 40 cents per hour more. Thus, her gross lost wages total $696.00.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

2. Section 760.10 provides that it is an unlawful employment practice "[t]o discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. "

3. Petitioner has proved that she suffered discrimination due to sex. She resisted the repeated, unwanted sexual advances of her superior, who harassed her to have sex with him. She was thus fired.

   
   

4. Petitioner's claim is against Respondent, not Mr. Baker directly. It is therefore necessary that she establish a basis on which to hold the employer liable for its employee's misconduct.

   
   

5. Neither Respondent nor her two female coworkers who testified ever complained of Mr. Baker's sexual harassment to his superiors. There is thus no direct notice to Respondent on which to base liability.

   
   

6. Regardless of the employer's notice of a supervisor's behavior, an employer is strictly liable when a supervisor conditions job benefits on sexual consideration. See, e.g., Katz v. Dole, 709 F.2d 251 (4th Cir. 1983). However, Petitioner did not describe any incidents of quid pro quo sexual discrimination.

   
   

7. But Respondent is liable in this case on two grounds. First, Respondent is liable for sexual harassment conducted by its supervisory personnel, without regard to actual notice. See, e.g., Bundy v. Jackson, 641 F.2d 934 (D.C. Dir. 1981); Garber v. Saxon Business Products, Inc., 552 F.2d 1032 (4th Cir. 1977), cited in Katz at page 254. Also, Respondent is constructively on notice of the harassment, which Petitioner proved was "so pervasive that employer awareness may be inferred." Id. at page 255.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Commission on Human Relations enter a final order granting the Petition for Relief and ordering Respondent to pay $696 in back wages.

ENTERED on November 29, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

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 on November 29, 1994.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

Mary Bolds

P.O. Box 5742 Tallahassee, FL 32314

Dwight Hicks, President

H&F Environmental Services, Inc. 2401 South Highway

Lynn Haven, FL 32444

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: 94-004688

Orders for Case No: 94-004688