Hawkins, as a Charge of Discrimination. The matter was ultimately referred to the Division of Administrative Hearings on January 2, 1998, and first set for hearing May 21, 1998. After a number of continuances and abatement during attempted mediation, the cause came on for hearing on the above dates.
The Petitioner and Respondent presented witnesses and evidence and a Transcript of the hearing was provided and filed on June 6, 2000. Each party was given 30 days from the date of filing the transcript to file proposed recommended orders. The Respondent timely filed its Proposed Recommended Order. The Petitioner was given an extension of time to file a proposed recommended order, but ultimately did not do so.
The Petitioner presented four witnesses. The Respondent presented eight witnesses and exhibits one through eleven, sixteen through thirty-one, and exhibit thirty-seven, which were admitted into evidence.
The Petitioner, Sylvia Hawkins, a female, was employed in the Mail Room as a part-time work study student by the Respondent, Daytona Beach Community College (DBCC), from February 16, 1994 until the end of December 1994. Her employment was pursuant to a Federal educational work-study grant.
On one occasion during the Petitioner's employment, prior to November 10, 1994, Petitioner complained about Tony Hamm, a low-level employee of the adjacent Central Receiving department, to the Manager Fred Wright. Fred Wright followed the policies and procedures of the college and restricted Tony Hamm from the Mail Room to the Central Receiving area, which were adjacent but separated departments.
On November 10, 1994, at approximately 4:45 p.m., the Petitioner left the Mail Room and entered the Central Receiving department. Tony Hamm, was located next to the desk of Michelle Babbs, an employee of the Central Receiving department, and Fred Wright, manager of Central Receiving. Upon the Petitioner's entering the Central Receiving department, an angry verbal
exchange and altercation occurred between the Petitioner and Tony Hamm, wherein the following occurred;
Tony Hamm spoke to the Petitioner and said, "Hey there Sylvia, how are you doing?";
The Petitioner responded to Tony Hamm, saying "Your momma!";
Tony Hamm then said to the Petitioner, "Don't be talking about my momma, you don't know her";
the Petitioner again said, "Your momma, your momma, I'll talk about your momma anytime I want";
Tony Hamm grabbed the Petitioner by the neck and pushed her against a desk. Mr. Fred Wright told Tony Hamm to stop and he complied;
the Petitioner went to another area, obtained a letter opener and returned with it poised to stab Tony Hamm;
(viii) verbal threats continued to be exchanged between the Petitioner and Tony Hamm until both left the campus. No sexual contact between the Petitioner and Tony Hamm was suggested, occurred or was intended.
The Petitioner knew that referring to Tony Hamm's mother was a serious insult in the community where they lived. It was foreseeable that it could result in violence directed toward her.
The violent confrontation between the Petitioner and Tony Hamm did not occur as a result of sexual advances or requests for sexual favors, but rather because of the angry exchange between them.
Mr. Fred Wright, in accordance with DBCC policy, immediately prepared a written statement describing the
altercation to the administration of the Respondent. See
Respondent's Exhibit two, in evidence.
The next morning, November 11, 1994, the Petitioner went to the office of the President of DBCC to complain of the incident. The President was not in and the Petitioner was immediately referred to Dr. Charles Mojock, Vice-President of Administration. After listening to the Petitioner's complaint, Dr. Mojock immediately referred the Petitioner to Ms. Lucy Bell, Dean of Student Services and to Idris Muhammad, Executive Director, Institutional Equity, at DBCC. Dr. Mojock informed Ms. Hawkins that DBCC would undertake an immediate investigation.
The college immediately initiated a thorough investigation into the November 10, 1994, incident and took appropriate action consistent with established college policies regarding the Petitioner and Tony Hamm.
On December 2, 1994, Joan Church, Coordinator of Judicial Affairs, Joan Rademacher, Student Counselor for DBCC, Dr. Calvin Woodland, Vice-President of Student Development, and Idris Muhammad, Executive Director of Institutional Equity, met with the Petitioner for the purpose of obtaining a detailed account of the events from the Petitioner and to offer a broad range of college services for her assistance.
On December 6, 1994, a meeting was held to address the needs of and assistance to the Petitioner. In attendance were the Petitioner; Idris Muhammad, Executive Director of Institutional Equity; Clare Birkenmeyer, Director of Human Resources; Joan Church, Coordinator of Judicial Affairs; and Coordinator of Student Appeals and Mental Health Counselor; Joan Rademacher, Student Counselor for DBCC; Rick Briggs, Coordinator of Student Employment; and Dr. Calvin Woodland, Vice-President of Student Development. The results of that meeting were that DBCC would provide to the Petitioner, without cost, the following:
Evaluation and counseling by DBCC counselors.
Evaluation and counseling by the Allen Group, an outside public psychologist/counseling firm, based in Longwood, Florida, with an office in New Smyrna Beach, Florida.
Psychological and psychiatric evaluation and treatment by Dr. Timothy S. Shaw, Ph.D. and Dr. John Young, M.D. of Associated Psychiatric Services, New Smyrna Beach, Florida.
Chiropractic medical care by Dr. W.R. Munster.
Continuation of her student work program and funds through the grant completion date of December 23, 1994.
Provide the Petitioner with a choice of other jobs at the DBCC Museum and the DBCC Library that were consistent with her doctor's restriction against lifting weight.
Tutoring to assist her with her academics.
All medical and psychological needs of Sylvia Hawkins were to be provided and funded by DBCC.
All instructors and teachers of Ms. Hawkins were to be notified that all necessary scheduling accommodations were to be granted to Ms. Hawkins in order to assure her continued academic success.
The Petitioner was scheduled to meet with Rick Briggs, Coordinator of Student Employment, to select and begin here [sic] new assignment, on December 7, 1994.
At the December 6, 1994, meeting, the Petitioner insisted on returning to the Mail Room and was upset by not being able to return. She was belligerent when she was informed that she would not be allowed to return to the Mail Room due to her physician's advice and for her safety. The counselors did not believe that her conduct was consistent with that of a victim of sexual harassment.
The Petitioner refused any of the job opportunities offered to her by DBCC at the Library and Museum and instead selected another job with an on-campus independent contractor operating the bookstore.
The college, after much deliberation and consultation with the Petitioner, decided that the appropriate discipline for Tony Hamm, a fifteen-year, full-time employee, without any record of disciplinary action, would be as follows:
Reprimanded with a thirty (30) day unpaid suspension from work.
Demotion with a decrease in salary.
An official record of reprimand.
Referred for anger counseling with a requirement that the counselors must consent before his return to active work.
Provide a written apology to the Petitioner and to the college for the unacceptable conduct.
The Petitioner requested the DBCC not terminate Tony Hamm and approved the discipline by the college.
After November 10, 1994, the Petitioner had no contact with Tony Hamm.
The Petitioner was never terminated by DBCC.
On August 13, 1996, the Petitioner settled her Workmans' Compensation claim arising out of the incident, in the amount of $9,225.00, as full and final complete payment for any and all past, present, and future compensation benefits.
DBCC had in place during 1994, an official, written anti-discrimination policy that prohibited gender discrimination in job recruitment and sexual harassment. That policy was widely distributed to all students, including the Petitioner. The Student Handbook also re-stated the official school policy against sexual harassment, provided confidential reporting, and ensured an immediate and complete investigation. That policy was also published in the DBCC catalogue of curriculum.
The policy of prohibiting gender discrimination was vigorously enforced at DBCC, by competent personnel sensitive to the needs of women.
DBCC had been audited by the applicable state and federal agencies regarding its policies and procedures relative to gender discrimination and had passed all inspections with high marks and praise.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto, pursuant to Section 120.57(1), Florida Statutes. See also
Section 760.10(1), Florida Statutes, which prohibits the type of discrimination charged herein.
The Petitioner has failed to carry the burden of proof of establishing a prima facie case of discrimination. See
McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973); Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); National Industries, Inc. v.
Commission on Human Relations, 527 So. 2d 894 (Fla. 5th DCA 1988).
The verbal and physical confrontation between the Petitioner and Tony Hamm on November 10, 1994, while it may have involved a criminal act was not gender-based, sexual harassment, or discrimination. The Petitioner was grabbed by the neck and pushed over a desk after she used language that she knew was extremely offensive to Tony Hamm and could cause violence.
There was no sexual touching, no sexual favors were requested
and sex was not the motivating cause of the altercation. The conflict was motivated by anger and not sexual urges. As a matter of fact, and law, the event of November 10, 1994, was not gender-related. The confrontation between Tony Hamm and the Petitioner could not reasonably have been anticipated by DBCC.
Subsequent to the non-gender related altercation that occurred on November 10, 1994, DBCC acted reasonably. The Petitioner's claim that she was fired by DBCC is refuted by all of the evidence in this case. The Petitioner was offered continued student employment at the Museum and Library that was consistent with the Petitioner's claimed injuries and the recommendations of her treating physicians. It was the Petitioner who alone chose not to continue her employment with DBCC.
The Petitioner's claim of a promised transfer to another department, and yet that she was fired, is equally unsupported by the evidence. The Petitioner refused to accept the job opportunities provided by DBCC and the Petitioner was paid, even though she never returned to any of the offered work opportunities.
The Petitioner claims that Tony Hamm was disciplined while she was fired. The undisputed evidence reflects that Tony Hamm was appropriately disciplined for the non-gender related attack on the Petitioner and in accordance with DBCC guidelines.
The evidence supports the conclusion that the Petitioner approved that discipline and requested that he not be terminated. There is no evidence that would support the Petitioner's claim of being terminated.
The Petitioner claims that prior to November 11, 1994, she was sexually harassed by a co-worker. There was evidence that one time, prior to November 11, 2994, the Petitioner reported to Fred Wright, the Manager of both Tony Hamm and the Petitioner, that Tony Hamm was in the Mail Room and that the Petitioner did not want him around her. Mr. Fred Wright instructed Tony Hamm not to go into the Mail Room department and to stay away from the Petitioner. That event was not so severe and pervasive as to alter the terms and conditions of the Petitioner's employment. A reasonable person would not find the work environment sexually abusive to the Petitioner and there is no credible evidence that the Petitioner found her work in the Mail Room environment sexually abusive.
DBCC cannot be liable for hostile environment harassment perpetrated by co-employees unless DBCC knew or should have known of the harassment and failed to take prompt and appropriate action to stop it. See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998).
The substantive standards for hostile environment claims were set forth by the court in Faragher v. City of Boca
Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998), Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57 (1986) and later reaffirmed in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). These decisions provide that sexual harassment is actionable if it is sufficiently "severe or pervasive" to alter the terms and conditions of the Petitioner's employment. A hostile or abusive work environment is created when a reasonable person would find it hostile or abusive and the Petitioner also subjectively perceives it as such. The Petitioner must prove the offending conduct was "severe and pervasive." Sporadic use of abusive language, gender-related jokes, and occasional teasing are not deemed to be severe or pervasive, but rather "ordinary tribulations of the workplace." Incidents, to be considered pervasive, or environmental harassment, must be more than episodic; rather they must be sufficiently continuous and concentrated. Cases interpreting Title VII do not establish a prohibition for genuine but innocuous differences in the ways men and women continually interact with members of the same or opposite sex, and simple teasing, off-hand comments and isolated incidents, unless extremely serious, will not amount to discriminatory liability in the area of employment. The court has made it abundantly clear that Title VII should not be made the functional equivalent of a "general civility code," and conduct must be extreme before it will be deemed sufficiently
severe to give rise to an actionable hostile work environment claim. Here, the one episode prior to November 11, 1994, does not rise to the level of severe or pervasive and DBCC did not know, and could not have known, of that event prior to its occurrence. DBCC did take reasonably prompt and appropriate action to stop the alleged harassment by restricting Tony Hamm to the Central Receiving department, away from the Mail Room and the Petitioner.
Employers are entitled to assert an affirmative defense to a Title VII claim when the employee (a) does not suffer tangible employment action by being discharged or demoted as a result of the alleged harassment, and the employer shows by preponderance of the evidence that (b) it exercised reasonable care to prevent and correct promptly any sexual harassing behavior and, (c) that corrective opportunities were provided by the employer to avoid harm otherwise. This "Faragher Defense" is available to the employer when the employee is subjected to sexual harassment by a supervising employee. Although the pre- November 10, 1994, complaint by the Petitioner was against a co- worker and not her supervisor, nevertheless, the evidence establishes that the Petitioner did not suffer any tangible employment action. The Petitioner was not terminated from her work and was not demoted. The Petitioner was offered continued employment, but refused to work in the Library or Museum. The
available work was consistent with the medical limitations ordered by her doctors.
DBCC has taken reasonable care to prevent sexual harassment. DBCC had and has a comprehensive policy and framework in place for dealing with and preventing sexual harassment. DBCC not only provided counseling and substantial assistance to the Petitioner, it also has an effective staff whose goals and objectives are to assist persons asserting claims of sexual harassment. The policies of DBCC are widely disseminated and are provided to all students and employees, including the Petitioner. DBCC provided training, both as preventive and as corrective measures to all supervising personnel. The undisputed facts show that DBCC made extensive efforts to combat harassment at its institution. DBCC has exercised "reasonable care" to prevent harassment.
