STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMMY M. FORD, )

)

Petitioner, )

)

vs. ) Case No. 00-2309

)

MOLD-EX RUBBER COMPANY, )

)

Respondent, )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on

September 28, 2000, by video teleconference before the Division of Administrative Hearings, its designated Administrative Law

Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Bruce Committe, Esquire

17 South Palafox Place, Suite 322 Pensacola, Florida 32501

For Respondent: Heather Fischer Lindsay, Esquire

Gordon Silberman, Wiggins & Childs 1400 South Trust Tower

Birmingham, Alabama 35203 STATEMENT OF THE ISSUE

The issue is whether Respondent violated Section 760.10(1), Florida Statutes, by allowing Petitioner to be sexually harassed by her immediate supervisor.

PRELIMINARY STATEMENT

On June 13, 1997, Petitioner Tammy M. Ford (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). Petitioner alleged that Respondent Mold-Ex Rubber Company (Respondent) had committed an unlawful

employment act of sexual discrimination under Section 760.10(1), Florida Statutes.

FCHR issued a Determination: No Cause on or about April 12, 2000. Petitioner filed a Petition for Relief with FCHR on

May 12, 2000. The case was referred to the Division of Administrative Hearings on May 31, 2000.

The Division of Administrative Hearings issued an Initial Order on June 7, 2000.

On June 9, 2000, Respondent filed a Motion to Dismiss. On June 22, 2000, the undersigned issued an Order Denying Motion to Dismiss without prejudice to argue the issues raised in the motion in a proposed recommended order after final hearing.

The parties filed a Joint Response to Amended Initial Order on July 21, 2000.

The undersigned issued a Notice of Hearing by Video Teleconference dated August 8, 2000. Said notice scheduled the case for formal hearing on September 28, 2000.

During the hearing, Petitioner testified on her own behalf.

She did not present the testimony of any other witnesses or offer any exhibits for admission into evidence.

Respondent presented the testimony of five witnesses.

Respondent also offered ten exhibits which were accepted into evidence.

The Transcript of the proceeding was filed on October 12, 2000.

Respondent filed a Proposed Recommended Order on

October 30, 2000. Petitioner filed a Proposed Recommended Order on November 6, 2000.

FINDINGS OF FACT

1. Respondent is an employer within the meaning of Sections 760.01-760.11, Florida Statutes, Florida Civil Rights Act of 1992, as amended.

2. Respondent manufactures rubber parts for housewares, aircraft, and the automotive industry. Respondent typically employs an untrained workforce then provides its employees with on-the-job training. Respondent experiences a high turnover in entry level jobs.

3. Petitioner began working for Respondent on or about November 15, 1995. Her immediate supervisor was Walter Tate. Part of Mr. Tate's job was to train Petitioner how to operate a rubber injection machine. There is no persuasive evidence that

   Mr. Tate ever touched Petitioner or spoke to her in a sexually inappropriate manner.

4. On December 6, 1995, Petitioner's hand was injured at work. This injury occurred when another employee drove a forklift into the platform where Petitioner was working.

   Mr. Tate did not blame Petitioner for the accident. He did not use the accident as a means to sexually discriminate against Petitioner.

5. On or about February 16, 1996, Petitioner's machine caused a shut down in production. The machine broke down when someone placed a metal bar in the feed hole. The metal bar broke off between the machine's feed hole and its extruder, preventing the rubber from passing through. The machine was a silicon extruder; this type of machine is usually turned off when the designated operator takes a break.

6. Based on a good faith belief that Petitioner was responsible for damage to her machine, Mr. Tate gave Petitioner a verbal warning for using the metal bar instead of a plastic one. Mr. Tate advised Petitioner that the next time she would be given a written warning. There is no credible evidence that Mr. Tate had any hidden agenda when he reprimanded Petitioner.

7. Petitioner became visibly upset about the verbal reprimand and cursed Mr. Tate. Subsequently, Petitioner signed

   an employee warning report, indicating that she disagreed with the verbal warning but gave no reasons for her disagreement.

8. Shortly thereafter, Petitioner met with Respondent's plant manager, Steve Wieczorek, and second-shift plant superintendent, Robbie Misenheimer. Petitioner complained that she did not like Mr. Tate telling her what to do because she already knew her job. Petitioner also complained that she did not like Mr. Tate's use of profanity. The greater weight of the evidence indicates that Petitioner never complained to Respondent about any form of sexual harassment or discrimination by Mr. Tate during this or any other meeting.

9. During the meeting, Mr. Wieczorek took handwritten notes of Petitioner's complaints. According to Petitioner, she signed these notes before she left the meeting. Shortly thereafter, Mr. Wieczorek typed the notes in accordance with his customary procedure. Mr. Wieczorek and Mr. Misenheimer signed the typed notes before placing them in Petitioner's personnel file. Petitioner did not sign the typed notes. The location of the handwritten notes was not established during the hearing.

10. After the meeting, Mr. Wieczorek directed

    
    

    Mr. Misenheimer to investigate Petitioner's complaints. In accordance with that directive, Mr. Misenheimer talked to Mr. Tate and several of Petitioner's co-workers.

    Mr. Misenheimer concluded that there was no merit to

    Petitioner's complaints that Mr. Tate was treating her unfairly. Nevertheless, Mr. Misenheimer continued to check with Petitioner personally and to observe Mr. Tate for several days to ensure that Petitioner was not being mistreated.

11. On February 27, 1996, Petitioner walked out of the plant, voluntarily leaving her workstation in the middle of her shift. Petitioner did not advise Mr. Tate or any other supervisor of her reason for leaving the work site. There is no persuasive evidence that Mr. Tate threatened Petitioner for turning him in before she abandoned her workstation.

12. After leaving the plant, Petitioner did not call Respondent for three days to explain why she had not returned to work. Respondent did not attempt to contact Petitioner during this time. In accordance with the company's personnel policies, Respondent terminated Petitioner's employment on March 1, 1996.

13. At all times material to this proceeding, Respondent's policy was that sexual harassment was not to be tolerated. This policy was communicated to employees in group meetings. Petitioner admits that she received instruction on the procedure for complaining about sexual discrimination when she began working for Respondent. However, she could not remember whether she received the information in a training session or in a printed form. Respondent posted information in the employee

    break room about state and federal laws prohibiting

    
    

    discrimination.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and 760.11(4), Florida Statutes.

15. It is an unlawful employment practice for employers to discriminate against their employees on the basis of sex. Section 760.10(1), Florida Statutes.

16. Under 760.11(1), Florida Statutes, Petitioner had 365 days from the date of the last alleged discriminatory act in which to file a charge of discrimination with FCHR. In this case, Respondent terminated Petitioner's employment on March 1, 1996. Petitioner did not file her charge of discrimination with FCHR until June 13, 1997, more than one year after the alleged violation. Moreover, she did not file her Petition for Relief with FCHR until May 12, 2000, more than four years after the alleged violation. Therefore, Petitioner's Petition for Relief should be dismissed for lack of jurisdiction under Section 760.11(1), Florida Statutes, and Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000)(where FCHR fails to make a determination of cause within 180 days after the filing of a charge of discrimination, the petitioner has four years from the

    date of the alleged discriminatory action to file a claim in state court).

17. To the extent that Petitioner's Petition for Relief is not barred, she has not met her burden of showing that Respondent committed an unlawful employment act. There is no credible evidence that Petitioner was subject to a hostile environment due to sexual harassment or to a situation involving quid pro quo sexual harassment.

18. To prove a prima facie case of sexual harassment involving a hostile work environment, Petitioner must allege and prove the following: (a) she belongs to a protected class;

    (b) she experienced unwanted sexual advances; (c) the harassment was based on her sex; (d) the harassment affected a term, condition, or privilege of her employment; and (e) Respondent knew or should have known about the harassment and failed to take prompt remedial action. Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982).

19. To prove a prima facie case of sexual harassment due to quid pro quo sexual harassment, Petitioner must allege and

prove the following: (a) she belongs to a protected class;

(b) she experienced unwanted sexual advances; (c) the harassment was based on her sex; and (d) her reaction to the harassment affected tangible aspects of her compensation, terms, conditions, or privileges of employment. Henson, 682 F.2d at

909. "[A]n employer is strictly liable for the actions of its supervisors that amount to sexual discrimination or sexual harassment resulting in tangible job detriment to the subordinate employee." Henson, 682 F.2d at 910.

1. In the instant case, Petitioner's testimony that Mr. Tate touched her inappropriately, asked her for dates or sexual favors, and threatened "to get her" for reporting his

   alleged sexual harassment is not persuasive. To the contrary, the greater weight of the evidence indicates that Petitioner became frustrated with her job and Mr. Tate's supervision, and walked off from her job voluntarily.

2. Petitioner never complained to Respondent about

   
   

   Mr. Tate's alleged inappropriate sexual harassment. Instead, Petitioner complained that she did not need his supervision and she objected to his profane language. Competent evidence showed that Petitioner had some training operating extruder machines, but that she needed monitoring like any other employee.

3. There is evidence that Mr. Tate was an aggressive supervisor. He was a tough boss who wanted his subordinates to do their jobs correctly, and when they did not do so, he let them know about it. There is no persuasive evidence that

   Mr. Tate treated Petitioner differently than his other subordinates, male or female.

4. In fact, Mr. Tate did not blame Petitioner for an injury she suffered on the job. More importantly, he was justified in giving Petitioner a verbal reprimand based on a good faith belief that she had improperly used a metal bar in the machine's feeder hole. This verbal reprimand was memorialized in an employee warning report at the request of Mr. Tate's supervisor.

5. Respondent did not constructively discharge Petitioner. The most credible evidence indicates that Respondent terminated Petitioner's employment because she did not call or return to work within three days after abandoning her workstation in the middle of her shift. Sexual harassment by Mr. Tate had nothing to do with Petitioner leaving the plant without telling anyone her reasons for doing so. Respondent's reason for terminating Petitioner was consistent with Respondent's established policy to fire anyone who failed to call or show up for work for three days. Under these circumstances, Respondent cannot be faulted for failing to contact Petitioner before terminating her employment.

6. Petitioner has not met her prima facie burden because her testimony that she experienced unwanted sexual advances is contrary to more persuasive evidence. Moreover, the reasons for actions taken by Mr. Tate and Respondent are not pre-textural.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief.

DONE AND ENTERED this 30th day of November, 2000, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2000.

COPIES FURNISHED:

Bruce Committe, Esquire

17 South Palafox Place, Suite 322 Pensacola, Florida 32501

Heather Fischer Lindsay, Esquire Gordon, Silberman, Wiggins & Childs 1400 South Trust Tower

Birmingham, Alabama 35203

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. 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 within

15 days from the date of 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: 00-002309

Orders for Case No: 00-002309