vs.
Respondent.
) Case No. 03-2306
This cause came on for final hearing before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on August 27 and 28, 2003, in Orlando, Florida.
St. Cloud, Florida 34771
For Respondent: David C. Netzley, Esquire
Petitioner, Ellen Edith Hanson, filed a Charge of Discrimination against Respondent, Orlando Utilities Commission, with the Florida Commission on Human Relations ("FCHR") on or about August 29, 2002, alleging violations under the Florida Civil Rights Act ("FCRA"). More specifically, Petitioner alleged that during her employment, she was denied a 30-day leave for her disability, "stress"; sexually harassed; turned down for a promotion that a male received; and retaliated
against for raising complaints of harassment, including being disciplined and denied the opportunity to transfer to another position. In response, Respondent provided a position statement and additional documentation to FCHR, and FCHR conducted an investigation into Petitioner's allegations. Upon completion of its investigation, FCHR issued a No Cause Determination on
May 12, 2003. Petitioner was advised that she had 35 days to appeal the determination. Petitioner filed a Petition for Relief on June 20, 2003, 39 days after the date of the No Cause Determination. Thereafter, this matter was referred to the Division of Administrative Hearings for a formal administrative hearing. Following pre-hearing discovery, a two-day administrative hearing was held before the undersigned Administrative Law Judge (ALJ).
At the final hearing, but prior to taking testimony on the merits, argument and testimony were received from both parties with respect to Respondent's Motion to Dismiss for Untimeliness. This Motion was subsequently granted at the final hearing.
Nonetheless, as had been discussed during the case management conference, the hearing proceeded on the merits of Petitioner's allegations. Subsequent to the formal hearing, Petitioner filed a Response to Untimeliness on September 19, 2003, without prior permission of the ALJ. Respondent filed a Reply and Motion to Strike. The Motion to Strike is granted. At the hearing,
Petitioner presented the testimony of ten witnesses and offered four exhibits into evidence, two of which were accepted in evidence. Although given the opportunity, Petitioner did not testify. Respondent presented the testimony of five witnesses and offered 23 exhibits in evidence. The Transcript of the proceeding was filed on September 29, 2003.
Petitioner filed her Proposed Recommended Order on October 8, 2003, which included proposed additional documentary evidence. Respondent filed a Motion to Strike said evidence.
Said motion is granted because the record in this matter was closed on August 28, 2003, at the conclusion of the formal hearing. Permission was not requested by or granted to either party to keep the record open for any additional evidence.
Respondent filed its proposals on October 14, 2003. Both proposals have been given careful consideration in the preparation of this Recommended Order.
All citations are to Florida Statutes (2002), unless otherwise indicated.
Petitioner filed her Charge of Discrimination against Respondent on August 29, 2002. FCHR issued a No Cause Determination and Notice of Determination: No Cause on May 12, 2003. Petitioner filed her Petition for Relief on June 20, 2003. This was 39 days after the No Cause Determination was
issued. Petitioner failed to show good cause for the delay in filing.
Petitioner worked as an apprentice operator at Respondent's Stanton Energy Center ("Energy Center"), during the relevant time period, under the supervision of Wade Gillingham ("Gillingham"), manager of Operations for the Energy Center. Respondent is an employer under the FCRA.
On or about July 5, 2001, Petitioner expressed some concern to Gillingham about a co-worker, Tim Westerman ("Westerman"), potentially hurting himself or others. More specifically, Petitioner told Gillingham that she was concerned Westerman was going to hurt himself or her.
Upon learning of Petitioner's concerns, Gillingham notified Respondent's Human Resources Department, and he scheduled a follow-up meeting with Petitioner on Monday, July 9, 2001. Lou Calatayud ("Calatayud") from Human Resources also attended this interview.
During these initial meetings, Petitioner did not complain of any inappropriate touching or sexual contact between herself and Westerman.
Following her meeting with Calatayud and Gillingham, German Romero, director of Human Resources, held a second interview with Petitioner to discuss her concerns about Westerman. Thereafter, Respondent conducted a thorough
investigation into Petitioner's allegations. During the course of the investigation, Petitioner was interviewed twice and Westerman was interviewed twice. Both Westerman and Petitioner admitted to voluntarily participating in several telephone calls with each other, with some lasting as long as two hours.
Petitioner did not appear upset or concerned after these calls.
Human Resources also interviewed Terry Cox and Tom Dzoba, both watch engineers to whom Petitioner claimed she reported complaints regarding Westerman. Neither Cox nor Dzoba was Petitioner's direct supervisor. Petitioner told Cox that she had issues with another employee. However, she refused to provide Cox with the other employee's name and insisted on handling the matter on her own, despite Cox's asking her for the name of the person. Dzoba has no knowledge of Petitioner ever complaining about any problems with another employee in the workplace. The first person to whom Petitioner reported Westerman's name was her supervisor, Gillingham, who immediately reported Petitioner's complaints to Human Resources.
Westerman was not Hanson's supervisor. Westerman never expressed any romantic interest in Petitioner; however, Petitioner had expressed interest in meeting Westerman outside the workplace for dinner. Additionally, Petitioner used to write Westerman "cheer-up notes" while at work. In fact, the only touching that Petitioner later referred to were hand or arm
rubbing during voluntary personal conversations with, and counseling or consoling of, Westerman. Similarly, the only touching Westerman recalls was possibly rubbing up against Petitioner in the workplace or maybe putting his hand on her shoulder when they were talking. Westerman never kissed or attempted to kiss Petitioner. In addition to the above, no other employees were able to identify any inappropriate contact between Petitioner and Westerman.
After completing its investigation in early
August 2001, Respondent determined that sexual harassment had not occurred but instructed Westerman, verbally and in writing, not to have any further contact with Petitioner. Prior to Respondent's instruction, sometime between May and July 2001, Petitioner personally asked Westerman to stop calling her, a request he complied with generally.
At the same time, Respondent instructed Petitioner to discontinue counseling employees to protect against any future incidents or allegations of sexual harassment.
It is the policy and practice of Respondent to treat all employees equally regardless of their gender and/or disability. Respondent developed and distributed to its employees, via an Employee Handbook, an Equal Opportunity Policy and Policy Against Harassment.
Following the conclusion of Respondent's investigation into Petitioner's complaints of sexual harassment, on or about August 6, 2001, Petitioner requested a medically-supported leave of absence for 30 days. This leave was granted by Respondent. However, Petitioner later requested to return to work nearly ten days ahead of schedule, on August 27, 2001, submitting a release from her doctor. Because Petitioner was seeking to return to work so far ahead of schedule, Petitioner was evaluated by Respondent's occupational medical director, Jock M.
Sneddon, M.D., before she was released to return to work. Petitioner returned to work in the same position and rate of pay as before her leave. Additionally, Petitioner received disability benefit payments covering the entire duration of her leave.
More than seven months later, Petitioner called in sick on April 6 through 8, 2002, after sustaining a house fire at her personal residence. Following the use of 16 hours or more of sick time, employees are required to return to work with a doctor's note authorizing their absence. Here, it was determined that Petitioner was not sick during this time, nor was she even evaluated by a physician. Based on similar previous problems, for which she was twice verbally reminded of Respondent's policy regarding sick leave, Petitioner received a disciplinary write-up. In addition to Petitioner's two verbal
reminders, on or about January 7, 2002, Gillingham issued a memorandum to all operations employees, including Petitioner, detailing Respondent's sick leave policy.
On or about June 7, 2002, Petitioner and a male
co-worker, Tom Moran, were written up by Gillingham for neglect of their job duties as the result of an incident that occurred at the Energy Center on May 14, 2002. More specifically, both Petitioner and Moran were deemed responsible for failing to make sufficient rounds to discover a mechanical failure, which led to severe flooding of a sump basement in the coal yard, causing more than $12,000 in damages. Gillingham estimated it would have taken between six to eight hours to fill the 60-foot by
20-foot sump basement with the seven feet of water that was found the following morning. Although Moran was an auxiliary operator, both "operators," including Petitioner, an apprentice operator, have the same responsibilities and were responsible for making the necessary rounds to ensure that a mechanical failure of this nature is promptly discovered and repaired.
In accordance with Respondent's policy, employees with active discipline in their files are not eligible for promotions or transfer. The written discipline Petitioner and Moran received for the May 14, 2002, sump incident remained active in their employee files for nine months.
During her employment at the Energy Center, Petitioner's performance evaluations remained relatively unchanged, receiving a "meets" or "good" rating on each evaluation. Additionally, Petitioner received all regularly scheduled wage increases, until she topped out at the salary for her position. Petitioner received the same wage increases as similarly-situated male employees. Further, on or about
April 2, 2003, Gillingham notified Human Resources that the discipline in her file had expired, and Petitioner was promoted to auxiliary operator, with the commensurate increase in pay.
Petitioner started at the same rate of pay as three of the four other male employees placed in the apprentice operator position at that time. The fourth male employee, David Ziegler, started at a higher rate of pay based on his five years of previous experience working for a contractor at the Energy Center. Further, because of the credit Ziegler was given for his previous work experience, he was promoted to auxiliary operator ahead of Petitioner and all of the other apprentice operators who started at the same time. Vasquez was promoted to auxiliary operator on the standard two-year schedule on or about August 12, 2002; however, Petitioner was not eligible for promotion at that time because of the active discipline in her file.
Petitioner failed to prove that she suffered from a recognized disability or that Respondent failed to make a reasonable accommodation for her alleged disability.
Petitioner failed to prove that Respondent discriminated against her on the basis of her sex.
Petitioner failed to prove that Respondent retaliated against her for complaining of the alleged sexual harassment which occurred in the Summer of 2001.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003), and Chapter 760.
If FCHR determines that there is not reasonable cause to believe that a violation of the FCRA has occurred, FCHR shall dismiss the complaint. See Section 760.11(7). Upon a finding of no cause, the aggrieved person may request an administrative hearing under Sections 120.569 and 120.57, but any such request must be made within 35 days of the date of the no cause determination. See id. If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred. See id.
Petitioner failed to file her Petition for Relief within 35 days of the no cause determination, and, therefore,
her claim is time-barred. See Pedraza v. International Brotherhood Local 2088, Case No. 02-0238 (Recommended Order of Dismissal, DOAH June 21, 2002); but see Order Remanding Petition for Relief, FCHR Case No. 99-1636 (January 2, 2003) (which holds that by FCHR rule, three days are added to the filing date for mailing). Petitioner presented no evidence at the time she untimely fax-filed her Petition for Relief that the delay in filing her Petition for Relief was the result of being misled or lulled into inaction by Respondent or that some other extraordinary circumstances prevented her from asserting her rights in a timely manner. Furthermore, Petitioner has failed to present any admissible evidence since filing her Petition for Relief that demonstrates any extraordinary circumstances, which caused her to file her Petition for Relief untimely.
Consequently, equitable tolling can not be applied to cure Petitioner's untimeliness. See Clarence Rowe v. Sea Ray Boats, Inc. and Department of Environmental Protection, Case No. 00- 0218 (Recommended Order of Dismissal, DOAH April 4, 2000).
In order to bring a discrimination suit under the FCRA, one must first file a timely charge of discrimination. See Section 760.11(1). More specifically, one must file a charge within 365 days of the alleged unlawful employment practice. See Section 760.11(1). Petitioner filed her Charge of Discrimination on August 29, 2002, and thus, Petitioner's
charge of discrimination is only timely with respect to actions occurring on August 29, 2001, or thereafter. Here, Petitioner failed to file a charge of discrimination within 365 days of the alleged sexual harassment, which ended at the latest in July of 2001 when Petitioner requested that Westerman not have any further contact with her. Consequently, Petitioner's sexual harassment claim is untimely and should be dismissed.
Nonetheless, even if Petitioner's harassment claim was timely, it fails on the merits. To be liable for harassment by a co-worker, Respondent must have known or should have known that the harassment was occurring, and thereafter, failed to investigate or otherwise take any remedial action designed to promptly end the harassment. See 29 C.F.R. Section 1604.11(d)(2002). Here, the evidence clearly reveals that once Respondent became aware of the alleged harassment, it promptly and thoroughly investigated Petitioner's claims. Although Respondent determined that no actionable harassment occurred, it took reasonable measures to prevent any possible harassment in the future.
Petitioner contends that she was unlawfully disciplined by Respondent because it unlawfully discriminated against her due to her handicap and her sex. Petitioner relies on the FCRA of 1992, Section 760.10, et seq. The FCRA prohibits certain specified unlawful employment practices and provides
remedies for such violations. That statute provides, in pertinent part, as follows:
PURPOSES, CONSTRUCTION; TITLE
* * *
The general purposes of Florida Civil Rights Act of 1992 are to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health and general welfare, and to promote the interests, rights, and privileges of individuals within the state.
The Florida Civil Rights Act of 1992 shall be construed according to fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.
* * *
Unlawful employment practices; remedies construction
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire an individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status. . . .
The FCRA is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2. School Board of
Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); O'Loughlin v. Pinchback, 579
So. 2d 788 (Fla. 1st DCA 1991).
In Department of Corrections v. Chandler, 582 So. 2d 1186 (Fla. 1st DCA 1991), the court analyzed the types of claims under the Florida Civil Rights Act. In that case, the court noted as follows:
Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, . . . by showing disparate treatment, and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination, however, as to the latter, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. [citations omitted] Id. at 1186 n.2
Petitioner in this case has sought to establish a disparate treatment claim. The Chandler court delineated the
procedure for establishing a disparate treatment claim. The Court held as follows:
. . . The United States Supreme Court set forth the procedure essential for establishing such claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed. 2d 668 (1973), which
was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated by the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderance of evidence that he or
she has been the victim of intentional
discrimination. [citations omitted].
Id. at 1186.
In order for Petitioner to prevail in a disparate treatment case based on Petitioner's alleged handicap and obtain the relief she seeks, she must establish that Respondent's employment decision was based on her protected status. In this case, Petitioner has the burden of presenting evidence sufficient to establish that her alleged handicap (stress) was a determining factor in the employment decision not to promote her. In other words, Petitioner must prove what motivated Respondent to withhold her promotion was her stress condition. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983); Petitioner presented no credible evidence that she was disabled or had a handicap. Petitioner's temporary "stress" is not a recognized disability. Therefore, Respondent had no obligation to provide Petitioner with any reasonable accommodation for such condition.
The Americans with Disabilities Act ("ADA") defines disability as "[a] physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. Section 12102(2)(A). A temporary condition does not substantially limit one or more major life activities, and therefore, is not a protected disability. See Hardie v. Legacy Health Sys., 6 P.3d 531, 540 (Or.App. 2000)
(finding that short-term physical or mental impairments, leaving no residual disability or impairment are not "disabilities"); see also Rose v. Home Depot U.S.A., Inc., 186 F.Supp.2d 595, 611 (D. Md. 2002) (stating that the term "disability" does not include temporary medical conditions, even if those conditions require extended leaves of absence from work) (citing Halperin
v. Abacus Tech. Corp., 128 F.3d 191, 199 (4th Cir. 1997); McNeil
v. Scotland County, 213 F.Supp.2d 559, 569 (M.D.N.C. 2002) (holding that a former employee who suffered from severe depression and post-traumatic stress disorder for approximately
11 months was not "disabled" within the meaning of the ADA).
Consequently, Petitioner's three-week leave following the conclusion of the sexual harassment investigation is insufficient to establish that she was disabled within the meaning of the law.
Even assuming Petitioner's temporary "stress" was a protected disability, her discrimination claim fails on the merits. Respondent provided Petitioner with a reasonable accommodation: she requested and was provided with a leave of absence; she received disability benefits for the entire period of her leave; and she returned to work in the same position and same rate of pay as before her leave.
In regard to Petitioner's claim of discrimination based on her sex, there is no direct evidence of discrimination.
See Scott v. Suncoast Beverages, 295 F.3d 1223, 1227 (11th Cir. 2002); Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1359 (11th Cir. 1999). In this case, Petitioner has failed to produce any direct evidence of discrimination.
Since there is no direct evidence of discrimination, Petitioner must use circumstantial evidence to establish a case of discrimination. In evaluating discrimination claims based on circumstantial evidence, the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, supra, is utilized. Under McDonnell Douglas and the cases following it, Petitioner has the initial burden of presenting sufficient circumstantial evidence of discrimination to establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. If Petitioner is able to establish a prima facie case, the burden then shifts to Respondent to articulate a legitimate, nondiscriminatory reason for its employment decisions. See id. Petitioner must then demonstrate that Respondent's proffered reasons are pretextual. See id. at 804-05; see also Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). FCHR has adopted this evidentiary model. See Kirkpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985).
To establish a prima facie case of discrimination, Petitioner must show that: (1) she belongs to a protected class; (2) she was subjected to an adverse employment action;
(3) her employer treated similarly-situated employees outside her classification more favorably; and (4) she was otherwise qualified to do the job. See McDonnell Douglas, 411 U.S. at 802. Ultimately, Petitioner must prove that her protected class motivated Respondent in making the employment decisions. See Wright v. Southland Corp., 187 F.3d 1287, 1293 (11th Cir. 1999).
Even assuming Petitioner did establish a prima facie case of discrimination, Respondent has demonstrated legitimate, non-discriminatory reasons for its actions related to Petitioner. In articulating a legitimate, nondiscriminatory reason for a challenged employment decision, an employer is only required to "produce admissible evidence which would allow the trier of fact to rationally conclude that the employment decision had not been motivated by discriminatory animus." Burdine, 450 U.S. at 257. This burden is characterized as "exceedingly light." See Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983). "Whatever the employer's decision making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).
Here, Petitioner was disciplined along with a male co-worker on June 7, 2002, because they failed in their job
responsibilities. This cost Respondent over $12,000 in clean-up and repair expenses. Under Respondent's written policy, both employees were ineligible for promotion until the active discipline was removed from their files. Prior to this write- up, Petitioner was also disciplined for her abuse of Respondent's sick leave policy, despite two previous verbal reminders from her management and a written memorandum from Gillingham that detailed the company's policy.
"A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff's initial evidence." Burdine, 450 U.S. at 255-56
n.10. Because Respondent has articulated legitimate, non- discriminatory reasons for its employment decisions, Petitioner failed to carry the burden of proving that these reasons are pretextual and that Respondent intentionally discriminated or retaliated against her. See St. Mary's Honor Ctr. V. Hicks, 509
U.S. 502, 511 (1993) (citing Burdine, 450 U.S. at 253). "The pretext inquiry is concerned with the employer's perception of the employee's performance, not the employee's own beliefs." Standard v. A.B.E.L., 161 F.3d 1318, 1332-33 (11th Cir. 1998); see also Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997) (finding "an employee's assertions of his own good performance are insufficient to defeat summary judgment, in the absence of other evidence"). "[T]o directly attack [the employer's]
reasons, [Petitioner] must demonstrate 'such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could find [all of those reasons] unworthy of credence.'" Standard, 161 F.3d at 1333 (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538
(11th Cir. 1997)).
The admissible record evidence presented in this case completely lacks any showing of pretext or discriminatory intent. Further, following the disciplinary action, Petitioner was given a merit increase, and once the disciplinary action in her file expired, Petitioner was promoted to auxiliary operator in accordance with Respondent's policy.
To establish a prima facie case of retaliation, Petitioner must demonstrate: "(1) that [she] engaged in protected activity; (2) [she] suffered an adverse employment action; and (3) there was a causal link between [her] protected activity and the adverse employment activity." Bass v. Board of
County Comm'rs, 256 F.3d 1095, 1117 (11th Cir. 2001), reh'g and
reh'g en bac denied, 273 F.3d 117 (2001).
Petitioner has failed to satisfy the third element of her prima facie case, in that she has failed to demonstrate any causal connection between her complaint of sexual harassment and any alleged adverse employment actions. The United States
Supreme Court noted that mere temporal proximity between knowledge of the protected activity and the adverse employment action must be "very close" to establish causation. See Clark County School Dist. V. Breeden, 532 U.S. 268, 273-74 (2001) (citing with approval two cases holding that a three- and
four-month disparity was insufficient); see also Wascura v. City
of South Miami, 257 F.3d 1238, 1248 (11th Cir. 2001) (finding a three and one-half month period insufficient to create a jury issue on causation).
Here, more than seven months had elapsed between the time Petitioner had raised her complaint of sexual harassment and any discipline was taken. Thus, without more, and combined with the legitimate business reasons Respondent has established in support of its employment decisions, there is insufficient evidence to establish a causal connection between Petitioner's sexual harassment complaint and subsequent discipline. Petitioner was not retaliated against, but rather, all employment decisions were based on legitimate, nondiscriminatory reasons, and Petitioner was treated the same as all other similarly-situated employees.
There was no evidence that Petitioner was unlawfully harassed, discriminated against, or retaliated against in any way during her employment with Respondent.
Upon being notified of Petitioner's sexual harassment allegations, Respondent conducted a prompt and thorough investigation. Despite determining that no violations occurred, Respondent took remedial measures reasonably calculated to prevent any future problems.
Petitioner is not "handicapped," and therefore, Respondent had no obligation to provide Petitioner with a reasonable accommodation. Nonetheless, following the conclusion of the sexual harassment investigation, Respondent granted Petitioner a requested leave of absence, which was supported by a doctor's note. Petitioner received short-term disability benefits during the entire period of her leave. Following her leave, Petitioner returned to her same position at the same rate of pay as before her leave.
Several months after returning from leave and nearly a year after her harassment complaint, both Petitioner and another employee (male) were disciplined for poor work performance, based on an incident that required substantial clean-up and repair expenses. As a result, in accordance with Respondent's standard policies and procedures, neither Petitioner nor the male employee was eligible to be transferred or promoted until their disciplinary action expired. Following the expiration of her disciplinary action, Petitioner was promoted to auxiliary
operator. In addition, even before Petitioner was promoted, she received a wage increase to the maximum wage for her position.
Petitioner was not retaliated against, but rather, she was treated the same as all other similarly-situated employees. Respondent's employment decisions relative to Petitioner have been based on legitimate business reasons and established policies.
There is no admissible record evidence to suggest or infer that Respondent's employment decisions had anything to do with Petitioner's sex, alleged disability, and/or complaints of sexual harassment. Respondent's employment decisions relative to Petitioner have been based on legitimate business reasons and established policies.
RECOMMENDED that FCHR enter a final order dismissing with prejudice the Petition for Relief in DOAH Case No. 03-2306, FCHR Case No. 22-02718.
DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
St. Cloud, Florida 34771
David C. Netzley, Esquire Ford & Harrison, LLP
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
