A formal hearing was held before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings on March 16 and 17, 2010, via video teleconference between Orlando and Tallahassee, Florida.
David Beers, Esquire Beers & Gordon, P.A.
For Respondent: Mark E. Levitt, Esquire
Allen, Norton & Blue, P.A.
Whether Petitioner was subjected to sexual harassment and/or retaliation while employed with Respondent in violation of Subsections 760.10(1)(a) and/or (7), Florida Statutes (2008).1
Lesa Burkavage ("Petitioner") filed a Charge of Discrimination with the Florida Commission on Human Relations ("FCHR") on or about April 9, 2009. Petitioner alleged that Parrish Medical Center ("Respondent") had committed an unlawful employment practice of sexual harassment and retaliation in violation of Chapter 760, Part I, Florida Statutes. FCHR issued a Determination: No Cause on or about October 12, 2009, and Petitioner timely filed a Petition for Relief with FCHR. The case was referred to the Division of Administrative Hearings ("DOAH") on November 13, 2009. Following response to the Initial Order, a Notice of Hearing by Video Teleconference was issued on December 2, 2009, which scheduled the case for a formal hearing that occurred on March 16 and 17, 2010, and discovery ensued.
At the hearing, Petitioner testified on her own behalf and presented the testimony of five witnesses: Christopher Depelteau; Roberta Chaildin; Dana Keach; Shelly Hugoboom; and James Robert Burkavage. Petitioner offered 18 exhibits, which were accepted into evidence. Respondent presented the testimony of five witnesses: Renee Gallacher; Paul Licker; Greg Phillips; Scott Hazelbaker; and Roberta Chaildin. Respondent offered 20 exhibits which were accepted into evidence (although two documents were withdrawn as duplicative). In addition,
Petitioner was permitted to make a proffer of evidence, which is held to be irrelevant.
The four-volume Transcript of the proceeding was filed on April 16, 2010. Following the filing of a joint motion, an Order Granting Extension of Time to File Recommended Orders was entered on April 27, 2010, granting the parties an extension until May 11, 2010, to file proposed recommended orders. Both parties timely filed their proposals, which have been carefully considered in the preparation of this Recommended Order.
Respondent is an employer within the definition found in Section 760.02, Florida Statutes.
Petitioner was hired as an employee of Respondent in July 1993, as an X-ray technologist ("tech") in the Radiology Department. She is an adult female and, as such, is a member of a protected class.
During her employee orientation, Petitioner received and read a copy of Respondent's Employee Handbook.
Among other things, Respondent's Employee Handbook addresses the issue of sexual harassment in the workplace. Respondent's policy strictly prohibits sexual harassment and states that Respondent "will not tolerate such action by employees." Respondent's policy also encourages any employee who feels that he/she is being subject to sexual harassment to
discuss and/or make a complaint with the Human Resources Department. Any such complaint is handled according to Respondent's Policy No. 9510-17, in order to ensure appropriate investigation and action.
Respondent's employees also receive computer-based training regarding sexual harassment and Respondent's policy prohibiting the same, every year. Petitioner received this computer-based training regarding sexual harassment.
In October 2006, Petitioner started training to be a magnetic resonance imaging ("MRI") tech. Petitioner was chosen to be cross-trained from an X-ray tech to a MRI tech by Greg Phillips, who was then the manager of Diagnostic Imaging. Phillips became her unofficial "mentor" at Respondent's facility.
Petitioner received on-the-job training for an MRI tech from Chris Depelteau, Amy Brantly, and Lucinda Swales, all of whom were MRI techs at the time.
In December 2006, Petitioner received a secondary job code which allowed her to work independently as an MRI tech part-time. Essentially this meant that she could "take call."
That same month, Paul Licker was hired by Respondent as lead MRI tech. Depelteau had also applied for this job, but had not been chosen.
Upon being hired by Respondent, Licker was also made aware of its policy regarding sexual harassment.
As lead MRI tech, Licker was responsible for scheduling the MRI techs, ordering supplies, working on protocols, ensuring that patients were being properly scanned and treated, and following up with the MRI techs as they cared for patients. Therefore, Licker became Petitioner's immediate supervisor.
Like all the other MRI techs, Licker also trained Petitioner in MRI. In training Petitioner, Licker often taught her different techniques or ways of doing things than the way she had been taught by the other MRI techs. Licker, on several occasions, sought to teach Petitioner his way of doing things on the computer, which was different from the others. In doing so, Licker invaded Petitioner's workspace and engaged in inappropriate touching, particularly by covering her hand with his while manipulating the mouse, to the point that she became uncomfortable.
Licker also started implementing changes and different ways of doing things throughout the MRI department. As lead MRI tech, Licker had the authority to implement such changes.
Also, during this same period, if Licker added patients or made other changes to her schedule, Petitioner would argue with or complain to him. In fact, Petitioner did not like
Licker and also told Depelteau and other employees that Licker was a "bad supervisor."
Licker himself recognized that Petitioner did not like the way he was supervising the department.
A few weeks after Licker started working for Respondent, Petitioner approached Phillips complaining that Licker was calling her, other female employees, and patients, "Babe." For instance, Licker would say, "Babe, I need you to do this for me," when asking Petitioner to complete a task. Petitioner indicated that she thought that the use of this term was inappropriate and demeaning and that it made her uncomfortable.
In fact, other employees who were friendly with Petitioner understood that Licker was using the term "Babe" the way another person might use the terms "Sweetie," or "Honey," i.e., in a non-sexual or non-derogatory way.
However, understanding that Licker was a new supervisor who may not have understood that the term suggested something sexual in using the term "Babe," Phillips suggested to Petitioner that she speak directly with Licker to resolve this issue.
Phillips also spoke to Licker directly regarding his use of the term "Babe." Specifically, Phillips advised Licker that he "needed to carefully choose his words around patients
and employees." Phillips also advised Licker that some people did not like being addressed by "Sweetie or Hun or Babe," and that he should refrain from using these terms in the workplace.
Licker understood Phillips' suggestion and tried to refrain from calling Petitioner, or anybody else, "Babe" or any word similar to the term.
Petitioner did not complain about any other alleged inappropriate conduct by Licker to Phillips, or any other manager, until February 1, 2007.
However, shortly after he started working for Respondent, Licker made an inappropriate comment in the cafeteria to Petitioner. Licker stated to other employees that he could not sit next to Petitioner because they were sleeping together. Licker made a similar inappropriate comment to Dana Keach when he first started employment at Parrish. He suggested that there was a lesbian relationship between Keach and another woman. This conduct was not reported until much later.
Prior to February 1, 2007, it became readily apparent that the MRI department was suffering serious setbacks because the department employees were not working cooperatively together. The biggest problem in the MRI department appeared to be a lack of teamwork resulting from the staff's inability to communicate effectively with one another.
Licker advised Gallacher that he was struggling in his "daily interactions" with Depelteau and Petitioner and that he simply "could not make the group happy, whether it was scheduling or time off or just getting through the day."
MRI's problems grew to the point that Phillips and Gallacher both stepped in to try to improve communications and teamwork among Licker, Petitioner, Depelteau, and Shelly Hugoboom, the MRI CT assistant. The entire MRI department engaged in team-building meetings and even worked with the medical center's chaplain in an attempt to learn to work together.
These department meetings were intense and discussion often became heated among the MRI staff members.
In addition to these team-building meetings, Gallacher met with staff members individually to discuss their concerns.
Gallacher also addressed the interpersonal skills issues between Petitioner and Hugoboom. Specifically, Gallacher met with the two employees together "to see if they could put [their issues] to rest and move on."
In the midst of these efforts to improve the department, Petitioner came to Phillips on February 1, 2007, complaining that Licker was continuing to call her "Babe," and that he had also offered her some concert tickets.
Phillips observed that Petitioner was extremely upset and immediately contacted Human Resources Manager Roberta Chaildin to start an investigation in regard to Licker's alleged behavior.
Phillips and Chaildin spoke with Petitioner and Licker, individually, regarding Petitioner's claims.
When questioned regarding the concert ticket, Licker explained that he had been looking to sell an extra ticket that he had. Licker advised Phillips and Chaildin that Petitioner had taken his offer to sell her the extra ticket "out of context," when she assumed that he was asking her to the concert on a date.
Licker specified that he had asked Petitioner if she wanted to buy his extra ticket and "tag along" with him and his friends to the concert. Licker also offered his extra ticket to other people besides Petitioner.
After speaking with Petitioner and Licker, Phillips and Chaildin determined that they were dealing with a "he-said- she-said situation and a misunderstanding." "He said, I was trying to sell the ticket or give it away. She said, he had asked me out on a date to a concert."
Phillips and Chaildin determined that this was not a case of "sexual harassment" by Licker. They did, however, warn
Licker that as a supervisor, he had to be "extremely careful" in how he spoke to his subordinate employees.
Phillips and Chaildin advised Petitioner that they had investigated her claim and concluded that there was no evidence of sexual harassment. They encouraged her, however, to file a report if she continued to have issues with Licker.
Over five months passed without a complaint or incident. Then on July 11, 2007, Licker verbally counseled Petitioner regarding her having accumulated nine tardy appearances ("tardies") at work since January 1, 2007. In speaking with Petitioner, Licker wanted to ensure that Petitioner understood that she needed to be on time in the future, as she had exceeded the number of tardies deemed acceptable by Respondent.
To ensure that nothing said during the verbal counseling session was misconstrued by Petitioner, Licker had another supervisor, Boyd Wallace, serve as a witness.
The tardies cited in Licker's verbal counseling to Petitioner were unrelated to instances when he would excuse her from work due to slower volume in the MRI department.
On August 21, 2007, Licker observed Petitioner on the telephone being advised by security that she had parked in a "no parking" zone. During the conversation, Petitioner became
agitated. Licker documented and filed the incident. Phillips personally addressed this incident with Petitioner.
On October 10, 2007, the MRI department was working an already full schedule when Licker had to add a patient to the schedule due to an emergency situation. Petitioner objected to Licker adding another patient to the day and became withdrawn and resentful. Licker instructed Petitioner that she needed to change her attitude and become more cooperative.
The evidence is not persuasive that Licker assigned Petitioner "menial tasks" after she complained about his having offered her the concert tickets in February 2007.
In October 2007, Gallacher, Phillips and Chaildin met Petitioner and issued her a Decision Day disciplinary letter. A "Decision Day" meeting and letter is a management tool in which the employee is given a paid day off to contemplate whether they wish to remain an employee of Respondent. This resulted from Respondent's concerns regarding her "interpersonal skills."
This was an issue that had been continuously addressed by Licker and other supervisors or managers at Respondent. The incident which prompted the progressive disciplinary action involved Debbie York, a relatively new employee who resigned from the MRI department, claiming that Petitioner and her interactions with other employees and with Licker was the reason for her leaving.
During the Decision Day meeting, Petitioner stated that she was the "victim" and brought up the previous incidents of allegedly being sexually harassed.
Petitioner was reminded that she had not complained of any other instances of alleged sexual harassment since she complained of Licker's offering her concert tickets in February 2007 and that the matter was investigated and resolved.
From the point of view of management, the Decision Day meeting was intended to address Petitioner's on-going issues with her co-workers and her supervisor.
However, Petitioner did not bring up any new incidents of alleged sexual harassment by Licker during the Decision Day meeting.
Following the meeting, Petitioner took her Decision Day letter and returned to work.
The Decision Day letter called for the creation of an Action Plan, which Respondent uses to help a struggling employee "become invested with the organization and with [his or her] team." Thereafter, Petitioner met with Gallacher to discuss what should be included in her Action Plan.
On November 7, 2007, an Action Plan was drafted and signed. It included a number of initiatives designed to assist Petitioner in being "re[-]engaged" with the MRI department.
Despite being placed on an Action Plan, Petitioner continued to have issues with Licker being her supervisor. On November 20, 2007, Licker verbally counseled Petitioner for her failure to discuss changes in her weekly schedule with him. Licker specifically identified Petitioner's "communication skills" as a continuing issue.
On December 19, 2007, Petitioner was suspended without pay for two days for stating that Licker was being an "asshole," or something to that effect, in front of a co-worker.
Petitioner accepted responsibility for her comment.
Along with her suspension, Petitioner was also issued a written warning stated in pertinent part, "Upon your return [from suspension], you will be expected to demonstrate a high level of interpersonal skills towards your co-workers, management and this organization and work on completion of your Action Plan items. Any reports of less than acceptable behavior or performance or deviation from a Diagnostic Imaging or PMC policy or procedure will result in immediate termination." As a result of the written warning, Petitioner also lost 50 percent of her annual merit increase.
In January 2008, management considered that the MRI department was still very "dysfunctional." Scott Hazelbaker, the new executive director of Diagnostics/Cardiovascular, met
with all of the MRI employees as a group to discuss his "expectations of working together as a team."
Hazelbaker also discerned that Licker lacked leadership skills to be an effective supervisor. In fact, none of the MRI employees had much respect for Licker's management style.
On April 10, 2008, Hazelbaker, Gallacher, and Chaildin met with Petitioner to discuss her progress under the Action Plan. During the meeting, Hazelbaker reviewed Petitioner's history toward Respondent, explaining that her negative attitude could not be tolerated. Specifically, her negativity, failure to be a team player, and refusal to embrace or become engaged in Respondent's culture were detrimentally affecting the work of MRI as a whole. Hazelbaker continued by advising Respondent that as a result of her "track record," she could either resign from her employment or be terminated. Petitioner was advised that if she resigned, Respondent would pay her for two weeks in lieu of having her work through her notice period, pay her the balance of her personal leave bank, extend her health benefits for two weeks so that she could fill her prescriptions, and even designate her eligible for rehire in its system.
At the end of the meeting, Petitioner tendered her resignation notice to Respondent.
At no time during the meeting did Petitioner ask to leave the room or make a call in order to seek advice or legal counsel. Further, at no time during the meeting did Petitioner raise her past issues regarding Licker and the alleged sexual harassment she suffered.
The evidence is persuasive that Licker did not influence the decision to terminate Petitioner. He had not asked for her to be terminated.
In August 2009, more than one year after Petitioner resigned, Respondent received a complaint regarding Licker from then-X-Ray Tech Dana Keach, who claimed that Licker made sexually suggestive comments to her.
Following an investigation, Licker was terminated, effective September 24, 2009, for "communication unsuitability between care partners." It does not appear that Licker was terminated for engaging in sexual harassment.
The evidence is not persuasive that during the time he was employed by Respondent that Licker had inappropriate discussions in the workplace on numerous occasions in front of both male and female employees; nor that Licker would also discuss pornography in the workplace.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569
and Subsections 120.57(1)) and 760.11(6), Florida Statutes (2009).
Section 760.10, Florida Statutes, provides that:
It is an unlawful employment practice for an employer:
To 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 race, color, religion, sex, national origin, age, handicap, or marital status.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
Section 760.10, Florida Statutes, is a remedial statute and should be liberally construed. Speedway SuperAmerica, LLC v. Dupont, 933 So. 2d 75, 86 (Fla. 5th DCA 2006).
Florida courts have long determined that decisions under the Florida Civil Rights Act of 1992 (FCRA) should be analyzed using the same framework as cases under Title VII of the Civil Rights Act of 1964 (Title VII), as amended. Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
A. Sexual Harassment
Sexual harassment is employment discrimination based on sex that is prohibited by Title VII. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). Courts recognize two types of sexual harassment: (1) quid pro quo cases based on threats that may be carried out; and (2) hostile work environment claims based on remarks that are considered sufficiently severe and pervasive. Burlington Industries v. Ellerth, 524 U.S. 742, 751 (1998).
The evidence does not establish that there was quid pro quo sexual harassment of Petitioner, and, instead, the claims of Petitioner must be analyzed as a claim of sexual harassment based on hostile work environment.
In order to establish a claim for sexual harassment based on a hostile work environment, Petitioner must establish the following elements: (1) she belongs to a protected group;
(2) she has been subject to unwelcome sexual harassment, such as sexual advances or conduct of a sexual nature; (3) the harassment was based on her sex; and (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatory abusive working environment, which provides a basis for holding Respondent liable. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245
(11th Cir. 1999); Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982).
As an adult female, Petitioner has established that she belongs to a protected group. Sufficient evidence exists that Petitioner was subject to inappropriate sexual comments by Licker. Petitioner also was subjected to inappropriate touching. Thus, Respondent met the first two elements to establish a hostile work environment.
Next, it is clear that Petitioner did not suffer harassment that was sufficiently severe or pervasive to alter the terms and conditions of her employment and create a discriminatorily abusive working environment. As Greg Phillips, Roberta Chaildin, and Renee Gallacher all testified during the hearing, the only alleged "harassment" of which Respondent had any knowledge was Licker's occasionally calling Petitioner "Babe" when asking her to complete an assigned task and asking her if she was interested in purchasing an extra concert ticket.
Courts have held that in order to be actionable under Title VII, "a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. City of Boca Raton,
524 U.S. 775, 787 (1998) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993)). Assuming that Petitioner was
actually offended by Licker's using the term "Babe" and by approaching her about a concert ticket, it is clear that no "reasonable person" would have found these acts to be sexually offensive. To be sure, even those witnesses who appeared more or less supportive of Petitioner's claim, i.e., Keach and Depelteau, could not say they believed that Licker meant anything "sexual" in calling Petitioner "Babe." In fact, Depelteau likened Licker's using the term "Babe," to others' using the term "Honey" when addressing others.
With respect to the concert ticket incident, even assuming that Licker did, in fact, "ask her out" as she alleges, it is clear that Petitioner would still fall short of establishing that she suffered objectively offensive conduct.
To be sure, comparing the preceding allegations of misconduct to those made by alleged victims in other cases-–and the conclusions drawn by the courts that considered those allegations-–can only lead to the conclusion that Petitioner's hostile work environment claim is not supported by the evidence.
Regarding the objective component of a hostile work environment sexual harassment claim, the work environment must be such that a reasonable person would find that the working environment was hostile and abusive. Mendoza, 195 F.3d at 1246. The statements and conduct must be examined to determine if they are of a sexual nature. Id. at 1245. According to Gupta v.
Florida Board of Regents, 212 F.3d 571, 584 (11th Cir. 2000), four factors are applied to determine if conduct was objectively severe and pervasive to alter the terms and conditions of employment. These factors are as follows: (1) frequency of the conduct; (2) severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance.
In finding that the plaintiff failed to satisfy the severe or persuasive prong, the Eleventh Circuit observed that the plaintiff alleged that her harasser looked her up and down in a way that made her feel uncomfortable; called her two or three times per week late at night and asked questions such as whether she was in bed or where her boyfriend was; frequently asked her to lunch; put his hand on her inner thigh; touched the jewelry she was wearing; lifted the hem of her dress; unbuckled his belt, pulled down his zipper, and tucked in his shirt in front of her; told her that she should have called him during an overnight thunderstorm and that he would have "come and spend [sic] the night with [her]"; and commented that women were like meat and "men need variety in women." Id. at 578-79. The court stated, "'All of the sexual hostile work environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed, and
uninhibited sexual threats or conduct that permeated the plaintiff's work environment.' This is not such a case." Id. at 586; See also Willets v. Interstate Hotels, LLC, 204
F. Supp. 2d 1334, 1337 (M.D. Fla. 2002)(harasser's "hugging Plaintiff in a sexualized manner, rubbing Plaintiff's head and shoulders, frequently indicating that he loved Plaintiff, once kissing Plaintiff on the neck, once grabbing Plaintiff's buttocks, and once placing [a] hand on the inside of Plaintiff's thigh near his crotch" did not constitute severe or pervasive harassment); Maddin v. GTE of Fla., Inc., 33 F. Supp. 2d 1027 (M.D. Fla. 1999) (playing with plaintiff's hair; calling plaintiff "gorgeous," "babe," "doll," "good-looking," "honey," "sweetie," and "beautiful"; telling plaintiff, "'You know, in another life you and I would have been lovers'"; and placing a hand over plaintiff's face and telling her to "shut up," did not amount to severe or pervasive harassment). Given this precedent, it is clear that Petitioner has not proven that she suffered severe or pervasive harassment which resulted in an abusive working environment.
Moreover, Petitioner completely failed to establish that there was a basis for holding Respondent liable for the alleged sexual harassment. Because Petitioner had not suffered an adverse employment action leading up to her claiming sexual harassment in February 2007, Respondent is not liable for
Licker's conduct prior to the date of her complaint against
him if: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) Petitioner unreasonably failed to take advantage of any preventive or corrective opportunities provided by Respondent or to avoid harm otherwise. Faragher, 524 U.S. at 807. First, while Petitioner and other witnesses attempted to suggest that Respondent's sexual harassment policy was not completely known to them, the clear facts are that Respondent did have a policy which not only prohibited sexual harassment of any kind, but also advised employees of various avenues they could take in making Respondent aware of any harassment they were allegedly suffering. The Supreme Court has stated, "While proof that an employer had promulgated an antiharassment [sic] policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating [whether an employer took reasonable care to prevent and correct promptly any sexually harassing behavior]." Id. According to Phillips and Chaildin, Petitioner essentially used Respondent's anti-harassment policy not once, but twice. Petitioner approached Phillips just a few short weeks after Licker arrived to complain that Licker was calling her "Babe." She then approached Phillips again in February 2007
to complain that Licker was still occasionally referring to her as "Babe" and had also asked her out to a concert.
In addition to having an anti-harassment policy on which employees were trained annually, Respondent exercised reasonable care to prevent and correct promptly any sexually harassing behavior after Petitioner made her complaints. With regard to her first claim regarding Licker's use of the word "Babe," Phillips testified that he essentially took Petitioner's word that this was occurring. Phillips, observing that Licker was one of Respondent's newest supervisors, suggested that she address the issue with Licker directly. However, even if this was not a wise suggestion, Phillips did not stop there; he actually talked to and advised Licker that some employees did not like being called terms such as "Babe" and that Licker, therefore, needed to watch his language. By Petitioner's admission, Licker's use of the word "Babe" virtually stopped after Phillips talked to him. Significantly, Phillips took action on Petitioner's claim, despite not even perceiving it to be one of sexual harassment at the time.
Of course, Phillips did take Petitioner's second claim more seriously as he observed that she was very upset about the concert ticket incident. In fact, Phillips, not sure if Petitioner was actually claiming sexual misconduct by Licker, immediately went to Chaildin to request that she launch an
investigation of the alleged incident. Petitioner's major complaint, it seems, is that she was very displeased with how her allegations regarding Licker were handled. In fact, Petitioner attacked the quality of the investigation that Phillips and Chaildin had conducted, and further, the unsatisfactory result of Licker continuing to remain employed.
The Eleventh Circuit has recognized, "[a] threshold step in correcting harassment is to determine if any occurred, and that requires an investigation that is reasonable given the circumstances. The requirement of a reasonable investigation does not include a requirement that the employer credit uncorroborated statements the complainant makes if they are disputed by the alleged harasser. . . . The employer is not required to credit the statements on the she-said side absent circumstances indicating that it would be unreasonable not to do so." Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1303-04 (11th Cir. 2007). Chaildin and Phillips unequivocally testified that a "he-said, she-said" situation is exactly what they were facing when investigating Petitioner's complaint. She claimed Licker was asking her out on a date; Licker claimed that Petitioner misunderstood his offer to sell her an extra concert ticket. While Petitioner might not have concurred with Phillips and Chaildin's findings, the plain fact is that those findings were not unreasonable in light of the
circumstances, particularly where Petitioner herself indicated that Licker had invited other employees, as well as her, to the concert. Given the facts in this case, it is clear that Respondent acted promptly and reasonably in interviewing Petitioner and Licker, and "in essence was forced to make a determination entirely based on a 'he-said/she-said' situation." Smith v. America Online, Inc., 499 F. Supp. 2d 1251, 1266 (M.D. Fla. 2007). Accordingly, Respondent satisfied the first prong with respect to Petitioner's claim regarding Licker.
As for the second prong, it is clear that Petitioner unreasonably failed to take advantage of any preventive or corrective opportunities provided by Respondent or to avoid harm otherwise. Faragher, 524 U.S. at 807. During the hearing, Petitioner testified to a number of incidents involving Licker and alleged inappropriate conduct--discussing a woman masturbating with a beer bottle on the Internet and talking about strippers and their breasts, etc. Assuming arguendo that any of these incidents actually occurred, it is clear that Respondent cannot be held liable for them for the simple reason that Petitioner did not complain about them. In fact, Phillips and Chaildin emphatically maintained that the "Babe" comments and the concert ticket incident were the only instances of alleged misconduct of which Respondent was ever aware with respect to Licker. This testimony is credible.
The Supreme Court has held that "while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the [Faragher] defense." Id. at 807-08. In support of her claims of other alleged incidents of wrongdoing, Petitioner essentially offered the testimony of Depelteau, an admitted friend who acknowledged that he also did not care for Licker, and her own self-serving testimony that these incidents did, in fact, occur. In fact, Respondent is hardly in the position to deny that some of them did occur in light of Licker's admission to making a few of the alleged comments. However, whether some (or all) of these incidents occurred do not really matter when analyzing whether Respondent should be entitled to the Faragher defense. The fact remains that Petitioner never told anyone at Respondent that these things were happening. To wit, Phillips, Chaildin, Gallacher, and Hazelbaker all testified that they had no knowledge of any of these alleged incidents, and their testimony is credible.
Based on the foregoing, Petitioner fell short of proving a prima facie case of hostile work environment under the FCRA. Even taking the bulk of her allegations as true, it is
clear that at worst, Petitioner "suffered" being called "Babe" for approximately eight weeks, hearing a handful of arguably inappropriate stories, and being touched on her hand when Licker wanted her to move the mouse with which she was working when she scanned patients. It is well-established that "'simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.'" Faragher, 524 U.S. at 788 (citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 82 (1998)). FCRA is not intended to be a general civility code pressed on employers. Id. Because Petitioner has failed to prove a prima facie case of hostile work environment sexual harassment, her claim of such must be dismissed.
B. Retaliation
Subsection 760.10(7), Florida Statutes, provides, in pertinent part:
It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
Petitioner's retaliation claim under the FCRA must also be appropriately analyzed using the same framework as that
used in analyzing retaliation claims under Title VII. See, e.g., Sanders v. Mayor's Jewelers, Inc., 942 F. Supp. 571, 573 (S.D. Fla. 1996). An employee can establish that she suffered retaliation under FCRA by proving: (1) she engaged in an activity protected by the FCRA; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action.
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
The only complaint of alleged sexual harassment by Petitioner was submitted to Respondent on February 1, 2007, when she came to Phillips and told him that Licker was still occasionally calling her "Babe" and had just asked her out to a concert. Despite Respondent's finding that no sexual harassment occurred, Respondent recognized that Petitioner did engage in a protected activity when she brought forth her complaint regarding Licker's alleged actions. The evidence is insufficient that there is a causal connection between this protected activity and the adverse actions Petitioner allegedly suffered following her engaging in the same.
In support of her retaliation claim, Petitioner alleges the following adverse actions occurred after she complained in February 2007: (1) being assigned what she referred to as "menial tasks" by Licker; (2) receiving a
Decision Day after the aforementioned York, a relatively new employee, chose to resign from Respondent as a result of Petitioner's interactions with the MRI department employees and with Licker; (3) being placed on an Action Plan; (4) receiving a two-day suspension after calling Licker an "asshole" in front of other employees; (5) receiving a written warning regarding the "asshole" incident, which resulted in her losing 0.5 percent of her annual merit increase in salary; and (6) being separated from her employment with Respondent.
The facts, as stated, above support a finding that there is no causal connection between the above alleged adverse actions, with the exception of the claim of being assigned "menial tasks," all of which occurred almost a year after Petitioner submitted her sexual harassment complaint.
The preponderance of evidence shows that Petitioner, who had never liked Licker in the first place, was incredibly disgruntled about how Respondent handled her claim of sexual harassment in February 2007. Essentially, Petitioner never "got over" how the matter was handled, and it showed in her negative attitude toward those who worked around her. Despite numerous opportunities to correct her negative attitude, Petitioner simply refused to "move on" as suggested during the meeting to discuss her Decision Day. It was this refusal, and not her
complaints of alleged sexual harassment, which led to each and every one of the disciplinary actions referred to above.
In regard to her claim that she was assigned menial tasks by Licker after she complained about his alleged conduct, it is noted that Petitioner was the least senior MRI tech in the department. In fact, she had just started "taking call," i.e., working as a part-time MRI tech in December 2006, the same month that Licker was employed by Respondent. If there were tasks that were deemed more "menial," it was only appropriate that they would be assigned to the least senior MRI tech. Petitioner was, in fact, still in training during much of the relevant period. It was certainly within Licker's purview as a supervisor to assign such tasks to Petitioner if he deemed it an appropriate aspect of training or even just a reasonable allocation of his department's resources. Petitioner's simply not liking a certain task cannot render that task "menial" and that task is not to be deemed "adverse" under the FCRA.
In regard to the "Decision Day," a Decision Day is a paid day off to give the employee the opportunity to contemplate whether they wish to remain an employee of Respondent. However, assuming, arguendo, it is considered a type of adverse action, it is evident that Respondent had a legitimate non-retaliatory reason for issuing Petitioner this Decision Day. To wit, Respondent had just lost a promising employee, Debbie York, who
expressly stated before resigning that she could not work with Petitioner because of her attitude toward her co-workers and Licker.
Respondent demonstrated that it had a legitimate non-retaliatory reason for issuing Petitioner an Action Plan,
which laid out some of the items Petitioner needed to accomplish in order to remain employed at Respondent. The items shown in the Action Plan were reasonable. While Petitioner may have completed many of the Action Plan items, it is clear that Petitioner violated the core intent of the Action Plan just a few weeks later when she admittedly referred to Licker as an "asshole" in front of other employees. Respondent had the right to issue the Action Plan and to act on it when it was violated.
Finally, with specific regard to Petitioner's separation of employment from Respondent, Respondent made reasonable efforts to quell the "dysfunction" within the department, but to no avail. Petitioner continued to be MRI's biggest problem since, as stated earlier, she continuously undermined Licker's authority and, otherwise, exhibited a negative attitude toward him, her co-workers, and Respondent.
In light of the above, it is clear that there was no "causal connection" between Petitioner's complaint regarding Licker and any of the alleged adverse actions.
Moreover, even assuming a causal connection between some of the alleged adverse actions, Petitioner's retaliation claim fails, as Respondent has shown that there was a legitimate, non-retaliatory reason for each of the actions it took with respect to her employment. Olmstead v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998) (once a plaintiff has established a prima facie case of retaliation, the employer has an opportunity to articulate "a legitimate, non-retaliatory reason for the challenged employment action"). Petitioner has failed to prove that Respondent had retaliatory intent in taking any of the above-cited actions with respect to Petitioner's employment. It was shown that Licker, the alleged harasser, had very little, if anything, to do with Petitioner's being issued a Decision Day, nor with those alleged adverse actions which occurred after that date.
Once an employer offers a legitimate, non-retaliatory reason for its actions, the burden the shifts back to the employee to demonstrate why the proffered reason is pretext for discrimination. Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001). To prove that a legitimate,
non-discriminatory reason for the adverse employment action is pretext for discrimination, the charging party must show that the proffered reason was, in fact, merely a pretext for the employer's actions. Id. (citing Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Petitioner offered no evidence which suggests that a discriminatory or retaliatory reason motivated Respondent in disciplining and seeking to separate Petitioner from her employment. The lack of temporal proximity between Petitioner's February 2007 complaint and her December 2007 Decision Day cast significant doubt on any effort by Petitioner to claim that Respondent's reasons for its actions were a pretext for unlawful retaliatory conduct.
In proving that an employer's asserted reasons is merely a pretext, "a [charging party] is not allowed to recast an employer's proffered nondiscriminatory reasons or substitute [her] business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason." Carter v. Diamondback Golf Club, Inc., 2006 WL 229304 (M.D. Fla. 2006)(quoting Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)(internal quotations omitted); see also Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999)(the "sole concern is whether unlawful discriminatory animus motivates a challenged employment decision."
In the absence of intent to discriminate, courts have repeatedly recognized that it is not their role to second-guess
or scrutinize an employer's legitimate business decision. See Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000),
citing Damon, 196 F.3d at 361, holding that courts "are not in the business of adjudging whether employment decisions are prudent or fair . . . ." Pashoian v. GTE Directories, 208 F. Supp. 2d 1293, 1309 (M.D. Fla. 2002); See also Chapman v. Al Transport, 229 F.3d 1012, 1031 (11th Cir. 2000). Rather, courts are to be concerned only with the questions of whether discriminatory animus motivated a challenged employment decision. Damon, 196 F.3d at 1361.
Respondent has established that it had a good faith belief that Petitioner's performance was unacceptable and that Petitioner was the major cause in the MRI department's dysfunction.
It is clear that Petitioner was quarreling with Respondent's reasons for doing anything. She did not agree with how it handled her complaint; she did not agree that Licker should be employed by Respondent; and, while she made some progress in her assigned Action Plan, she, by her actions, showed that she did not satisfactorily comply with the Action Plan and work with her co-workers to create a cohesive, functional department.
Even if Petitioner could cast doubt on the reasons for her discharge, her claim, nevertheless, would fail, because
Petitioner has offered no proof that retaliation was the reason for her discharge. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-47 (2000) (noting that a plaintiff must do more than simply prove that the employer's proffered reason for discharge is false by presenting evidence of intentional discrimination). It is well-settled that an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or no reason at all, as long as its action is not for a discriminatory reason. Damon, 196 F.3d at 1361.
Petitioner's conclusory allegations that Respondent discriminated against her is Petitioner's attempt to second- guess Respondent's business decisions in its efforts to manage Petitioner.
It is clear that Petitioner failed to meet her ultimate burden of establishing retaliation under FCRA, and, therefore, her claim of such under the FCRA must fail.
Therefore, Petitioner has failed to prove a prima facie case of hostile work environment in that she has failed to show that she suffered any actionable, i.e., severe or pervasive, sexual harassment, and that there is no basis for holding Respondent responsible for any of the alleged conduct by Licker.
Petitioner has failed to prove a prima facie case of retaliation in that she has failed to show that there was a
causal connection between her alleged protected activity and any of the alleged adverse employment actions to which she was subjected.
Moreover, assuming, arguendo, that Petitioner has proved a prima facie case of retaliation, her claim must fail because Respondent has demonstrated that it had a legitimate, non-retaliatory reason for each of the actions it took with respect to Petitioner's employment status.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Lesa Burkavage's, claims of unlawful sexual harassment and retaliation against Respondent, Parrish Medical Center.
DONE AND ENTERED this 19th day of July, 2010, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2010.
1/ All references to Florida Statutes are to Florida Statutes (2008), unless otherwise cited.
Mark E. Levitt, Esquire Bona Kim, Esquire
Allen, Norton & Blue, P.A.
James Thomas Gordon, Esquire Beers & Gordon, P.A.
Larry Kranert, 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.
