The Issue Whether Petitioner was subjected to race and gender discrimination, sexual harassment/hostile work environment, and retaliation, as alleged in her Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, a 36-year-old Caucasian female, was employed by Respondent as a sales associate. She first worked for Respondent at its Sebastian, Florida, store where she started in June 2006. She voluntarily resigned from the Sebastian store in October 2006 and was hired by Respondent's Merritt Island, Florida, store one week later. Respondent owns and operates an appliance retail store in Central Florida. Respondent employs more than 15 people. At some time during Petitioner's employment, John Barnaba, an operations manager who rotated among several stores, said things to her that she found "unacceptable." For example, "You would look good on my Harley," "You look like a biker chick," and "You must be anorexic." He also clapped his hands behind her and said, "hurry, hurry, hurry." She reported Mr. Barnaba's conduct to Phil Roundy, her manager and manager of the Merritt Island store, who said "That's just the way he is," or words to that effect. She was unaware of any other action undertaken by Mr. Roundy regarding her complaint. In January 2007, Petitioner began a voluntary sexual relationship with Mr. Roundy, which involved at some point, Petitioner and Mr. Roundy living together. This relationship lasted until April 29, 2007, when the parties separated. She and Mr. Roundy "got back together in May, about a week after her termination." Mr. Roundy did not sexually harass Petitioner based on the voluntary nature of their relationship, nor did he sexually harass Petitioner between April 29 and May 18, 2007. After Petitioner and Mr. Roundy separated, he started treating her "differently." She reports that he became critical of her and would not assist her. Respondent has published an "information resource for common questions and concerns" titled, "Associate Handbook" that addresses sexual harassment and presents a grievance procedure for employees who believe they have been subjected to unfair treatment. It contemplates reporting the unfair treatment to (1) "your immediate manager"; (2) the store manager; or (3) "[s]hould the problem, however, be of a nature which you do not feel free to discuss with your manager, you are encouraged to discuss the problem in confidence directly with Human Resources." Petitioner requested a transfer to another store on May 1, 2007. She requested the transfer before Mr. Roundy started treating her "differently." She called Human Resources on May 9 and 15, 2007; it is unclear as to whether she called to check on the requested transfer or to report the alleged sexual harassment. She did not timely pursue any recourse suggested in the Associate Handbook. On May 9, 2007, Mr. Barnaba, the operations manager mentioned above, authored an email that characterized several of Petitioner's activities of that work day as "completely unprofessional and insubordinate." The following day, Mr. Roundy emailed his supervisor that Petitioner had gone through his private, business-related emails and discovered Mr. Barnaba's May 9, 2007, email. He also related several incidents that he thought unprofessional and that reflected bad customer service. He advised that Petitioner accused Barnaba and himself of conspiring to try to terminate her. Petitioner was scheduled to work on May 16 and 17, 2007, but did not report to work. She was scheduled to work on May 18, 2007; as a result, Kevin Draco, a risk manager for Respondent, went to the Merritt Island store to interview her. When Petitioner did not appear, management made the decision to terminate Petitioner for "absenteeism."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 4th day of April, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maurice Arcadier, Esquire 2815 West New Haven Avenue, Suite 303 Melbourne, Florida 32904 Christopher J. Coleman, Esquire Schillinger & Coleman, P.A. 1311 Bedford Drive, Suite 1 Melbourne, Florida 32940
Findings Of Fact Petitioner Edward Lindsey was continuously employed by Respondent White Auto Parts between 1952 and 1989 (37 years). He was 64 years old at the time of his separation from White Auto Parts. White Auto Parts is a family-owned corporation for wholesale and retail auto parts sales. At all times material, it had eight stores and a warehouse operation in and around Gainesville, Florida. Retail sales are made over the respective store counters, and outside salesmen and inside salesmen handle wholesale sales. Inside salesmen stay at a desk in a specific assigned store and conduct most of their sales by telephone. William Thomas Hawkins, M.D., is Chairman of the Board and President of White Auto Parts. Dr. Hawkins is involved in the policy decisions affecting the management of the corporation, but is not generally involved in day-to-day business operations, including personnel matters. However, during substantially the whole of his leadership, Dr. Hawkins has urged day-to-day management personnel to hire college educated persons and/or enthusiastic and aggressive people. Usually, in connection with these urgings, Dr. Hawkins has referred to these recruits as "young," "college-educated," "new blood," or the equivalent. Despite occasional comments on individual employees being "old" or "slow," there is no evidence of a concerted effort by Dr. Hawkins to terminate or force early retirement on all employees 55, 60, or 65, or any other age for any reason, including replacement by younger, aggressive personnel. Petitioner Lindsey was initially employed in the shipping department, then worked at the counter. For the last 25 years he was employed as an outside sales person, a position he truly enjoyed. Petitioner's duties as an outside sales person included calls on independent accounts (garages, car dealers, and persons in the automotive business) to make presentations of stock, as well as to handle refunds and credits on defective returns and cores. He was also expected to develop new accounts. Outside salesmanship involved local travel by company car, getting in and out of the car many times a day, lifting heavy parts, and significant paperwork. By all accounts, it was significantly strenuous, physically. In the early years of his employment as an outside sales person, Petitioner was compensated on a commission basis, but that was gradually changed after Joe Nave became general manager of the company. At all times material, Joe Nave was general manager of White Auto Parts, with responsibility for managing day-to-day operations and for hiring and firing personnel. Seven years before Petitioner's separation, Mr. Nave intended to replace Petitioner with a younger, more aggressive person because of Dr. Hawkins' directions to seek such people out and because he was dissatisfied with Petitioner's sales performance. However, Petitioner improved his performance on the road and complied with Mr. Nave's sales policy, and thereafter Mr. Nave had no further cause to speak on the subject to Petitioner again. The situation at that time had been either based on personality problems between the two men or upon Petitioner's work performance, but not upon Petitioner's age per se, and the problem was cleared up at that time. Approximately one year before his separation, Petitioner was called in and by agreement was put on a straight salary of $370.00 per week. Later, Mr. Nave sought to reduce that amount, but Petitioner refused to accept the reduction. Nothing more was said thereafter about this request of Mr. Nave, and there is no evidence in the record to explain why the request was ever made. On the whole, Petitioner and Joe Nave had a less than cordial business relationship over the whole of their association. Mr. Nave was, by all accounts, a "hyper" or choleric personality with an aggressive, if not downright belligerent, managerial style. Very simply, Mr. Nave wanted to know where all his employees were all the time, and he yelled and "cussed" a lot over every little thing. Petitioner found his superior's use of swear words particularly unappealing and inferred that the cussing was directed at him, even if Mr. Nave actually intended it toward other persons or inanimate objects. On September 6, 1989, Petitioner had surgery for prostate cancer. He was hospitalized for approximately ten days. Petitioner received a call from Mr. Nave after he got out of the hospital. At that time, Mr. Nave told Petitioner that his vacation and sick leave had been used up and his paychecks would stop, according to company policy. Petitioner knew that company policy was exactly what Mr. Nave had represented, but he anticipated trouble which was never threatened. Petitioner thought: So then I got to thinking, once before Mr. Nave had asked me, when I was sick prior years back from that, now, this was a different time . . . and he wanted to know if the doctor released me, and I said, "No sir. He will not release me for another week." And he went out of the office saying, well, he's going to get him another guy to replace me then, which it didn't take place, of course. So then I got to thinking about this thing. He called me, reminding me about my vacation time, and I guess at that time I was thinking, well, maybe he's going to pull one and replace me, so -- (TR-16) Petitioner returned to work on Monday in the second week of October 1989. At the time, he was still wearing a catheter and two drain tubes in each side. Despite Petitioner's suspicions and despite Mr. Nave's phone call, the Respondent employer kept Petitioner on at full salary until he came back to work. After being at work one week, Petitioner felt he had "over done it." On the following Monday, he told Joe Nave that he was going to try to work a few more days, but then might need some more time to recuperate. The following Thursday, Petitioner attempted to speak with Mr. Nave regarding feeling too ill to continue any further that day, but was unable to do so because when Petitioner finished his paperwork, Mr. Nave had already left. Petitioner left the keys to the company car on Mr. Nave's desk and told Arnold Reed, the purchasing agent, that he was going to have to go home. Mr. Reed noticed that Petitioner was not looking well and offered to take him home, but Petitioner called his wife, who came and got him. On Friday, Petitioner did not report for work or call in to Respondent. That day, he traveled to South Carolina with his son-in-law. Petitioner did not return to work the next Monday. That day, Arnold Reed told Joe Nave that Petitioner had had to go home Thursday. After Mr. Nave expressed his shock that Petitioner had not talked to him personally, Mr. Reed explained to Mr. Nave that it was obvious that Petitioner had been ill. Respondent presented no proof that it had a published personnel policy requiring Petitioner to remain on the premises, despite the circumstances, until he could be excused by Mr. Nave personally. That same Monday, Joe Nave called Petitioner's home and left word for Petitioner to return his call. Several days later, Petitioner's wife, Jean Lindsey, contacted Joe Nave to explain Petitioner's reasons for his absence. The tone and content of their conversation are disputed. Among other matters, Mrs. Lindsey testified that Mr. Nave informed her that Petitioner no longer had a job at White Auto Parts and was verbally abusive about Petitioner's absence and trip to South Carolina. Mr. Nave testified that he did not terminate Petitioner but only reiterated that Mrs. Lindsey should have Petitioner see Mr. Nave as soon as he returned home. Despite the foregoing contradictions, the two witnesses concur that Mr. Nave did, in fact, also tell Mrs. Lindsey that he had already given the company car and the accounts assigned to Petitioner to someone else. It was from this comment, made in the "heat of battle" as it were, that Mrs. Lindsey reasonably inferred that Mr. Nave had hired a replacement for, or had transferred another employee into, Petitioner's outside salesman position. 1/ However, somewhat contradictorily, Mrs. Lindsey also testified that although Mr. Nave had stated that Petitioner could come in and work on a part-time basis, she still concluded that Petitioner had been fired outright. Visibly upset, she exited the store where she had spoken on the telephone with Mr. Nave and told Howard Newsome, a long time employee, that Mr. Nave had fired Petitioner. As a result of her contact with Mr. Nave, Mrs. Lindsey called Dr. Hawkins, president of the corporation, to discuss Petitioner's job. She advised Dr. Hawkins during their telephone conversation that Petitioner was very ill, that he had not done well post-surgery, that he needed time off, that he had left the previous week to go to South Carolina to rest and recuperate, that previously he had come back to work with a catheter and two drains in him, and that he just was not up to coming back to work. She also told him Petitioner had been discharged for not coming to work. At that point, Dr. Hawkins directed Mrs. Lindsey to have Petitioner contact him upon his return so that a meeting could be set up to hear both sides and work out the situation. Upon returning from South Carolina on Saturday, Petitioner was informed by his wife that he had been fired from his job at White Auto Parts by Joe Nave, but she also told him about Dr. Hawkins' message. Petitioner phoned Dr. Hawkins as requested who offered to "iron things out." Dr. Hawkins set up a meeting among himself, Joe Nave, Petitioner Lindsey, and Mrs. Lindsey. At the meeting, Dr. Hawkins assumed Petitioner was still wearing the drain and catheter Mrs. Lindsey had described to him. He did not inquire about them and so he did not know they had been removed sometime before the meeting, which took place on October 31, 1989. The only persons present for the entire meeting were Petitioner, his wife, and Dr. Hawkins. Also present at the beginning of the meeting was Joe Nave, and at the very end of the meeting, Sherry Deist. At the beginning of the meeting, Dr. Hawkins had Petitioner's sales reports in front of him because he and Joe Nave had just gone over Petitioner's entire record and agreed on what they could offer Petitioner to resolve the situation. Dr. Hawkins perceived the situation to be that Petitioner was a long- time employee, not yet released from post-surgery medical care, who had come back to full-time employment too soon to be able to do the strenuous work of full-time outside salesman and who was afraid of losing his job because he had not and could not report in to do it. Petitioner and Mrs. Lindsey perceived the problem as Petitioner already having been unjustly terminated from his outside salesman job and that reinstatement to that position was the only result that would satisfy them. Because the sales reports were in front of Dr. Hawkins at the beginning of their meeting, Petitioner became defensive, since, by his perception, for years he had never been told that his work was unsatisfactory or inadequate nor had he received any documentation to that effect. 2/ Despite obvious biases, Petitioner's description of this part of the meeting is the most credible of the several conflicting versions, and it is found that Dr. Hawkins did make comments about sales being down, about Petitioner slowing down, about Petitioner being unable to continue in outside sales work, and about Petitioner being "burned out" physically. Nonetheless, Dr. Hawkins offered Petitioner the opportunity to return to work at the less strenuous position of inside salesman. 3/ There is conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that Petitioner had never been terminated, but it is most probable from the circumstances that this was never specifically stated. There is also conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that he would pay Petitioner half pay until he could return to work, would pay Petitioner part-time wages for part-time work as an inside salesman until he could work full-time, and would pay Petitioner full-time pay as an inside salesman indefinitely. The evidence is also unclear as to whether or not the inside salesman Petitioner would replace was making $370.00 per week or slightly less. Consequently, it is possible and even reasonable that Petitioner could have inferred from Dr. Hawkins' offer that even as a full-time inside salesman, Petitioner would not make exactly the same pay rate as he had been making as a full-time outside salesman. However, it is clear and undisputed that even if Dr. Hawkins was noncommittal in response to Petitioner's pleas to keep his outside job, Dr. Hawkins did offer Petitioner a less strenuous but substantially comparable inside job, which Petitioner rejected. Petitioner concedes that neither Mr. Nave nor Dr. Hawkins ever stated that he had been or was being terminated. Petitioner's primary reason for rejecting the inside salesman's job was that the desk he would work from as an inside salesman was located in the same office with Joe Nave's desk. Petitioner, his wife, and Joe Nave all agree that Petitioner rejected the inside job regardless of any beliefs Petitioner held about what salary was involved and regardless of whether it was a part-time or full-time job, purely because the inside salesman job offer was not a return to his same outside sales job and because he refused to share an office with Joe Nave, the superior he believed had fired him. At that point, Petitioner's refusal of the inside sales job, Petitioner's wife's insistence that Joe Nave had already fired Petitioner, and Joe Nave's response became so loud, adamant, and vitriolic that Dr. Hawkins tried to calm the situation down by asking Joe Nave to leave the meeting and the room. After Joe Nave left, the meeting among Petitioner, his wife, and Dr. Hawkins continued in only a slightly calmer atmosphere. Petitioner never specifically told Dr. Hawkins he was able to return to his outside sales job that day. According to Petitioner's testimony at formal hearing, at the time of the meeting on October 31, 1989, he felt that he could have resumed his duties, but that he could not have daily serviced his usual number of accounts. At the meeting, Dr. Hawkins remained under the mistaken impression that Petitioner was still wearing the drains and catheter. Therefore, Dr. Hawkins still would not make any statement binding the Respondent corporation to return Petitioner to his outside salesman job. Dr. Hawkins asked Petitioner whether he had been released by his treating physician. Petitioner told Dr. Hawkins that he still needed to see his doctor on November 10. 4/ Dr. Hawkins told Petitioner they would meet after November 10 to "iron out" the situation. Dr. Hawkins called in the corporate comptroller, Sherry Deist, and instructed her to pay Petitioner half pay until November 10. There is no evidence that Respondent had any policy or employee plan that would have provided Petitioner with any pay at all after his vacation and sick leave was used up. Even though Petitioner's vacation and sick leave had run out, Respondent had actually paid Petitioner full pay until he returned to work. 5/ Respondent also paid Petitioner full pay while he tried to work for approximately 10 days before he was "done in" and went home to recuperate. Respondent continued to pay Petitioner full pay while he was in South Carolina and for the few interim days up until the October 31 meeting. From October 31 until November 10, 1989, Respondent paid Petitioner half salary. Dr. Hawkins anticipated hearing from Petitioner on or about November 10, 1989 as to whether or not he had been released by his doctor. Dr. Hawkins had planned to set up a new meeting to work out Petitioner's job status at that time, but Petitioner never called Dr. Hawkins to set up such a meeting. At Dr. Hawkins' request, Sherry Deist called Petitioner on or about November 10, 1989 to ask if he had called Dr. Hawkins. Petitioner told her that he had not called Dr. Hawkins and that it was Dr. Hawkins' duty to set up a new meeting. Ms. Deist offered Petitioner Dr. Hawkins' phone number, but Petitioner said he had it. Sherry Deist relayed this information to Dr. Hawkins. It is Respondent's policy that unless an employee personally asks to have a check mailed, he must pick it up personally. At Ms. Deist's request, Petitioner came in to see her to pick up his check covering the November 10 date. Dr. Hawkins could have initiated a phone call or set up another job status meeting at that point, but he deliberately did not. Based upon gossip that Petitioner had never been released by his doctor, was seeking employment elsewhere, and/or was hiring a lawyer to fight his termination, none of which conflicting hearsay statements were ever established to be true, Dr. Hawkins did not initiate any further direct contact between himself and Petitioner and told Sherry Deist to keep good notes whenever she talked to him. Up to this point, Respondent had treated Petitioner in every way as if he were still employed. Dr. Hawkins' open-ended offer of another meeting to "iron out" the situation made it unreasonable of Petitioner to continue to insist that he had been terminated by Joe Nave and refuse to contact Dr. Hawkins. Also, it was reasonable, on the basis of his past experience in the Respondent's employ, for Petitioner to know, regardless of the confusion, that the burden was on him to make clear to his employer, probably through a written medical release, that he was medically able to resume his duties. 6/ Sherry Deist then phoned Petitioner, pursuant to COBRA, to inquire whether Petitioner wished to continue his group medical insurance. When he replied affirmatively, she told Petitioner he could mail Respondent a check. No evidence was presented to show that COBRA requires offering this insurance option only if Petitioner were terminated or if the employer would also have had to offer it upon Petitioner's retirement. Later, Ms. Deist called Petitioner and asked him to fill out his retirement papers. Although Petitioner told Ms. Deist that he had not retired, but had been terminated, he also requested her to fill out the retirement papers for him. He signed them in January 1990. Prior to his surgery, Petitioner was 64 years old, and the other outside salesman, Ed Girton, was 58. Mr. Girton left Respondent's employ for another job in August 1989, a month before Petitioner's surgery. Shortly prior to the time Petitioner had surgery, Respondent offered an outside sales job to Mike Monaghman, age 35. Mr. Monaghman did not accept the offer. There is no clear evidence which outside sales position was being offered to Mr. Monaghman, but it is most probable that it was the one previously held by Mr. Girton. Eventually, Rick Thames, age 36-37 took that position. Rick Thames was not hired from outside but previously had been a counter man for Respondent. He lasted only eight months on the outside and requested to return to counter work. Petitioner's position was not covered by anyone for the first two weeks he was out sick. From approximately the time of Joe Nave's acrimonious phone conversation with Mrs. Lindsey, wherein he told her he had given Petitioner's accounts and car to someone else, until May 1990, Petitioner's accounts were covered by Burt Oliver, 66 years old, who already worked for Respondent in parts management only three days a week to supplement his Social Security retirement income. When Mr. Oliver could no longer cover the accounts in three days, he returned to inside employment in parts work and his outside accounts were given to a younger man, Mark Roberts, who was 32 years old. Mark Roberts was hired from outside, but the record is unclear as to precisely when. Since 1989, both outside sales positions have been filled by a succession of people at various times and the territories were reorganized at approximately the time Burt Oliver returned to inside employment. Eventually, the persons placed in outside sales were Mark Roberts, 32, Phil Snyder, a man in his 50's, and Wayne Butler, age 40. Respondent's car formerly used by Petitioner in outside sales was used by Burt Oliver and by just about every other White Auto Parts employee on a haphazard basis until it was sent for repair. The Respondent currently employs at least 20 people over the age of The Respondent currently employs, and consistently has employed, many employees over the age of 60, but most of these work/worked only part-time to supplement their Social Security retirement income. There are currently two full-time employees over sixty. One is approximately 70 years old and was hired after Joe Nave left the Respondent for other employment. Petitioner has remained under a physician's care on a three-months- return-visit basis.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition and denying the prayed-for relief. RECOMMENDED this 25th day of November, 1991 in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1991. 1/ See
Findings Of Fact The Petitioner Barbara Jerrel, became employed by Metropolitan Life Insurance Company, the Respondent, in May, 1987. She worked as a sales trainee in the field of life and health insurance sales and servicing. She was interviewed and hired by Doreen Blake in the "Gator Branch" office located in Gainesville, Florida. The manager of that office was Jerry Cummings, who was the Petitioner's supervisor. Mr. Cummings initially worked with the Petitioner in training her to solicit life and health insurance business and in making and closing sales of insurance policies both over the telephone and in person. When she initially became employed he accompanied her and supervised her in making sales solicitation calls on potential clients. On one occasion, soon after she was initially hired, the Petitioner maintains that she was working at her computer station in the office when Mr. Cummings sat beside her and began rubbing her arm. She states that she remonstrated with him about this conduct and told him to stop, whereupon he became angry and thenceforth instructed her to call him "Mr. Cummings." Soon after this alleged incident she was sent to a training school for approximately a month to learn the skills and requirements necessary to be a sales representative of Metropolitan Life Insurance Company. She received above average scores on graded work during her school period of instruction and received favorable reports on her leadership and sales ability from her instructors. After her school training was completed, she returned to the Gainesville office to work. On approximately June 23, 1988, she testified that she and Mr. Cummings were riding in her car to an appointment with a client. He was traveling with her in order to assist with her training in meeting and discussing insurance matters with clients and in closing sales. She maintains he began talking about things other than insurance and said "I hope you don't tell your husband what we talk about . . . because it's really making me hot." She also contends that he made a statement to the effect that he "wondered how long it would take before she got him to a motel room." The Petitioner testified that she went home that day and tried to decide whether to quit her job or not. She decided to seek a transfer to the Ocala office, where Mr. Wine was the manager. She conferred with Mr. Wine by phone and he allegedly told her that she could come to his office as a new applicant. In reality, as revealed by Mr. Wine in his own testimony, he did not want her to come to work in his office and did not encourage her to do so. In the meantime, Ms. Jerrel was appointed as a Sales Representative of Metropolitan at the "Gator" branch office in Gainesville, effective June 8, 1987, following her "pre-appointment training." That pre-appointment training provides job applicants with an opportunity to get acquainted with the company's business, to obtain necessary licenses, and enables the management to determine the aptitude of the applicant for the sale of the company's product. She was provided the same training accorded all such individuals after initial hiring. Following her appointment as a Sales Representative in the Gainesville office she continued to receive training and assistance as was provided all those newly appointed. Ms. Jerrel met the initial production requirement so that she could be appointed Sales Representative. However, her performance began to deteriorate in July, 1987. She had written 11 applications for insurance (with Mr. Cummings' assistance) by the time of her appointment as a Sales Representative and wrote five by July 10, 1987. Thereafter, she wrote no business at all for two of the next four weeks. She wrote one application for insurance in the week of August 3, 1987 and none for the next three consecutive weeks. She wrote one application in the week of August 31, and had none thereafter during her employment with the company. The Petitioner alleges that on or about August 28, 1987, Mr. Cummings made a suggestion that the Petitioner and Cummings and another couple "play golf, smoke pot, and go to the beach and make love." Petitioner apparently took offense at that, as it was one of the bases for the subject action. Upon her commenting about it to another female employee however, that employee, who knew Cummings for a longer period of time than the Petitioner, advised her to disregard it because it was her belief that he was "just joking." The Petitioner also alleged that several days after this incident on or about August 31, 1987, that Cummings was engaged in a conversation with her while kneeling beside her chair where she was working at her computer terminal. She alleges that he put his arm around her shoulder while conversing with her, let his hand rest on her breast and massaged her breast whereupon she states that she stabbed him with her "ink pen." These allegations are of somewhat dubious credibility. The Petitioner herself testified that after the August 31 date, at which the last of the above incidents allegedly occurred, Mr. Cummings still praised her as an employee and predicted that she would get the "Eagle Award." It is also established, by Petitioner's own testimony, that during this period of time in August, 1987, she was undergoing treatment for depression. There is some indication that she was having marital discord with her husband and, indeed, an incident occurred shortly after, on September 10, 1987, which indicates that her relationship with her husband might have interfered somewhat with her job performance. On that date she met agent Michael Ray from the company's Jacksonville office, whom she had known in insurance school. They went to a local establishment where, according to her own testimony, they had a "couple of drinks" whereupon she got sick and went home. Her husband apparently became upset by this episode and shortly thereafter went to the company's Jacksonville office in an attempt to confront agent Ray about apparently interfering with his relationship with his wife, the Petitioner. Later that day, the Petitioner called her own office in Gainesville to warn them that her husband might be coming there armed with a gun. While this is commendable on the Petitioner's part, it does indicate that there was some marital discord which may have interfered with her job performance and together with the fact of her depression and treatment for it, may have influenced her thinking and her perception of what was actually occurring in her encounters with Mr. Cummings. He was described by another employee as a "touchy person" who frequently touched people in an innocent manner while engaged in a conversation with them. These factors, considered together, coupled with Cummings' denial that the incidents occurred, in the case of his allegedly touching the Petitioner's breast, and his testimony that if he touched someone, it was without any wrongful intent, lead the Hearing Officer to find that the incidents either did not occur, that they did not happen in the manner perceived by the Petitioner, or that the motive behind them was misconstrued by the Petitioner. On September 16, 1987, Mr. Cummings offered to try to obtain a transfer for Ms. Jerrel to another office if she would like and offered to give her two weeks in which to decide whether she wanted a transfer and to "tie up loose ends." The Petitioner later refused his offer of a transfer to another office. The offer of transfer, according to the Petitioner, was because of her husband's influence on her performance in her work place, as evidenced, in part, by the incident referenced above. On September 20, a Sunday evening, Ms. Jerrel called manager Cummings at his home. She asked him to meet her at the office. Manager Cummings declined to go to the office, suggesting that they discuss whatever her problem was over the telephone. Ms. Jerrel refused to do that so then Cummings suggested that she come to his home (where his wife would be present) to discuss the matter with him and she declined. Ms. Jerrel then hung up but called back a few minutes later and said that if Manager Cummings refused to meet her at the office then she would file a sexual harassment charge against him. He was taken aback by this statement but then advised her to do what she chose but he was still not going to meet her at the office that evening. Mr. Cummings met with Ms. Jerrel in the branch office the next morning and telephoned his Regional Manager, in Ms. Jerrel's presence, to relay to him the information regarding her claim of sexual harassment. Arrangements were then made, in accordance with established company procedures, in evidence, for Agency Vice President, James Higgins, to meet with Ms. Jerrel on September 24, regarding her claim of sexual harassment. When Mr. Higgins met with her and heard her allegations, he advised her of the company's policy against sexual harassment, and assured her that if the incidents had occurred as alleged, he would correct the situation and there would be no recurrence. He also took that opportunity to discuss with Ms. Jerrel her performance as a sales representative. He advised her that upon review of her performance, he had noted that she had been "blank"; that is, without any sales or production for several weeks. He informed her that that was not a satisfactory performance level. He told her that she would have to produce a satisfactory record of sales accomplishments or her employment would be terminated. As a result of this discussion she agreed to submit an "action plan", delineating in detail what steps she proposed to take to correct her unsatisfactory production level. That action plan included her assurance that she would participate in "telephone prospecting classes" with her supervisor. Mr. Higgins also interviewed Manager Cummings with respect to Ms. Jerrel's allegations of sexual harassment. Mr. Cummings denied them. Mr. Higgins then warned Manager Cummings that if he were found to have engaged in such conduct, his employment would be terminated. Respondent's exhibit 14 is a letter from Mr. Higgins to Manager Cummings delineating the problems with the Petitioner's lack of sales performance. The exhibit contains a detailed discussion of her action plan goals designed to try to correct her lack of production of insurance sales. The letter admonishes Manager Cummings to monitor her performance, particularly her telephone prospecting time and methods, as well as her other prospecting and sales efforts and methods. The letter emphasizes, on the second page, the monitoring and establishment of a schedule of in-office telephone prospecting time, to be monitored by Mr. Cummings. In that letter is a handwritten memorandum of a telephone conversation which Mr. Higgins later had with Mr. Cummings, on the same day the letter went out to Mr. Cummings. Mr. Cummings informed Mr. Higgins that Ms. Jerrel had already missed two scheduled telephone prospecting classes which she had agreed to attend in her "action plan", designed to correct poor sales performance. Since she did not report to the scheduled telephone prospecting class sessions on September 25th and September 28th, Mr. Higgins ordered Manager Cummings to terminate her effective October 1, 1988. The reason for her termination was established to be her low- performance record and her failure to comply with the action plan which she, herself, prepared and submitted, designed to correct her poor sales performance. The termination did not result from the altercation that the Petitioner was involved in with her husband and agent Michael Ray of the Jacksonville branch office. In fact, the Branch Manager, Mr. Cummings' superior, had a discussion of that issue with Mr. Cummings and informed him that the New York home office had indicated that the Petitioner's husband's interference with her job or office operations was not a sufficient reason to terminate her. The company's policies and procedures regarding sexual harassment claims, equal employment opportunity, affirmative action and prevention of unlawful discrimination are in evidence. The record does not reflect that those policies were departed from in the situation at bar.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the petition of Barbara Jerrel be dismissed. DONE AND ENTERED this 27th day of March, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990. COPIES FURNISHED: Dana Baird, Esq. Florida Commission on Human Relations 325 John Knox Road, Suite 240 Building F Tallahassee, FL 32399-1925 Rodney W. Smith, Esq. P.O. Box 628 Alachua, FL 32615 Wi1liam G. Pappas, Esq. Metropolitan Life Insurance Company One Madison Avenue New York, NY 10010-3690
The Issue The ultimate issue is whether the Respondent, Tallahassee Coca-Cola Bottling Company (Coke), engaged in an unlawful employment practice on the basis of race in its termination of James Andrews, the Petitioner. Andrews was purportedly terminated because of allegations that he had repeatedly sexually harassed and touched female employees. Resolution of the ultimate issue does not require a determination of whether such sexual harassment actually occurred. Instead, the issue is whether Coke's motivation for the termination was racially based and thus impermissible.
Findings Of Fact Andrews, who is black, was initially hired by Coke in 1969 and worked on the production line until he quit in 1971. Andrews was rehired by Coke in 1973, also in the production department. He worked in various positions in both the production department and in the inventory warehouse, and was promoted to assistant production superintendent in 1977. When the production department was closed in June 1982, Andrews transferred to the warehouse as assistant warehouse supervisor. In 1983, he assumed the responsibilities of head shipping and receiving clerk, and was placed in charge of inventory control, plant security and vehicle maintenance. Warehouse Supervisor Dale Dunlap resigned in July 1988 and Andrews was promoted to Warehouse Supervisor. As warehouse supervisor, Andrews had primary responsibility for the overall management of the warehouse, including inventory control, shipping and receiving, personnel management, and warehouse and vehicle maintenance. Andrews' performance evaluations were generally excellent, but the most recent evaluations were less favorable than his earlier reviews. Reports of Sexual Harassment Prior to Andrews' termination reports of sexual harassment were made to Coke by three employees: Susan Lingerfelt, Mandy Stinson, and Sue Rosenthal (now Rubin). In summer 1989, Lingerfelt reported to Office Supervisor Mandy Stinson that Andrews had just grabbed her in the warehouse by the Coke machine and had forced her head back and kissed her. She had shoved Andrews into the Coke machine, told him not to do that, and went to report it to her supervisor. Because the Sales Center Manager had resigned and his replacement had not yet been appointed, the two women agreed not to tell anyone about the incident, but instead to wait until the new manager arrived. In February 1990, around Valentine's Day, Lingerfelt reported that Andrews came up behind her when she was sitting alone at a computer terminal, grabbed her hair, pulled her head back, and again kissed her on the lips. Lingerfelt again protested and tried to get away from Andrews. Lingerfelt again reported the incident immediately to Stinson. Stinson and Lingerfelt went immediately to Lee Burk, the new Sales Center Manager, and reported the incident and the earlier incident at the Coke machine. During this same meeting with Lee Burk, Stinson also complained that she had been repeatedly harassed by Andrews and that Andrews had come up behind her, given her a "bear hug," and tried to kiss her. Burk was confused about what had happened to Lingerfelt because a black employee, Roosevelt Humphrey, had reported to him a couple of months before that he had seen two employees consensually embracing at the Coke machine. Humphrey had not identified the two employees except to say one was a supervisor. Burk mistakenly believed that the two separate Coke machine incidents were the same event. Based on this mistaken belief, Burk thought that a supervisors' meeting would be enough to solve the problem. A few days later, Burk called a supervisors' meeting and discussed several topics, including sexual harassment. He redistributed and discussed Coke's written policy forbidding sexual harassment. Burk told all the supervisors in no uncertain terms that he would not tolerate unwelcome sexual advances at the plant and that if anything of that sort had happened, the supervisor had better clean up his act. In August 1990, Andrews again was reported by Lingerfelt for grabbing her hair, pulling her head back and kissing her on the lips. Lingerfelt tried to slap Andrews, but missed, hitting him on the shoulder. Lingerfelt went immediately to Stinson and they went to see Burk. Lingerfelt was quite upset and was crying. When Burk heard the report, he said he would take care of it. Lingerfelt left the plant for about an hour to collect herself. While Lingerfelt was gone, Burk called Andrews to his office and confronted him with the two women's allegations, including the previous reports by both women. Andrews categorically denied the allegations, except that he had once put his arms around Lingerfelt. He denied ever kissing her and said he did not mean anything by his actions. Burk stressed to Andrews that he could not touch any female employee again, even if he didn't think anything was wrong with it--that he must stop it. Andrews claimed that Lingerfelt had invited the contact by bumping against him and that she was making the allegations because he was black. Andrews also claimed that Lingerfelt had allowed sexually explicit advances from a white supervisor, Doc Roddenberry, and that Roddenberry, not Andrews, should be the subject of Burk's admonitions. Burk told Andrews that he had only gotten complaints about him (Andrews) and that if he continued with his unwelcome conduct, he could lose his job. No advances were reported by Lingerfelt for a few months, but she did complain that Andrews was uncooperative with her about work. In January 1991, Lingerfelt noted that Andrews was calling her frequently and spending long periods of time in her office. Because this behavior was similar to Andrews' conduct before the previous incidents, Lingerfelt became concerned. On January 16, 1991, Stinson was in Jacksonville at Coke's regional office. Lingerfelt became so concerned that she called Stinson in Jacksonville and reported that Andrews had spent several hours that day in Lingerfelt's office staring at her. Stinson immediately asked the Regional Human Resources Manager, Thomas Bauman, for assistance. Stinson informed Bauman of all the prior alleged sexual harassment by Andrews. The next day Stinson returned to Tallahassee and she and Lingerfelt spoke with Burk. Lingerfelt, who was visibly scared and crying, explained to Burk that Andrews had been standing around her office staring at her. Burk said he would address the problem immediately. After talking with Bauman and obtaining his approval, Burk called Andrews into his office and confronted him again. Andrews denied that he had been hanging around Lingerfelt's office staring at her. Burk then brought Stinson into his office to confront Andrews about his persistent harassment against her. Andrews denied the allegations and accused Stinson of "coming on" to him. Andrews again asserted that the women's allegations were racially motivated. He also brought up his allegations against Roddenberry and Lingerfelt and demanded to know why Roddenberry could "get away with it" and he couldn't. Burk advised Andrews that it was only his own misconduct which was being addressed at the moment. Burk also informed Andrews that the allegations of Andrews' misconduct would be brought to the attention of Bauman for further action. Shortly thereafter, Coke's Special Events Supervisor, Sue Rosenthal (now Rubin), reported several events of sexual harassment by Andrews. She had come forward to help support Lingerfelt. Coke's Investigation After discussing the situation and receiving instructions from Buddy Donaldson, Coke's Florida Human Resources Director, Bauman travelled to Tallahassee to conduct an investigation on January 24 and 25, 1991, into the allegations against Andrews. Bauman first met with Burk and received a briefing on the series of allegations. Burk reported the incident which Roosevelt Humphrey had reported to him, still thinking that incident involved Andrews. Bauman interviewed Lingerfelt, who related in great detail each of the alleged incidents set forth above. Bauman took notes and Lingerfelt signed those notes as being an accurate account of her statement. Bauman asked Lingerfelt whether she had any racial motivation for her reports. Lingerfelt denied that Andrews' race had anything to do with her allegations. At this meeting, Lingerfelt told Bauman that she had hired an attorney and had filed sexual harassment charges against Coke with the Florida Commission on Human Relations. Bauman next interviewed Roosevelt Humphrey. Humphrey told Bauman that the two people he had reported were Lingerfelt and Roddenberry, not Lingerfelt and Andrews. Humphrey also acknowledged that he had not seen any other such incidents involving Lingerfelt and Roddenberry since the one incident he had reported to Burk without giving names. Bauman then went to Lingerfelt and asked if Roddenberry had sexually harassed her. Lingerfelt denied that Roddenberry had ever harassed her. Bauman next interviewed Rosenthal. Rosenthal told Bauman that before she became a supervisor in early 1989, Andrews had engaged in unwelcome sexual conduct toward her on three occasions. The first two times, Andrews came up behind her in her office, lifted the hair on the back of her neck, and kissed her on the neck. The third time, Andrews surprised her by kissing her on the lips after she had finished a telephone call and had turned around. Rosenthal said she was too startled to say anything after the first incident, but after the second and third events, she told Andrews not to do that. She said she did not report these incidents at the time because she was new, young and nervous. Rosenthal also reported that she had recently seen Andrews "stalking" Lingerfelt, staring at her for long periods of time and waiting for Rosenthal to leave so that he could be alone with Lingerfelt. Bauman asked Rosenthal whether her allegations could be racially motivated. Rosenthal said race had nothing to do with it and, in fact, she lived with a black roommate. Rosenthal had selected that woman from a pool of applicants who had responded to her newspaper ad seeking a roommate. Bauman next interviewed Stinson. Stinson told Bauman of the harassment she had suffered from Andrews, which included several attempts by Andrews to hug and kiss her. She also related information about the times Lingerfelt would come to her and they would go to Burk about Andrews' actions toward Lingerfelt. On January 25, 1991, Bauman officially interviewed Burk. Burk related the actions he had taken, including the supervisors' meeting in February 1990 and the personal meetings with Andrews in August 1990 and January 1991. Burk also recommended that Andrews be terminated for sexual harassment and stalking. Suspension and Termination Bauman then called Donaldson and discussed the information he had learned. They decided that Andrews should be suspended immediately, pending a final decision. They also decided not to interview Andrews again because he had denied any wrongdoing twice, most recently a week earlier. They had no reason to believe that Andrews would recede from his denials. Before suspending Andrews, Bauman asked Lingerfelt and Stinson to leave the building. He did so because of his concern and the women's concerns about their personal safety, especially when Andrews was told of the suspension. As soon as the two women had left the building, Bauman called Andrews to Burk's office. They told Andrews that he was being suspended for conduct unbecoming a supervisor. Andrews wanted to know "who said what" about him, but Bauman declined to give him further details. As he was leaving Burk's office, not knowing that Lingerfelt and Stinson had left the building, Andrews shouted to the closed door of Stinson's office something to the effect of "Did you women hear that--are you happy now?" As soon as Andrews was escorted from the premises, Coke changed all the locks at the Tallahassee facility, which was standard procedure. Bauman also had an automatic front door lock installed so that no one could enter the front office without being pre-screened. The following week, Bauman and Donaldson reviewed all the information, including the interview notes which had been attested to by the three women. They concluded that sufficient evidence existed to require termination of Andrews' employment. On January 31, 1991, Donaldson came to Tallahassee, summoned Andrews to the facility, and terminated him for misconduct. The decision to terminate Andrews was based on a good faith belief that he had engaged in inappropriate sexual conduct on multiple occasions, despite and in the face of at least two warnings by the sales center manager. Coke did not immediately replace Andrews. Due to a "cost containment" program that had recently been instituted and because Tallahassee's volume was too low, Burk was not permitted to hire a replacement. In February 1992, more than a year later and after two neighboring sales centers were closed and their operations consolidated at the Tallahassee facility, Burk was allowed to hire a replacement. He hired the warehouse manager from one of the closed sales centers, a white male. Other Victims Come Forward While Coke knew of only three female employees who had been harassed by Andrews when Coke terminated him, three additional women also came forward to testify about sexual harassment they had suffered at the hand of Andrews. Johnnie Mae Marshall, a black woman who had worked for Coke as a receptionist, said Andrews had suggestively rubbed her arms and hands when she handed him documents. To stop it, she ceased to hand him papers, instead placing all such documents in a mail tray for him. Christen Cheshire, a white female telephone sales operator, testified that Andrews harassed her beginning in late 1988. She said Andrews came into her office once or twice a day, hugged her around the neck, and kissed or attempted to kiss her. This went on for about two months before Cheshire was able to persuade Andrews to stop the unwelcome advances. While Cheshire never reported Andrews' advances, Marshall remembers Cheshire complaining to her about it. Jeanie Benton, a white female who worked for Coke from 1987 to 1990, also testified about Andrews' unwelcome advances. One time when she rose from her desk and turned around, Andrews was right behind her and tried to kiss her. She told him to get back and leave her alone. On a later occasion, Andrews tried to massage her shoulders and she told him to stop. Thereafter, Andrews would stand in her office door and stare at her. Andrews' Claims of Discrimination Andrews' claims that the termination was motivated by racial discrimination and that Coke's reasons for terminating him were pretexts for discrimination. As evidence, he offered a story that Roddenberry committed egregious acts of sexual harassment and misconduct, but was not disciplined. Additionally, he alleged that a "white clique" wanted to get rid of him because they did not like that a black man was made warehouse supervisor. Not one shred of credible evidence was given to support Andrews' claims. Besides Andrews' own testimony, the only witness who claimed to have seen any sexually inappropriate conduct between Roddenberry and anyone, including Lingerfelt, was Roosevelt Humphrey. Humphrey was not a credible witness. First, he was terminated by Coke for stealing a check from a coworker and cashing it. Next, he said he saw Roddenberry and Lingerfelt three times a week with Roddenberry kissing Lingerfelt, rubbing her buttocks and her breasts. However, he was not even working at the warehouse during most of the time he said he saw this and his testimony was filled with contradictions and discrepancies. Finally, he named others who saw and discussed this behavior; but each of those named persons denied ever seeing any sexually inappropriate behavior between Roddenberry and Lingerfelt or other female employees. Andrews' suggestion that his termination was racially motivated by false reports from a group of white employees, including Lingerfelt, Stinson, Rosenthal, and Roddenberry, is also unworthy of belief. Andrews' purported to support his conspiracy theory with anecdotes about other white employees, Jeanie Benton and William Beck, who tried to help him in the face of the covert actions of the alleged conspirators. However, Benton and Beck both denied that the events Andrews described in his anecdotes ever occurred. Additionally, Andrews' version of all these incidents was simply implausible and inconsistent with the credible and substantial evidence. Finally, Andrews presented no credible evidence to rebut Coke's evidence of its legitimate reason for the termination. Andrews simply offered no competent or probative evidence of a racial motivation for his termination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying and dismissing the Petition for Relief filed by James Andrews, Jr. DONE and ENTERED this 23rd day of September, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2063 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Andrews, Jr. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 9-12(8-11); 17-19(13- 15); 23-25(20-22); 34(29); 36(31); 37(32); 40(35); 41(36 & 37); 42(38); 45(42); 46(43); 50 & 51(46); and 53(47). 2. Proposed findings of fact 4-8, 13-16, 20-22, 26-33, 35, 38, 39, 43, 44, 47-49, and 54 are subordinate to the facts actually found in this Recommended Order. 3. Proposed finding of fact 52 and 55 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Tallahassee Coca-Cola Bottling Co. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 53(35). 2. Proposed findings of fact 4, 5, 12-17, 19, 20, 22-27, 29-36, 40, 43, 44, 47-52, 55, 56, 79, 80, 87-90, 127, and 137 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 6-9, 11, 18, 85, 91, 102, 107-113, 117, 118, 121, 128-130, 134, and 136 are unsupported by the credible, competent and substantial evidence. 4. Proposed findings of fact 10, 21, 28, 37-39, 41, 42, 45, 46, 54, 57-78, 81-84, 86, 92-101, 103-106, 114-116, 119, 120, 122-126, 131-133, 135, and 138-152 are irrelevant, repetitive, unnecessary, and contain summaries of testimony and argument which are not appropriate proposed findings of fact. COPIES FURNISHED: Marie A. Mattox Attorney at Law 3045 Tower Court Tallahassee, Florida 32303 William R. Radford Attorney at Law 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent, JR Conway Enterprises, LLC (Respondent), violated the Florida Civil Rights Act of 1992, section 760.10(7), Florida Statutes,1 by terminating Petitioner, Tina Garner (Petitioner), in retaliation for her reporting sexual harassment.
Findings Of Fact Respondent, JR Conway Enterprises, LLC, owns a number of businesses. Jeff Conway is Respondent’s managing member. Petitioner was hired by Respondent near the end of July 2018, to work as a bookkeeper doing payroll and accounts for Respondent’s real estate office known as Sunshine State Deals. In September 2018, Respondent opened a Smoothie King in the Spring Hill, Florida area. As the date for opening the Smoothie King grew closer, Petitioner took on more responsibilities and helped open and operate that store. Morgan Katocs was hired in September 2018 to work at the Smoothie King. Ms. Katocs was 17 years old at the time she was hired. Ms. Katocs brother, Hunter McGhee, was also hired to work at the Smoothie King. The Smoothie King store opened on September 18, 2018. Petitioner had no authority to hire employees for Respondent. Apparently, all hires to work at the Smoothie King were made by Brandon Berlinrut, who was a friend of Jeff Conway and recruiter for Respondent. While Petitioner had no hiring authority, during the time she worked at the Smoothie King, she supervised Ms. Katocs. As the Smoothie King was opening, there was work that needed to be completed. Respondent hired his friend, Constantine Tremoularis, as an independent contractor to install security cameras, work on the point of sale, and conduct various work at the location. Mr. Tremoularis was given access to areas at the Smoothie King store where only employees were permitted. While working at the Smoothie King, Ms. Katocs had physical limitations due to a back condition caused by a car accident. When Ms. Katocs requested assistance in lifting a mop bucket, Mr. Tremoularis responded, “I bet men like to say that they broke your back,” in a context inferring injury during sex. Ms. Katocs interpreted the comment as an unwelcome sexual comment and was offended and upset. Ms. Katocs reported the unwanted sexual comment to Ms. Garner within an hour after the comment was made. Later, while Petitioner was at Respondent’s real estate office, both Ms. Katocs and her mother called her on the telephone from the Smoothie King office and asked her to set up a meeting with Mr. Conway to discuss the unwanted sexual comment. They both expressed a desire for Petitioner to be present during the meeting. Ms. Garner told Mr. Conway of Ms. Katocs and her mother’s desire to have a meeting with him to discuss the unwanted sexual comment, and of their request that Petitioner be present at the meeting. Mr. Conway met with Ms. Katocs and Ms. Katocs’s mother on October 4, 2018, to discuss the incident. Mr. Conway did not invite Petitioner and Petitioner did not attend the meeting. Although he did not tell Ms. Katocs or her mother, the reason that Mr. Conway did not want Petitioner in the meeting is because he had already decided to terminate Petitioner’s employment for reasons unrelated to the reported unwanted sexual comment from Mr. Tremoularis. At the meeting, Ms. Katocs, her mother, and Mr. Conway discussed the unwanted sexual comment. During the meeting, Mr. Conway agreed to make changes and provide sexual harassment training for Respondent’s employees. On October 4, 2018, the day after the meeting between Ms. Katocs, her mother, and Mr. Conway, Mr. Tremoularis apologized to Ms. Katocs. Although he was allowed to stay at the Smoothie King location from several days to over a week to finish the job, Mr. Tremoularis made no further unwanted sexual comments to Ms. Katocs. On Saturday, October 6, 2018, Mr. Conway called Petitioner on the telephone and advised her that she was terminated. Mr. Conway terminated Petitioner because he perceived her as rude, argumentative, and combative. Mr. Conway also believed that Petitioner was responsible for hiring her daughter, Tina Rowlands, to work at the Smoothie King store even though Petitioner knew that Mr. Conway did not approve of the hire. Mr. Conway’s perceptions of Petitioner’s aberrant behavior were consistent with those observations reported by Karen Stapleton in her testimony at the final hearing. Karen Stapleton, who worked with Mr. Conway’s companies as a consultant and in accounting, worked with and helped train Petitioner at Respondent’s real estate office in September 2018. Ms. Stapleton also observed Petitioner scream at an employee at Respondent’s Smoothie King store. When Mr. Conway terminated Petitioner, he also terminated Petitioner’s daughter, Ms. Rowlands, as well as Petitioner’s daughter’s boyfriend, Jake Fryar. Although Mr. Conway approved of Jake Fryar’s hire, he decided to terminate Mr. Fryar as well because of his association with Petitioner and Petitioner’s daughter. Respondent’s decision to terminate Petitioner was made because of Mr. Conway’s perceptions about Petitioner’s combative behavior and Mr. Conway’s belief that Petitioner was responsible for hiring her daughter. Although in close proximity to the time of Petitioner’s termination on October 6, 2018, Mr. Conway had already decided to fire Petitioner prior to Petitioner’s report of the unwanted sexual comment made to Ms. Katocs and Mr. Conway’s meeting with Ms. Katocs and her mother to discuss the incident. As confirmed by the testimony of a locksmith, who was contacted on September 28, 2018, to change locks on Respondent’s offices and the Smoothie King store, Respondent’s decision to terminate Petitioner was made in late September 2018. Although the locks were not changed until October 6, 2018, the timing of the lock change request and Mr. Conway’s credible testimony confirm that the decision to terminate Petitioner’s employment was unrelated to her report of unwanted sexual comments. Following the October 4, 2018, meeting between Ms. Katocs, her mother, and Mr. Conway, Morgan Katocs continued her employment at the Smoothie King store until she voluntarily left at the end of December 2018. Ms. Katocs testified that she left Smoothie King because, in her view, nothing changed; she felt uncomfortable about remaining employed there, the promised sexual harassment training never occurred, and another employee was making inappropriate sexual remarks to other female employees. Ms. Katocs also did not like a manager that was hired after Petitioner was terminated, who, according to Ms. Katocs, was a bully and abusive. Ms. Katocs further testified that neither she, nor her brother, who was also employed at the Smoothie King, received negative repercussions from her report of the unwanted sexual comment from Mr. Tremoularis. Ms. Katocs’s brother remained employed at the Smoothie King until voluntarily leaving in April 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 9th day of February, 2021, in Tallahassee, Leon County, Florida. S James H. Peterson, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Jeff Conway JR Conway Enterprises, LLC Post Office Box 15389 Brooksville, Florida 34604 William Sheslow, Esquire Whittle & Melton, LLC 11020 Northcliffe Boulevard Spring Hill, Florida 34608 Erik DeL'Etoile, Esquire DeL'Etoile Law Firm P.A. 10150 Highland Manor Drive, Suite 200 Tampa, Florida 33610
The Issue Whether Respondent, Cox Cable, discriminated against Petitioner, Janice B. Campbell, in violation of the Florida Civil Rights Act of 1992 (“the Act”), sections 760.01–760.11 and 509.092, Florida Statutes, by disciplining and then terminating her, in retaliation for her participation in a protected activity under the Act.
Findings Of Fact Cox Cable (Cox) is a provider of telephone, internet, cable, and digital television service in several regions of Florida. Cox is an employer within the meaning of the Act and Title VII of the Civil Rights Act of 1964, as amended. Petitioner was employed by Cox in its Pensacola office from May 2000, until her termination on March 19, 2012. Petitioner held a number of different positions during her tenure with Cox, including Quality Control, Customer Care Representative and Retention Representative. Petitioner joined the Customer Retention Department in July 2010, as a Retention Representative. The primary duty of a Retention Representative is to take calls from existing customers who are requesting termination or downgrade of their existing service and save those customers for Cox. Cox trains Retention Representatives to use a “call flow” with these customers. The call flow is a quality guideline that shows representatives what offers can be made to the customer at the time of the call. When a customer or potential customer calls Cox, they encounter an automated menu of services and are directed to a specific department based on their menu selections. For example, an existing customer with technical or billing questions is routed to the Customer Care Department; a customer moving out of the area is routed to the Account Services Department; and an existing customer who wishes to downgrade or disconnect service is routed to the Retention Department. Calls waiting for a representative in a particular department are “in the queue” for that department. Calls should be answered in the order received. While a Retention Representative’s primary job is to save existing customers, they may sell services to those customers as a secondary duty. For example, a retention representative may try to save the customer money by offering to provide services the customer is receiving from another provider (e.g., telephone) with services currently provided by Cox (e.g., cable) in order to reduce the customer’s overall service cost while retaining the customer. The term for this practice is offering to “bundle” services. Cox maintains a policy against Retention Representatives taking calls transferred directly to their line from representatives in other departments in order to sell services. This practice is known as “direct transfer calls.” Retention Representatives, however, are not prohibited from taking all sales calls. They may handle, for example, a call from a customer looking to purchase services when that call comes into the retention queue (presumably because the caller pressed the incorrect key). In fact, the Retention Department has sales goals set by Cox corporate office. When goals are set for a particular product or service, Cox provides incentives to boost sales of the particular product or service. The call flow provides Retention Representatives with a tool to sell upgrades to existing services based on availability of promotional offers. The Retention Department was formerly part of the Inbound Sales Department. In May 2010, just two months before Petitioner joined, Retention was created as a separate “stand alone” department with a focus on saving existing customers. The authority of the Retention Representatives with respect to selling services was subject to much confusion during the separation of the Retention Department from the Incoming Sales Department. On September 14, 2011, the Retention Managers, Shannon Boyd-Tibbs and Daniel Lister, met with all the Retention Representatives in a “huddle” to explain the types of calls they could and could not receive. The group meeting was followed up the same day by one- on-one meetings between the Retention Supervisors and each of the Retention Representatives under their supervision. On September 14, 2011, following the huddle meeting, Petitioner met with Ms. Boyd-Tibbs who reviewed with her a document titled “Sales Performance Expectation Clarification.” The “Sales Performance Expectation Clarification” provides, among other expectations, “Closed sales should not be transferred from one sales representative to another which may impact commission or performance metrics” and “Sales representatives are not permitted to transfer sales to another representative, which would cause an increase in commissions or sales performance.” Petitioner acknowledged receipt of the “Sales Performance Expectation Clarification” by her signature dated September 14, 2011. Six days later, Retention Supervisor, Daniel Lister, further clarified the issue in an email to all Retention Representatives on September 20, 2011, stating “[I]f a sales call comes into the queue, you will be able to take care of this customer. It does not mean you should take calls that are sent directly to you by a representative from billing or various other departments.” The reasons for prohibiting direct transfer calls are three-fold. First, the practice skews the Retention Department’s sales goals, which are based on the prior year’s numbers. If sales are up based on direct transfer calls in the prior year, the current year’s sales goal is inflated and may be unattainable. Second, the practice causes customers in the retention queue to wait longer for a representative, potentially causing them to become more irate and less likely to be retained. Finally, it is unfair to other Retention Representatives who compete for incentives and bonuses based on sales. Petitioner admits taking direct transfer calls from a number of sales representatives. Despite management’s clarification of the company policy in September 2011, Petitioner continued the practice throughout the remainder of the year and into 2012. On March 13, 2012, Petitioner was suspended with pay for continuing to take direct transfer calls. Her supervisor, Ms. Boyd-Tibbs, met with Petitioner and explained the basis for her suspension. During Petitioner’s suspension, Ms. Boyd-Tibbs and Mr. Lister requested and reviewed a number of reports documenting Petitioner’s direct-transfer sales and confirming Petitioner’s disproportionate sales numbers. The final decision to terminate Petitioner was made by Dennis Huber, supervisor of both Mr. Lister and Ms. Boyd-Tibbs, but only after consultation with Human Resources and the Customer Care Sales Manager. Petitioner was terminated on March 19, 2012. Ms. Boyd-Tibbs delivered the news over the phone to Petitioner. Petitioner claims she was terminated in retaliation for reporting unethical behavior by another Retention Representative, Belinda Thompson. Petitioner claims Ms. Thompson inflated her performance numbers by failing to disconnect customers who requested termination of service, transferring certain calls back to the queue, giving unauthorized credits to customers, and other questionable practices. The evidence shows Petitioner did complain to Ms. Boyd-Tibbs about Ms. Thompson’s sales practices, which were investigated by Cox and found the complaints to be unsupported. Rather than showing that Petitioner was retaliated against, the evidence demonstrated that Petitioner was terminated by Cox on March 19, 2012, for violating company policy against taking “direct transfer” sales calls from other representatives in different departments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of November, 2012, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2012.
The Issue The issue for consideration in this hearing is whether Respondent’s license as a psychologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Board of Psychology was the state agency in Florida responsible for the licensing and professional discipline of psychologists in Florida. Respondent is and has been licensed as a psychologist in Florida and is subject to the jurisdiction of the Board of Psychology. During the period April 11, 1995, through August 7, 1995, Respondent was employed as a psychologist at the University of South Florida Counseling Center for Human Development. In that capacity, Respondent saw the Complainant, K.R., on several occasions and established a psychologist-client relationship with her. At the initial visit of K.R. to his office, Respondent conducted an initial intake evaluation of her and, in his client notes, defined the goal of his continued treatment of her as being to assist Ms. K.R. in stabilizing her depression; and to clarify her needs and patterns with regard to her career and relationships. Upon completing the intake evaluation of K.R., Respondent referred her to himself as treating therapist, and between the initial meeting and the end of August 1995, met with her approximately thirteen times. Review of Respondent’s notes regarding his sessions with K.R. reveals that they discussed her relationship with her parents; her relationships with men; her ability to deal with her emotions, her anxiety, and depression. K.R. relates that during many of their sessions, Respondent told her she had nice legs and was very sexy. He also told her of his personal life, including his dissatisfaction with his marriage, and it appears that he met with her outside his professional office on a purely social basis. K.R. claims Respondent told her not to tell anyone about their friendship outside the clinic. The relationship between Respondent and K.R. culminated in their engaging in sexual intercourse which resulted in her becoming pregnant. The pregnancy was subsequently aborted. As a result of their relationship, K.R. filed a complaint against Respondent with the Board of Psychology relating the sexual nature of their relationship. Subsequent to the filing of K.R.’s complaint against Respondent, and the Agency For Health Care Administration’s (Agency) filing of an Administrative Complaint against him, the Agency deposed Dr. George J. Rockwell, Jr., a retired psychologist with a specialty in school psychology. Dr. Rockwell did not meet with Respondent or speak with him in any capacity. He examined the file collected in this case regarding the allegations against Respondent, and from his review of all the material, concluded that Respondent had established a psychologist/patient relationship with K.R. This relationship involves trust and the generation in the patient of a basic belief that the psychologist has the skills and knowledge that would assist the patient in dealing with whatever problems he or she has. The patient develops the ability to talk to a non- critical, non-judgmental person in an effort to help him or her deal with their problems or concerns. The psychologist has the responsibility to create an emotionally safe environment for the patient. In this process the patient is often made vulnerable. The patient must be open with the psychologist and feel comfortable in sharing emotions and incidents which he or she would most likely not be able to share with others. It is without question a special relationship, and in Dr. Rockwell’s opinion, it is unlikely that a patient will work with a psychologist and not form that special relationship. This special relationship places upon the psychologist special responsibilities toward the patient. These include abiding by the laws and rules relating to the practice of psychology; having respect for the patient; and keeping all matters confided by the patient confidential. In addition, the psychologist has the responsibility to comport himself or herself in a manner so as to maintain a professional relationship and distance with the patient. Specifically, sexual relationships between a psychologist and his or her patient are normally prohibited as being beyond boundaries that should not be crossed. It is the psychologist’s responsibility to set the limits on behavior so as to prevent an inappropriate relationship from developing. This applies even if the patient initiates sexual advances. These advances would not excuse the psychologist from professional responsibility toward the patient. In the event the psychologist detects what appear to be inappropriate sexual advances from the patient, the psychologist had a duty to discuss this with the patient; talk about the nature of the psychologist/patient relationship; and explain that such a relationship would not be appropriate. The constrictors on the professional are even more specific in the event the psychologist finds himself or herself sexually attracted to the patient. Under no circumstances should the professional act on those feelings, but should evaluate the situation to ensure that those feelings are in no way interfering with the therapeutic relationship. There is absolutely no situation which Dr. Rockwell can think of in which it would be appropriate for a therapist to engage in sexual relations with a patient, either during or after termination of a therapy session. Inappropriate sexual contact between a therapist and a patient can have severe and deleterious effects on a patient. These might include feelings of guilt and depression, based on the patient’s belief that the inappropriate behavior was his or her fault. The patient might also feel embarrassment and be reluctant to undergo further treatment. Further, the patient would most likely lose trust in the involved therapist and potential other therapists. Dr. Rockwell concluded that notwithstanding Respondent’s contention that he saw K.R. solely for the purpose of career counseling, and at no time entered a psychologist/patient relationship with her, Respondent’s clinical notes regarding K.R. clearly indicate a professional psychologist/patient relationship was formed. An independent review of the records supports that conclusion, and it is so found. Even were the counseling limited solely to career counseling, it would still constitute counseling, the conduct of which is covered by the standards of the profession. Here, however, Dr. Rockwell is convinced that Respondent’s conduct toward K.R., as alleged, constituted sexual misconduct in the practice of psychological counseling which fell below the minimum standards of performance and professional activities when measured against generally prevailing peer performance. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Psychology enter a final order in this matter finding Respondent guilty of all Counts in the Administrative Complaint, and revoking his license to practice psychology in the State of Florida. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 3rd day of March, 2000. COPIES FURNISHED: Maureen L. Holz, Esquire Williams & Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 O. C. Allen, Qualified Representative 314 West Jefferson Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Kaye Howerton, Executive Director Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0750 Amy M. Jones, Acting General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue The issue for determination is what should be the award to Petitioner as to back pay, interest on the amount awarded, retirement system contributions, attorney's fees, and costs.
Findings Of Fact Had Petitioner retained her employment with Respondent, she would have earned $161,014.11. However, she actually earned $125,865.87. As a result of Petitioner's being terminated by Respondent, she lost income in the amount of $35,148.24. As a result of Petitioner's being terminated by Respondent, she lost pension contributions in the amount of $7,110.16. Consequently, Petitioner incurred a total monetary loss in the amount of $42,258.41. As to whether Petitioner incurred a break in service, no one from the Division of Retirement was called to testify. Consequently, no evidence was presented as to that issue. Petitioner suggests that she should receive credit for retirement from October 8, 1993, the date of her termination when she was a career service employee, to January 1995, the date that she again became a career service employee. Petitioner's suggestion is a reasonable resolution to the issue of break in service and should be implemented if there exists a break in service. No argument was presented to contradict that the statutory interest rate is ten percent per annum. Petitioner's counsel testified that she expended 437.80 hours on this matter and Petitioner's expert opined that such hours are reasonable. Respondent's expert opined that 241.30 hours are reasonable. Petitioner's expert did not review the index of the official file of this matter, which was maintained by the Division of Administrative Hearings. Respondent's expert reviewed the index online. Further, Respondent's counsel reviewed the Verified Motion, but did not review the file of Petitioner's counsel. Respondent's expert questioned whether Petitioner's counsel personally performed the tasks in certain entries in the Verified Motion or whether a secretary performed the tasks, not whether the tasks were performed. However, Respondent's expert did not question, and did not indicate that he was required to question, Petitioner's counsel on such entries prior to hearing. Regarding such entries, Petitioner's counsel testified that she, not her secretary, performed the tasks in the entries. The testimony of Petitioner's counsel is found credible. Respondent's expert also questioned whether some entries contained adequate detail and specificity to support them, not whether the tasks were performed. The expert's testimony is found to be credible. The detail and specificity are inadequate in the entries identified by Respondent's expert. The lack of detail and specificity dictate a reduction in the number of hours requested by 98.30 hours. Consequently, the number of hours reasonably expended by Petitioner's counsel in this matter is 339.50. Petitioner and her counsel entered into a mixed agreement (Agreement) for representation at $250.00 per hour and for contingent fees. The Agreement provided in pertinent part as follows: agree to pay my attorneys from the proceeds of the gross recovery including costs and fees awarded attorney's fees, if applicable the following fee: * * * b. 40% of any recovery up to $1 million after the filing of an answer or the demand for appointment of arbitrator through the trial of the case; 40% becomes immediately applicable as soon as the matter is set for trial; * * * My attorneys shall be entitled to choose the fee at the hourly rate [$250.00 per hour] if I am entitled to an award of attorneys fees from the client or the contingency, whichever is greater. In the event there is a court-awarded fee which is more than the contingency fee, the attorneys shall keep the court-awarded fee in lieu of the contingency fee provided it is greater than the contingency fee and provided the court-awarded fee is actually collected. The hourly rate of $250.00 by Petitioner's counsel is within the range of rates for this matter. The hourly rate of $250.00 is reasonable. Therefore, the amount of reasonable attorney's fees in this matter is $84,875. Petitioner requests an enhancement of attorney's fees by one-third because of the uniqueness or unusualness of this matter. The evidence is insufficient to demonstrate that this matter is a unique or unusual case involving employment discrimination. Petitioner's counsel requests costs in the amount of $3,094.49. The Verified Motion contains taxable and non-taxable costs.2 Costs identified as fax or facsimile, postage, cab fare, and transportation to and from the courthouse should be excluded as inappropriate. As a result, the reasonable amount of costs is $2,844.48. Petitioner's Verified Supplemental Motion indicates additional attorney's fees associated with this hearing in the amount of $11,200.00, representing 44.80 hours (out of a total of 65.30 hours indicated) at a rate of $250.00 an hour; and additional costs associated with this hearing in the amount of $12,100.91. Regarding the supplemental attorney's fees, no explanation was submitted as to why the entries from June 6, 2003 to August 20, 2003 were not available at hearing. Notwithstanding, the supplemental documentation is sufficiently detailed and specific. As a result, the number of supplemental hours reasonably expended by Petitioner's counsel is 44.80, and the reasonable amount of supplemental attorney's fees is $11,200.00. Regarding the supplemental costs, the cost for the services rendered by Petitioner's experts are included in the $12,100.91. Petitioner obtained the services of an expert on attorney's fees and an expert on lost wages and benefits. For the services rendered by the expert on attorney's fees, the cost was in the amount of $1,775.00. For the services rendered by the expert on lost wages and benefits, the cost was in the amount of $9,006.25. The total cost for the services rendered by the experts is in the amount of $10,781.25. Again, costs identified as fax or facsimile, postage, cab fare, and transportation to and from the courthouse should be excluded as inappropriate. Additionally, regarding costs, Petitioner represents that the parties agreed to equally share in the expense of the court reporter for the hearing, which is shown on the Verified Supplemental Motion as $663.00. Respondent did not refute the representation. Consequently, the reasonable amount of supplemental costs is $12,054.91.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order as to back pay, interest on the amount awarded, retirement system contributions, attorney's fees, and costs: Ordering the Department of Health and Rehabilitative Services n/k/a Department of Children and Family Services (Department) to pay Gloria Garcia (Garcia) back pay in the amount of $35,148.24. Ordering the Department to make contributions to the Florida Retirement System on behalf of Garcia in the amount of $7,110.16. Ordering the re-evaluation of Garcia's break in service by the Division of Retirement. Further, ordering that, if it is in compliance with and satisfies applicable statutes and rules of the Division of Retirement, Garcia receive credit in time for retirement from October 8, 1993, the date of her termination, to January 1995, the date that she again became a career service employee. Ordering the Department to pay to Garcia's counsel attorney's fees in the amount of $96,075.00 and costs in the amount of $14,899.39, totaling $110,974.39. Ordering the statutory interest rate of ten percent per annum be applied to the amounts awarded. DONE AND ENTERED this 22nd day of October, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 22nd day of October, 2003.
The Issue Whether Respondent, the University of Florida, discriminated against Petitioner, Tracey Krefting, previously known as Tracey Hardin, on the basis of a handicap as alleged in the Petition for Relief filed by Petitioner.
Findings Of Fact The Parties. The Petitioner, Tracey Krefting, formerly known as Tracey Hardin, is a handicapped individual. She suffers from seizure disorder. Ms. Krefting graduated from the University of Florida in May of 1990. She received a bachelor of science degree with a major in advertising. Ms. Krefting had experience as an advertising sales representative prior to her employment by the Respondent. The Respondent, the University of Florida (hereinafter referred to as the "University"), is a State university located in Gainesville, Florida. Within the College of Journalism and Communications of the University is a radio station, WRUF. WRUF was an auxiliary operation of the University responsible for raising revenue to fund all of its expenses, including the salaries for its sales representatives. No state funding was received directly or indirectly from the University by WRUF. Ms. Krefting's Employment by the University. Ms. Krefting was employed by the University at WRUF on July 28, 1992. Ms. Krefting was employed as "OPS", other personnel services. Ms. Krefting was employed to act as one of six or seven sales representatives of WRUF. As of January 29, 1993, Robert Clark was the General Manager of WRUF. Mr. Clark was Ms. Krefting's supervisor from January 29, 1993 until her termination from employment. Sales Representative Qualifications. The essential function of sales representatives for WRUF was to sell radio time for advertising. This function was an essential function because the revenue necessary to operate WRUF was generated in this manner. Sales representatives were responsible for servicing existing clients and for finding new clients. An essential requirement of the sales representatives of WRUF, including Ms. Krefting, was the ability to travel to the businesses and offices of WRUF's advertising clients and prospective clients. Sales representatives were generally required to spend 80 percent of their working hours out of the office servicing clients and seeking new clients. Continuous contact and an ongoing relationship with clients was required. Contacts with clients were expected to be face to face and not just over the telephone. In addition to being required to make regular contacts with clients, sales representatives were also required to make themselves available to visit their clients with little notice. Obtaining new clients usually required more than one contact with a prospective client by a sales representative. The sales representative was required to sell himself or herself and the station and must gain the trust of the prospective client. Sales representatives were also responsible for performing public service work. This work entailed the providing of public service announcements. The public service work performed by sales representatives did not directly generate revenue for WRUF. Neither the application for employment completed by Ms. Krefting when she was initially employed at WRUF nor the University's OPS personnel requisition form authorizing her employment included any of the necessary skills or qualifications for the sales representative position she was hired to fill. Ms. Krefting was aware at the time she was hired, however, that she would be required to travel to her clients locations and to the locations of prospective clients. There are other means of transportation available which would have allowed Ms. Krefting to reach clients and prospective clients: vehicle driven by a hired driver, public transportation, taxi, and walking. The evidence failed to prove, however, that there were any reasonable means of transportation available to Ms. Krefting other than driving herself which would have allowed her to meet the requirements of a sales representative for WRUF. Ms. Krefting's Handicap. On April 18, 1993, Ms. Krefting fell while rollerskating. Ms. Krefting hit her head on the ground when she fell. On April 19, 1993, Ms. Krefting was admitted to the emergency room of the North Florida Regional Medical Center. The evidence failed to prove that the injury she suffered on April 18, 1993, caused Ms. Krefting to suffer any seizure. On May 6, 1993, Ms. Krefting suffered a seizure while leaving her home to go to work. Ms. Krefting was ultimately diagnosed as having "seizure disorder." At all times relevant to this proceeding, Ms. Krefting suffered from a "handicap." Ms. Krefting's Inability to Drive. On or about May 18, 1993, Ms. Krefting provided a letter from George Feussner, M.D., dated May 18, 1993, to Mr. Clark. In the letter Dr. Feussner indicated that Ms. Krefting was able to return to work but that she could "not operate a motor vehicle " Although Dr. Feussner did not indicate how low Ms. Krefting would be unable to drive, Ms. Krefting informed Mr. Clark that Dr. Feussner had informed her that she would not be able to drive until she was seizure free for one year from the date of her last epileptic seizure, May 6, 1993. As a result of the restriction on Ms. Krefting's ability to drive and based upon Florida law, Rules 15A-5.003 and 15A-5.004, Florida Administrative Code, Ms. Krefting was unable to drive herself to see existing or prospective clients until at least May 6, 1994. Ms. Krefting discussed with Mr. Clark the possibility of hiring a "tenant" of hers to drive her around. Ms. Krefting did not identify the "tenant." Nor did Ms. Krefting inform Mr. Clark that she had completed making arrangements with anyone to drive her. Mr. Clark did not preclude Ms. Krefting from making arrangements to have someone provide transportation for her. Mr. Clark did tell Ms. Krefting that it would have to be determined what implications, if any, a driver would have on WRUF's workers compensation coverage. The resolution of this issue was to be delayed, however, until Ms. Krefting made concrete arrangements for a driver and discussed those arrangements with Mr. Clark. Ms. Krefting failed to finalize any arrangement for a driver. Had Ms. Krefting provided her own driver, at her own expense, Ms. Krefting may have been able to meet the requirement of her position that she be able to provide her own transportation. Ms. Krefting, however, did not take the necessary steps to hire a driver prior to her termination from employment. Ms. Krefting talked to her tenant, Kenneth Vest, about acting as her driver. Mr. Vest worked in the same building that Ms. Krefting did. Mr. Vest worked Sunday through Wednesday from 3:30 p.m. to 1:30 a.m. He was, therefore, generally available for part, but not all, of Ms. Krefting's working hours. Mr. Vest was generally willing to drive Ms. Krefting, if he were compensated. Ms. Krefting did not discuss with Mr. Vest the exact hours that he would be expected to drive her or her schedule. Nor did Ms. Krefting discuss compensation with Mr. Vest. Ms. Krefting failed to prove that Mr. Vest or any other individual was available at any time relevant to this proceeding, or at the final hearing, to provide transportation for her in a manner that would fulfill her responsibilities as a sales representative. Because of the restriction on Ms. Krefting's ability to drive and her failure to make alternative arrangements to have someone like Mr. Vest drive her, Ms. Krefting failed to prove that she met all the qualifications of her position with WRUF. Ms. Krefting did not meet all the qualifications of her position. But for her handicap, however, Ms. Krefting would have met all of the qualifications of a sales representative. The University's Decision to Terminate Ms. Krefting's Employment. On or about May 24, 1993, Mr. Clark informed Ms. Krefting that WRUF could not continue to employ her because of her inability to drive. Ms. Krefting suggested alternative means of meeting her responsibilities with Mr. Clark when she was informed that WRUF would not be able to continue her employment. Mr. Clark considered the suggestions, but did not accept any of them. On June 16, 1993 Mr. Clark agreed to extend Ms. Krefting's termination date to accommodate her efforts to find another postition within the University. Ms. Krefting was ultimately terminated from employment in early July of 1993. Ms. Krefting was terminated because she was prohibited from driving her vehicle and there was no other reasonable means of meeting her responsibilities to service clients and prospective clients. The University's Inability to Accommodate Ms. Krefting's Inability to Drive. During 1993, the financial condition of WRUF was precarious. WRUF was operating at a loss. Three employees had been terminated and a department had been eliminated. Another vacant position had not been filled. WRUF was forced to borrow funds from the University and a foundation account in order to continue operating. At all times relevant to this proceeding, WRUF was unable to create a newly funded position or to allow a sales representative to fail to generate reasonably expected revenues. Ms. Krefting suggested several possible alternatives to accommodate her inability to meet her requirement that she be able to drive. The suggestions were discussed with, and considered by, Mr. Clark. One suggestion Ms. Krefting made to Mr. Clark was to create a new position. The position would entail performing all of the public service work of the sales representatives. Mr. Clark rejected this proposal because it entailed the creation of a new position. The creation of a new position was not a reasonable accommodation. The creation of a new position, especially one that did not generate revenue, would have created a financial hardship on WRUF. The evidence also failed to prove that the public service work could be performed without the need for travel. A second suggestion Ms. Krefting made to Mr. Clark was to restructure her position so that she would be responsible for the preparing of proposals, filing, handling incoming sales calls and telemarketing. In effect, this suggestion also entailed the creation of a new position. This suggestion was rejected by Mr. Clark. Ms. Krefting's second suggestion was not a reasonable accommodation. It would have created an undue financial hardship on WRUF because there was not sufficient work to justify such a position. A third suggestion made by Ms. Krefting to Mr. Clark was that she be teamed with another sales representative who would do all the driving. Mr. Clark rejected this suggestion. Ms. Krefting's third suggestion was not a reasonable accommodation. Teaming two sales representatives would have reduced the effectiveness of two sales representatives who would be available to visit different clients and prospective clients at the same time if they were not teamed. This would have created an undue financial hardship on WRUF. A fourth suggestion made by Ms. Krefting to Mr. Clark was that she use public transportation and taxis. Mr. Clark rejected this suggestion. Although it is questionably whether Ms. Krefting's fourth suggestion constitutes an accommodation, to the extent that it does, it was not a reasonable accommodation. Public transportation does not provide the flexibility required of sales representatives because of the inadequacy of routes and schedules of available transportation. A fifth suggestion made by Ms. Krefting to Mr. Clark was that she provide her own driver. It is questionable whether the use of a driver, as suggested by Ms. Krefting, constitutes an accommodation. To the extent that Ms. Krefting was suggesting that WRUF provide her a driver, her suggestion was not a reasonable accommodation. If WRUF had been required to provide the driver, it would have caused an undue hardship on WRUF. Finally, Ms. Krefting suggested that a student intern from the University's College of Journalism be assigned to work with her and that the intern provide the driving required by her position. Mr. Clark rejected this suggestion. Ms. Krefting had discussed the idea of using an intern with Dr. Joseph Pisani, the Chair of the Advertising Department of the College of Journalism. Although Dr. Pisani was not opposed to the use of an intern-if the intern was properly used-he was opposed to the use of an intern primarily or exclusively as a driver. The suggestion that interns be used was not a reasonable accommodation. Student interns usually are only available to work as an intern for a maximum of 12 hours a week. Additionally, the 12 hours a week that an intern would be available depends upon their class schedule. Therefore, student interns would not be available for a sufficient period of time for Ms. Krefting to fulfill the responsibilities of her position. Although it is not impossible to find a student that would be willing to act as an intern full-time, the evidence failed to prove that it was likely that a student could be found that would be willing to take no classes for up a year or that it would be financially feasible for a student to do so. Mr. Clark did not actually attempt to implement any of Ms. Krefting's proposals. Mr. Clark also did not "consult with any experts" about the proposed accommodations. Mr. Clark's failure to attempt to implement any of the proposals or to consult with experts was not, however, necessary. The issue confronting Mr. Clark was not one involving a decision which required special knowledge or understanding of Ms. Krefting's handicap, or the needs of persons who suffer from seizure disorder. The only issue confronting Mr. Clark was how to accommodate the inability of a sales representative to transport herself to meet the needs of clients and prospective clients. Mr. Clark had all the necessary information to decide how to deal with this issue: Ms. Krefting, regardless of her condition or needs, was prohibited from driving an automobile for at least a year. Mr. Clark was fully aware of the impact of this restriction on WRUF and the resulting inability of a sales representative to carry out their responsibilities. The suggested accommodations made by Ms. Krefting also required no special knowledge or understanding. The suggestions only required an understanding of the needs of WRUF and what was expected of sales representatives. Ms. Krefting's Loss of Income. Subsequent to her termination by WRUF Ms. Krefting remained unemployed until February of 1994. After her termination by WRUF Ms. Krefting received unemployment benefits of approximately $3,500.00 Ms. Krefting earned $800.00 for part-time employment in March of 1994. Ms. Krefting was unable to work from April of 1994 until June of 1994. Ms. Krefting is currently employed. Ms. Krefting's Complaint. Ms. Krefting filed a Charge of Discrimination with the Commission on or about August 18, 1993 alleging that the University had discriminated against her on the basis of her handicap. On or about January 21, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 17, 1994, Ms. Krefting filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. Conclusion. The evidence in this case failed to prove that the University terminated Ms. Krefting's employment because of her disability. Ms. Krefting was terminated by the University because she could not meet all of the requirements of her position. The evidence failed to prove that the University could reasonably accommodate Ms. Krefting's inability to drive without undue hardship to WRUF's activities. Ms. Krefting failed to prove that the University discriminated against her on the basis of her handicap.
The Issue The issue is whether respondent's law enforcement certification should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Base upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Lloyd H. Sisk, held law enforcement certificate number 2252 issued by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission). Respondent has held his license since April 3, 1971. When the events herein occurred, Sisk was employed as a detective with the Charlotte County Sheriff's Department. The charges against respondent are based upon an allegation of sexual abuse lodged against him by his niece, S. C., who is now seventeen years of age. The abuse allegedly occurred between December 1986 and February 1988. To place this controversy in proper perspective, a brief discussion of the living arrangements in the Sisk household is appropriate. In 1983 respondent, his wife, Brenda, and Brenda's mother (grandmother) decided to jointly purchase a home in Port Charlotte, Florida. Also residing with the Sisks were their teen-age son, Jeffrey, and the alleged victim. The grandmother had been given legal custody over the alleged victim, who was the daughter of Janis, Brenda's sister. Janis lived in Pinellas County, but because of various legal and personal problems, she had relinquished custody of her daughter to the grandmother shortly after S. C.'s birth. In late 1986, and over the objections of the grandmother and alleged victim, the Sisks decided to sell the home. This in turn engendered antagonism and animosity between the members of the family component and eventually culminated in the sexual abuse charges being made. The home was finally sold in February 1988, or more than a year later. Before the sale occurred, the Sisks advised the grandmother and alleged victim that, because of constant friction, the grandmother and S. C. would not live with the Sisks and their son when they relocated to a new home. At almost the same time the sale took place, S. C. began making sexual abuse allegations against respondent. In this regard, the testimony is sharply conflicting. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence. The allegations first surfaced on an undisclosed date in February 1988 when S. C. told her sixteen year old boyfriend, James, that respondent had touched her breasts, buttocks and vaginal area while giving her back massages and had put a condom on his penis while in her presence. On February 17, 1988, S. C. telephoned her mother in Pinellas County and said respondent had been coming home in the afternoon and asking to give her backrubs. The alleged victim further complained that, during those backrubs, respondent was "rubbing her butt and in between her legs". That same day, S. C. told her grandmother that respondent had touched her breasts, buttocks and vaginal area while giving her backrubs. Three days later, S. C.'s mother, while in an intoxicated state, telephoned the Largo Police Department and relate the abuse allegations to a detective. That led to an investigation by the Charlotte County Sheriff's Office and the eventual filing of criminal charges by the state attorney and sexual abuse charges by the Department of Health and Rehabilitative Services (HRS). 1/ At final hearing, the former boyfriend, grandmother and natural mother related the allegations described in the previous finding of fact. In addition, statements made by S. C. to an HRS counselor were offered into evidence. Finally, the alleged victim gave her version of what transpired. This included a rather graphic account of respondent, while in the presence of S. C., placing a condom on his penis and masturbating, and after attaining an erection a few minutes later, positioning his body next to S. C. and demonstrating various coital positions to his niece. The testimony of the alleged victim is not accepted as being credible for a number of reasons. To begin with, S. C. was extremely upset with respondent because the family home was being sold and she had been told that she could not remain with the Sisks. Her animosity towards respondent is also evidenced by the fact that, just prior to final hearing, she encouraged her mother (Janis) to "slam him (respondent)" with her testimony. It is also noted that the alleged victim's testimony at hearing differed in several material respects with the complaints she made to the Commission, HRS and in prior court testimony. Finally, the testimony of Lloyd, Brenda and Jeffrey Sisk, which is accepted as being credible, demonstrated numerous inconsistencies in S. C.'s testimony. Accordingly, it is found that respondent did not commit a lewd and lascivious act in the presence of his niece by exposing his penis and masturbating, and he did not handle her breasts, buttocks and vaginal area as alleged in the administrative complaint.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ENTERED this 27th day of August, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Heading Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990.
