The Issue The issues in this case are whether Petitioner violated the Pinellas County Sheriff's Office Civil Service Act and its rules and regulations by engaging in sexual harassment, and, if so, what is the appropriate discipline?
Findings Of Fact Respondent is the Sheriff of Pinellas County and is a constitutional officer for the State of Florida. He is responsible for providing law enforcement and correctional services within Pinellas County, Florida. Petitioner is a 16-year employee with the Pinellas County Sheriff's Office and has never received a derogatory employee evaluation. Between March 2002 and October 2002, Petitioner worked as a detention deputy at the Pinellas County Jail and held the rank of lieutenant. On March 4, 2002, Ms. Lori Atwater commenced employment with the Pinellas County Sheriff's Office and served as an inmate-counselor within Petitioner's unit. Ms. Atwater and Petitioner established a friendly professional relationship that developed into inappropriate conduct. On October 30, 2002, Ms. Atwater filed a written complaint against Petitioner alleging that he sexually harassed her. Ms. Atwater and Petitioner each testified before the undersigned at the administrative hearing and provided conflicting versions of the alleged actions. Ms. Atwater presented more credible testimony. The evidence demonstrates by a preponderance of the evidence that Petitioner, on multiple occasions, exhibited inappropriate verbal and physical behavior toward his subordinate, Ms. Atwater. Specifically, Petitioner periodically told her that he had difficulty avoiding watching her walk across the room. In addition, Petitioner frequently referred to Ms. Atwater, despite her objections, as "Ms. Ashwood," a person Ms. Atwater believed to be of poor reputation. Moreover, on one occasion, Petitioner instructed Ms. Atwater to meet him for lunch and then, during the course of the lunch, broached the possibility of an extramarital relationship with her. On another occasion, Petitioner telephoned Ms. Atwater, inquired about the type of underwear she was wearing and questioned her about private sexual matters. Although Ms. Atwater did not file any formal complaint against Petitioner for the improper verbal comments, she did advise Ms. Jacqueline Hobbs, a nine-year veteran with the Pinellas County Sheriff's Office, that she was experiencing inappropriate verbal contact from an un-named employee. Ms. Atwater was aware of the complaint procedures but explains that she was a new employee in the unit, was on probationary status during the relevant time period and did not want to complain about Petitioner and potentially jeopardize her employment. In addition to Petitioner's improper verbal comments toward Ms. Atwater, the evidence demonstrates by a preponderance of the evidence that Petitioner made unsolicited, inappropriate physical contact with her. On one occasion in May 2002, following a meeting to discuss her job performance, Petitioner insisted on hugging Ms. Atwater and inappropriately continued to hug her even after she resisted and ceased the embrace. On another, yet more egregious occasion on October 24, 2002, Petitioner entered Ms. Atwater’s office under the guise of discussing work-related matter and touched her inappropriately. Specifically, Petitioner entered Ms. Atwater's office, closed her door, approached her from behind, placed his hands around her neck and began kissing her neck and rubbing his groin area against her buttocks. Ms. Atwater turned around, physically resisted him, and told him that she had to handle an emergency outside of her office. Notwithstanding her resistance, Petitioner backed her against the wall, again placed his arms around her and attempted to kiss her mouth. Again, Ms. Atwater immediately resisted. She ducked under his arms and fled her office. Six days later, on October 30, 2002, Ms. Atwater notified Petitioner's superiors of the incident and filed a 3-page formal written complaint outlining his behavior. Shortly thereafter, Major Kirk Bruner referred the complaint to the Administrative Inspections Division for investigation. Petitioner denies Ms. Atwater's allegations that he had inappropriate verbal and physical contact with her and argues that they maintained a friendly professional relationship. He further states that Ms. Atwater continually requested him to get involved with EXCEL telecommunications and was upset that he refused. He also contends that Ms. Atwater became too personal with him and sent him inappropriate e-mails. Considering the evidence, Petitioner's contentions are less credible. Although it is clear that Ms. Atwater sent Petitioner an e-mail on October 23, 2002, stating, "You have a way of getting a message across. Thank you so much," there is no evidence that Ms. Atwater was overly friendly, encouraged his behavior, or engaged in any inappropriate conduct. Following the Division's investigation and report, the Administrative Review Board, comprised of various employees with the Pinellas County Sheriff's Office, reviewed the evidence compiled by the investigators. The Board unanimously determined that Petitioner had violated the Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, as well as Rule 5.16 of the Rules and Regulations of the Pinellas County Sheriff’s Office relating to sexual harassment and discrimination as defined in General Order 3-4. The Administrative Review Board forwarded its findings to Respondent. Petitioner's available range of discipline was calculated in conformance with the matrix contained within General Order 10-2 of the Pinellas County Sheriff's Office which allocates a point scale to various violations. The matrix provides that a Level Five offense, which includes sexual harassment, results in a 50-point assessment. Since Petitioner had no previous disciplinary record, Petitioner scored a total of 50 cumulative points which includes a disciplinary range of a five-day suspension up to and including termination. Demotion is also authorized under the applicable General Order. After considering the evidence and available sanctions, Respondent notified Petitioner on March 10, 2003, that he was imposing a fifteen-day suspension, demoting him from the rank of lieutenant to the rank of sergeant and requiring him to undergo sexual harassment remedial training. Following the investigation and imposition of discipline, Petitioner commented to his superior, Captain Peter Nesbitt, that "I was wrong. I spoke to my wife and am forgiven."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff’s Office enter a Final Order finding that: Petitioner committed the conduct alleged in the charging document and violated the rules, regulations, and policies of the Pinellas County Sheriff's Office. Petitioner's 15 days' suspension from his employment as a detention deputy with the Pinellas County Sheriff's Office is appropriate. Petitioner's demotion from his previous rank of lieutenant to the rank of sergeant is appropriate. Petitioner's requirement of remedial training related to sexual harassment is appropriate. DONE AND ENTERED this 22nd day of July, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 July, 2003. COPIES FURNISHED: B. Norris Rickey, Esquire Assistant County Attorney 315 Court Street Clearwater, Florida 33756 Keith C. Tischler, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Blvd. Tallahassee, Florida 32308 William M. Laubach, Esquire Pinellas County Police Benevolent Association 14450 46th Street, North, Suite 115 Clearwater, Florida 33762 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner on the basis of her sex or age, or in retaliation for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment based on her sex or age.
Findings Of Fact Respondent Frito-Lay, Inc. ("Frito-Lay"), makes and sells snack foods, including many familiar brands of chips. Petitioner Frances G. Danelli ("Danelli") is a former employee of Frito-Lay. Frito-Lay initially hired Danelli in or around 1998 as a packer for its West Valley, Utah, plant. When Danelli's husband was transferred to Florida, she took a job for Frito-Lay in Pompano Beach, Florida, and later moved to the company's West Palm Beach Distribution Center as a route sales representative ("RSR"). Danelli worked in Florida as a Frito-Lay RSR for more than 15 years, and her routes eventually included such large stores as Publix, Walmart, Winn-Dixie, and Target.1/ RSRs sell and deliver Frito-Lay products to retail stores, and these stores, in turn, sell the products to consumers. RSRs are responsible, as well, for presenting the company's products to shoppers in the best way possible to increase sales. So, RSRs not only sell and deliver products to stores, but they also unload the products, stock the shelves, set up displays, and remove unsold items whose sell-by dates have expired. RSRs are paid an hourly wage plus commissions. RSRs are required to compete for sales against other companies' vendors, who (like Frito-Lay's personnel) are trying to place as many of their products as possible onto the shelves of the snack food aisle. Shelf space is essential for growing sales, and competition for product placement can be fierce. There is no dispute that Danelli's performance as an RSR was fine, perhaps even exemplary. Frito-Lay considered her to be a good employee. Danelli went to work early each morning, usually arriving at the warehouse by 4:00 a.m. so that she could get to her first store by 5:00 a.m., which would give her a head start on other vendors. When Danelli got to the warehouse, she would clock in on her handheld computer, which she also used to track the goods she delivered to each store. Upon returning to the warehouse, she had paperwork to complete and print from the handheld computer. In 2013, Frito-Lay started requiring drivers of delivery trucks over a certain size, including RSRs such as Danelli, to comply with U.S. Department of Transportation ("DOT") regulations. As relevant, these regulations require an RSR to take at least a ten-hour break before driving a commercial vehicle, and they prohibit an RSR from driving a commercial vehicle after 14 consecutive hours on duty. Frito-Lay programmed its employees' handheld computers so that an employee subject to the DOT regulations would receive a conspicuous warning if he or she attempted to clock in to work less than ten hours after last going off duty. As Danelli testified at hearing, if the computer told her to wait, she would go to the warehouse, pick up some product, fix her truck, and then sign in when the handheld said she could go. Evidently, however, to get the warning, an employee needed to log on as a "regulated" employee; if, by mistake, a "regulated" employee logged on as "non-regulated," she would not get the warning. Danelli found it difficult to comply with the DOT regulations, which led to Frito-Lay's imposing discipline against her in accordance with the company's Corrective Action Process set forth in its Sales National RSR Handbook, which governed Petitioner's employment. The handbook prescribes a process of progressive discipline that begins with "coaching," which is a form of pre- discipline. As the name suggests, a "coaching" is, essentially, a nondisciplinary intervention whose purpose is to correct an issue before the employee's conduct warrants stronger measures. If coaching is ineffective, the Corrective Action Process calls for increasingly severe steps of discipline. The steps of discipline consist of a Step 1 Written Reminder, a Step 2 Written Warning, a Step 3 Final Written Warning, and a Step 4 Termination. The particular discipline to be imposed depends upon the severity of the infraction and the step of discipline, if any, the employee happens to be on when the infraction is committed. Steps of discipline remain "active" for six to nine months, depending on the step. If the employee does not commit any further disciplinary infractions during the active period, the step "falls off." If the employee commits another disciplinary infraction within the "active" period, however, he or she moves to the next disciplinary step in the Corrective Action Process. On June 5, 2014, after having previously been coached to maintain compliance with the DOT regulations, Danelli received a Step 1 Written Reminder for four violations of the 10-hour rule. She did not appeal this discipline. On July 25, 2014, Danelli received a Step 2 Written Warning for a new violation of the 10-hour rule. Once again, Danelli did not appeal the discipline. On October 7, 2014, Danelli was given another coaching, during which she was informed that (i) an investigation into her DOT hours was in process, and (ii) the company was concerned that she might be getting assistance on her route from her husband in violation of the RSR Performance Standards. On January 27, 2015, Danelli received a Step 3 Final Written Warning for violating the 14-hour rule. She did not appeal this discipline. Under the Corrective Action Process, a Step 3 Final Written Warning remains "active" for nine months and is the final step prior to a Step 4 Termination. On May 2, 2015, Danelli committed another DOT violation. Because she was already on a Step 3 Final Written Warning, she was suspended pending further investigation. Danelli maintains that this violation, and others, resulted from her making a simple mistake with the handheld computer, namely failing to log on as a "regulated" employee, which cost her the electronic warning she otherwise would have received. She points out, too, that in this instance, the violation was minor, merely clocking in ten minutes early. These arguments are not wholly without merit, and if Frito-Lay had fired Danelli for a single, ten-minute violation of the DOT regulations, the undersigned would question the company's motivation. But that is not what happened. Danelli did not just violate the ten-hour rule once or twice, but many times, after multiple warnings, and in the face of increasingly serious disciplinary steps. Further, Frito-Lay did not terminate Danelli's employment over this latest violation of the ten-hour rule, even though it would have been justified in doing so within the parameters of the Corrective Action Process. Instead, the company placed Danelli on a Last Chance Agreement. Last Chance Agreements are not specifically provided for in the Corrective Action Process but are used, at the company's discretion, as a safety valve to avoid the occasional unfortunate termination that might result from strict adherence to rigid rules. In this regard, the agreement given to Danelli, dated May 15, 2015, stated as follows: We strongly considered [terminating your employment]. However, due to the unique facts and circumstances involved here, as well as your 15 years of service with the Company, the Company is willing to issue this Last Chance Warning. This step is over and above our normal progressive disciplinary process, and is being issued on a one-time, non-precedent setting basis. . . . [A]ny subsequent violations by you may result in discipline up to and including immediate termination. More specifically, any future violations [of the DOT regulations] will result in your immediate termination. As Danelli put it, the Last Change Agreement was a "sign of grace" from Frito-Lay. By its terms, it was intended to be "active and in effect for a period of 12 months." The undersigned pauses here to let the Last Chance Agreement sink in, because the fact that Frito-Lay did not fire Danelli in May 2015 when——for objective, easy-to-prove reasons, after a by-the-book application of progressive discipline——it clearly could have, is compelling evidence that the company was not harboring discriminatory animus against Danelli. After all, if Frito-Lay had wanted Danelli gone because of her age or her gender, why in the world would the company not have jumped at this golden opportunity, which Danelli had given it, to fire her with practically no exposure to liability for unlawful discrimination? The irony is that by showing mercy, Frito-Lay set in motion the chain of events that led to this proceeding. In or around November of 2015, Danelli underwent surgery, which required her to take some time off of work. For several years before this leave, Danelli's route had consisted of a Super Walmart and two Publix stores. When she returned, the Super Walmart had been assigned to another RSR, and to make up for its loss, Danelli's supervisor, Stanley Gamble, put a third Publix grocery on Danelli's route, i.e., Publix #1049 located in Tequesta, Florida. Danelli was acquainted with one of the managers at the Tequesta Publix, a Mr. Morgan. On her first day back, Danelli and Mr. Gamble went to that store, where Mr. Morgan told Mr. Gamble that he was "glad Frances is here." Mr. Morgan had complained to Mr. Gamble about the previous RSR, who left the store "all messed up," according to Mr. Gamble. Danelli also met Sarah Oblaczynski, the store's "backdoor receiver," which is the Publix employee who checks in merchandise. On her new route, Danelli usually went to the Tequesta store first, early in the morning. She soon ran into a vendor named Tony who worked for Snyder's of Hanover ("Snyder's"), a snack food company that competes with Frito-Lay. From the start, Tony was nasty to Danelli and aggressive, telling her that "there is no space" for two vendors. Tony was possessive about shelf space within the store, as well as the parking space close to the store's loading dock. Danelli thought, because of Tony's behavior, that he might be using drugs. On Tuesday, April 6, 2016, Petitioner had an argument with Tony over the shelf space that the store manager previously had awarded to her for the display of Frito-Lay products. Tony asserted that he had been promised the same space and said to Danelli, "You're going to take that stuff out of the shelf." Danelli told him, "No, Morgan said that's still my space." At this, Tony began cursing and pushed Danelli's cart into her, yelling, "That fucking Morgan!" Danelli later spoke to Mr. Morgan, who assured Danelli that the shelf space in question was hers and said he would leave a note to that effect for Ms. Oblaczynski. There is a dispute as to when Danelli reported the forgoing incident to Frito-Lay. She claims that, before the end of the day on April 6, she told Mr. Gamble, her supervisor, all about the matter, in detail, and requested that someone be assigned to accompany her on her route the next day because Tony planned on taking her shelf space. According to Danelli, Mr. Gamble just laughed and said he did not have anybody to help her. Mr. Gamble testified, to the contrary, that Danelli had neither reported the April 6, 2016, incident to him nor asked for any assistance. (Danelli admits that she did not report the incident to Mr. Canizares, sales zone director, or to Human Resources ("HR")). Without written documentation regarding this alleged discussion, it is hard to say what, if anything, Danelli reported on April 6, 2016. It is likely that Danelli did complain to Mr. Gamble about Tony on some occasion(s), and might well have done so on April 6. What is unlikely, however, is that Danelli notified Mr. Gamble that she felt she was being sexually harassed by Tony. Tony's boorish and bullying behavior, to the extent directed at Danelli, seems to have been directed to her qua competitor, not as a woman. At the very least, the incident is ambiguous in this regard, and one could reasonably conclude, upon hearing about it, that Tony was simply a jerk who resorted to juvenile antics in attempting to gain the upper hand against a rival vendor. The undersigned finds that if Danelli did speak to Mr. Gamble about Tony on April 6, he—— not unreasonably——did not view the incident as one involving sexual harassment. As far as Mr. Gamble's declining to provide Danelli with an escort, assuming she requested one, his response is reasonable if (as found) Mr. Gamble was not clearly on notice that Danelli believed she was being sexually harassed. Danelli, after all, was by this time an experienced and successful RSR who undoubtedly had encountered other difficult vendors during her career. Indeed, as things stood on April 6, a person could reasonably conclude that Danelli in fact had the situation under control, inasmuch as Mr. Morgan had clearly taken Danelli's side and intervened on her behalf. What could a Frito-Lay "bodyguard" reasonably be expected to accomplish, which would justify the risk of escalating the tension between Tony and Danelli into a hostile confrontation? During the evening of April 6, 2016, Danelli talked to her husband about the problem at Publix #1049, and they decided that he would accompany her to the store the next morning before reporting to his own work, to assist if Tony caused a scene. On April 7, 2016, Danelli's husband drove to Publix #1049 in his own vehicle. Although no longer an employee of the company, Danelli's husband entered the store wearing a Frito-Lay hat, and he stayed in the snack aisle while Danelli went to the back to bring the order in. Ms. Oblaczynski, the receiver, presented Tony with a note from Mr. Morgan stating that Danelli's products and sales items were assigned to aisle one. In response, Tony started swearing about Mr. Morgan and the denial of shelf space, made a hand gesture indicative of a man pleasing himself, and told Ms. Oblaczynski that "they can take a fly[ing] F'n leap." Tony had made this particular hand gesture about Mr. Morgan on a number of previous occasions, in front of both men and women. Mr. Danelli left to go to work once Danelli's product was placed, and she left to go to the next store on her route. When Danelli returned to the warehouse, she went to Mr. Gamble's office and told him about the April 7, 2016, incident. According to Danelli, Mr. Gamble laughed in response. Danelli asked Mr. Gamble if the company would conduct an investigation, and he said yes. She recalls that every day thereafter, she asked Mr. Gamble if he had heard anything because she thought "we [Frito-Lay] were investigating" and that HR was on top of it. Danelli admits, however, that she "intentionally" did not tell Mr. Gamble that her husband had accompanied her to Publix #1049 to assist her in the store that morning. She did not report this detail because she knew it was "bad." In conflict with Danelli's account, Mr. Gamble testified that Danelli did not report that Tony made a sexual gesture in front of her or used coarse or profane language in her presence on April 7, 2016. The undersigned finds that Mr. Gamble most likely did not laugh at Danelli or otherwise treat her dismissively upon hearing her report of the incident. If Mr. Gamble had believed the matter were so trivial or amusing, he would not likely have agreed to investigate. The undersigned finds, further, that however Danelli described the incident, she did not make it clear to Mr. Gamble that she perceived Tony's behavior as a form of sexual harassment. Danelli did not make a formal written complaint to that effect at the time, and the situation at Publix #1049 was, at the very least, ambiguous. More likely than not, Mr. Gamble viewed the troublesome vendor from Snyder's as an unwelcome business problem to be dealt with, not as a perpetrator of unlawful, gender-based discrimination. To elaborate, putting Tony's "sexual gesture" to one side momentarily, the rest of his conduct, even the cursing, while certainly objectionable, is not suggestive of sexual harassment; it is just bad behavior. Tony's temper tantrums and outbursts no doubt upset Danelli and others, but that does not turn them into gender discrimination. Further, Danelli seems to have handled the situation well until she resorted to self-help on April 7, 2016. The responsible Publix employees were already aware of the problem, and in due course, they complained to Snyder's, which unsurprisingly removed Tony from that store. Meantime, had Danelli felt physically threatened or afraid as a result of Tony's more aggressive antics, she (or Publix) could have called the police; this, indeed, would have been a safer and more reasonable alternative to bringing along her husband or another civilian for protection, which as mentioned above posed the risk of provoking a fight, given Tony's volatility. Ultimately, it is Tony's "sexual gesture" that provides a colorable basis for Danelli's sexual harassment complaint. But even this gives little grounds for a claim of discrimination, without more context than is present here. To be sure, the "jerk off gesture" or "air jerk" is obscene, and one would not expect to see it in polite company or in the workplace. Yet, although it clearly mimics a sexual practice, the air jerk is generally not understood as being a literal reference to masturbation. That is, the gesture is not typically used to convey a present intention to engage in masturbation or as an invitation to perform the act on the gesturer. Rather, the jerk off gesture usually signifies annoyance, disgust, disinterest, or disbelief. As with its cousin, the "finger" (or bird) gesture, the sexual connotations of the air jerk are (usually) subliminal. Here, there is no allegation or evidence that Tony's jerk off gesture was undertaken in pursuit of sexual gratification or was intended or perceived as a sexual advance on Danelli (or someone else)——or even as being overtly sexual in nature. (Obviously, if the evidence showed that, under the circumstances, Tony was, e.g., inviting Danelli to participate in sexual activity, this would be a different case. The undersigned is not suggesting, just to be clear, that the air jerk gesture is inconsistent with or could never amount to sexual harassment, but only that it is not unequivocally a sign of such harassment, given its commonly understood meanings.) To the contrary, it is clear from the surrounding circumstances that Tony made the gesture to indicate that he regarded Mr. Morgan's note as pointless and annoying. It was roughly the equivalent of giving them the bird, albeit arguably less contemptuous than that. For these reasons, the undersigned finds it unlikely that, assuming Danelli described the gesture (which is in dispute), Mr. Gamble thought Danelli was complaining about sexual harassment, as opposed to a very difficult vendor. On April 13, 2016, Mr. Gamble visited Publix #1049 and spoke to Ms. Oblaczynski about the situation. During this conversation, Ms. Oblaczynski stated that the "Frito-Lay people" did nothing wrong. She further specified that "the person [Danelli] had with her did nothing wrong." After speaking with Ms. Oblaczynski, Mr. Gamble met with Danelli while she was servicing her second account. Right off the bat, Mr. Gamble asked Danelli who was with her at Publix #1049 on April 7, 2016. She eventually admitted that her husband was with her in the store that day. Aware of the seriousness of her offense and the active Last Chance Agreement, Danelli asked Mr. Gamble, several times, if she would be fired. That same day, Mr. Gamble called Carlos Canizares to tell him what he had learned. Mr. Canizares instructed Mr. Gamble to stay with Danelli while she finished servicing her accounts and then to obtain a written statement from her about the incident. Later on April 13, 2016, Danelli provided a written statement in which she confirmed that her husband had been working with her at Publix #1049 the previous week. Danelli has since described this statement as a "full written account of the harassment [and] rude sexual gestures." Danelli knew, of course, that HR would review her statement, and yet she said nothing therein about having complained to Mr. Gamble or any supervisor about harassment generally or Tony in particular; about Tony's use of course or improper language; or about having requested an escort to help keep Tony in line. On the instructions of the company's HR department, Mr. Gamble conducted an investigation into the "rude sexual gesture" about which Danelli had complained. Specifically, he called Mr. Morgan, the Publix manager, and asked him about the incident. Mr. Gamble also requested that he be allowed to review any videotapes and documents concerning the incident. Mr. Morgan informed Mr. Gamble that Publix was investigating the matter. Mr. Gamble's request to allow Frito-Lay access to Publix videotapes and documents was, however, turned down. Tony's boorish behavior aside, the fact remained that Danelli, without prior approval, had allowed a non-employee to perform work or services for Frito-Lay at one of the stores on her route, which the RSR Performance Standards specifically prohibit without express authorization. RSRs who are found to have permitted non-employees to accompany them on their routes are either discharged or issued multiple steps of discipline, as Danelli knew. Because Danelli violated this rule while on an active Last Chance Agreement, Frito-Lay decided to terminate her employment. On April 26, 2016, Mr. Canizares met with Danelli to inform her that she was fired. Danelli timely appealed her termination pursuant to the company's Complaint and Appeal Procedure, electing to have her appeal decided by a neutral, third-party arbitrator. The arbitration hearing took place in January 2017. Three months later, the arbitrator ruled that Danelli's termination had been proper and carried out in accordance with Frito-Lay's employment policies. Danelli does not presently deny that she violated the DOT regulations and the company policy forbidding the use of non-employees as helpers while on duty, nor does she dispute that Frito-Lay had sufficient grounds for imposing the disciplinary steps leading to the Last Chance Agreement. Indeed, she does not contend that it would have been wrongful for Frito-Lay to have fired her in May 2015 instead of offering the Last Chance Agreement. Her position boils down to the argument that because Frito-Lay could have exercised leniency and not fired her for bringing her husband to work at Publix #1049 (which is probably true2/), its failure to do so can only be attributable to gender or age discrimination. Put another way, Danelli claims that but for her being a woman in her 50s, Frito-Lay would have given her another "last chance." This is a heavy lift. As circumstantial evidence of discrimination, Danelli points to the company's treatment of another RSR, a younger man named Ryan McCreath. Like Danelli, Mr. McCreath was caught with a non-employee assisting him on his route. Unlike Danelli, however, Mr. McCreath was not on any active steps of discipline at the time of the incident, much less a Last Chance Agreement. Although Mr. McCreath's disciplinary record was not unblemished, Frito-Lay did not terminate his employment for this violation of the RSR Performance Standards. Instead, he received three steps of discipline and was issued a Final Written Warning. Mr. McCreath's situation is distinguishable because he was not under a Last Chance Agreement at the time of the violation. Moreover, it is not as though Mr. McCreath got off scot-free. He received a serious punishment. Danelli could not have received a comparable punishment for the same offense because she was already beyond Step 3; her record, unlike his, did not have room for the imposition of three steps of discipline at once. The McCreath incident does not give rise to a reasonable inference that Frito-Lay unlawfully discriminated against Danelli when it terminated her employment for committing a "three-step violation" while on an active Last Chance Agreement. There is simply no reason to suppose that if Danelli, like Mr. McCreath, had not had any active steps of discipline when she violated the rule against having non- employees provide on-the-job assistance, Frito-Lay would have terminated her employment for the April 7, 2016, infraction; or that if Mr. McCreath, like Danelli, had been on a Last Chance Agreement when he violated the rule, Frito-Lay would have issued him a Final Written Warning in lieu of termination. Ultimate Factual Determinations There is no persuasive evidence that any of Frito- Lay's decisions concerning, or actions affecting, Danelli, directly or indirectly, were motivated in any way by age- or gender-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age or gender discrimination could be made. There is no persuasive evidence that Frito-Lay took any retaliatory action against Danelli for having opposed or sought redress for an unlawful employment practice. There is no persuasive evidence that Frito-Lay committed or permitted sexual harassment of Danelli or otherwise exposed her to a hostile work environment. Ultimately, therefore, it is determined that Frito-Lay did not discriminate unlawfully against Danelli on any basis.
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 finding Frito-Lay not liable for gender or age discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 11th day of July, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of July, 2018.
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged misconduct consisting of sexual harassment, inappropriate touching, and inappropriate comments. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner employs Respondent as a security guard at the Alternative Learning Center High School (the "ALC"). Petitioner has employed Respondent in the capacity since November 21, 1995. The ALC includes a High School and Middle School. At all times material to this proceeding, Petitioner employed Respondent at the High School. Respondent has also worked continuously for the Department of Juvenile Justice from July 16, 1993. The Department employs Respondent as a group leader at the Price Halfway House. The Price Halfway House is a level six facility for delinquent youths between the ages of 14 and 18. Before Petitioner suspended Respondent from his employment with the Board, Respondent worked at the ALC from 7:00 a.m. until 2:30 p.m. each school day. Respondent then worked at the Price Halfway House from 3:00 p.m. until 11:00 p.m. Petitioner gave Respondent good performance assessments throughout Respondent's employment at the ALC. Respondent attained a rating described as an "effective level of performance observed." The ALC principal never had cause to question Respondent's professional conduct. The principal described Respondent's position as a "very tough position." Respondent deals with students who have discipline problems, and Respondent rarely has occasion to deal with students in a positive manner. Students at the ALC have violated the rules or code of conduct at their geographic school or have been arrested for a criminal felony offense. The ALC is an alternative to expulsion from the geographic school. The ALC is a "lock-down facility." Classrooms are locked while class is in session. Students are not allowed to move outside the classroom without permission. A student who has obtained permission to move outside the classroom cannot do so before personnel outside the classroom are notified by two-way radio of the student's movement. Group movement to and from school and during lunch is closely monitored by school personnel. Respondent's duties at the ALC consisted of monitoring activity on the school campus to ensure that students and faculty enjoyed a safe environment. Respondent's duties required him to monitor students for weapons, drugs, fights, gang behavior, and similar activity. Respondent interceded disruptive behavior by students, including fights and escorted students to the administrative offices for discipline and other matters. Petitioner maintains a policy that prohibits employees from engaging in sexual harassment of another employee or student. The policy defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment includes conduct that has the purpose or effect of unreasonably interfering with a student's educational performance or creating an intimidating, hostile, or offensive school environment. The policy lists examples that include repeated remarks with sexual or demeaning implications and unwelcome or inappropriate physical contact such as unnecessary touching. Respondent was aware of the policy. The Allegations On June 28, 1999, two female students at the High School reported to the principal at the Middle School that Respondent made inappropriate sexual comments to them and touched them in a sexual manner. The two students are Kimberly Battle and Stephanie Day. The principal of the Middle School is Mr. Charles Dailey. Ms. Battle and Ms. Day told Mr. Dailey that toward the end of the 1998-1999 school year and during summer school Respondent touched them on their buttocks and made inappropriate sexual comments to them. However, Ms. Battle is the only complainant who testified at the hearing. Ms. Day did not testify at the hearing. A representative from a home for unwed mothers represented that Ms. Day did not want to testify in the action and preferred to "drop the charges." The ALJ excused Ms. Day from her subpoena on the basis of a note from Ms. Day's physician recommending that she not be required to testify until she is "six weeks postpartum." Ms. Battle claims that Respondent violated the school policy prohibiting sexual harassment through repeated incidents of inappropriate comments and unnecessary touching. The incidents allegedly occurred during the regular school year and during the summer school session. Respondent allegedly made inappropriate sexual comments to Ms. Battle in the hallway of the high school towards the end of the 1998-1999 school year. Respondent allegedly said "look at that butt" and "I'm going to get that." Ms. Battle claims that Respondent made similar comments to her during the 1998-1999 school year while she was on the bus ramp before and after school. Respondent allegedly continued to make inappropriate comments throughout the 1999 summer school session. Ms. Battle also claims that Respondent repeatedly touched her buttocks with his hand and said it was a mistake. On June 23, 1999, Ms. Battle and Ms. Day told Ms. Elsa Rosado, the school bus aide, that Respondent was "a pervert or something, and he was all nasty." Ms. Rosado told the bus driver and spoke with Ms. Day's mother. On Friday, June 25, 1999, Ms. Battle claims that Respondent pulled up her skirt on two separate occasions in the high school. She claims Respondent pulled up her skirt the first time in the break room at approximately 12:18 p.m., and did so the second time in the office of the School Resource Officer after 1:00 p.m. During the second alleged incident, Ms. Battle claims that Respondent pulled out the waistband of her underwear and looked inside her underwear. On Friday, June 25, 1999, Ms. Battle rode the school bus to the Middle School. She intended to report Respondent to Mr. Dailey. Mr. Dailey was not at school that day. On Monday, June 28, 1999, Ms. Battle and Ms. Day reported the alleged incidents to Mr. Dailey. Mr. Dailey reported the allegations to Petitioner. Petitioner investigated the allegations, and this proceeding ensued. The Hallway and Bus Ramp Petitioner failed to show by a preponderance of the evidence that Respondent made inappropriate comments to Ms. Battle or touched her unnecessarily while she was in the high school hallway or bus ramp. Ms. Battle claims that Respondent engaged in those incidents when "everybody was around" including students, teachers, the principal, and assistant principal. Ms. Battle could not say whether any of the people around at the time heard the alleged comments or saw any unnecessary touching. Petitioner did not call any witnesses that verified the alleged comments or touching. The school principal testified that repeated inappropriate comments or touching by Respondent in the hallway or on the bus ramp would have been observed by either the principal, assistant principal, or some other staff member. The school principal, assistant principal, guidance counselor, school resource officer, and the classroom teacher for Ms. Battle each testified that Respondent consistently conducted himself in a professional manner for more than five years. None of those individuals observed the comments or behavior alleged by Ms. Battle. Ms. Battle was uncertain of the frequency of the alleged comments and touching. She first estimated that Respondent made inappropriate comments on approximately 10 occasions but revised that estimate to "about three or four, two or three, somewhere around there." Ms. Battle's testimony was vague and inconsistent regarding the content of the comments allegedly made by Respondent and the specifics surrounding on alleged touching. Lifting the Skirt Petitioner failed to show by a preponderance of the evidence that Respondent touched Ms. Battle unnecessarily by lifting her skirt and committing the other acts and comments alleged by Ms. Battle. Respondent was not present in school at the time of the second alleged touching. At the time of the first alleged touching, Respondent was either not at school or was in the process of leaving school. Ms. Battle claims that Respondent lifted her skirt the first time in the school break room while she was on break at approximately 12:18 p.m. She claims that the second incident occurred later the same day in the office of School Resource Officer sometime after 1:00 p.m. The school principal authorized Respondent to leave school with Mr. Eugene Robinson between 12:00 noon and 12:30 p.m. to perform plumbing repairs in Mr. Robinson's home. Respondent did so and worked on the repairs continuously until after 3:00 p.m. when Respondent left for his second job. Mr. Robinson was well known to the principal. Mr. Robinson had been an employee of Petitioner for over 40 years including 32 years as an administrator. Before retiring, Mr. Robinson was an assistant principal for the ALC. Mr. Robinson had an emergency plumbing problem in his home on June 25, 1999. He knew that Respondent had skills as a plumber and that the school resource officer, Mr. Robinson's son- in-law, had used Respondent as a plumber previously. Mr. Robinson went to the ALC High School between 12:00 noon and 12:30 p.m. on June 25, 1999. Mr. Robinson requested that the principal authorize Respondent to leave campus, and the principal granted the request. Respondent left school immediately with Mr. Robinson. The two drove separate cars to Mr. Robinson's house. After leaving school, Respondent took 15 minutes to stop at his house to pick up his tools and proceeded directly to Mr. Robinson's house where he worked until approximately 3:30 p.m. Respondent then went to his second job. Respondent did not sign the "sign-out" log when he left school on June 25, 1999, in violation of school policy. Although the policy required staff to sign the log when they came and left school, staff occasionally failed to do so. The guidance counselor, for example, was in school from June 22 through June 30, 1999, but failed to sign in. Even if Respondent were present after 12:00 noon on June 25, 1999, Petitioner failed to show by a preponderance of the evidence that Respondent committed the acts alleged by Ms. Battle. The allegations are inconsistent with several aspects of the evidentiary record. Students began summer school at 8:30 a.m. and ended their day at 1:30 p.m. The same classroom teacher had the same students all day. Students took a 15-minute break sometime around noon to get a drink and a snack at the break room. Ms. Battle's class took their break from 12:00 noon until 12:15 p.m. Two other classes took their break at the same time. Each teacher escorted his or her class to the break room. The principal dispensed change at the vending machines that were in close proximity to the break room. Students purchased drinks and food from the vending machine and then went into the break room to eat and drink. The break room door remained open. The principal located himself by the doorway in the hall. The assistant principal and Respondent positioned themselves inside the break room to monitor the students. Ms. Battle testified that the assistant principal gave her permission to remain in the break room for a couple of minutes after the other students left because she was about three minutes late getting to her break. Ms. Battle's regular break was over at 12:15 p.m. Between 12:15 p.m. and 12:30 p.m., Respondent had either already left school with Mr. Robinson or was involved in the process of obtaining approval from the principal and preparing to leave with Mr. Robinson. Ms. Battle testified that she "distinctly remembered" the assistant principal allowing her to remain in the break room after others had left. She also claims that the assistant principal and principal were outside of the break room the first time that Respondent allegedly lifted her skirt. Ms. Battle claims that she could hear the principal and assistant principal talking in the hallway outside of the break room. However, the assistant principal was in Massachusetts attending a wedding and was not present at school on June 25, 1999. Ms. Battle did not tell anyone of the alleged incident in the break room at that time. She returned to her classroom. She later obtained permission from her classroom teacher to go to the principal's office to request permission to go to the Middle School to speak with Mr. Dailey. The principal was not available, and Ms. Battle returned to her classroom. Ms. Battle claims that her classroom teacher later excused Ms. Battle to go to the bathroom. Ms. Battle claims that before she entered the bathroom Respondent signaled for her to come over to him by the office of the School Resource Officer. It was between 1:00 p.m. and 1:30 p.m., and classes for the day were almost over. Inside the office of the School Resource Officer, Ms. Battle claims that Respondent stood between the closed door and Ms. Battle. Ms. Battle claims that Respondent held the door handle with his left hand behind his back and indicated that the elbow of Respondent left arm was bent at more than 90 degrees. However, there was insufficient distance between the door handle and the wall to accommodate Respondent's elbow. Respondent allegedly lifted Ms. Battle's skirt with his right hand, pulled back her underwear with a finger of his right hand, and then released the door handle and placed his left hand on his groin while he looked at her "private area." Ms. Battle claims that she told Respondent her teacher would be mad at her and that she needed to return to class. Respondent allegedly allowed Ms. Battle to leave. Ms. Battle claims she returned to her classroom, sat in the back of the class, put her head down and cried. Ms. Battle claims Respondent relieved Ms. Battle's classroom teacher for the final 15 minutes of class because the classroom teacher had to attend to some other business. According to Ms. Battle, Respondent sat in the back of the classroom. Ms. Battle turned around to look at him and claims that Respondent "made his private area jump" without thrusting his hips or pelvis. Contrary to Ms. Battle's testimony, Ms. Battle's classroom teacher made Ms. Battle sit directly in front of her desk at all times to control her behavior. The teacher never allowed Ms. Battle to sit in the back of the class. Ms. Battle's teacher personally taught class on June 25, 1999. Ms. Battle sat directly in front of her desk at all times. Ms. Battle never appeared disturbed the entire day. The teacher never observed Ms. Battle put her head down on her desk, cry or otherwise appear distraught. Although Respondent did sit in for the teacher occasionally, it was never for more than two or three minutes. Whenever a student is not in class, staff maintain radio contact with each other concerning the student's location. When Ms. Battle left her classroom to go to the bathroom, her classroom teacher notified the front office, and staff monitored her movement by radio. The bathroom is in plain view of the front desk of the administrative offices. The door of the office of the School Resource Officer is visible from the front desk of the administrative office. Staff members would have known by radio contact of Ms. Battle's movement from her classroom and would have monitored her movement closely. Procedural Deficiencies Petitioner's investigation of the charges made by Ms. Battle and Ms. Day suffered from several deficiencies. The investigation did not include statements from either Mr. Dailey, Mr. Robinson, or Ms. Battle's classroom teacher. When Mr. Dailey told Mr. Robinson of the charges against Respondent, Mr. Robinson informed Mr. Dailey that Respondent was working on a plumbing problem at Mr. Robinson's house on June 25, 1999. Mr. Dailey did not tell Mr. Robinson to disclose the information to anyone else and did not relay the information to Petitioner's investigator. A statement from Mr. Dailey presumably would have uncovered the information from Mr. Robinson and led to a statement from Mr. Robinson. When Respondent disclosed in his predetermination conference that he was with Mr. Robinson on June 25, 1999, Petitioner did not obtain a statement from Mr. Robinson. Mr. Dailey was not friendly with Respondent. Their friendship had ended in 1998 over a disagreement concerning a female teacher. Mr. Dailey "banished" Respondent from the Middle School where Mr. Dailey was principal. On Monday, June 28, 1999, Ms. Battle and Ms. Day informed Mr. Dailey of the charges against Respondent. Mr. Dailey interviewed the two together rather than separately. Ms. Battle and Ms. Day had discussed the matter together the preceding weekend and that Monday morning before meeting with Mr. Dailey. On Monday morning, June 28, 1999, Ms. Battle and Ms. Day obtained permission to leave the High School to talk to Mr. Dailey in the Middle School. The guidance counselor at the High School observed the two students sign out. They obtained a pen from Respondent to sign out and did not display any apprehension in Respondent's presence. Rather, they exchanged "high fives." Ms. Battle and Ms. Day completed written statements for Mr. Dailey in the same room. They later gave collective statements to Petitioner's investigator and police investigators.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the underlying factual allegations; finding that there is not just cause to terminate Respondent's employment; and reinstating Respondent with back pay from the date of his suspension. DONE AND ENTERED this 28th day of September, 2000, in Tallahassee, Florida. DANIEL MANRY 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 28th day of September 2000. COPIES FURNISHED: Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Boulevard Fort Myers, Florida 33901-3916 Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman and Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089
The Issue Whether Petitioner failed to timely file her Petition for Relief following the Florida Commission on Human Relations' No Cause Determination? Whether Petitioner failed to timely file a charge of discrimination with the Florida Commission on Human Relations with respect to her claim of harassment? Whether Respondent promptly and thoroughly investigated Petitioner's claim of sexual harassment? Whether Respondent took measures reasonably calculated to end and prevent any alleged sexual harassment? Whether Petitioner suffered from a disability, and, if so, what was the nature of her disability. Whether Respondent provided Petitioner with a reasonable accommodation for her alleged disability? Whether Respondent discriminated against Petitioner on the basis of her sex and/or disability? Whether Respondent retaliated against Petitioner for complaining of sexual harassment?
Findings Of Fact Petitioner filed her Charge of Discrimination against Respondent on August 29, 2002. FCHR issued a No Cause Determination and Notice of Determination: No Cause on May 12, 2003. Petitioner filed her Petition for Relief on June 20, 2003. This was 39 days after the No Cause Determination was issued. Petitioner failed to show good cause for the delay in filing. Petitioner worked as an apprentice operator at Respondent's Stanton Energy Center ("Energy Center"), during the relevant time period, under the supervision of Wade Gillingham ("Gillingham"), manager of Operations for the Energy Center. Respondent is an employer under the FCRA. On or about July 5, 2001, Petitioner expressed some concern to Gillingham about a co-worker, Tim Westerman ("Westerman"), potentially hurting himself or others. More specifically, Petitioner told Gillingham that she was concerned Westerman was going to hurt himself or her. Upon learning of Petitioner's concerns, Gillingham notified Respondent's Human Resources Department, and he scheduled a follow-up meeting with Petitioner on Monday, July 9, 2001. Lou Calatayud ("Calatayud") from Human Resources also attended this interview. During these initial meetings, Petitioner did not complain of any inappropriate touching or sexual contact between herself and Westerman. Following her meeting with Calatayud and Gillingham, German Romero, director of Human Resources, held a second interview with Petitioner to discuss her concerns about Westerman. Thereafter, Respondent conducted a thorough investigation into Petitioner's allegations. During the course of the investigation, Petitioner was interviewed twice and Westerman was interviewed twice. Both Westerman and Petitioner admitted to voluntarily participating in several telephone calls with each other, with some lasting as long as two hours. Petitioner did not appear upset or concerned after these calls. Human Resources also interviewed Terry Cox and Tom Dzoba, both watch engineers to whom Petitioner claimed she reported complaints regarding Westerman. Neither Cox nor Dzoba was Petitioner's direct supervisor. Petitioner told Cox that she had issues with another employee. However, she refused to provide Cox with the other employee's name and insisted on handling the matter on her own, despite Cox's asking her for the name of the person. Dzoba has no knowledge of Petitioner ever complaining about any problems with another employee in the workplace. The first person to whom Petitioner reported Westerman's name was her supervisor, Gillingham, who immediately reported Petitioner's complaints to Human Resources. Westerman was not Hanson's supervisor. Westerman never expressed any romantic interest in Petitioner; however, Petitioner had expressed interest in meeting Westerman outside the workplace for dinner. Additionally, Petitioner used to write Westerman "cheer-up notes" while at work. In fact, the only touching that Petitioner later referred to were hand or arm rubbing during voluntary personal conversations with, and counseling or consoling of, Westerman. Similarly, the only touching Westerman recalls was possibly rubbing up against Petitioner in the workplace or maybe putting his hand on her shoulder when they were talking. Westerman never kissed or attempted to kiss Petitioner. In addition to the above, no other employees were able to identify any inappropriate contact between Petitioner and Westerman. After completing its investigation in early August 2001, Respondent determined that sexual harassment had not occurred but instructed Westerman, verbally and in writing, not to have any further contact with Petitioner. Prior to Respondent's instruction, sometime between May and July 2001, Petitioner personally asked Westerman to stop calling her, a request he complied with generally. At the same time, Respondent instructed Petitioner to discontinue counseling employees to protect against any future incidents or allegations of sexual harassment. It is the policy and practice of Respondent to treat all employees equally regardless of their gender and/or disability. Respondent developed and distributed to its employees, via an Employee Handbook, an Equal Opportunity Policy and Policy Against Harassment. Following the conclusion of Respondent's investigation into Petitioner's complaints of sexual harassment, on or about August 6, 2001, Petitioner requested a medically-supported leave of absence for 30 days. This leave was granted by Respondent. However, Petitioner later requested to return to work nearly ten days ahead of schedule, on August 27, 2001, submitting a release from her doctor. Because Petitioner was seeking to return to work so far ahead of schedule, Petitioner was evaluated by Respondent's occupational medical director, Jock M. Sneddon, M.D., before she was released to return to work. Petitioner returned to work in the same position and rate of pay as before her leave. Additionally, Petitioner received disability benefit payments covering the entire duration of her leave. More than seven months later, Petitioner called in sick on April 6 through 8, 2002, after sustaining a house fire at her personal residence. Following the use of 16 hours or more of sick time, employees are required to return to work with a doctor's note authorizing their absence. Here, it was determined that Petitioner was not sick during this time, nor was she even evaluated by a physician. Based on similar previous problems, for which she was twice verbally reminded of Respondent's policy regarding sick leave, Petitioner received a disciplinary write-up. In addition to Petitioner's two verbal reminders, on or about January 7, 2002, Gillingham issued a memorandum to all operations employees, including Petitioner, detailing Respondent's sick leave policy. On or about June 7, 2002, Petitioner and a male co-worker, Tom Moran, were written up by Gillingham for neglect of their job duties as the result of an incident that occurred at the Energy Center on May 14, 2002. More specifically, both Petitioner and Moran were deemed responsible for failing to make sufficient rounds to discover a mechanical failure, which led to severe flooding of a sump basement in the coal yard, causing more than $12,000 in damages. Gillingham estimated it would have taken between six to eight hours to fill the 60-foot by 20-foot sump basement with the seven feet of water that was found the following morning. Although Moran was an auxiliary operator, both "operators," including Petitioner, an apprentice operator, have the same responsibilities and were responsible for making the necessary rounds to ensure that a mechanical failure of this nature is promptly discovered and repaired. In accordance with Respondent's policy, employees with active discipline in their files are not eligible for promotions or transfer. The written discipline Petitioner and Moran received for the May 14, 2002, sump incident remained active in their employee files for nine months. During her employment at the Energy Center, Petitioner's performance evaluations remained relatively unchanged, receiving a "meets" or "good" rating on each evaluation. Additionally, Petitioner received all regularly scheduled wage increases, until she topped out at the salary for her position. Petitioner received the same wage increases as similarly-situated male employees. Further, on or about April 2, 2003, Gillingham notified Human Resources that the discipline in her file had expired, and Petitioner was promoted to auxiliary operator, with the commensurate increase in pay. Petitioner started at the same rate of pay as three of the four other male employees placed in the apprentice operator position at that time. The fourth male employee, David Ziegler, started at a higher rate of pay based on his five years of previous experience working for a contractor at the Energy Center. Further, because of the credit Ziegler was given for his previous work experience, he was promoted to auxiliary operator ahead of Petitioner and all of the other apprentice operators who started at the same time. Vasquez was promoted to auxiliary operator on the standard two-year schedule on or about August 12, 2002; however, Petitioner was not eligible for promotion at that time because of the active discipline in her file. Petitioner failed to prove that she suffered from a recognized disability or that Respondent failed to make a reasonable accommodation for her alleged disability. Petitioner failed to prove that Respondent discriminated against her on the basis of her sex. Petitioner failed to prove that Respondent retaliated against her for complaining of the alleged sexual harassment which occurred in the Summer of 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing with prejudice the Petition for Relief in DOAH Case No. 03-2306, FCHR Case No. 22-02718. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 31st day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ellen Edith Hanson 5355 Rambling Road St. Cloud, Florida 34771 David C. Netzley, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a white female. Petitioner worked as a salesperson at Respondent’s Melbourne store from April 2006 to September 2006. Petitioner’s primary job duty was selling appliances to retail customers. She also performed ancillary duties, such as tagging merchandise, cleaning and organizing the showroom floor, scheduling deliveries, and making follow-up calls to customers. Petitioner was not paid a salary. Her income was solely commission-based. She earned a total of $11,826.14 while working for Respondent, which equates to an average weekly gross pay of $537.55. Petitioner had several managers during the term of her employment. She did not have a problem with any of her managers, except for Jeffrey Rock. Mr. Rock is a black male, and by all accounts, he was a difficult manager to work for. He was “strict”; he often yelled at the salespersons to “get in the box”2 and “answer the phones”; and, unlike several of the prior managers at the Melbourne store, Mr. Rock held the salespersons accountable for doing their job. Petitioner testified that Mr. Rock "constantly" made sexual comments in the store, including comments about the size of his penis and his sexual prowess; comments about sex acts that he wanted to perform on a female employee in Respondent’s accounting office, Ms. Miho; “stallion” noises directed at Ms. Miho; and a question to Petitioner about the type of underwear that she was wearing. Petitioner’s testimony regarding the sexual comments and noises made by Mr. Rock was corroborated by Neina Blizzard, who worked with Petitioner as a salesperson for Respondent and who has also filed a sexual harassment claim against Respondent. Mr. Rock denied making any sexually inappropriate comments or noises in the store. His testimony was corroborated by Guy Ruscillo and Carissa Howard, who worked as salespersons with Petitioner and Ms. Blizzard and who are still employed by Respondent. Petitioner and Ms. Blizzard testified that Mr. Rock gave favorable treatment to Ms. Howard and two other female salespersons with whom he had sexual relationships and/or who found his sexual comments funny. Mr. Rock denied giving favorable treatment to any salesperson, except for one time when he gave a “house ticket”3 to Ms. Howard because she took herself off the sales floor for six hours one day to help him get organized during his first week as manager at the Melbourne store. Ms. Howard is white. The record does not reflect the race of the other two female salespersons -- Rebecca and Shanna -- who Petitioner and Ms. Blizzard testified received favorable treatment by Mr. Rock, and the anecdotal evidence of the favorable treatment that they allegedly received was not persuasive. Petitioner did not have any complaints regarding her schedule. Indeed, she testified that Mr. Rock changed her schedule at one point during her employment to give her more favorable hours. Petitioner’s testimony about other salespersons having sexual relationships with Mr. Rock and/or receiving favorable treatment from Mr. Rock was based solely upon speculation and rumor. Indeed, Rebecca, one of the salespersons with whom Mr. Rock allegedly had a sexual relationship, was “let go” by Mr. Rock because of the problems with her job performance observed by Petitioner and Ms. Blizzard. Petitioner’s last day of work was Saturday, September 30, 2006. On that day, Petitioner came into the store with Ms. Blizzard at approximately 8:00 a.m. because, according to Petitioner, another manager had changed her schedule for that day from the closing shift to the opening shift. Mr. Rock confronted Petitioner when she arrived, asking her why she came in at 8:00 a.m. since he had put her on the schedule for the closing shift. An argument ensued and Petitioner went into the warehouse in the back of the store to compose herself. When Petitioner returned to the showroom several minutes later, Mr. Rock was engaged in an argument with Ms. Blizzard. During the argument, Ms. Blizzard demanded a transfer to another store, which Mr. Rock agreed to give her. Then, as a “parting shot,” Ms. Blizzard told Mr. Rock that he was a “racist” who was “prejudiced against white women.” Ms. Blizzard testified that Mr. Rock told her that she was fired immediately after she called him a racist. Petitioner testified that after Mr. Rock fired Ms. Blizzard, he asked her whether she wanted to be fired too. Petitioner testified that even though she did not respond, Mr. Rock told her that “you are fired too.” Then, according to Ms. Blizzard and Petitioner, Mr. Rock escorted them both out of the store. Mr. Rock denies telling Ms. Blizzard or Petitioner that they were fired. He testified that they both walked out of the store on their own accord after the argument. Mr. Rock’s version of the events was corroborated by Mr. Ruscillo, who witnessed the argument. Mr. Ruscillo testified that he heard a lot of yelling, but that he did not hear Mr. Rock tell Ms. Blizzard or Petitioner at any point that they were fired. Petitioner and Ms. Blizzard met with an attorney the Monday after the incident. The following day, Petitioner gave Ms. Blizzard a letter to deliver on her behalf to Respondent’s human resources (HR) Department. The letter, which Petitioner testified that she wrote on the day that she was fired by Mr. Rock, stated that Petitioner “was sexually harassed and discriminated against based on being a white female by my manager, Jeff Rock”; that Petitioner “previously reported numerous incidents of this discrimination and sexual harassment to upper management”; and that she was fired “as a result of this discrimination and the refusal to put up with Mr. Rock’s sexual advancement.” This letter was the first notice that Respondent had of Petitioner’s claims of sexual harassment or discrimination by Mr. Rock. Petitioner considers herself to be a very good salesperson, but Mr. Rock described her as an “average” salesperson. Mr. Rock’s characterization of Petitioner’s job performance is corroborated by Petitioner’s acknowledgement that her sales figures were lower than those of at least Mr. Ruscillo, Ms. Blizzard, and Ms. Howard. Petitioner complained to another manager, Al Sierra, about Mr. Rock’s management style at some point in mid-September 2006. She did not complain to Mr. Sierra or anyone else in Respondent’s upper management about the sexual comments allegedly made by Mr. Rock. Indeed, as noted above, the first time that Petitioner complained about the sexual comments allegedly made by Mr. Rock was in a letter that she provided to Respondent’s HR Department several days after she was fired and after she met with a lawyer. Petitioner testified that she did not complain about the sexual harassment by Mr. Rock because he threatened to fire any salesperson who complained to upper management about the way that he ran the store and because she did not know who to complain to because she never received an employee handbook. There is no evidence that Mr. Rock fired any salesperson for complaining about how he ran the store, and he denied making any such threats. He did, however, acknowledge that he told the salespersons that they were all replaceable. Mr. Rock’s testimony was corroborated by Mr. Ruscillo and Ms. Howard, who were at the sales meetings where Petitioner and Ms. Blizzard claim that the threats were made. The training that Petitioner received when she started with Respondent was supposed to include a discussion of Respondent’s policies and procedures, including its policy against sexual harassment. The trainer, Kit Royal, testified that he remembered Petitioner attending the week-long training program and that the program did include a discussion of the sexual harassment policy and other policies and procedures. Petitioner, however, testified that no policies and procedures were discussed during the training program. Petitioner was supposed to have received and signed for an employee handbook during the training program. No signed acknowledgement form could be located for Petitioner, which is consistent with her testimony that she never received the handbook. The fact that Petitioner did not receive the employee handbook does not mean that the training program did not include discussion of Respondent’s sexual harassment policies. Indeed, Petitioner’s testimony that the training program did not include any discussion regarding salary and benefit policies (as Mr. Royal testified that it did) and that she was never told what she would be paid by Respondent despite having given up another job to take the job with Respondent calls into question her testimony that the sexual harassment policy was not discussed at the training program. Petitioner was aware that Respondent had an HR Department because she met with a woman in the HR Department named Helen on several occasions regarding an issue that she had with her health insurance. She did not complain to Helen about the alleged sexual harassment by Mr. Rock, but she did tell Helen at some point that Mr. Rock “was being an ass” and “riding her,” which she testified were references to Mr. Rock’s management style not the alleged sexual harassment. Petitioner collected employment compensation of $272 per week after she left employment with Respondent. Petitioner testified that she looked for jobs in furniture sales and car sales while she was collecting unemployment, but that she was unable to find another job for approximately three months because of the slow economy at the time. She provided no documentation of those job-search efforts at the final hearing. Petitioner is currently employed by Art’s Shuttle. She has held that job for approximately nine months. Petitioner drives a van that takes cruise ship passengers to and from the airport. The record does not reflect how many hours per week Petitioner works at Art’s Shuttle, but she testified that she works seven days a week and earns approximately $500 per week. No written documentation of Petitioner’s current income was provided at the final hearing. Respondent has a “zero tolerance” policy against sexual harassment according to its president, Sam Pak. He credibly testified that had he been aware of the allegations of sexual harassment by Mr. Rock that he would have conducted an investigation and, if warranted, done something to fix the problem. The policy, which is contained in the employee handbook, states that Respondent “will not, under any circumstances, condone or tolerate conduct that may constitute sexual harassment on the part of its management, supervisors, or non-management personnel.” The policy defines sexual harassment to include “[c]reating an intimidating, hostile, or offensive working environment or atmosphere by . . . [v]erbal actions, including . . . using vulgar, kidding, or demeaning language . . . .” Mr. Pak agreed that the allegations against Mr. Rock, if true, would violate Respondent’s sexual harassment policy. The employee handbook includes a “grievance procedure” for reporting problems, including claims of sexual harassment. The first step is to bring the problem to the attention of the store manager, but the handbook states that the employee is “encouraged and invited to discuss the problem in confidence directly with Human Resources” if the problem involves the manager. Additionally, the handbook states in bold, underlined type that “[a]nyone who feels that he or she . . . is the victim of sexual or other harassment, must immediately report . . . . all incidents of harassment in writing to your manager or the store manager, or if either person is the subject of the complaint, to the president.” Mr. Pak had an office at the Melbourne store. He testified that he had an “open door policy” whereby employees could bring complaints directly to him. The only complaint that Mr. Pak ever received about Mr. Rock was from another salesperson, Rod Sherman, who complained that Mr. Rock was a “tough manager.” Mr. Pak did nothing in response to the complaint and simply told Mr. Sherman that different managers have different management styles.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 26th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 26th day of November, 2007.
The Issue Whether Carl G. Bott, Jr., is guilty of immorality, misconduct in office and/or gross insubordination?
Findings Of Fact During the period of time at issue in this proceeding, Carl G. Bott, Jr., was an employee of the School Board of Putnam County under a continuing contract. Mr. Bott has been employed as a teacher for approximately ten years. Mr. Bott was a teacher and Dean in the County Alternative School Program during the 1984-1985 through 1988-1989 school years. During the 1984-1985 and the 1985-1986 school years the County Alternative School Program was located on the second floor of the Campbell Administrative Building. The County Alternative School Program was renamed the District Opportunity Center and was located on the Davis Lake Road side of the campus of E. H. Miller School during the 1986-1987, school year. Mr. Bott continued to work at the District Opportunity Center during the 1987-1988 school year and part of the 1988-1989 school year. During the 1984-1985 through 1988-1989 school years Diane Wilkinson was employed as a secretary for the County Alternative School Program and the District Opportunity Center. Mr. Bott was her immediate supervisor and prepared Ms. Wilkinson's evaluations during this period of time. During the 1984-1985 and 1985-1986 school years Mr. Bott was in charge of the County Alternative School Program. During the 1984-1985 and the 1985-1986 school years Mr. Bott made comments to Ms. Wilkinson of a sexual nature. In particular, Mr. Bott told Ms. Wilkinson that she had a nice ass, but that [her] stomach needed to be tightened up; and he also made statements in regard to women's nipples showing through their clothes, that's a real turn on to him, for women to get cold on for their nipples to show through their clothing.." Page 199, lines 113-17, Transcript of Administrative Hearing. Sometime during the 1985-1986 school year Mr. Bott intentionally placed his hand on Ms. Wilkinson's right breast without permission, warning or provocation. Mr. Bott's act was a sexual advance toward Ms. Wilkinson. This incident occurred while Mr. Bott and Ms. Wilkinson were in Ms. Wilkinson's small office discussing business. When Mr. Bott touched Ms. Wilkinson, she said nothing and looked at him with a shocked expression. When Ms. Wilkinson did not respond to his advance, Mr. Bott removed his hand and left the room. Ms. Wilkinson did not report the incident to anyone. Nor was anything said about the incident by Ms. Wilkinson or Mr. Bott. Approximately six to nine weeks before the County Alternative School Program was moved to Davis Lake Road, Mr. Bott came into Ms. Wilkinson's office where she was typing, walked up behind her and reached over her shoulders and intentionally touched her breast from behind without permission, warning or provocation. Again, Ms. Wilkinson said nothing. She looked at him with a shocked expression and Mr. Bott then removed his hand and left the room. On the same day that the second incident occurred, Ms. Wilkinson called Evie Shellenberger, the Director of Personnel for the Petitioner, and set up an appointment for the next day to report the incident. The day after the second incident, Ms. Wilkinson told Mr. Bott that I can have your teaching certificate lifted for sexual harassment if you ever touch me again . Page 205, lines 9-10, Transcript of Administrative Hearing. Mr. Bott told Ms. Wilkinson that he realized that she was correct, he apologized to her and promised it would never happen again. Ms. Wilkinson kept her appointment with Ms. Shellenberger and reported both incidents. She did not, however, file a sexual harassment charge against Mr. Bott. Ms. Wilkinson did not file charges because Mr. Bott had apologized and promised not to touch her again and she did not want to harm his family or his career. Ms. Wilkinson was concerned for Mr. Bott because he had a son who had been sick and Mrs. Bott had had cancer. After moving to Davis Lake Road, Mr. Bott continued to make inappropriate comments to Ms. Wilkinson of a sexual nature. The frequency of the statements increased, especially during the 1987-1988 school year. In particular, Mr. Bott made the following statements to Ms. Wilkinson: That he had been a virgin until he was 21 years old, and therefore "he needed to get all the sex he could possibly get to make up for lost time." That he masturbated in the shower with hand cream. That he had had a wet dream about her and he had to get up and clean himself up and clean the sheets up. That "he had had a dream about [them] being in the back seat of a car and that [they] had made love, and that he had climaxed all over the bed, and that it seemed so real to him that he could even smell [her] cologne." That he had calluses on the palms of his hands from masturbating. That "he could really satisfy me [Ms. Wilkinson] sexually without his teeth, and that he knew how -- he could gum me [Ms. Wilkinson] to death, and that he really knew how to satisfy women without his teeth in." That his wife "was so fat and so ugly that he had a hard time making love to her, and that he had to really fantasize when he was having sex with her, to pretend he was with someone else instead of her, because she had dimples in her ass and she was so fat and so overweight it was like she had two sets of breasts, one in the front and one in the back behind her armpit in regard to a fatty kind of area on her." That "I intend to have you [Ms. Wilkinson] in bed before we go our separate ways." That he had made love with a woman (not his wife) in his boat and he had been afraid that he was not going to be able to get his clothes on before the Florida Marine Patrol caught him. That he needed "a piece of ass from someone 18 to 21 years old because he didn't want to get too old to go out and enjoy it." The more explicit sexual statements Mr. Bott made to Ms. Wilkinson were not made continuously. There would be periods of time when he would not make such statements. There were, however, periods of time when the types of statements quoted above would be made and then he would be quiet again. Ms. Wilkinson did not ask Mr. Bott to stop making the statements. She also did not tell anyone about the statements Mr. Bott was making to her. In approximately March, 1988, Ms. Wilkinson did talk to Rita Moody, president of the union to which Ms. Wilkinson belonged, about changing positions and informed her of Mr. Bott's behavior. There were not any positions available, however, and Ms. Moody suggested that Ms. Wilkinson should not "open a can of worms" by reporting the incidents. Despite the incidents related above involving Mr. Bott and Ms. Wilkinson, Ms. Wilkinson and Mr. Bott were friendly to each other and discussed personal matters as well as matters related to their work. They ate lunch with each other on occasion and Mr. Bott gave Ms. Wilkinson rides to and from her home and the office on occasion. Ms. Wilkinson also actively assisted Mr. Bott in protecting the program they worked in and assisted him in remaining with the program because she considered him an asset to the program. At the beginning of the 1986-1987 school year, Jean Herring was assigned as an Assistant Principal in charge of the District Opportunity Center. Ms. Herring was Mr. Bott's immediate supervisor during the 1986-1987 school year. Because Mr. Bott had previously been in charge of the program, he had some resentment about Ms. Herring's position. During the Spring of 1988, Ms. Herring received a complaint from Dana Hales, a female student at the District Opportunity Center. Ms. Hales alleged that Mr. Bott was using inappropriate language and discussing inappropriate topics with female students. (See findings of fact 23 and 24). Ms. Hales indicated that she felt uncomfortable in one-on-one counseling sessions with Mr. Bott. Based upon this complaint, Ms. Herring directed Mr. Bott not to conduct any one-on-one counseling sessions with female students without including Ms. Herring in the session. The next morning, Ms. Herring discovered Mr. Bott conducting a one-on-one counseling session with a female student in violation of her directive to him. Ms. Herring did not see Mr. Bott violate the directive again. Dana Hales complained to Ms. Herring because of statements Mr. Bott made to her of a sexual nature. Those statements included a statement "that he had an affair with a young girl from where he came from before and that he wished he could find a young girl here that he could trust that ... would not tell anyone." Page 142, lines 5-8, Transcript of Administrative Hearing. Mr. Bott also made comments to Ms. Hales concerning his wife. Mr. Bott told Ms. Hales that his wife "was ugly and that she was fat, and in the morning like in the daylight that she was very ugly and unattractive." Page 142, lines 15-17, Transcript of Administrative Hearing. Tonnette Sanders moved to Putnam County after the 1987-1988 school year had begun. Therefore, she was placed in the District Opportunity Center. She was not placed there for disciplinary reasons. Ms. Sanders was approximately 17 or 18 years of age. Mr. Bott was not one of Ms. Sanders' teachers. Mr. Bott and Ms. Sanders did become friends, however, and Mr. Bott provided counseling to Ms. Sanders. While walking into an office together, Mr. Bott patted Ms. Sanders on her buttocks. Ms. Sanders believed that the touching was a sexual advance and it made her feel uncomfortable. Ms. Sanders did not return to school for several days after the incident because she was upset. When she did return, Mr. Bott apologized to her for his action. Mr. Bott also told Ms. Sanders that she was the nicest looking black girl he had had ever seen." Cynthia Bartrum Schmurmand attended the District Opportunity Center during the 1986-1987 school year. Ms. Schmurmand was 14 or 15 year of age at the time. Mr. Bott provided GED preparation training approximately 45 minutes a day to Ms. Schmurmand and other female students. Initially there were four or five students who attended the sessions. Eventually, however, only Ms. Schmurmand and another student, Wendy Parker, attended the sessions. Mr. Bott did not always provide instruction to Ms. Schmurmand and Ms. Parker. Instead, Mr. Bott, Ms. Schmurmand and Ms. Parker would just talk. During these conversations, Mr. Bott told Ms. Schmurmand and Ms. Parker that he had been out with girls their age. He also told Ms. Schmurmand and Ms. Parker that they could get older and more mature men. Mr. Bott offered to take Ms. Schmurmand and Ms. Parker out on his fishing boat with the permission of their parents. Mr. Bott told them that "they would get some beer" even though Mr. Bott knew that they were not of legal drinking age. Mr. Bott allowed Ms. Schmurmand and Ms. Parker to smoke cigarettes in his office during at least one of the sessions. Mr. Bott provided the cigarettes. The use or possession of tobacco or tobacco products on school grounds was prohibited. Mr. Bott warned the students that if they ever let anyone know that they had been allowed to smoke, he would get into trouble and so would they. In addition to Mr. Bott's duties at the District Opportunity Center, he also taught health classes until December 1988 and for approximately three years preceding the 1988-1989 school year at the St. Johns River Community College. The courses taught by Mr. Bott were extra-credit classes taken by senior high students who needed additional credits to graduate from high school. During the Fall of 1988, Mr. Bott's health class was first aid. The class met from 3:30 p.m. until 6:00 p.m. on Monday and Wednesday. The students who attended the class were from Palatka High School and were 17 years of age or older. During the Fall of 1988, Mr. Bott made inappropriate statements to, or engaged in inappropriate conduct in front of, students in his first aid class as follows: Mr. Bott told students that his wife used to have a "nice ass" and "boobs" or "big melons", and now she is "fat and ugly." Mr. Bott wore a pin during class on his shirt which had the following words printed on it: "Sex Cures Headaches." Mr. Bott wore the pin for approximately thirty minutes. When a student asked about the pin, Mr. Bott took it off and indicated that he had forgotten he had it on. While discussing body lice, Mr. Bott told the class that he had once had "crabs." He indicated that he did not know how he had gotten them, implying that he had been involved with several different women. Mr. Bott cussed in front of the students. He used the words "dam", "ass", "bitch", "God damn" and "fuck." On one occasion Mr. Bott, while waking a student up, told the class that males have sexual fantasies every eleven minutes. Mr. Bott, while discussing the subject of drugs, told the class that marijuana makes women want to have sex or that smoking marijuana makes sex better. Mr. Bott told the students a story about a boy and girl who were riding in an automobile with the gear shift located on the floor of the automobile between the two front seats. Mr. Bott indicated that the boy was driving and the girl was sitting on a pillow between the two front seats. Mr. Bott told the class that the automobile was involved in a wreck or stopped suddenly for some other reason and that the gearshift "went up the girl" or that the "gearshift jammed up in her" and that "she took it whole." Mr. Bott also told the students a story about two couples who were riding in an automobile. Mr. Bott indicated that one couple was in the back seat of the car and they were "making out." Mr. Bott then told the class that the automobile was involved in a wreck and the boy "bit the girl's nipple off." He also said that the boy "swallowed it" and that the nipple was "a beautiful one." Mr. Bott also told this story during the 1987-1988 school year. Mr. Bott, while discussing genital injuries, told the class that he knew of a man who had sustained a genital injury. Mr. Bott stated that "his balls swelled up" and that they "were the size of baseballs." Mr. Bott told the class that "oysters put lead in the pencil." During the 1987-1988 school year, Dana Hales attended Mr. Bott's health class. Ms. Hales was walking to her automobile after one class when Mr. Bott told her that she "had the [tits or breasts] of a 25 year old." Mr. Bott also told Ms. Hales during the 1987-1988 school year that she would "stand out more" if she lost some weight. Mr. Bott was referring to Ms. Hales' chest when he made this statement. Vanessa Armster was an eighteen-year-old student at Palatka High School during the Fall of 1988. Ms. Armster attended Mr. Bott's health class during the Fall of 1988. In November, 1988, Ms. Armster missed four classes, in violation of Mr. Bott's policy that students could only miss three or less classes in order to pass the class. Mr. Bott, in deviation from his policy concerning absences, told Ms. Armster that she could make up her fourth absence by coming to his classroom at the District Opportunity Center after school the day after her fourth absence. Ms. Armster had a friend take her to the District Opportunity Center at 3:00 p.m. Mr. Bott gave her work to perform. Most of the time that Ms. Armster was at the District Opportunity Center no one was present in the room with her except Mr. Bott. While Ms. Armster was performing the work given to her by Mr. Bott, Mr. Bott made the following comments to her: Mr. Bott told Ms. Armster that he was scared for her to come to the District Opportunity Center because "he didn't know how he was going to react." Mr. Bott asked Ms. Armster "are those for real?" Mr. Bott was referring to Ms. Armster's breasts. Ms. Armster took these comments to be sexual in nature. Ms. Armster, as a result of Mr. Bott's comments, felt uncomfortable and scared in a one-on-one situation with Mr. Bott. The person who was suppose to give Ms. Armster a ride home did not arrive when she was ready to leave. Mr. Bott offered to give her a ride and Ms. Armster accepted. As Mr. Bott and Ms. Armster left the building, Mr. Bott noticed a football team practicing nearby and said that "someone might think something." Mr. Bott and Ms. Armster got into his pick-up truck. While in the truck Mr. Bott was telling Ms. Armster something about a heart attack and was referring to an area of his chest or side. While trying to indicate a location on his body, Mr. Bott moved his hand toward Ms. Armster. Ms. Armster jumped back when Mr. Bott moved his hand toward her. When Ms. Armster jumped, Mr. Bott said "oh, you just thought I was going to touch there" and intentionally put his hand on Ms. Armster's right breast. When Mr. Bott touched Ms. Armster she jumped back and he laughed. Following this incident, Mr. Bott dropped Ms. Armster off. Mr. Bott's actions have affected the way in which students view him as a teacher. In addition to the effects of Mr. Bott's actions already noted, Mr. Bott's actions had the following effects: At least two students perceived that Mr. Bott looked at Ms. Armster differently than he looked at other students; and Various students in Mr. Bott's health class found many of the sexual statements and incidents to be inappropriate and, in some cases, offensive and embarrassing. Mr. Bott's preoccupation with sexual matters was further evidenced by the following incidents which occurred during the period of time at issue in this proceeding: Mr. Bott told Beverly Emmons, a secretary at E. H. Miller School, that he like the blouses that Debbie Thomas, a teacher's aide, wore because her nipples stuck out. Mr. Bott made a comment about Debbie Thomas nipples being hard while she was lifting weights. This comment was made in front of Ms. Thomas and Diane Alred, an adaptive physical education teacher. Mr. Bott also patted Ms. Thomas on the buttocks. Mr. Bott was suspended with pay by the Superintendent of the Petitioner on December 2, 1988. At a regularly scheduled meeting of the Petitioner on December 5, 1988, Mr. Bott was charged with immorality, misconduct in office and gross insubordination and was suspended without pay. By letter dated December 5, 1988, Mr. Bott requested a formal administrative hearing.
Conclusions The District School Board of Putnam County hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order. Based on the foregoing, and the recommendation made by the Hearing Officer in the above styled case, it is ADJUDGED that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Florida Statutes Section 231.36(4)(c) and, accordingly, his suspension without pay from December 5, 1988 through January 5, 1990 is affirmed; it is further ADJUDGED that Carl G. Bott, Jr. is dismissed from his employment with the District School Board of Putnam County effective the date of this Order. DONE AND ORDERED this 12th day of January, 1990, in Palatka, Florida. District School Board of Putnam County Elaine Murray, Chairman
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case finding that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Section 231.36(4)(c), Florida Statutes, and dismissing him from his employment with the Petitioner. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0572 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-4, 34. 2 39. 3 40. 4 41. 5 42. The last two sentences are cumulative and unnecessary. 6 See 42-44. 7 Hereby accepted. 8 44. Not relevant to this proceeding. See 50. The last sentence is not supported by the weight of the evidence. 11 45. 12 46. 13 47. 14 49. 15-27 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 28 Hereby accepted. 29a 36b. 29b 36f. 29c 36j. The last sentence is not supported by the weight of the evidence. 29d 36i. 29e 36a. 29f 36c. 29j 36g and h. 29h 36e. 29i Not supported by the weight of the evidence. 29j 36d. 30 50. 31-33 See 50. These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 36h, 37-38. The statements were made, however, in 1987 and not in 1988. Not supported by the weight of the evidence. Hereby accepted. 37 2 and 22. 38 22. 39 23. 40 22. Hereby accepted. 22 and hereby accepted. 43 21-22. 44 22. 45 Hereby accepted. 46-49 Not relevant to this proceeding. 50 Hereby accepted. 51-54 Not relevant to this proceeding. 55-56 25. 57 26. 58-59 27-28. 60 29. 61 30. 62 29-30. 63 See 31. 64 32. 65-66 33. 67 Not relevant to this proceeding. 68 31. 69 50. 70 3-5. 71 2 and 5. 72 5. 73 7. 74 Hereby accepted. 75-77 8. Ms. Wilkinson did engage in personal and sexual conversations with Mr. Bott. 78 8-9. 79 10. 80 11. 81 11-12. 82 Hereby accepted. 83 13. 84 14. 85 15. 86 16. 87 16-17. 88 18. 89 19 and hereby accepted. 90-91 Hereby accepted. 92 51. The last two sentences of 92b are rejected as hearsay. 93-101 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 102-104 Hereby accepted. Mr. Bott's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 50. Not relevant to this proceeding. 34 and 36 c and f. 35 and hereby accepted. See 36a. Taken into account in the weight that was given to the testimony concerning the incidents they testified about. 7-9 See 50. The last sentence of proposed finding of fact 7 and all of proposed findings of fact 8 and 9 constitutes a summary of testimony. This testimony was considered in making relevant findings of fact. 10-11 Not relevant to this proceeding. Not supported by the weight of the evidence. Hereby accepted. Taken into account in the weight that was given to the testimony concerning this incident. 15-17 See 50. 18 Hereby accepted. 19-20 See 50. Although it is true that Ms. Walker testified in this manner, the testimony was rejected. Not relevant to this proceeding. See 50. 24 2. 25 See 25-28 and 50. 26 Not supported by the weight of the testimony. 27-28 See 33. 29 37. 30 37-38. 31 Not relevant to this proceeding. 32-33 This testimony was rejected. 34-35 Hereby accepted. 36 22. 37-38 Hereby accepted. Not relevant to this proceeding. 20. The last sentence is not relevant to this proceeding. Not relevant to this proceeding. 42 5. 43-44 See 17-19. Ms. Wilkinson's testimony about not discussing personal matters with Mr. Bott was based upon her definition of "personal matters." 45 Not relevant to this proceeding. 46 19. 47-48 Not relevant to this proceeding. Hereby accepted. Not relevant to this proceeding. COPIES FURNISHED: Joe H. Pickens, Esquire Post Office Box 2128 Palatka, Florida 32078-2128 Lorene C. Powell, Esquire FEA/United 208 W. Pensacola Street Tallahassee, Florida 32399-1700 Mr. C. L. Overturf Superintendent Putnam County School Board 200 South Seventh Street Palatka, Florida 32177 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 7th day of August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
