Findings Of Fact Respondent is a registered real estate salesman and between the period of May 10, 1973 and May 15, 1974, he was registered with the Florida Real Estate Commission as a salesman with International Real Estate Coordinators, Inc., Miami, Florida (Petitioner's Exhibit 7). In the summer of 1973, Respondent was introduced to a land developer named Armand Archer by a realtor in Fort Lauderdale. Through this meeting, Respondent learned of a parcel of land located in Santa Rosa County consisting of about 8,000 acres which was owned by a joint venture consisting of the Santa Rosa Development Corporation, a Florida Corporation controlled by Mr. Archer, and the Charter Development Corporation of Jacksonville, Florida. Respondent became interested in the potential of the land for development and visited Archer in Pensacola in order to look over the property. At that time, he gave Archer his card as a salesman for International Real Estate Coordinators, Inc. Archer thereafter gave the Respondent a verbal open listing to sell the land. Other listings had been or were later given to other real estate firms. According to the Respondent, the arrangement with Archer was that he would pay the Respondent $500.00 a week as salary for services to be rendered in promoting the sale of the land, plus 20 percent of the stock in the Santa Rosa Development Corporation. On the other hand, Archer testified that the Respondent was simply acting as a salesman for International Real Estate Coordinators, Inc., and that he advanced Gomer some $6,800 during the period July, 1973 to January, 1974 for expenses and as a draw upon any future commissions if the Respondent was successful in selling the tract of land. Archer conceded, however, that he had had discussions with the Respondent to the effect that if he eventually made the sale, he might be brought into the company. Archer maintained that Respondent was never an employee of Santa Rosa Development Corporation even though the Respondent worked full-time out of the offices of that corporation. During this period, Respondent exerted great efforts in attracting prospective purchasers for the real estate in question, arranged for an appraisal of the land, assisted in designing a plan for development of the property and publishing a brochure, and arranged for financing by Bankers Trust Company of New York. Respondent devoted approximately eight months to these endeavors in behalf of Mr. Archer and the Santa Rosa Development Corporation (Testimony of Marlene Archer, Armand Archer, Bernard Gomer; Petitioner's Composite Exhibit 1; Respondent's Exhibit 8). Although Respondent denied actively working for International Real Estate Coordinators, Inc. during the period of time he was pursuing the interests of Santa Rosa Development Corporation, the evidence shows that he did continue to represent International Real Estate Coordinators, Inc., to some degree during that time. In August, 1973, Mr. Richard E. Grant, the real estate broker for International Real Estate Coordinators, Inc. terminated his association with that corporation. Although Mrs. Archer testified that she was aware of this fact and had urged the Respondent to secure another broker during the fall of 1973, the Respondent disclaimed knowledge of Mr. Grant's action until January, 1974, after discussions with representatives of the Florida Real Estate Commission. He was instrumental in then having Mr. Archer become the President of International Real Estate Coordinators, Inc., in January, 1974, for a brief period of time for the reason of securing a new broker in order that any real estate commission could be shared by the two corporations if a remaining portion of the land in Santa Rosa County was purchased. To this end, Mr. Archer as president of International Real Estate Coordinators, Inc., gave permission to Mr. Manuel Grossman to serve as an acting broker for that corporation and Mr. Grossman proceeded on January 11, 1974 to apply to the Florida Real Estate Commission for a multiple certificate as broker for International Real Estate Coordinators, Inc. Respondent, on January 12, 1974, wrote to the Florida Real Estate Commission advising that he had only recently learned of Mr. Grant's departure from the corporation, and that a new broker had been secured. (Testimony of Marlene Archer, Armand Archer; Respondent's Composite Exhibits 3, 4 & 5). In late January, 1974, Respondent and Archer had a falling out which apparently stemmed from Respondent's discovery that a civil lawsuit had been filed against Archer by others in federal court concerning the Santa Rosa County land. By a letter, dated February 1, 1974, Archer advised Respondent that he should remove himself and his possessions from the office at his earliest opportunity. Respondent thereafter on May 15, filed suit against Armand Archer and the Santa Rosa Development Corporation in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, asking damages for failure of the defendants to abide by their agreement to give him a 20 percent equity interest in Santa Rosa Development Corporation for services rendered and to be rendered. The complaint in this lawsuit was amended in February, 1975, to recite that Archer had hired the Respondent on or about May 10, 1973 to be a full-time employee of Santa Rosa Development Corporation at a weekly salary of $500.00 as compensation for services to be rendered to the corporation and, that he was so employed for a period of 36 weeks, thereby earning a total salary of $18,000.00 of which was due and owing the sum of $14,000.00 as back salary Additionally, the amended complaint alleged that Respondent was to receive as compensation for his services to be rendered to the Corporation 20 percent of its stock to be conveyed to him by Archer and that, despite numerous requests, Archer had refused to convey the said stock to him. Respondent claimed at the hearing that he filed this suit upon the advice of his attorneys who had provided him with bad advice (Testimony of Gomer; Petitioner's Exhibits 2-6; Respondent's Exhibit 6). Official records of the Florida Real Estate Commission do not show Santa Rosa Development Corporation as a registered corporate real estate broker or that during the period May 10, 1973 to May 15, 1974 Respondent registered Santa Rosa Development Corporation as his employer (Petitioner's Exhibit 7).
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
Conclusions The complaint alleges, the Respondent admits and I find that it is a public employer within the meaning of Section 447.203(2) of the Act. The complaint alleges, the Respondent admits and I find that the Charging Party is now and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. The complaint alleges, the Respondent admits and I find that on or about December 2, 1976, the Public Employees Relations Commission issued a certification certifying the Charging Party as the exclusive bargaining representative for the public employees in the following unit: INCLUDED: Patrolmen, Patrolmen 1st class, Master Patrolmen, Evidence Technician, and Traffic Enforcement officer. EXCLUDED: All other employees of the Ocala Police Department including Sergeants who are shift commanders. The pleadings establish that during 1972, the Respondent, by and through its City Council, promulgated a City Ordinance (Chapter 13B of the Ocala Code) which regulates labor relations for its employees. Chapter 13B has remained in full force and effect and has never been approved by the Public Employees Relations Commission pursuant to Section 447.603, Florida Statutes (1975). Among other things, the ordinance provides that: "Solicitation for membership in a labor organization or the collection of dues therefor, or other internal affairs of a labor organization shall not be con- ducted by employees on working time, or on city premises. Labor organization literature, pamphlets, handbills and the like shall not be distributed in the work areas of the city premises at any time." (See Section 13B-8.) A summary review of the parties' joint exhibits demonstrate that Chapter 13B attempts to regulate nearly all aspects of a collective bargaining relationship. In PERC v. The City of Naples, 327 So.2d 41 (Fla. 2nd DCA 1976) the court determined that an entity may not assume jurisdiction of a public employee bargaining procedure until PERC has approved that procedure. In this case, no such approval has been granted by PERC as it is required pursuant to 447.603, Florida Statutes (1975). Further comparison of the provisions of Chapter 13B of the Ocala Code and Chapter 447, Florida Statutes, lends support to the conclusion that Respondent's employees' collective bargaining rights are not on a parity with those rights guaranteed them by Chapter 447, Florida Statutes. For example, 13B-1(c) of the ordinance defines "supervisor" and section 13B-1(b) defines "employee". Supervisors are excluded from the definition of employee and thereby from collective bargaining whereas Chapter 447 contains no definition of supervisor and the Commission consistently determines that supervisors are entitled to protections guaranteed by Chapter 447. See CWA and Hillsborough County Hospital and Welfare Board, case no. 8H- RC-752-0175, 2 FPER 46 (1976); Hillsborough County PBA and Florida State Lodge, FOP and City of Tampa, 2 FPER 72 (1976). Additional distinctions are found respecting the definition of confidential employees and the determination by despondent in its code of "bargainable" subjects. It was noted that Respondent does not consider itself required to negotiate with respect to wages, hours and terms and conditions of employment. See the May Department Stores Co., 191 NLRB 928 (1972). While Chapter 447 vests all authority respecting appropriate unit placement of employees with PERC, Chapter 13B-2(b)(1) authorized Respondent's City Manager to make such determinations. A further examination of Chapter 13B of the Ocala Code reveals that it makes a striking distinction between the authority guaranteed employees respecting the proper bounds for solicitation-distribution rules. Chapter 447.509, Florida Statutes, provides in pertinent part that during an employee's lunch hour, an employer may not restrict solicitation and distribution whereas Chapter 13B of the Respondent's Code restricts solicitation and distribution during working time and on the premises of the City, making no exception or distinction for lunch breaks and therefore Respondent's maintenance of such provisions amounts to unlawful interference, restraint and coercion within the meaning of Section 447.501(1)(a), Florida Statutes. Although the Respondent defends in part on the fact that no employee had been disciplined for violating the above referenced rules, legions of cases have held that the maintenance, without enforcement of an overly broad solicitation-distribution rule constitutes an unfair labor practice. (See for example Essex International, Inc., 211 NLRB 934, 86 LRRM 1411; Dreis and Krump Manufacturing, Inc., 221 NLRB 309, 90 LRRM 1647 (1975).
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to: A. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by the Commission, a notice substantially providing: that it will not in any like or related manner interfere with, restrain, or coerce its employees in the exercise of any of the rights guaranteed them under the Florida Public Employees Relations Act; that it will upon request of the above-named employee organization, rescind the applicability of Chapter 13B of the Ocala Code as it relates to the regulation of organizational rights of employees, without having been first approved by the Commission. RECOMMENDED this 30th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Seymour H. Rowland, Jr., Esquire 105 Legal Center 19 N.W. Pine Avenue Ocala, Florida 32670 Jane Rigler, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue Miami, Florida 33142
The Issue Whether Respondent, JR Conway Enterprises, LLC (Respondent), violated the Florida Civil Rights Act of 1992, section 760.10(7), Florida Statutes,1 by terminating Petitioner, Tina Garner (Petitioner), in retaliation for her reporting sexual harassment.
Findings Of Fact Respondent, JR Conway Enterprises, LLC, owns a number of businesses. Jeff Conway is Respondent’s managing member. Petitioner was hired by Respondent near the end of July 2018, to work as a bookkeeper doing payroll and accounts for Respondent’s real estate office known as Sunshine State Deals. In September 2018, Respondent opened a Smoothie King in the Spring Hill, Florida area. As the date for opening the Smoothie King grew closer, Petitioner took on more responsibilities and helped open and operate that store. Morgan Katocs was hired in September 2018 to work at the Smoothie King. Ms. Katocs was 17 years old at the time she was hired. Ms. Katocs brother, Hunter McGhee, was also hired to work at the Smoothie King. The Smoothie King store opened on September 18, 2018. Petitioner had no authority to hire employees for Respondent. Apparently, all hires to work at the Smoothie King were made by Brandon Berlinrut, who was a friend of Jeff Conway and recruiter for Respondent. While Petitioner had no hiring authority, during the time she worked at the Smoothie King, she supervised Ms. Katocs. As the Smoothie King was opening, there was work that needed to be completed. Respondent hired his friend, Constantine Tremoularis, as an independent contractor to install security cameras, work on the point of sale, and conduct various work at the location. Mr. Tremoularis was given access to areas at the Smoothie King store where only employees were permitted. While working at the Smoothie King, Ms. Katocs had physical limitations due to a back condition caused by a car accident. When Ms. Katocs requested assistance in lifting a mop bucket, Mr. Tremoularis responded, “I bet men like to say that they broke your back,” in a context inferring injury during sex. Ms. Katocs interpreted the comment as an unwelcome sexual comment and was offended and upset. Ms. Katocs reported the unwanted sexual comment to Ms. Garner within an hour after the comment was made. Later, while Petitioner was at Respondent’s real estate office, both Ms. Katocs and her mother called her on the telephone from the Smoothie King office and asked her to set up a meeting with Mr. Conway to discuss the unwanted sexual comment. They both expressed a desire for Petitioner to be present during the meeting. Ms. Garner told Mr. Conway of Ms. Katocs and her mother’s desire to have a meeting with him to discuss the unwanted sexual comment, and of their request that Petitioner be present at the meeting. Mr. Conway met with Ms. Katocs and Ms. Katocs’s mother on October 4, 2018, to discuss the incident. Mr. Conway did not invite Petitioner and Petitioner did not attend the meeting. Although he did not tell Ms. Katocs or her mother, the reason that Mr. Conway did not want Petitioner in the meeting is because he had already decided to terminate Petitioner’s employment for reasons unrelated to the reported unwanted sexual comment from Mr. Tremoularis. At the meeting, Ms. Katocs, her mother, and Mr. Conway discussed the unwanted sexual comment. During the meeting, Mr. Conway agreed to make changes and provide sexual harassment training for Respondent’s employees. On October 4, 2018, the day after the meeting between Ms. Katocs, her mother, and Mr. Conway, Mr. Tremoularis apologized to Ms. Katocs. Although he was allowed to stay at the Smoothie King location from several days to over a week to finish the job, Mr. Tremoularis made no further unwanted sexual comments to Ms. Katocs. On Saturday, October 6, 2018, Mr. Conway called Petitioner on the telephone and advised her that she was terminated. Mr. Conway terminated Petitioner because he perceived her as rude, argumentative, and combative. Mr. Conway also believed that Petitioner was responsible for hiring her daughter, Tina Rowlands, to work at the Smoothie King store even though Petitioner knew that Mr. Conway did not approve of the hire. Mr. Conway’s perceptions of Petitioner’s aberrant behavior were consistent with those observations reported by Karen Stapleton in her testimony at the final hearing. Karen Stapleton, who worked with Mr. Conway’s companies as a consultant and in accounting, worked with and helped train Petitioner at Respondent’s real estate office in September 2018. Ms. Stapleton also observed Petitioner scream at an employee at Respondent’s Smoothie King store. When Mr. Conway terminated Petitioner, he also terminated Petitioner’s daughter, Ms. Rowlands, as well as Petitioner’s daughter’s boyfriend, Jake Fryar. Although Mr. Conway approved of Jake Fryar’s hire, he decided to terminate Mr. Fryar as well because of his association with Petitioner and Petitioner’s daughter. Respondent’s decision to terminate Petitioner was made because of Mr. Conway’s perceptions about Petitioner’s combative behavior and Mr. Conway’s belief that Petitioner was responsible for hiring her daughter. Although in close proximity to the time of Petitioner’s termination on October 6, 2018, Mr. Conway had already decided to fire Petitioner prior to Petitioner’s report of the unwanted sexual comment made to Ms. Katocs and Mr. Conway’s meeting with Ms. Katocs and her mother to discuss the incident. As confirmed by the testimony of a locksmith, who was contacted on September 28, 2018, to change locks on Respondent’s offices and the Smoothie King store, Respondent’s decision to terminate Petitioner was made in late September 2018. Although the locks were not changed until October 6, 2018, the timing of the lock change request and Mr. Conway’s credible testimony confirm that the decision to terminate Petitioner’s employment was unrelated to her report of unwanted sexual comments. Following the October 4, 2018, meeting between Ms. Katocs, her mother, and Mr. Conway, Morgan Katocs continued her employment at the Smoothie King store until she voluntarily left at the end of December 2018. Ms. Katocs testified that she left Smoothie King because, in her view, nothing changed; she felt uncomfortable about remaining employed there, the promised sexual harassment training never occurred, and another employee was making inappropriate sexual remarks to other female employees. Ms. Katocs also did not like a manager that was hired after Petitioner was terminated, who, according to Ms. Katocs, was a bully and abusive. Ms. Katocs further testified that neither she, nor her brother, who was also employed at the Smoothie King, received negative repercussions from her report of the unwanted sexual comment from Mr. Tremoularis. Ms. Katocs’s brother remained employed at the Smoothie King until voluntarily leaving in April 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 9th day of February, 2021, in Tallahassee, Leon County, Florida. S James H. Peterson, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Jeff Conway JR Conway Enterprises, LLC Post Office Box 15389 Brooksville, Florida 34604 William Sheslow, Esquire Whittle & Melton, LLC 11020 Northcliffe Boulevard Spring Hill, Florida 34608 Erik DeL'Etoile, Esquire DeL'Etoile Law Firm P.A. 10150 Highland Manor Drive, Suite 200 Tampa, Florida 33610
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race or gender, engaged in sexual harassment, or retaliated against Petitioner in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2006).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a Caucasian female and filed a complaint of race and gender discrimination, sexual harassment, and retaliation with the Commission. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent operates retail grocery stores in several states, including Florida. The evidence, in its entirety, does not establish a prima facie showing of discrimination or retaliation. Nor does the evidence prove that Petitioner was sexually harassed. Finally, there is no evidence that Respondent engaged in an unlawful employment practice within the meaning of Section 760.10. Respondent first employed Petitioner sometime in July 2003 as an "at-will" employee. No written employment contract has ever existed between the parties. Respondent trained and promoted Petitioner to assistant manager of a grocery store. In April 2005, however, Mr. William Reners, Respondent's regional director of operations (RDO), offered Petitioner an opportunity to become the administrative assistant/secretary in Respondent's Regional Office without a decrease in compensation.2 Petitioner accepted the offer. Petitioner continued her employment as an administrative assistant, and she voluntary resigned on February 5, 2007. Petitioner earned positive performance evaluations and regular raises during her employment. Petitioner's claim of disparate treatment relates to Mr. Cornelius Hicks, an African-American male, who was compensated at a higher level than the compensation Petitioner received. However, Respondent employed Mr. Hicks as a store manager, and Mr. Hicks never voluntarily transferred to a position of administrative assistant. Respondent gave Mr. Hicks an extraordinary raise sometime in late 2006 or early 2007. Mr. Hicks' job performance was "tremendous." Respondent intended the raise as recognition of the duties Mr. Hicks performed as a "floater" manager. The job required Mr. Hicks to manage a number of different stores and to commute long distances, on short notice, and to perform the duties of a floater manager for extended periods. Petitioner first learned of the alleged disparate treatment when Petitioner entered Mr. Reners' office without permission while he was on vacation sometime in January 2007. Petitioner learned of the raise when she discovered relevant paperwork in Mr. Reners' office. Disparate treatment is not evidenced by Respondent's refusal to give Petitioner a merit pay increase after Petitioner earned a Master's of Business Administration (MBA) degree. Mr. David Gerdes, Respondent's vice president for Human Resources, told Petitioner at the time that Respondent did not give raises to employees when they earned college degrees that do not improve an employee's ability to do his/her job. The MBA did not improve Petitioner's ability to carry out her clerical duties as an administrative assistant. Petitioner was aware that Respondent maintains a uniform, written non-discrimination policy and a "zero tolerance" sexual harassment policy. Petitioner knew the policies were posted in all stores and included in annual training sessions. Petitioner knew the company had an "open door" policy by which employees who are not satisfied with answers to their inquiries at the local level are encouraged to contact corporate headquarters in Minnesota. Finally, Petitioner knew that Respondent promptly investigates employees' complaints of discrimination, retaliation, and harassment. Mr. Reners is the individual who allegedly discriminated and retaliated against Petitioner. As the RDO, Mr. Reners is responsible for overall management and operation of the 11 grocery stores in Florida. However, Mr. Reners did not have the authority to discharge full-time employees, including Petitioner. The so-called whistle-blower evidence pertains to various memoranda about store conditions that Petitioner wrote during her employment as an administrative assistant. When Petitioner discussed the issue with Mr. Reners in September 2006, Mr. Reners invited Petitioner to send the memoranda to Mr. John Boogren, Corporate Director of Operations. Mr. Boogren is Mr. Reners' supervisor. Petitioner sent the memoranda to Mr. Boogren. The memoranda discussed what Petitioner thought were poor conditions and operating procedures in Respondent's stores. The evidence of sexual harassment involves uncorroborated allegations by Petitioner that Mr. Tom DeGovanni, a co-worker, patted Petitioner on her head and shoulders, or back, on October 6, 2006. Petitioner complained of the incident, but qualified her complaint by saying that "it was no big deal" and by saying that she did not want the company to take any action. Several days after the alleged incident, however, Petitioner delivered a memorandum to Mr. Reners complaining of the alleged conduct. Respondent investigated the claim of sexual harassment by Mr. DeGovanni in accordance with Respondent's long-standing "zero tolerance" sexual harassment policy. The investigation did not substantiate Petitioner's allegations. Mr. DeGovanni adamantly denied touching Petitioner, there were no witnesses to the alleged event, and, even though Petitioner and DeGovanni were in front of a security video camera at the time of the alleged event, the touching was not on the videotape. Respondent reminded Mr. DeGovanni of the company's policy against sexual harassment, gave Mr. DeGovanni a written warning, and transferred him to another store location so Petitioner would not have contact with him. Mr. Reners notified corporate headquarters of the complaint, the investigation results, and the corrective action. Petitioner received a satisfactory performance evaluation, a wage increase, and a bonus in December 2006, after her complaint about DeGovanni. Mr. Reners knew of and approved the evaluation, raise, and bonus and could have stopped them if he had wished to do so. Petitioner resigned her employment as Respondent's administrative assistant/secretary on two occasions prior to February 5, 2007. Although Mr. Reners could have accepted both of the prior resignations, he telephoned Petitioner and persuaded her to resume her employment without penalty. However, Mr. Reners warned Petitioner after the second resignation that, if she resigned again, he would accept the resignation. Mr. Reners was on vacation during the week of January 29, 2007. Petitioner had no communication with Mr. Reners during that week. On Saturday, February 3, 2007, Petitioner prepared a letter of resignation and resigned on February 5, 2007. The psychic that Petitioner consults had previously told Petitioner of an impending job termination. Mr. Reners returned from vacation on Monday, February 5, 2007, and commenced a meeting with two other employees to discuss renovations at Respondent's store in Labelle, Florida. Petitioner thought she should be included in the meeting and knocked on the door to the meeting room. Petitioner mistakenly thought the meeting was a staff meeting that often occurred after Mr. Reners returned from a vacation. Mr. Reners explained to Petitioner that there would be a staff meeting afterwards. Petitioner was upset at not being included in the first meeting and viewed her exclusion from the meeting as the job termination predicted by her psychic. Shortly after the first meeting ended, Petitioner walked up to Mr. Reners, handed her store keys to him, said "You win!" and left the building. Petitioner performed her job duties well. Respondent would not have discharged Petitioner on February 5, 2007. Petitioner voluntarily resigned on that day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 28th day of February, 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 28th day of February, 2008.
Findings Of Fact The Respondent is a Public Employer within the meaning of Florida Statutes Section 447.203(2). Lloyd A. Perry was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Dana E. Pratt was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Prior to February 17, 1976, Lloyd A. Perry was employed by the Citrus County Road Department for a period of over four years. Immediately prior to the time that his employment was terminated, Perry was a roller operator. Except for rare occasions when he performed work as a flagman, or other work in conjunction with his roller work, Perry operated a tandem road roller. For the several months prior to February, 1976, Perry had continuously operated the same roller machine. Prior to February, 1976, none of Perry's supervisors informed him that his work was unsatisfactory, reprimanded him for performing work in an unsatisfactory manner, or indicated to him in any way that his job was in jeopardy for unsatisfactory performance of his duties. Dana E. Pratt had been employed by the Citrus County Road Department for approximately five years prior to February, 1976. For four years prior to that date he had been a motor grader operator. Pratt had annually received formal evaluations and his evaluations had always been very good. Prior to February, 1976, Pratt had never been criticized for below average or unsatisfactory work. He had never received any written reprimand for unsatisfactory performance on the job. From approximately December, 1973 until February, 1976, Perry had operated the newest grader machine in use by the Citrus County Road Department. No one else had operated the machine since it was acquired by the Citrus County Road Department. During February, 1976, Thomas Hutchinson was the Citrus County Road Superintendent. William Hitt was thee Assistant Road Superintendent. Hutchinson and Hitt served under the direction of the Citrus County Board of County Commissioners. Perry, Pratt, and numerous other employees of the Citrus County Road Department had, prior to February, 1976, become dissatisfied with conditions in the Road Department, primarily the manner of direction given the department by Hutchinson and Hitt. On Sunday, February 8, 1976, Perry drafted a petition specifying numerous grievances against Hutchinson and Hitt. It was his intention to secure the signatures of employees of the Road Department on the petition, and to present it to the Board of County Commissioners. Perry sought the assistance of County Commissioner DeBusk in drafting the petition. DeBusk offered several suggestions and his daughter typed the petition for Perry. Perry secured six or seven signatures on that Sunday. He was the first person to sign the petition, and Dana Pratt was the third. On Monday, February 9, Pratt informed his office that he had business to attend to and would not be at work that day. He did not claim sick leave for the time he missed. Prior to work and during the lunch hour he called as many employees of the Road Department as he could. After working hours he waited at a business establishment called the "Country Store" which was located in close proximity to the place where Road Department employees checked out of work. Forty-six employees of the Road Department signed the petition. Dana Pratt assisted in soliciting people to sign the petition. There was no evidence offered at the hearing from which it could be determined that those persons signing the petition did so other than freely and voluntarily. On Tuesday, February 10, 1976, Perry called his supervisor, Mr. Hutchinson, and told him that he had business to attend to. Hutchinson asked him if he was going to solicit more signatures. Perry told him that he was not. The Board of County Commissioners was meeting on that date, and Perry presented the petition to the Board. Members of the Board discussed the petition at length during the meeting. One commissioner asked Perry if he was big enough to go back to work and forget about the matter. Perry said that he was. On February 11, 1976 Perry returned to work at the regular time. Rather than being assigned to his regular duty as a roller operator, he was assigned to flag traffic for a grader operator. He continued in that capacity until Tuesday, February 17. On that date, at approximately 11:00 or 11:30 A.M. Tom Morton, the grader foreman, informed Perry that his employment was terminated as of 1:00 P.M. on that date. Both Morton and William Hitt told Perry that they did not know why he was fired. Dana Pratt attended the County Commission meeting on February 10. He was asked about whether he threatened a Road Department employee named Langley with respect to signing the petition. Pratt told the County Commission that he did not threaten Langley, and no evidence was offered at the hearing to establish that he did. On February 12, 1976, Pratt used the new grader machine that he had been using for some time prior thereto. At the end of that day his supervisors informed him that he would be using the oldest machine in the Department thereafter. He began using it on February 13. It took some time to get it started on that date. It also took some time to get it started on Monday, February 16. This was an old machine, and had been difficult to start for some years prior to the time that it was assigned to Pratt. At 12:30 on February 17, 1976, Tom Morton informed Pratt that his employment was terminated as of 1:00 P.M. on that date. Pratt was never given any reasons for his termination. On February 17, 1976, the Citrus County Board of County Commissioners acted to terminate the employment of Perry and Pratt. These actions were taken upon the recommendation of Mr. Hutchinson. Ostensibly the reason for Pratt's termination was that he had marked out on sick leave on a day when he was not sick. Ostensibly the reason for Perry's termination was that he had been missing from the job for approximately an hour. The evidence would not support a finding that Perry and Pratt were fired for these reasons. These reasons offered by Hutchinson, and followed by the Board of County Commissioners, were used as a ruse. On February 18, 1976, the day after Pratt and Perry were fired, Hutchinson called a meeting of all employees of the Road Department. Hutchinson told the employees that he had nothing to do with the termination, but he also told them that he would tolerate no more petitions and that if anyone did not like working conditions at the Road Department they could leave. He said that he had four County Commissioners in his pocket, and he reminded the employees that unemployment in Citrus County was high. He told the employees that he would take care of any petitions they distributed. During the week the petition was distributed, Hutchinson told one employee of the Road Department, James Johnson, that Johnson could be put in jail for signing the petition. During that same week he told his assistant superintendent, William Hitt, that all of the men who signed the petition had to go. After Perry and Pratt were fired, Hutchinson told Hitt that he got two, and he would get the rest. The basis for Hutchinson's recommendation to the Board of County Commissioners that Perry and Pratt be terminated was the fact that they participated in the distribution of the petition, and presenting it to the Board of County Commissioners. There was no evidence offerred at the hearing to indicate that any members of the Board of County Commissioners knew Hutchinson was presenting false reasons for the terminations; however, they did act to adopt the recommendation. The Board of County Commissioners did know that Pratt and Perry were among the leaders in distributing the petition highly critical of Hutchinson's work, and was clearly on notice that Hutchinson may have ulterior motives in recommending their dismissal.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of race in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Facts Stipulated to By the Parties Embry-Riddle is an independent, nonsectarian, not-for- profit, co-educational university. Embry-Riddle serves culturally diverse students seeking careers in aviation, aerospace, engineering, and related fields, with residential campuses in Daytona Beach, Florida, and Prescott, Arizona, and an extended campus (a/k/a Worldwide Campuses) consisting of 156 teaching sites in the United States and Europe. Michael Perry began his employment with Embry-Riddle on November 30, 2001, as a part-time associate center director at Embry-Riddle's Tallahassee teaching site. His job responsibilities were to market Embry-Riddle's programs, enroll students and provide some student services, the timely completion of registration forms and matriculation applications, and basic administrative duties. Petitioner did not have authority to enter into a contract for cellular phone service on behalf of Embry-Riddle that Embry-Riddle would be obligated to pay. Embry-Riddle's Tallahassee teaching site is on the campus of Tallahassee Community College ("TCC"), along with the extended campuses of other higher-education institutions, including Flagler College-Tallahassee and Barry University. In February 2003, Petitioner began to work full-time with the same job title and responsibilities. In February 2004, Petitioner was promoted from assistant center director to associate center director. He received a pay increase, and was given the additional responsibility of supervising an assistant and a Veterans' Affairs ("VA") student employee. At all times, Petitioner's assistant was Katrina Alexander, an African-American female. At all times relevant to this claim, Petitioner's VA student employee was Kiesha Moodie, an African-American female. The Tallahassee teaching site was overseen by Center Director Albert Borovich from a remote site in the panhandle of Florida. On or about May 18, 2005, Ms. Alexander reported that Ms. Moodie advised her that she was uncomfortable about some interaction she had with Petitioner in his office. The precise nature of the interaction is in dispute. At some point after May 23, 2005, Mr. Borovich was given certain memoranda by Dr. Barbara Sloan, advising him of the complaints of sexual harassment by certain unnamed employees of TCC. On June 6, 2005, Mr. Borovich received a copy of a memorandum from Maura Freeberg Wilson to Joketra Hall advising of complaints by female employees of Flagler College-Tallahassee about Petitioner. On June 10, 2005, Debbie Wiggins, the Southeast Regional Director of Operations for Embry-Riddle, and the direct supervisor of Mr. Borovich, provided copies of the alleged victim's statements to Petitioner for response. Petitioner responded to the charge by a report, dated June 15, 2005, denying the claims of sexual harassment and inappropriate behavior. Respondent has a human resources department housed in its headquarters in Daytona Beach, Florida. The human resources department is responsible for investigating complaints of sexual harassment and inappropriate behavior by an employee. The human resources department had not started its investigation of the complaints against Petitioner at the time Ms. Wiggins gave the alleged victim's statements to Petitioner. Rick Snodgrass was appointed by Linda Mobley to investigate the claims of sexual harassment and inappropriate behavior on behalf of Respondent's human resources department. Ms. Mobley was a human resource professional in Respondent's human resource department in Daytona Beach, Florida. Mr. Snodgrass was a human resource professional in Respondent's human resources department in Daytona Beach, Florida. On June 20, 2005, a telephone call was received at the Tallahassee teaching site from Nextel Partners Recovery concerning a delinquent account ("the Nextel Account"). On June 20, 2005, Mr. Borovich called Respondent's payroll department and asked whether Petitioner's paycheck could be held, but was advised that it was too late. At this time, Petitioner had made two payments to Nextel Partners on the Nextel Account at issue. The funds used to make this payment came directly from Petitioner and were not Embry-Riddle funds. On June 21, 2005, Mr. Borovich called Petitioner about the Nextel Account. On June 21, 2005, Petitioner was placed on administrative leave without pay. Petitioner told Mr. Borovich that he had opened the account at issue, that it was in his name, and that he had been paying the bills. The Nextel Subscriber Agreement lists "Embry-Riddle" in the section labeled "Full Customer Name." The Nextel Subscriber Agreement lists the address of the Tallahassee teaching site of Embry-Riddle in the section labeled "Mailing Address." The Nextel Subscriber Agreement lists Petitioner's home address in the section labeled "Shipping Address." The Nextel Subscriber Agreement has Petitioner's signature in the section labeled "Customer Signature." The Nextel Subscriber Agreement has "Assist. Dir. Oper." in the section labeled "Title." The Nextel New Customer Checklist lists "Embry- Riddle/TCC" in the section labeled "Customer/Company Name." The Nextel New Customer Checklist lists "Michael" in the section labeled "Contact." The Nextel New Customer Checklist has Petitioner's signature in the section labeled "NEXTEL Customer Signature." Petitioner provided his driver's license to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided his Embry-Riddle identification card to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided his Embry-Riddle business card to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided the address of Embry-Riddle's main campus in Daytona Beach to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided the address of Embry-Riddle's Tallahassee teaching site for billing purposes in conjunction with opening the Nextel Account. Petitioner directed that the bills be sent to Respondent's Tallahassee teaching site, "Attn: Michael L. Perry," in conjunction with opening the Nextel Account. Petitioner provided Respondent's Consumer Certificate of Exemption (Embry-Riddle's certificate of tax exemption) to Nextel Partners in conjunction with opening the Nextel Account. On June 20, 2005, Nextel Partners asserted that $936.55 was past due and owing on the Nextel Account. The alleged past due balance was sent to collection by Nextel Partners. The debt collection firm of Lamon, Hanley & Assoc., Inc., sought payment of the alleged past due amount from Embry- Riddle. The debt collection firm of J.J. MacIntyre Co., Inc., sought payment of the alleged past due amount from Embry-Riddle. Mr. Snodgrass was charged with investigating the events surrounding the Nextel Account by Ms. Mobley. The investigations of the claims of sexual harassment and the Nextel Account occurred simultaneously. Mr. Snodgrass traveled to Tallahassee on June 23, 2005, during which he met with several individuals regarding the claims of sexual harassment. The complainants from TCC, Flagler College- Tallahassee, and Barry University declined to participate in the investigation on the advice of their legal counsel. Ms. Moodie indicated to Mr. Snodgrass that she had addressed her concerns directly with Petitioner, and she withdrew her complaint. Mr. Snodgrass interviewed Petitioner last, in the presence of Mr. Borovich. Mr. Borovich was not present during the interviews of the female witnesses. At that time, Mr. Borovich found that there was insufficient evidence to make a finding on the claims of sexual harassment, and he recommended no direct discipline of Perry on the claims of sexual harassment. Mr. Snodgrass also discussed the Nextel Account with Petitioner during the meeting of June 23, 2005. Petitioner again asserted that the Nextel Subscriber Agreement was an agreement personal to him, and not an agreement between Nextel Partners and Embry-Riddle. Petitioner was advised that his employment was being terminated because of the actions surrounding the Nextel Account, but he was offered the opportunity to resign instead. Petitioner chose to resign his employment with Embry- Riddle. Petitioner's termination was involuntary. Respondent employs African-Americans in its extended campuses across the United States, including faculty, center directors, and associate center directors. Additional Findings of Fact Not Stipulated to By the Parties Petitioner is a 49-year-old African-American male, who has always lived in the southern United States. Petitioner was qualified for his position and had not been the subject of discipline in connection with his employment until January 2005, when he received a letter of reprimand from his supervisor, Mr. Borovich. In addition to his employment at Embry-Riddle, Petitioner has served as a minister, and has had experience counseling others who have been the victims of racial discrimination. Petitioner testified to his belief that Respondent discriminated against him by automatically concluding that he was guilty of committing fraud by obtaining the Nextel cellular phone because he was an African-American male. Petitioner testified to his experience, and as a minister counseling other victims of discrimination, that African-American males are considered guilty regardless of proof, and may still be considered guilty if they stand up for their rights. Petitioner believes that society generally feels that African-American males cannot tell the truth. Petitioner also testified that he was hurt the most by being accused by Respondent of being a thief without the opportunity to provide documents to rebut Respondent's accusation. Petitioner testified to his experience and belief that African-Americans, who have been the victims of racism in the South, have often been put in the position of having no chance to present evidence disproving the charges levied against them. Petitioner testified that he received a telephone call from Mr. Borovich, on May 23, 2005, ordering him to immediately apologize to the three alleged victims of sexual harassment or inappropriate conduct. He believed he was not given an opportunity to dispel Mr. Borovich of any notion that he had acted inappropriately towards the three women, nor had any investigation been performed at that point. Petitioner complied with the order to apologize to the three alleged victims of the sexual harassment, and testified he felt humiliated as a result of the experience. He believes he was "taken back" to a time in our society when he would have been guilty just because a white man said he was guilty. Mr. Borovich testified at the hearing that he did not recall ever speaking with Petitioner on May 23, 2005, nor did he recall "ordering" Petitioner to apologize to the alleged victims. Petitioner testified that he complained about the fact that he was forced to apologize to the three alleged victims of sexual harassment, and that his complaints were ignored by his superiors. Respondent is an equal opportunity employer that regularly trains its employees in seminars about equal opportunity employment, sexual harassment, and disability. Respondent maintains extensive employment policies in a policy manual referred to as both a POM and an APPS. These policies are reviewed with Embry-Riddle personnel at orientation, and made available to all personnel electronically through an intranet site at any time from any computer. Respondent has policies prohibiting sexual harassment and racial discrimination. Respondent's policies and procedures provide that individuals reporting sexual harassment should contact human resources, which would then conduct an investigation. This investigation is then conducted according to Respondent's policies and procedures. At all times relevant to this matter, Respondent had three employees physically located in the administrative offices of the Tallahassee teaching site: Petitioner, Ms. Alexander, and Ms. Moodie. According to Mr. Borovich, Petitioner was a good marketer, but had some difficulty in meeting deadlines. Ms. Alexander determined that her interaction with Petitioner on May 18, 2005, fit within Respondent's definition of sexual harassment. Respondent's policy requires that a supervisor who is made aware of sexual harassment must report the incident. Ms. Alexander attempted to contact Mr. Borovich on May 18, 2005, but he was not in his office. She, thereafter, consulted the policy and procedures manual and determined she was to contact the faculty chair when the center director was unavailable, which she did. Once he received the complaint from Ms. Alexander, Mr. Borovich began gathering information from the people involved, and then he reported the alleged sexual harassment to Respondent's human resources department pursuant to Embry-Riddle policy. Ms. Moodie told Ms. Alexander that she did not believe she was sexually harassed, but that she felt uncomfortable standing on top of a table and writing on a white board while Petitioner and Mr. Deric Mordica, a student, watched her from behind. Petitioner believes that Ms. Moodie's complaint to Ms. Alexander "started this whole thing." Both Ms. Moodie and Ms. Alexander are African-American. Maura Freeberg Williams, during the relevant time period, was employed in a supervisor capacity by Flagler College, whose offices were located in the same building as Embry-Riddle's Tallahassee teaching site. Joketra Hall, during the relevant time period, was employed in a supervisor capacity by TCC on whose campus Respondent is located. Debbie Wiggins, during the relevant time period, was the Southeast Regional Director of Operations for Respondent, and Mr. Borovich's direct supervisor. Her office was not located on the Tallahassee teaching site. When Ms. Wiggins provided Petitioner with copies of the alleged victims' statements on June 10, 2005, she was told by Ms. Mobley that she had breached investigative protocol which dictated that the human resources department was to interview Petitioner prior to him seeing the statements. This is done in order to maintain the anonymity of the victim until human resources has had the opportunity to investigate. Ms. Mobley directed Ms. Wiggins to refrain from involving herself in the investigation, which was to be conducted by the human resources department. These discussions were memorialized in electronic mail between Ms. Mobley and Ms. Wiggins. Mr. Snodgrass testified that this breach in protocol nearly compromised the investigation, but it was caught in time to conduct a proper investigation. Mr. Snodgrass determined how the investigation would be handled, decided whom Respondent would interview, and decided which statements from individuals would be taken. Mr. Snodgrass also determined the outcome of the investigation. Mr. Snodgrass made a trip to Tallahassee on June 23, 2005, during which he met with and questioned several individuals regarding the claims of sexual harassment. Since Ms. Moodie refused to discuss the alleged incident because she had already discussed it with Petitioner and withdrawn her complaint, and since the employees of TCC, Flagler College-Tallahassee, and Barry University declined to speak with Mr. Snodgrass, he concluded the sexual harassment complaints could not be sustained. Mr. Snodgrass met with Petitioner during his June 23 trip to Tallahassee and requested that Mr. Borovich attend the meeting as a witness. Mr. Snodgrass performed the questioning without comment by Mr. Borovich. The first part of the meeting dealt with the sexual harassment claims. Following the questioning, Mr. Snodgrass determined that the evidence was insufficient to make a finding of sexual harassment. He put aside his folder concerning this claim. The second part of the meeting concerned the Nextel cellular phone contract. Mr. Snodgrass asked Petitioner how he came to have two phones in Embry-Riddle's name. Petitioner repeated the information he had given to Mr. Borovich. Mr. Snodgrass presented the documents concerning the Nextel Account to Petitioner. Mr. Snodgrass believed that the Nextel documents were more credible than Petitioner's answers to his questions concerning the Nextel Account. Petitioner testified that he contracted with Nextel to obtain personal cellular telephones for himself and his wife. Petitioner entered into the Nextel contract to receive a discount being offered to public employees and people working for universities which he learned about through a document that was faxed to the machine he shared with others at TCC. Petitioner met with the Nextel representative at his office to complete the paperwork. Petitioner agreed to have his monthly bills sent to his office where he also received other personal bills. Petitioner paid for his cellular telephone usage with his own funds. Petitioner received the benefit of using Respondent's tax exempt certificate on his contract with Nextel. Petitioner entered into a dispute with Nextel over the quality of his telephone service, which led to the matter being turned over by Nextel to its collection agents. Petitioner never resolved the matter of his dispute with Nextel over the quality of his telephone service. After Petitioner's termination from employment, Respondent paid the past due amount for Petitioner's phone to Nextel out of funds owed to Petitioner for unused leave time during his employment. Mr. Snodgrass advised Petitioner at the time of termination of his employment that he had violated school policy by entering into the cellular phone contract. Petitioner was informed that his "employment was being terminated due to the fact that he opened [the Nextel] account without proper permission." Petitioner did not have contracting authority to bind Respondent. Respondent provides cellular telephone allowances for some of its employees who travel a great deal. None of Respondent's employees have cellular telephones that are owned or contracted for by Respondent. The decision to terminate Petitioner was made by Ms. Mobley. Mr. Borovich was not involved in the decision to terminate Petitioner. Ms. Mobley was not aware of Petitioner's race until she reviewed the documents regarding the Nextel Account, which included a photocopy of Petitioner's identification card. Ms. Mobley testified that the investigative protocols used concerning Petitioner were the same she would use regardless of the employee's race or gender. Following Petitioner's resignation, Ms. Alexander performed Petitioner's prior duties, and was the only person designated to the Tallahassee teaching site for the next 18 months. At that time, the position formerly held by Petitioner was given to a white female. Petitioner sought unemployment benefits, giving as his reason for his termination a "permanent layoff" due to "reduction in force due to lack of student enrollment." Ms. Alexander testified that she worked closely with Petitioner and Mr. Borovich, and that she socialized outside of work with Mr. Borovich. Ms. Alexander never witnessed Mr. Borovich act in a racially discriminatory manner towards her or Petitioner. Petitioner was not aware of any African-American males employed at his level or higher in the organizational structure of Embry-Riddle. Embry-Riddle employs 190 African-Americans out of 1,500 total employees in its worldwide campuses, including faculty, center directors, and associate center directors. Ninety percent of those African-American individuals were in positions equal to or higher than that held by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael O. Murray, Esquire Embry Riddle Aeronautical University 600 South Clyde Morris Boulevard Daytona Beach, Florida 32114 Bill Reeves, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32309 Thomas J. Leek, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Petitioner is Gail C. Selvaggio, who currently resides in Palm Beach Gardens Florida, and at the time of the events complained of resided in Tallahassee, Florida. The Respondent is the Knight-Ridder Publishing Company, doing business as The Tallahassee Democrat (hereafter "The Democrat"). The Democrat is located in Tallahassee, Florida. The Petitioner commenced her employment with the Respondent as a secretary in its advertising department on February 13, 1978, at a salary of $160 per week. Petitioner's supervisor in the advertising department and the person for whom she primarily performed her secretarial duties was the advertising director, Martin Steinberg. Petitioner was hired to replace Judy McGinnis, who had been an administrative assistant to the previous advertising director whom Steinberg had replaced. McGinnis, who had supervisory duties in her position, had terminated her employment approximately six months prior to the time Petitioner was hired. When McGinnis left, her vacancy was advertised in August, 1977, as administrative assistant pursuant to the instructions of John Veenstra, the then advertising director. No one was hired at that time. When Veenstra left The Democrat in late 1977, the position was frozen. When Steinberg was hired by Respondent as its advertising director, he informed Personnel that he wanted a secretary and not an administrative assistant. Personnel then contacted the people who had earlier applied for the administrative assistant position and invited them to apply again, but informed them that the position had been changed to that of a secretary. Petitioner was referred to The Democrat on February 9, 1978, by Snelling and Snelling, an employment agency. A job counselor at that agency advised Petitioner that The Democrat had an opening for an administrative assistant, information given in a job order when McGinnis left The Democrat in August, 1977. The employment agency did not have any official business connection with The Democrat, and The Democrat had not informed the agency of any job opening when the agency referred Petitioner to The Democrat six months after the agency's job order was written. Based upon the information given her by the agency, Petitioner completed an application for employment with The Democrat by stating that she was applying for the position of administrative assistant. Petitioner was interviewed for employment by Tracy Rowe, who was at that time the personnel assistant at The Democrat. Ms. Rowe conducted approximately ninety percent of the initial employment interviews for The Democrat. She would then refer qualified applicants to the department head where the position was open. Rowe informed Petitioner during the initial interview that the position was not an administrative assistant position but rather was a secretarial position. Petitioner took a typing test as part of this initial interview. Petitioner then interviewed with Mr. Steinberg on February 9, 1978, and on February 10, 1978. Steinberg told Petitioner that the position was that of a secretary and explained to her the history of the position as it was held by Ms. McGinnis and his reasons for not wanting an administrative assistant. Steinberg had earlier told Rebecca Bradner when she interviewed for the position that the position was secretarial. He had also earlier told Mr. Harwell, the publisher of The Democrat, that he expressly did not want an administrative assistant because he did not want anyone with that much authority. Steinberg discussed with Petitioner possibilities of advancement during both her interviews and early employment, including agreeing with Petitioner's suggestion that she might write a training manual, which she never did, and conduct a sales training program. He did not make any promises to her regarding her future advancement or assignments. Petitioner received a salary increase to $180 per week within two weeks after beginning her employment, in accordance with her agreement with Steinberg. This was done to enable Petitioner to pay a lower fee to her employment agency. Steinberg did not promise any other pay increase to Petitioner. Petitioner was given an orientation program at The Democrat so that she could become familiar with the various departments of the newspaper and know who to consult with if problems arose when Steinberg was not in the office. Petitioner had no supervisory responsibilities in her position at The Democrat. During the initial months of her employment, Petitioner was basically a satisfactory employee, although she made mistakes in typing correspondence and various monthly reports. Steinberg brought these errors to her attention during the early months of her employment. Steinberg's practice in correcting documents and correspondence was to circle or underline the error in ink, thereby requiring the page to be retyped even if the error were minor. At times, he would sign correspondence without first reading it and later would find errors on the copy returned to him prior to filing, after the original of the letter had been mailed. Steinberg followed the practice of marking errors in ink from the beginning of Petitioner's employment. This practice was a personal habit of his which he followed with other employees as well. This practice was not an attempt on his part to harass Petitioner. Karen Sheffield, who sometimes handled secretarial duties for Steinberg, did not interpret this practice as harassment, although she frequently retyped the same document several times because of this practice. Petitioner made errors in the addresses and salutations of Steinberg's correspondence, which errors were especially noticeable to those to whom the letters were addressed. Several of the people with who Mr. Steinberg corresponded informed him of errors that had been made, and one person received a letter so full of typographical errors that he involved the publisher of The Democrat in the matter. Petitioner had the responsibility to correct correspondence. Steinberg did not instruct her to leave incorrect punctuation or grammar or spelling in a letter. Steinberg discussed Petitioner's unacceptable performance of her job duties with other management personnel, including Keith Helen, Walter Harwell, and Vernelle Tucker, on several occasions. Mr. Harwell advised Steinberg that it was necessary for Steinberg to turn out better work and that the secretary should be more careful. Steinberg counseled Petitioner about her mistakes and told her she needed to improve her performance on several different occasions. Petitioner was informed specifically about errors in the "Merchant letter" in May, 1978, and about errors in other letters as they occurred. Petitioner occasionally filled in for outside salespersons and made their calls for them when they were on vacation or sick. She performed as well as could be expected, although she made more errors than the regular salespersons made. Steinberg and Petitioner had a friendly, personal relationship in the earlier months of her employment and exchanged confidences with each other. Petitioner is a friendly, outgoing, gregarious person, and it was not unusual for her to put her arms around male employees while at work and hug them and even kiss them. On one occasion, Tracy Rowe observed Petitioner walk up behind Steinberg when he was sitting at a desk and throw her arms around him and kiss him. Steinberg, as a supervisor, was demanding but fair. Petitioner had marital problems in the fall of 1978 and discussed those problems with Steinberg. Her marriage terminated in a divorce in November, 1970. Beginning approximately in August and September, Petitioner's job performance suffered as she began to spend more time away from her desk. Part of the reason for her time away from her duties was her participation as co- chairperson of The Democrat's United Way campaign. She voluntarily assumed duties in connection with that campaign above any required of her and more than her co-chairperson. She frequently returned from United Way luncheons much later than the other employees who were in attendance at those luncheons. Although she chose to entertain at some of the luncheons, she had time to eat during the business portion of the meetings and could have returned to work sooner. During this time period, Steinberg discussed with Petitioner and with other management personnel problems with correspondence typed by Petitioner and with her tardiness. Prior to her divorce, Petitioner began to date another employee of The Democrat, Ron Selvaggio, her present husband, who was then head of the promotion department at The Democrat. Petitioner was frequently observed in his office to an extent greater than her United Way role required. Additionally, she often went to lunch with him and frequently returned late. Petitioner frequently socialized with others in the department. She would leave her desk to socialize with other employees, and other employees would come by her desk. Many employees noticed that Petitioner spent an unusual amount of time not working, and this fact was conveyed to Steinberg by other management personnel. The time spent by Petitioner socializing and participating in the United Way campaign prevented her from completing her work in a timely manner. Steinberg discussed this with her and with other management personnel. There was always work to be done in the advertising department, and Petitioner's neglect of her duties was noticed by other employees of The Democrat who depended on her to get their work done. Steinberg, complained to Vernelle Tucker that his work was not being completed because of Petitioner's activities in the United Way. Mrs. Tucker counseled Petitioner and told her that her job duties still had to be fulfilled despite her participation in the United Way campaign and that her work was priority. Steinberg began to write private memoranda on Petitioner's performance and work habits beginning in November, 1978, at the suggestion of Mrs. Tucker. Steinberg told Tucker that he did not believe Petitioner should get a raise because of her poor work performance, and Tucker told him to start documenting problem areas. Steinberg did not show those memoranda to Petitioner, nor did he forward them immediately to the personnel office to be included in her file. However, in most of these instances, Steinberg counseled Petitioner at the time about the matters he had noted. Other supervisors at The Democrat followed the same practice with regard to private memoranda. This practice allowed them to record their observations and counsel the offending employee in the hope that whatever problem existed might be eliminated. If the problems were not resolved in that manner, the memoranda could then become part of the employee's file. Otherwise, the memoranda could be destroyed without ever being sent to Personnel, so that temporary problems need not become a part of the employee's permanent file. The memoranda by Steinberg were made at the time of the events recorded and were not manufactured as after-the-fact justification for Petitioner's termination. It is the policy of The Democrat to include raises for its employees in the annual budget. The supervisors actually determine which employees will get raises and how much they will receive. The supervisors have authority to withhold any or all of the budgeted raise from an employee. Petitioner did not receive a raise budgeted for December, 1978, because her job performance did not warrant a pay raise. The paperwork Petitioner was required to complete increased during the fall of 1975 due to the normal increase in advertising business experienced by The Democrat from the return of students to school and the Thanksgiving and Christmas holiday seasons. Other reasons for the increase in workload at that time are that budgeting and forecasting for the following year is conducted during the fall, as is preparation of the next year's rate structure. The workload increases for everyone in the advertising department at that time of year. Petitioner's workload did not increase as a result of any attempt by Steinberg to harass her. In December, 1978, Petitioner approached Karen Sheffield about a transfer because of the increased paperwork. Sheffield was the secretary to Mrs. Tucker and Mr. Selvaggio at that time. She did not work in personnel. Petitioner did not approach anyone in Personnel about a transfer. Petitioner was not overworked in comparison with other employees. Petitioner was assigned the responsibility for answering a bank of telephones during the time that the advertising department was in a temporary working area due to construction in the building. Steinberg could give that task to no one else due to spacing in the temporary work area. Petitioner was assigned the task of copying multiples because Jean Ash Webb, who had been performing the duty, had been incurring a considerable amount of overtime because of that duty together with her other duties. Steinberg reassigned this task to Petitioner to reduce that overtime. The amount of overtime worked is a matter of great importance to management at The Democrat. Steinberg instructed Petitioner to use carbons in making copies where practicable rather than using a copying machine. He told her that the reason for using carbons was to save money. This change was effected at the direction of Mr. Harwell, the publisher, who was concerned over expenses at that time. There was a valid business reason for the use of carbons. This policy was instituted throughout The Democrat and not simply against Petitioner. Petitioner resented being given what she considered to be menial tasks and complained to other employees about having to perform such tasks. She complained about having to collate the Belden (Building) Study. She complained about having to perform the task of copying multiples. She complained about being overworked. She complained about having to retype letters. Petitioner's hours of employment were changed to 10:00 a.m. to 7:00 p.m., effective January 18, 1979. Petitioner had changed her own work hours to suit her personal schedule on several occasions prior to her hours being changed to 10:00 a.m. to 7:00 p.m. Her method of changing her hours was simply to begin coming in at a different time and then to secure approval from Steinberg after he noticed the change. The reason for the change to 10:00 a.m. to 7:00 p.m. was to provide assistance to the outside sales staff upon their return to the office in the afternoon after making sales calls. Outside salespersons in the advertising department frequently work late to finish the required paperwork and layouts for ads sold during the day. Persons used to provide such assistance to the outside sales staff after normal hours are known as "ad-assists." Petitioner was assigned ad-assist duties only for part of the day, from 5:00 p.m. to 7:00 p.m. There had been a need for an additional person in the ad-assist position for some time. The need for an additional person in that position had been under discussion by outside salespersons and by the management of the advertising department for several months. Steinberg had discussed the problem with Petitioner and had solicited her advice on how to handle the problem. Mr. Harwell would not approve hiring a new employee for the position because of the financial pressures on The Democrat at that time. Steinberg, with Keith Balon, considered and evaluated the secretaries, clerks and others in the department to see whose hours could be changed and who had the most work flexibility. Steinberg also discussed his selection with Mr. Harwell. Petitioner's duties as secretary were more flexible and less demanding than those of Jean Ash Webb, Dianna Moyer, Becky Savilla, and Linda Crews, who were other employees of the advertising department considered for the move. Jean Ash Webb and Linda Crews could not be moved into the ad-assist position because they had specialized jobs to perform and because they had deadline functions which required their presence at a specific time in the morning and, thus, dictated their departure time in the evening. Also, Dianna Moyer worked for Keith Balon and the sales staff, and Ms. Savilla worked for other supervisors. Steinberg did not have anyone other than Petitioner to place into the ad-assist position. Harwell agreed with Steinberg's decision. There was a legitimate business reason for changing Petitioner's hours to 10:00 a.m. to 7:00 p.m. The Democrat is a twenty-four-hour business. Employees other than Petitioner have left the company because they would not work the hours they were assigned. Petitioner informed Steinberg and others that she would not accept the change in her hours and that she would look for another job. Petitioner complained to other employees about the change in her hours and made derogatory remarks about Steinberg. Mr. Harwell told Steinberg that he should get a timetable for Petitioner's departure so that new people could be interviewed for the position, and he suggested a two-week period. Harwell also instructed Steinberg to caution Petitioner about "bad-mouthing" either the company or Steinberg during her remaining time at The Democrat. He instructed Steinberg that if Petitioner made statements which could hurt the morale of the department, she should be terminated immediately. Steinberg initially advised Petitioner that she could continue to work at The Democrat until she found a new job so long as she did not make derogatory remarks about him or The Democrat. Petitioner initiated conversations with other employees in which she complained about Steinberg. These remarks were creating a morale problem in the department. She also told other employees that her telephone was being tapped. On January 22, 1979, Steinberg asked Petitioner for a timetable for her expected departure so that plans could be made for her replacement. Petitioner refused to provide a timetable. Petitioner continued to make derogatory remarks about Steinberg. Upon the instructions of Mrs. Tucker, Steinberg discharged Petitioner on January 23, 1979. Upon Petitioner's termination, another person assumed the ad-assist duties in the 10:00 a.m. to 7:00 p.m. time slot. The day Petitioner was discharged, she interviewed with Keith Balon, the retail advertising manager, for a position as an outside salesperson in the advertising department. Steinberg was aware of this interview and did nothing to prevent Petitioner from interviewing or from obtaining the position. In fact, he did not include his private memoranda in her personnel file and did not inform Mr. Balon of the existence of such memoranda or their contents. Outside salespersons for The Democrat regularly worked until 7:00 p.m. and frequently as late as 8:30 p.m. in order to complete their duties for that day. Petitioner gave no explanation regarding how she could work those hours for Mr. Balon when she had refused to work until 7:00 p.m. for Mr. Steinberg. Balon hired another person whom he believed to be more qualified than Petitioner. His decision was not made to discriminate against Petitioner in any way. In October, 1978, Steinberg gave Petitioner a 3" X 5" card stating "from one who is one to one who could be one Thanx Marty." Above that notation was drawn a large six-pointed star. Steinberg gave the card to Petitioner in response to several gifts given to him by her and her statement to him that she wanted to be his "Jewish mother." The card did not have any sexual connotation, and Petitioner did not perceive any sexual connotation to the card. Steinberg frequently worked on Saturdays after having been out of the office during the latter part of the workweek. He called Petitioner on occasion at her home on Saturday mornings when he had a question about what had happened at work. Steinberg also called his other employees at their homes on Saturday mornings for the same purpose. Although some social conversation did occur during the calls to Petitioner, the calls were not used to sexually harass her. There were no statements made about sex during these calls. When Petitioner announced her engagement to Mr. Selvaggio, Steinberg expressed a concern since an employee of his would be married to another department head. There was no sexual connotation to this remark. By Petitioner's own testimony, this remark related to Steinberg's concern for the confidentiality of certain information concerning his department. He also discussed his concern about confidentiality with Mr. Harwell and with Mrs. Tucker during this same time period. Steinberg once mentioned to James Reeves, Petitioner's then husband, that Petitioner was like an "office wife." Reeves did not consider the remark to have any sexual connotation but rather understood that Steinberg meant that Petitioner was his confidant. Petitioner married Mr. Selvaggio, who was then the promotion manager of The Democrat, on December 21, 1978. There was some confusion between Steinberg and Petitioner regarding the time she was to take off for her wedding. However, Petitioner admits that this was simply a misunderstanding. This confusion was not an incident of sexual harassment. There were two romantic interludes between Petitioner and Steinberg which occurred in the board room at The Democrat. The first incident occurred in September, 1978, when Petitioner was helping to compile and collate the Belden (Building) Study, which was an advertising research study that had been made. Petitioner complained about having to perform such a menial task although Rebecca Bradner, a supervisor, participated in the collating as did several other employees. Petitioner told Ms. Bradner that the collating was not Petitioner's job, that she was going to lunch, that she would take a long lunch, and that if Steinberg did not like that, he could come in and tell her so. Bradner relayed this information to Steinberg. Steinberg then came to the board room. While Petitioner and Steinberg were alone in the board room, he kissed her, and she kissed him. This was a voluntary act on the part of both persons. The second incident occurred several weeks later when Steinberg invited Petitioner to walk to the board room with him. When they got there, they began kissing each other. Steinberg touched Petitioner's breasts, and Petitioner placed her hands on his genitals. Again, each participated willingly and voluntarily. Steinberg's only superiors at The Democrat were Mrs. Tucker and Mr. Harwell. Petitioner admitted she never reported the board room incidents or any alleged incidents of sexual harassment to either of those persons, to any other management or supervisory personnel at The Democrat, or to any other employee of The Democrat. Further, neither Harwell nor Tucker, nor any other management or supervisory personnel at The Democrat had any knowledge of any alleged incidents of sexual harassment. Petitioner admitted that Steinberg never expressly or indirectly conditioned her continued employment or any term or condition of her employment upon acceptance of sexual advances. Petitioner does not know of anyone who was ever terminated from employment at The Democrat because he or she filed a complaint about a supervisor for any reason, nor of any employee who was ever fired because of making allegations of sexual harassment against a supervisor. On one occasion, Petitioner told Mrs. Tucker that Steinberg wanted to know where and with whom Petitioner went to lunch. This occurred in connection with the concern of Steinberg that Petitioner was returning late from United Way luncheons. Tucker agreed to speak with Steinberg about Petitioner's duties with the United Way. Petitioner told Tucker during this conversation that Steinberg was infatuated with Petitioner; however, Petitioner did not indicate that she found the alleged infatuation to be a problem for her, and she specifically did not inform Tucker of any alleged sexual advance or sexual harassment. Further, Petitioner later told Tucker that things had improved. The Democrat conducts what are called "management coffee breaks," at which "rank and file employees" meet with the publisher, Mr. Harwell, and the personnel director, then Mrs. Tucker. Supervisors and department heads are specifically excluded from attending. These conferences are used so that the employees may present grievances, complaints, or discuss any other problems or policies that they wish. At these sessions, employees are encouraged to speak with management privately on matters that cannot be discussed in a group meeting. Petitioner attended one of these conferences and could have used it to bring her alleged problems to management's attention. The Tallahassee Democrat's employee handbook contains a statement of policy which prohibits discrimination. The Democrat has a policy regarding supervisors having affairs with employees. Two supervisors, one male and one female, had previously been terminated because of sexual relationships with their employees. Other employees of The Democrat knew about these supervisors being terminated, Mr. Harwell testified that he would have taken corrective action by terminating Steinberg had Harwell known of any sexual harassment by Steinberg. Petitioner presented no evidence of discrimination based upon her sex or marital status and failed to request any affirmative relief.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations declaring that Gail C. Selvaggio was not discriminated against on the basis of her sex or marital status and dismissing her Petition for Relief with prejudice. RECOMMENDED this 18th day of June, 1981, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1981. COPIES FURNISHED: Edward S. Jaffry, Esquire S. Jack Carrouth, Esquire Horne, Rhodes, Jaffry, Horne & Carrouth Post Office Box 1140 Tallahassee, Florida 32302 C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Dana Baird, Esquire Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Mr. Norman A. Jackson Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
