The Issue Whether Petitioner (“Holly Mathis” or “Ms. Mathis”), in contravention of the Florida Civil Rights Act of 1992, sections 760.01 through 760.11 and 509.092, Florida Statutes (2014),1/ experienced sexual harassment and/or disparate treatment during her employment at Respondent, O’Reilly Auto Parts (“O’Reilly”).
Findings Of Fact O’Reilly is a retail distributor of automobile parts headquartered in Springfield, Missouri. On approximately August 11, 2014, Ms. Mathis began working at an O’Reilly’s store in Panama City Beach, Florida (“store no. 4564”). Her duties included pulling automobile parts from the store’s inventory and using an O’Reilly’s-owned vehicle to deliver automobile parts to mechanics in the surrounding area. Ms. Mathis was the only female employee at store no. 4564. Upon beginning her employment with O’Reilly, Ms. Mathis received a copy of the O’Reilly Auto Parts Team Member Handbook (“the Handbook”) detailing policies, benefits, and the responsibilities of O’Reilly’s employees. One portion of the Handbook specifies that O’Reilly’s employees “are not discriminated against on the basis of race, religion, color, national origin, sex, sexual orientation, pregnancy, age, military obligation, disability, or other protected class as defined by federal, state or local laws.” Another portion of the Handbook addressed harassment and stated that “[a]buse of other team members through ethnic, racist, or sexist slurs or other derogatory or objectionable conduct is unacceptable behavior and will be subject to progressive discipline.” This portion of the Handbook continued by describing sexual harassment as follows: Sexual harassment is a specific form of harassment that undermines the integrity of the employment relationship – it will not be tolerated. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment. Submission to or rejection of the conduct is the basis for an employment decision affecting the harassed team member. The harassment substantially interferes with a team member’s work performance or creates an intimidating, hostile, or offensive work environment. This portion of the Handbook also instructed employees how to report harassment: If you feel you have been discriminated against or have observed another team member being discriminated against due to race, color, religion, national origin, disability, sex, age or veteran status, you should immediately report such incidents to your supervisor/manager, local Human Resources representative, the corporate Human Resources Department, or anonymously via the company’s T.I.P.S. Hotline at 1-800-473-8470 without fear of reprisal. A prompt, thorough investigation will be made as confidentially as possible. Appropriate action, up to and including termination, will be taken to ensure that neither discrimination nor harassment persists . . . . The Handbook instructs an O’Reilly’s employee with work-related concerns to bring them to the attention of his or her supervisor. If the work-related concern involves that employee’s supervisor, then the Handbook instructs the employee to “speak directly with the next level of supervision.” Store no. 4564 had a poster notifying employees that sexual harassment is illegal. The poster stated that: If you experience or witness sexual harassment, report it immediately to your supervisor or the Human Resources Department without fear of retaliation. The company will promptly investigate all complaints as confidentially as possible. If the company concludes that sexual harassment did occur, disciplinary action will be taken with the offender(s) up to and including termination. The poster listed two “hotline” phone numbers that O’Reilly’s employees could utilize to report sexual harassment. Also, the Handbook states that “[s]moking, eating, and drinking are not allowed in company vehicles, and team members are not permitted to possess food or beverages, including water, within the cab of a store delivery vehicle.” As noted above, Ms. Mathis began working for O’Reilly on approximately August 11, 2014. She typically worked from 8:00 a.m. to 5:00 p.m. on Wednesdays, Thursdays, and Fridays. Ms. Mathis’ hiring by O’Reilly was probably facilitated by the fact that she had previously worked with the store’s general manager (Paul Stephenson) at an Advance Auto Parts store. Ms. Mathis considered Mr. Stephenson to be a “big brother.” However, in September of 2014, Mr. Stephenson began directing sexual comments toward Ms. Mathis, and inappropriate conduct by Mr. Stephenson continued through April of 2015.2/ During Ms. Mathis’ employment with O’Reilly, Mr. Stephenson was the highest-ranking employee at the Panama City Beach store. Therefore, Mr. Stephenson had supervisory authority over Ms. Mathis. On April 4, 2015, Ms. Mathis and Mr. Stephenson were working at store no. 4564. When Ms. Mathis asked to leave early so that she could spend time with her newborn, Mr. Stephenson repeatedly asked her to expose her breasts to him. Ms. Mathis refused Mr. Stephenson’s requests but was eventually allowed to leave work early. However, Ms. Mathis had been under the impression that she would not be allowed to leave early unless she complied with Mr. Stephenson’s request. On approximately April 13, 2015, Ms. Mathis applied for a position at an Autozone store approximately five minutes from store no. 4564. By April 14, 2015, Ms. Mathis had secured a new position at that Autozone store and submitted a letter of resignation to O’Reilly on April 14, 2015. Mr. Stephenson’s inappropriate conduct did not stop after Ms. Mathis submitted her letter of resignation. As discussed in her Petition for Relief, Mr. Stephenson attempted to touch her in an inappropriate manner many times on April 15, 2015, and succeeded in doing so on April 16, 2015. Ms. Mathis reaffirmed that statement during her testimony at the final hearing. The undersigned finds Ms. Mathis’ testimony regarding Mr. Stephenson’s conduct in April of 2015 to be credible. April 16, 2015, was Ms. Mathis’ last day of work at store no. 4564, and she began working for Autozone on April 17, 2015. In addition to Mr. Stephenson’s inappropriate conduct, Ms. Mathis asserts that she was subjected to disparate treatment by her direct supervisor, William Yohe. Specifically, Ms. Mathis testified that Mr. Yohe would belittle her by calling her “stupid” in front of co-workers and customers. Male employees did not experience such verbal abuse. In addition, Mr. Yohe allegedly allowed male drivers to decline deliveries without giving Ms. Mathis the same option. When a male driver declined a particular delivery, then Ms. Mathis was required to handle it. Also, Mr. Yohe allegedly allowed male drivers to have food and beverages in the O’Reilly-owned delivery vehicles. However, Mr. Yohe sent Ms. Mathis home early on April 10, 2015, for having a Gatorade in a delivery vehicle. With the exception of family and friends, Ms. Mathis told no one (including no one with authority over Mr. Stephenson and Mr. Yohe in O’Reilly’s chain-of-command) of the sexual harassment and disparate treatment she experienced at store no. 4564. Ms. Mathis did not report the sexual harassment and disparate treatment to anyone associated with O’Reilly because she was worried that Mr. Stephenson or Mr. Yohe would learn of her complaints and fire her. As a single mother of a newborn, she could ill afford to be out of work. As for the anonymous T.I.P.S. Hotline in the Handbook, Ms. Mathis was concerned that her anonymity could not be maintained because she was the only female employee at store no. 4564. The undersigned finds that Ms. Mathis proved by a preponderance of the evidence that Mr. Stephenson sexually harassed her in April of 2015 as described above. There was no reliable evidence to rebut Ms. Mathis’ allegations regarding Mr. Stephenson. For example, another driver at store no. 4564 testified that he never observed any behavior towards Ms. Mathis that amounted to a violation of O’Reilly’s policies. However, that testimony and his written statement were of little use because the other driver worked Mondays and Tuesdays while Ms. Mathis usually worked Wednesday through Friday. Mr. Stephenson did not testify during the final hearing. He did give a written statement to O’Reilly in which he denied any inappropriate conduct of the nature described by Ms. Mathis. However, and as explained in the Conclusions of Law below, Mr. Stephenson’s written statement was hearsay, and it did not supplement or corroborate any non-hearsay evidence. In addition, several other O’Reilly’s employees submitted written statements explaining that they had never seen any discrimination at their workplace and/or that they were unaware of any discrimination occurring at their workplace. However, those employees did not testify, and their written statements did not supplement or corroborate any non-hearsay evidence. Mr. Yohe gave a written statement in which he noted that no one had complained to him about being sexually harassed. However, and as noted above, Ms. Mathis told no one other than friends and family about her experiences at store no. 4564. While Ms. Mathis proved by a preponderance of the evidence that she was sexually harassed by Mr. Stephenson during her employment at O’Reilly, she did not prove by a preponderance of the evidence that she was subjected to other types of disparate treatment. Mr. Yohe denied verbally abusing Ms. Mathis, and O’Reilly’s witnesses persuasively testified that male and female drivers were treated equally with regard to having prohibited items in O’Reilly-owned delivery vehicles. As for Ms. Mathis’ assertion that she was forced to make deliveries that male drivers declined, Mr. Yohe rebutted that assertion by testifying that Ms. Mathis was unable to successfully work the front counter at store no. 4564 because she had yet to accumulate sufficient knowledge of automobile parts. Therefore, if the front counter was short-staffed at certain times, then a male driver would be asked to work the front counter and Ms. Mathis would have to handle all of the deliveries during that time period. The undersigned also finds O’Reilly had reasonable measures in place to prevent and promptly correct any sexually harassing behavior. It is also found that Ms. Mathis failed to take advantage of the preventative or corrective opportunities offered by O’Reilly.
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 Holly Mathis’ claim for relief. DONE AND ENTERED this 13th day of July, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2016.
Findings Of Fact On or about March 8, 1988, Petitioner filed a charge of discrimination based upon sexual harassment with the City of Clearwater, Office of Community Relations, involving Respondent. Petitioner had been employed at Respondent from approximately April, 1987 until she resigned in November, 1987. This case was duly noticed for hearing on August 24, 1988, by Notice of Hearing dated June 6, 1988. Petitioner received this Notice of Hearing, and did appear at the hearing. Petitioner testified, under oath, at the hearing that she did not want to pursue her claim of sexual harassment, and would offer no evidence in support of her claim. In fact, she did not offer any evidence in support of her claim.
Recommendation Based upon the foregoing, it is recommended that Petitioner's claim of discrimination based upon sexual harassment against Respondent be DISMISSED. DONE AND ENTERED this 6th day of September, 1988 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1988. COPIES FURNISHED: Elizabeth Moore 1411 Illinois Avenue Palm Harbor, Florida 34663 Scott McGregor, Owner Heavenly Bodies II 3323 U.S. 19 North Clearwater, Florida 34619 Ronald M. McElrath Office of Community Relations Post Office Box 4748 Clearwater, Florida 34618 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618
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 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 sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of: . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension. DONE AND ENTERED this 20th day of November, 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 20th day of November 2000. COPIES FURNISHED: Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. John L. Ruiz, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32304 Brent P. Abner, Esquire Suite F 4741 Atlantic Boulevard Jacksonville, Florida 32207 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344 Martha F. Dekle, Esquire 806 G Street Post Office Box 1644 Jacksonville, Florida 32207
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 is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based upon her sex/gender and/or disability. For the reasons more fully explained below, Respondent did not sexually harass Petitioner nor did it discriminate against her on the basis of her alleged disability.
Findings Of Fact Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Respondent operates a chain of fast food restaurants, including several in the Pensacola area. Petitioner, an African-American female, began working for Respondent in April or May 2008. Petitioner was still working for Respondent on December 22, 2009, when she filed her complaint with FCHR. Petitioner was hired to work 10 to 15 hours per week. She worked the late-night shift and worked primarily in the cash register area inside the restaurant where she took customers' orders and delivered them food. Additionally, Petitioner typically cleaned the front of the restaurant. During the late-night shift, the restaurant is typically staffed with just three or four people—one manager and two to three employees. Consequently, everyone is expected to work hard during the entire shift. Further, the late-night shift is when the restaurant undergoes its daily major cleaning, which Petitioner typically performed. Petitioner has a long history of pursuing discrimination or workers' compensation claims against her employers. Petitioner admitted that she had filed discrimination claims against every employer for whom she had worked, except Waffle House. She claims that at other jobs (not at Whataburger) her co-workers had assaulted her, cast Satanic spells on her, intentionally hurt her (e.g., poured hot grease on her and hit her in the face with a pan), and threatened to kidnap her children. She also alleged she had been discriminated against before, such as being called "Kunta Kinte" at two different jobs. Petitioner has not been previously successful in pursuing any of these claims. Petitioner claims to have written to and/or discussed these various claims with the FBI and President Obama. She also claims that she sees events before they occur through dreams and "flashes." She claims to have foreseen the kidnapping of a young local boy and that she has the ability to "block" hurricanes in the Gulf of Mexico from harming Pensacola "where her babies live" and even predict hurricanes. All of Petitioner's prior claims and her boasts of mystical powers undermine her credibility in this case. Sexual Harassment Petitioner claims to have been the victim of sexual harassment. At the hearing, she testified that one of her supervisors, James Cook, touched another supervisor, Shurnita Ruffin, in a sexual way (put his hands in her pants and shirt), on more than one occasion, and allegedly asked Petitioner if she was going to tell his wife what she witnessed. Petitioner claims this occurred because Mr. Cook wanted to somehow prove she was a racist (Mr. Cook is Caucasian, and Ms. Ruffin is African-American), and because Petitioner's son was dating Caroline Dickerson's babysitter. Petitioner claimed this was a racist action on the part of the two supervisors, not sex or gender discrimination. Petitioner further claimed that Mr. Cook encouraged one of Petitioner's co-workers, Jordan Yeager, to talk about his homosexuality at work. Finally, Petitioner alleged that Ms. Ruffin frequently cursed out Mr. Cook, the same individual she allegedly allowed to put his hands on her in a sexual way on multiple occasions in Petitioner's presence. Petitioner did not explain how these alleged actions were related to her sex or gender. Petitioner claimed that Ms. Ruffin treated everyone (except Jordan Yeager) poorly, regardless of the person's sex or gender. Mr. Cook, Ms. Ruffin, and Mr. Yeager testified. Each denied all of the allegations against them, and each denied doing or witnessing anything that could be construed as sexual harassment. The testimony of each of these witnesses was straightforward and credible. Mr. Yeager testified that he was sensitive to talking about his homosexuality since he was the only homosexual employee to his knowledge. Regardless, talking about one's sexuality is not sexual harassment even if it did occur and even if Petitioner were offended by homosexuality. After Petitioner filed her complaint with FCHR, Respondent investigated the allegations by interviewing all of the people with whom Petitioner worked and reviewing video taken in the store at the time of Petitioner's alleged sexual harassment. Respondent has eight different video cameras positioned around the restaurant (except in the bathrooms in which no claims of harassment had been made) and no footage corroborated any of Petitioner's allegations. Further, all of the employees interviewed signed statements that they had witnessed no incidents of sexual harassment. The restaurant is small enough that it is highly unlikely any sexual activity alleged by Petitioner could have occurred outside the view of the cameras. Petitioner's testimony regarding the claims of sexual harassment was not credible, and she failed to prove the existence of a sexually hostile work environment. Further, Petitioner never complained about or reported the alleged sexual harassment to her supervisors or through any of the prescribed channels provided by Respondent for reporting harassment or discrimination. This was despite the fact that she was aware Respondent has a zero tolerance policy towards sexual harassment, provided multiple ways for her to report sexual harassment, and even required that she take a sexual harassment quiz when she was hired. Also, Petitioner was no stranger to the corporate office when she had a complaint or needed information. Since she worked only a block away from the corporate office, she had visited there several times on a variety of issues. Petitioner failed to utilize the well-known procedures put in place by Whataburger for reporting the alleged harassment. Disability Discrimination Petitioner also claims she was the victim of disability discrimination because her hours were reduced from 10 to 15 per week down to only three hours per week because Respondent perceived her as being disabled. Petitioner described in detail an accident in June 2008 when she slipped and fell in the back of the restaurant on some grease or pickle juice that had been spilled on the floor. She completed her shift on the date of the fall, but sought medical attention the next day. Petitioner claimed to have suffered a second accident on the job in June 2009, when she hit her knee on a toilet in the restaurant. Petitioner filed a workers' compensation claim after the first accident, but not the second. Respondent was aware of the first accident, but not the second. Petitioner claimed these incidents were not accidents, but were intentional acts on the part of Respondent's employees. She could not identify the particular employees involved, and she could not testify as to why anyone would have caused these accidents other than her belief that they did not like her. The evidence does not support any of these allegations, especially Petitioner's claims that the accidents were intentionally caused. There was no showing these accidents had anything to do with her sex or gender, sexual harassment, or alleged disability. Petitioner's claim that her hours were reduced from 10 to 15 per week to three per week due to Respondent perceiving her as disabled is not supported by credible evidence. Petitioner acknowledged she was hired to work part-time for 10 to 15 hours a week and could not even provide a timeframe of when her hours were further reduced to only three per week, other than to say this occurred sometime in July 2009. Respondent noted that the reduction in hours occurred during a four-week period in October and November 2009, when Petitioner underwent the first of her two surgeries on both knees. She had surgery on her left knee on November 11, 2009, and on her right knee on February 12, 2010. Petitioner admitted that Ms. Ruffin, one of Respondent's managers, reduced her hours around the time of her first surgery because she was working too slowly, and Petitioner admitted she moved 60-70 percent slower during this period than when she first started working for Respondent. Petitioner further admitted she was in chronic pain every day, that both her knees swelled up constantly, and that her leg would lock constantly. Petitioner also admitted she called Respondent's corporate office and told them she could not stand the pain she was suffering, and that she also had stomach and rectal bleeding. Petitioner did not know whether Ms. Ruffin was aware of this call. Petitioner also admitted that she was often sent home early by Ms. Ruffin once the restaurant stopped serving customers inside (typically around midnight or 1:00 a.m.), and business slowed down. Petitioner admitted Ms. Ruffin did this to reduce the restaurant's labor costs which, in turn, enhanced Ms. Ruffin's bonus. Petitioner testified that Ms. Ruffin never told her she was being sent home early for anything related to her health or alleged disability. Respondent's witnesses testified that Petitioner's hours were reduced only because Petitioner had a habit of calling out of work (before her scheduled shift began) and asking to leave early almost every time she was scheduled to work (generally after she had finished cleaning the front of the restaurant). In each instance, Petitioner initiated her own reduction in work time. Also, in March 2010, Petitioner was warned about calling in advance after a "no call/no show" where she failed to call her supervisor and did not show up for work that night. She used the same excuse that she had used two weeks earlier (that all four of her car's tires had been slashed). This created a hardship for her supervisor who had to work short- handed that night since she was unable to find a last-minute replacement. Such behavior of not calling in advance or calling at the last minute was repeated by Petitioner on other occasions. Respondent considers this a serious offense because the manager is left without sufficient personnel to operate the restaurant at the last minute. Additionally, Petitioner experienced a slow recovery from each surgery and missed long periods of work before she was able to return. When she did return to work, she missed several scheduled shifts due to pain and/or slipping and falling outside of work. Petitioner's reduction in hours caused by these absences was not the result of Respondent perceiving her as being disabled and was not otherwise the result of disability discrimination. Respondent's witnesses were more credible than Petitioner concerning this claim. Petitioner did not prove that she was disabled or that Respondent treated her as though she were disabled. Although Respondent was aware of Petitioner's first accident on the job in June 2008, it was not aware of her alleged second accident in July 2009. Petitioner never filed a workers' compensation claim based upon the alleged second accident. Regardless of such knowledge, Respondent provided legitimate, non-discriminatory reasons for Petitioner's receiving fewer work hours, which Petitioner did not show were mere pretexts for unlawful discrimination. Therefore, any reduction in Petitioner's hours was not the result of Respondent's perceiving her as being disabled and was not otherwise the result of disability discrimination.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 13th day of July, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 S. Gordon Hill, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33602 Carolyn Johnson Post Office Box 4671 Pensacola, Florida 32507 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Carrabba's Italian Grill, Inc., subjected Petitioners, Jasen Baker and Bernard Southwell, to a hostile work environment and retaliation in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Respondent operates a chain of casual Italian restaurants. Respondent has adopted a policy against discrimination and harassment. In addition to prohibiting harassment, the policy instructs employees whom to contact if they experience harassment. The policy is contained in an employee handbook that is distributed to all employees during the initial orientation process. During orientation, Respondent's manager reviews the employee handbook with the new employee, including the policy on sexual harassment. During the orientation process, Respondent also requires employees to view a video that explains that Respondent will not tolerate harassment. The video familiarizes the employees with the company's expectations regarding the reporting of harassment in the workplace. During the orientation process, the employees are required to sign an acknowledgment on the exterior of their employee folders indicating that they have received and read the policy against harassment. The critical sections of the policy are reprinted on the folders immediately above the signature lines. All of Respondent's restaurants are required to display a poster known as the "Carrabbamico Info" poster in the kitchen area. This poster reprints the harassment policy and provides employees with a list of names to call if they feel that they have been harassed. Respondent has implemented reasonable precautions to prevent harassment from occurring in its restaurants. In the Central Florida market, Respondent's restaurants are overseen by a joint venture partner named Dick Meyer. Meyer is responsible for hiring and firing the managers of the restaurants that he oversees. In March 2000, Lawton DePriest became the managing partner at Respondent's Palm Bay location. DePriest reported to Meyer. DePriest remained in that capacity until September 2003, when he became the managing partner of Respondent's restaurant located in Formosa Gardens. It was DePriest's management style to frequently yell at employees in order to motivate them. It is also possible that he had favorites on the staff of the Palm Bay restaurant. Baker was hired by Respondent's Palm Bay restaurant in January 2002. At the time that Baker began working for Respondent, he attended an orientation session conducted by DePriest. It was DePriest's practice during orientation to discuss harassment issues and instruct employees to come to him directly if they experience any problems with sexual harassment. If for some reason an employee is not comfortable with him, DePriest would encourage the employee to contact any other person listed on the poster. Baker was given a copy of Respondent's handbook, which contains the company's policy against harassment. On that same date, January 19, 2002, Baker signed his employee folder on the blank line under the harassment policy indicating that he had read and received the policy. Whether he reviewed the employee handbook further after that date is irrelevant. Baker "vividly remembers" that during his orientation, he watched the videotape that included instructions on what he should do if he felt harassed. However, during the hearing, Baker denied ever seeing the Carrabbamico Info poster. However, Baker admitted on cross-examination that during his deposition, he had acknowledged seeing the Carrabbamico Info poster posted in the store. During the deposition, Baker specifically remembered that there were business cards with contact information for Meyer and Cheri Ashe attached to the bottom of the poster. Despite Baker's attempt to deny seeing the poster, his earlier answers in deposition were more credible in view of his specific recollection of the attached business cards and the lack of any persuasive explanation for the discrepancy. After completing his orientation, Baker initially worked as a dishwasher. Later, he was shown how to do food preparation work. Before coming to work for Respondent, Baker had previously worked for a restaurant by the name of Golden Corral. During the time that he worked with Golden Corral, he became acquainted with a co-worker named Bernard Southwell. In the summer of 2002, Petitioners discussed the possibility of Southwell coming to work for Respondent. Baker spoke favorably of the restaurant and recommended that Southwell submit an application. At the time, Baker had worked for Respondent for six or seven months. Baker did not express to Southwell that he had observed or experienced any problems with unwelcome harassment. Southwell submitted an application and was hired by Respondent's Palm Bay restaurant in August 2002 as a dishwasher. At the time he began employment with Respondent, Southwell was living with a friend of his named Joe Corbett. At the time, Baker was living in a one-bedroom apartment with his girlfriend. Several weeks later, Baker's girlfriend decided to move out. According to Petitioners, she suggested to Southwell that he move into Baker's apartment to replace her. Around October 2002, Southwell moved out of the Corbett residence and moved in with Baker. A third employee named Chris Germana also moved into the residence around the same time. Because the apartment only had one bedroom, Germana slept on the couch. Petitioners slept in the bedroom. When employees at the restaurant learned of these arrangements, speculation began about whether the two men were homosexual. According to Petitioners, sometime after Southwell started to room with Baker, co-workers at the restaurant started referring to Petitioners by nicknames. The co-workers referred to Baker as "powder," "crack pipe," and "crack head." Baker knew that "powder" was a reference to a character from the movie "Powder" and that the name had nothing to do with his sexuality. The co-workers also referred to Petitioners as "butt buddies." Southwell testified that a male co-worker, Christopher Bouley, told him, "I know you guys are lovers." Bouley, Arnold Samuel and DePriest all used these nicknames on occasion to refer to both Petitioners, according to Baker. After several months, Southwell eventually went to DePriest and complained about the "powder," "crack pipe," and "butt buddies" nicknames. Southwell told DePriest that the nicknames were funny at first, but that they started getting old. DePriest then told Samuel and Bouley to stop using the nicknames. Thereafter, the use of the nicknames stopped. Southwell claimed that Bouley would gyrate his hips behind other employees as they were bending down. However, Petitioners both admitted that Bouley would do these hip motions to both male and female employees. During the hearing, Petitioners claimed that Bouley subjected them to unwelcome touching. Baker claimed that Bouley had touched his buttocks once. However, Baker acknowledged that when his deposition was taken prior to the final hearing, he did not mention that Bouley touched his buttocks. In fact, when asked during his deposition whether he had been sexually harassed, Baker testified that he had not and that he had only been verbally harassed. Furthermore, Baker made no mention of any physical touching in the Affidavit that he submitted to FCHR at the time he filed his charge of discrimination. Southwell never saw Bouley touch or grab Baker's buttocks. And despite their close relationship, Baker never told Southwell that Bouley had grabbed his buttocks. Accordingly, Baker's allegation that he was touched inappropriately by Bouley or any other of Respondent's employees is not credible. Southwell claimed that Bouley had touched his buttocks on two or three occasions and touched his nipples twice. Southwell also claimed that Bouley had touched his penis on one occasion. According to Southwell, he was bending down to pick up sauté pans when Bouley, who was supposedly standing behind him, reached between Southwell's legs from behind and clutched Southwell's genital area through his trousers. This incident supposedly occurred during the restaurant's hours of operation while customers were in the restaurant. The alleged grabbing supposedly took place in front of a stove that sat in full view of customers seated at the restaurant's bar. Bouley flatly denied ever touching Southwell's genitals or private area. In the Affidavit that Southwell submitted to FCHR at the time he filed his charge of discrimination, Southwell made no mention of Bouley touching Southwell's penis. At the time that he submitted this Affidavit, Southwell was represented by counsel. Southwell did not offer any convincing reason for the omission of any description of his genitals being grabbed. Accordingly, Southwell's allegation that Bouley touched Southwell's genitals is not credible. Although Petitioners testified that they spoke to DePriest on several occasions, they admit that they never spoke to any of the other individuals listed on the harassment poster to complain about sexual harassment. DePriest testified that the only complaint he ever received had to do with the nicknames and that he took prompt action to resolve this problem. Annually, Respondent submits an employee experience survey to its employees that is completed anonymously and forwarded to an outside company for analysis. After the survey is completed, employees participate in a small group feedback session to discuss the results of the survey. On March 11, 2003, DePriest held the feedback session for his store, which was attended by Petitioners. During the session, Southwell commented about the situation with the nicknames. He indicated that the situation was resolved when it was brought to DePriest's attention. This was the sole extent to which either employee complained of unwelcome behavior. Respondent was not on notice of any problems with regard to touching or more serious inappropriate behavior. On March 12, 2003, Petitioners' last day of work, Southwell approached DePriest to complain about scheduling for a special event at the convention center. Southwell stated that he and Baker had signed up to participate in this event. Southwell was scheduled for the event, but Baker was not. DePriest explained that he needed Baker to float, because there were not enough people scheduled to work at the restaurant that night. DePriest later talked to Baker, who indicated that he was not disappointed that he was not participating in the event. That conversation, however, was the last time that DePriest saw Baker. DePriest learned that Petitioners had left before the end of their shift, when the plates in the restaurant were getting low and the sauté pans were getting stacked up. DePriest asked about the whereabouts of Petitioners and learned that they were seen riding their bicycles away from the restaurant. DePriest could not contact them because they did not have a telephone. DePriest eventually terminated their employment for voluntarily walking off the job.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that: Dismisses the Petition for Relief filed by Petitioner, Jasen Baker, in DOAH Case No. 05-0623, FCHR No. 23-03891; and Dismisses the Petition for Relief filed by Petitioner, Bernard Southwell, DOAH Case No. 05-0632, FCHR No. 23-03892. DONE AND ENTERED this 10th day of November, 2005, 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 10th day of November, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jason M. Gordon, Esquire Gordon & Cornell 103 North Atlantic Avenue Cocoa Beach, Florida 32931 Kevin D. Johnson, Esquire Thompson, Sizemore & Gonzalez, P.A. 501 East Kennedy Boulevard, Suite 1400 Tampa, Florida 33602 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are, one, whether Respondent corruptly used his official positions to sexually harass female subordinates in violation of Section 112.313(6), Florida Statutes; and, two, whether Respondent solicited or accepted sexual favors from female subordinates based upon any understanding that his vote, official action, or judgment would be influenced thereby, in violation of Section 112.313(2), Florida Statutes.
Findings Of Fact Respondent Rudy Maloy (“Maloy”) worked at the Florida Department of Transportation (“DOT”) from 1980 until October 21, 2001. The last seven years of his career in state government were spent in DOT’s Turnpike District Planning Office, where Maloy served as the “Public Involvement Manager.” In that capacity, Maloy conducted workshops and public hearings around the state concerning Turnpike projects. In 1992, Maloy was elected to the Leon County Commission as a Commissioner-at-Large. He was reelected twice, in 1996 and 2000. At the time of the final hearing, Maloy was a sitting Commissioner. Laurie Bradley When Maloy began working in the Turnpike District Planning Office on October 7, 1994, Laurie Bradley (“Bradley”) was already employed there in a career service position, namely, administrative assistant to the director of planning. Though she reported to the director, who was her immediate supervisor, Bradley performed secretarial functions for others in the office, including Maloy after his arrival. Maloy did not have the authority to promote Bradley, increase her salary, or let her go, but he was one of Bradley’s “bosses” in the sense that he could assign her tasks. Maloy and Bradley enjoyed a cordial relationship at work, at least by outward appearances. For example, Maloy frequently gave Bradley (and other co-workers) the complimentary tickets to events such as hockey games and concerts that he, as a County Commissioner, routinely received but could not always use himself. Bradley genuinely appreciated this token of Maloy’s generosity. She thought Maloy was a very friendly person, and she was friendly toward him. The two, in Bradley’s words, “got along fine.” At the final hearing, however, Bradley testified about other acts and practices of Maloy’s that she considered decidedly unfriendly. According to Bradley, Maloy touched her inappropriately on a number of occasions, as follows: Hugs. Bradley alleged that Maloy hugged her——from the side, around the waist——many times, and that after awhile this began to bother her. Shoulder rubs. Bradley alleged that “fairly often” Maloy stood behind her and rubbed her shoulders without ever being invited or encouraged to do so. Kisses. Bradley alleged that in or around February 1996, Maloy kissed her on the cheek. Bradley also claimed that a few weeks later, Maloy kissed her on the mouth, while the two were alone together in an elevator going down at the end of a workday. Caresses. Bradley asserted that on one occasion in May 1996, within hours, ironically, after they had received sexual harassment training, Maloy taunted her by stroking her arm and asking if such behavior constituted sexual harassment. Bradley further averred that Maloy expressed his opinion that if one person is bothered by another’s conduct in the workplace, then the two should resolve the problem privately, rather than reporting it to management. Finally, Bradley alleged that, as part of this episode of teasing, as she perceived it, Maloy stated that he might be able to get her a job with the county having a higher salary than her present position.1 Maloy testified that he never touched Bradley inappropriately, and he specifically denied her allegations to the contrary. Thus, the evidence is irreconcilably in conflict as to whether Maloy sexually harassed Bradley. It is significant, therefore, that not a single witness who testified at the final hearing had actually seen Maloy touch Bradley improperly or in an unwelcome manner. In contrast, one disinterested witness testified credibly that she observed Bradley hug Maloy once or twice as a friendly gesture of thanks for receiving tickets to a hockey game; this testimony is accepted as true. Several witnesses who lacked personal knowledge of any misconduct on Maloy’s part were called to establish that Bradley told others in confidence——at or near the time of the events in question——that Maloy was allegedly harassing her. There is no doubt that Bradley did share such information with others. In fact, her contemporaneous accusations were soon reported to persons in DOT’s management, who understandably insisted that an investigation be conducted. Consequently, Bradley submitted a formal written complaint about Maloy to her employer, and DOT investigated the matter.2 That Bradley complained to others about Maloy in 1996 is circumstantial evidence from which one might infer that the alleged sexual harassment occurred.3 It is relatively weak circumstantial evidence, however, because it ultimately rests largely, if not entirely, on the credibility of the very same person——Bradley——whose testimony it was offered to corroborate. Indeed, drawing the inference largely would beg the question of Bradley’s veracity, for doing so would require that her veracity (which Maloy disputes) be assumed.4 Having carefully weighed and evaluated all of the relevant, persuasive evidence, the undersigned is unable to find, without hesitancy, that Maloy engaged in the conduct of which Bradley has accused him. This determination, it should be stressed, reflects the fact-finder’s judgment concerning the weight of the evidence and nothing more; it is purposefully not a finding regarding what occurred or did not occur between Bradley and Maloy.5 The undersigned affirmatively finds that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Bradley.6 Likewise, it is found, by a preponderance of the evidence, that there was no understanding between Maloy and Bradley that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Bradley——assuming he requested or received any such thing, which was not clearly and convincingly proved. Ophelia Morris In December 1996, Ophelia Morris (“Morris”) replaced Bradley as the director’s administrative assistant in the Turnpike District Planning Office. As had Bradley, Morris served as a secretary to a number of managerial employees, including Maloy. She was a career service employee. Maloy could assign work to Morris, but he lacked the power to promote or fire her. Maloy and Morris became friends, and their friendship deepened over time. By 1999, the two were sufficiently close that Morris routinely confided in Maloy, sharing private information with him concerning the personal problems she was having with her then-fiancé, whom she planned to (and did) marry in May of that year. In June 1999, soon after Morris got married, Morris and Maloy began a mutually consensual sexual affair. While there are some conflicts in the evidence regarding certain immaterial details of their relationship,7 the fact-finder is convinced that neither party entered into this adulterous affair as the result of coercion, bribery, intimidation, harassment, or any type of untoward pressure, either express or implied; rather, each wanted to have an extramarital sexual relationship with the other. Some time in the autumn of 1999, Maloy offered Morris a job as his aide at the County Commission.8 The undersigned is not convinced that Morris had attempted, in any serious way, to break away from the ongoing affair with Maloy before he made this offer of employment. To the contrary, it is found that, more likely than not, Morris remained satisfied with——and had no present intention to end——the affair at the time Maloy proposed to hire her as his aide.9 Morris testified that, after initially demurring, she finally agreed to accept the at-will position as Maloy’s aide, wherein she would serve at his pleasure, but only on the condition that she and Maloy must cease having sex once she was on the county’s payroll. Morris claimed that Maloy reluctantly assented to this condition. Morris started working for Leon County as Maloy’s aide on Monday, December 20, 1999. At a Christmas luncheon that week, Morris met Denise Williams, a one-time aide to County Commissioner Cliff Thaell who was then employed in the county’s Public Works office. The two women quickly became friends and—— within a matter of days——lovers, commencing their own affair shortly after the start of the new year. In January 2000, some secrets were revealed. Denise Williams divulged to Morris that she, Denise, had slept with Maloy and asked whether Morris had done the same. Morris lied to Denise Williams and denied that she had slept with Maloy. Shortly thereafter Morris confronted Maloy with Denise Williams’s disclosure, and he admitted that the two had indeed had sex with one another. That same month, Denise Williams separately told Maloy about the affair she and Morris were having. Maloy was upset, angry, and hurt that Morris had been seeing Denise Williams. He urged her to end the affair with Denise Williams, but Morris did not immediately follow Maloy’s counsel. By February 2000, Maloy’s ongoing interest in Morris’s sexual relationship with Denise Williams was starting to cause Morris to become concerned that she would be fired because of that affair. Consequently, Morris stopped talking to Denise Williams, effectively suspending their relationship, and informed Maloy about the apparent breakup. In the meantime, Morris and Maloy continued their liaison, contrary to the supposed understanding that the sex would stop. At hearing, Morris claimed that she continued to participate in the affair with Maloy only because she feared he would fire her if she refused. However, while Maloy clearly had the power summarily to dismiss Morris, there is no convincing evidence that he ever expressly or impliedly threatened——or even intended——to take such action if she declined to have sex with him. In June 2000, unbeknownst to Maloy, Morris resumed her relationship with Denise Williams. Then, in July or August 2000, Denise Williams left a sexually explicit message for Morris on the county’s voice mail system, in a voice mailbox that Maloy checked on a routine basis. Maloy happened to hear this message before Morris did, and he was not pleased. The voice message incident was the beginning of the end of Morris’s employment as Maloy’s aide. Before long——and for a variety of reasons that are not relevant to this case—— Morris resigned, effective September 8, 2000. Two findings about Morris’s separation are made based on a preponderance of the evidence. First, Maloy did not fire Morris or force her to resign. Second, Morris did not leave because of her sexual relationship with Maloy.10 The purported understanding, mentioned above, that the affair between Maloy and Morris would terminate upon Morris’s becoming Maloy’s aide is the factual linchpin of the Commission’s case as it relates to Morris. The reason for this is that Morris clearly and candidly testified (and the undersigned has found) that her relationship with Maloy was mutually consensual and not the product of sexual harassment during the entire period she was employed with DOT. Thus, to establish that Maloy either intentionally misused his public positions to sexually harass Morris or, by sleeping with her, improperly accepted sexual favors as consideration for some official action, the Commission needed convincingly to distinguish and separate the mutually consensual “DOT phase” of the affair (which did not violate the ethics laws11) from the allegedly coercive “County Commission phase.” The undersigned is not convinced, however, that the subject affair comprised two such distinct phases. The evidence is too much in conflict regarding whether Maloy and Morris had an understanding about——or even discussed——ending their affair effective the date Morris started working as Maloy’s aide for the undersigned to find without hesitancy that such occurred.12 As a result, and in any event, it is not clear to the undersigned fact-finder that the affair between Maloy and Morris was coercive during the time she worked as his aide. The evidence in this regard, as the undersigned has evaluated and weighed it, is much too ambiguous to produce in the mind of the trier of fact a firm belief or conviction that, beginning in January 2000, Maloy was explicitly or implicitly forcing Morris to have sex with him——especially given the undisputed fact that Morris freely and voluntarily had been sleeping with Maloy for the previous six months because she wanted to.13 Additionally, the undersigned affirmatively finds, based on the greater weight of the evidence, that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Morris. Finally, it is found, also by a preponderance of the evidence, that there was no understanding between Maloy and Morris that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Morris. Denise Williams Denise Williams, introduced above, was an aide to Commissioner Thaell from October 1997 through November 1999. At hearing, Denise Williams testified that, in June 1998, Maloy——whom she had known since the mid-1980’s——began to “prey” on her after learning that she was separated from her husband. She alleged that Maloy frequently came into her office, uninvited, to look at her legs, rub her shoulders, or give her a hug. She asserted that this attention was unwanted but admitted that she never told Maloy to stop. To discourage Maloy, she claimed, she tried to dress in a less feminine way. At the same time, she acknowledged, she sometimes hugged Maloy back.14 The picture of Maloy that Denise Williams’s testimony ultimately paints——for which, it must be said, there is no independent, eyewitness corroboration——is that of a man pursuing her with dogged persistence, ignoring her constant attempts to turn him off.15 Maloy, in contrast, suggested that Denise Williams had taken the initiative, signaling her availability by often making mildly suggestive comments to him such as, “You could have been my husband.” It is not surprising, then, that while there is no dispute that the two had casual sex at Denise Williams’s apartment in February 1999, the evidence regarding how this came about is very much in conflict. Denise Williams testified that, despite having no desire whatsoever for Maloy, she finally gave in to his repeated requests for sex in order to “let him satisfy his curiosity” in the hope that he then would quit “bugging” her.16 For his part, Maloy depicted Denise Williams as the initiator who, one Tuesday or Wednesday, unexpectedly told him that her kids would be gone the next weekend and asked him to come over for a “visit” on Saturday, which invitation he accepted. It is undisputed that Maloy and Denise Williams had casual sex a second time, in July 1999, again at her place.17 Given the conflicts and ambiguities in the evidence, the fact-finder is not convinced, without hesitancy, that the events unfolded precisely as Denise Williams has described them. Yet, he is not able to find, by the greater weight of the evidence, that Maloy’s testimony is entirely accurate, either. Thus, there can be no affirmative findings, one way or the other, on the broad question whether Maloy sexually harassed Denise Williams. Concerning the particular charges, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment or “pursuit” of Denise Williams. Nor is he convinced that there was an understanding between Maloy and Denise Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her. These determinations, it should be clear, reflect the fact-finder’s assessment of the quality and weight of the evidence; although properly made by the undersigned in his role as the trier of fact, they are not affirmative findings concerning what occurred or did not occur during the relevant timeframe.18 Tina Williams Tina Williams (no relation to Denise) was Maloy’s aide at the County Commission for about six months, from July 15, 1999, through the end of that year. Before coming to work for Maloy, she had worked as an accountant at the Florida Commission on Human Relations (“FCHR”), the state agency where persons who believe they have been discriminated against can file charges as a first step towards redress. Tina Williams had been introduced to Maloy in late 1998 by a mutual acquaintance, Edward Dixon, who at the time was not only a Gadsden County Commissioner but also was associated with the FCHR in some way. A few months later, Tina Williams had bumped into Maloy again at a local function, and he had asked her to apply for the position as his aide, which she later did. After having received favorable recommendations from Commissioner Dixon and from Ron McElrath, a fraternity brother of Maloy’s who was then the Executive Director of the FCHR, Maloy had hired Tina Williams. Tina Williams claims that Maloy sexually harassed her on numerous occasions, in various ways, starting before she was hired and continuing into September 1999. She testified, for example, that he frequently put his hand on her lap or attempted to do so, hugged and attempted to kiss her, talked dirty on the telephone, and made suggestive comments, including, once when they were on an out-of-town business trip together, “this is so soft” in reference to the bed in her hotel room. Tina Williams testified that the harassment stopped in September 1999, at which point, she asserted, Maloy became increasingly critical of her work and avoided her. Their relationship, she testified, seemed to improve in November 1999, but then in December Maloy asked for her resignation, which she tendered.19 Maloy testified that he hired Tina Williams to be his aide with high expectations concerning her abilities but soon became disappointed in her failure, as he saw it, to measure up. At hearing, Maloy asserted that Tina Williams had simply not worked out in the position for a number of reasons that need not be recounted here. Suffice it to say that Maloy testified he asked Tina Williams to leave in December 1999 because he was generally dissatisfied with her performance on the job. Maloy flatly denies that he ever said or did anything to Tina Williams that could be considered improper or untoward, including touching, kissing, hugging, shoulder-rubbing, suggestive comments, or like conduct. The conflicts in the evidence concerning Tina Williams’s allegations of harassment clearly cannot be attributed to individuals’ unique perspectives or differences of opinion. This is not a situation where two people have described the same historical event in different but reconcilable terms; instead, the testimony has produced two mutually exclusive versions of history. Determining which of the protagonists is telling the purest truth is a difficult task made tougher by several factors. First, there is no independent corroboration of either his testimony or her testimony by a witness having personal, firsthand knowledge of the facts. This is a greater problem for the Commission, of course, because Maloy did not have the burden to prove his innocence. Absent independent corroboration, the conflicting testimony presents a classic “he said-she said” dilemma whose resolution, if one must choose between the competing narratives,20 depends on whether “he” or “she” is deemed to be the more credible witness. In this particular case, because the Commission bears the burden of proving its case by clear and convincing evidence, Tina Williams must be judged not just credible, but considerably more credible than Maloy to sustain a finding of guilt.21 Herein, then, lies the second factor (or interrelated pair of factors) that complicates the fact-finding function: Neither participant’s testimony is inherently incredible;22 and conversely, neither one’s testimony is inherently more credible than the other’s. Tina Williams’s saga of sexual harassment cannot be rejected out of hand as a fabrication; it is obviously not fantastic. Upon hearing her story, one does not think, “That could not possibly have happened.” To the contrary, Tina Williams’s testimony is very believable. And yet, Maloy’s testimony, too, is eminently believable. He has not presented some half-baked alibi that tests credulity but rather has said exactly what one would expect an innocent man, falsely accused of sexual harassment, to say: “I did not do it.” What more, indeed, could he say, if in fact he were innocent? There was, really, no way for Maloy affirmatively to disprove the particular allegations that Tina Williams made. Third, having closely observed both Tina Williams and Maloy on the witness stand, the undersigned is unable to state with assurance, based on their respective demeanors, which of the two was probably telling the truth——or who was not. Both appeared to be sincere in recounting what had happened (or not happened) as they recalled the events in question. Neither appeared to the fact-finder to be lying. After carefully weighing all of the evidence with the foregoing factors in mind, the undersigned is not so convinced by either side’s proof as to conclude with confidence that any particular version of history advanced at hearing is highly verisimilar relative to the competing alternative. To the point, the evidence at bottom does not produce in the mind of this fact-finder a firm belief or conviction, without hesitancy, as to the truth of Tina Williams’s allegations.23 Thus, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment of Tina Williams. Based on a preponderance of the evidence, however, the undersigned finds that there was no understanding between Maloy and Tina Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her——assuming he requested or received any such thing, which was not clearly and convincingly proved. Ultimate Factual Determinations24 The undersigned determines as a matter of ultimate fact that the Commission has failed to prove, by clear and convincing evidence, that Maloy violated either Section 112.313(2) or Section 112.313(6), Florida Statutes, as charged, in relation to his respective associations with Laurie Bradley, Ophelia Morris, Denise Williams, and Tina Williams. It is therefore determined, as a matter of ultimate fact, that Maloy is not guilty of the ethics violations with which he has been charged.
Recommendation The fact-finder having determined that the evidence fails clearly and convincingly to establish a factual basis for culpability on any ground charged, it is RECOMMENDED that the Commission enter a final order declaring Maloy not guilty of violating Sections 112.313(2) and 112.313(6), Florida Statutes. DONE AND ENTERED this 25th day of April, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 25th day of April, 2003.
The Issue Whether the Respondent intentionally committed an unlawful employment practice against the Petitioner on the basis on her national origin/Hispanic (Puerto Rican) or gender/female (sexual harassment). Whether Petitioner, a member of a protected class, was removed from her position with the Respondent in retaliation for her filing of a sexual harassment complaint with the Florida Commission on Human Relations on March 12, 1992.
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. Respondent, Martin-Marietta Electronics Information and Missiles Group, is a foreign corporation licensed to do business in Florida which employs more than fifteen employees. Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner, Margarita Coll, is a female, hispanic, citizen of the United States who resides in the State of Florida. Petitioner is a member of a protected class. Petitioner was an employee of Hi-Tec Associates, Inc., during all relevant periods, and was a de facto employee of Respondent for approximately four and one-half years. Petitioner was employed at Respondent company through a temporary agency called Associated Temporary Services and placed with the Respondent on January 5, 1987 as a receptionist/secretary in Martin-Marietta's Fleet Administration Department off Sand Lake Road, Orlando, Florida. Her responsibilities included record keeping, filing and helping Respondent's employees with company vehicles. Petitioner reported to the Respondent's Fleet Manager, Linda Reilly. Her day to day work assignments and supervision were received exclusively from the Fleet Manager. Petitioner worked in her position at the pleasure of the Respondent. She was assigned a "buyer" at Martin- Marietta who worked with the requesting department to fashion a position to meet the department's needs. The work was bidded out and awarded to the temporary employment agency who best met Respondent's criteria, on an annual basis. Over time, Petitioner assumed additional job responsibilities and in June, 1988 received a commendation for exceptional performance from Respondent's supervisors. In an effort to reward her efforts, Reilly successfully upgraded her position, first to Administrative Assistant and then to Fleet Analyst. When she was reclassified as a Fleet Analyst, the contract for her position was awarded to Hi-Tec Associates, Inc., since Associated Temporary Services did not provide technical employees under their contract with Respondent. Petitioner always worked at Martin-Marietta as a temporary employee and was never employed as a regular employee of the company. As such, she had no company benefits; she was classified as a contract laborer and her services were purchased by purchase order. Petitioner completed no company employment application, was not subject to Martin-Marietta performance appraisals and had no Martin-Marietta employment records or personnel file, other than her contract labor time slips. Petitioner received her pay from Hi-Tec. In June, 1990, Marilyn Quinonez was placed in the Fleet Administration Department as a Fleet Administrative Assistant by a temporary employment agency. Friction quickly developed between Petitioner and Quinonez. Petitioner believed that Quinonez was hired to assist her and became upset when she would not follow Petitioner's supervision or directions. Quinonez understood that she was to report to the Fleet Manager, and objected to the way Petitioner treated her. On November 15, 1990, Reilly was laid off by Respondent as part of a reduction in force and was replaced by Joseph LaPak. LaPak observed the bickering between Petitioner and Quinonez and that it continued to escalate over time. In December, 1990, the temporary positions in the department were reevaluated and the contract requirements for both positions were rewritten. The titles of both Petitioner and Quinonez were changed to that of Fleet Administrative Assistant. Any language in the contract which called for Petitioner to direct the clerical duties of the department were eliminated. In the fall of 1991, Quinonez met with LaPak and Wally DuBose to clarify her reporting responsibilities. It was confirmed that Quinonez and Petitioner were to report to the Fleet Manager, and that Petitioner did not have supervisory authority over Quinonez. Nevertheless, disputes between Petitioner and Quinonez continued. Attempts by management to resolve the problems were unsuccessful. On February 17, 1992, during the normal lunch hour, an altercation occurred between Petitioner and Quinonez. When Quinonez returned from lunch, she found Petitioner at her computer terminal. Quinonez asked for it back. Petitioner refused and an argument ensued. The two women became so angry and loud that a neighboring supervisor had to come over and separate them. Wally DuBose sent both Petitioner and Quinonez home for the day. Petitioner's immediate supervisor, LaPak was not in the office at the time. DuBose then discussed the matter with his supervisor, Paul Smilgen, and it was decided that Petitioner would be removed from the contract for her failure to work with fellow employees and management, and for general insubordination. LaPak was not involved in the decision to remove Petitioner. The decision was communicated to Hi-Tec. They, in turn, notified Petitioner that same evening that she was being replaced on the contract and not return to the Fleet Administration Department. Hi-Tec offered to attempt to place Petitioner elsewhere at Martin-Marietta but Petitioner refused because the openings available at the time paid less that the Fleet Administrative Assistant position. When LaPak first became the Fleet Manager in November of 1990, Petitioner and Quinonez worked in a very small work space. While Petitioner was training LaPak and working on the computer, LaPak's body was frequently close to Petitioner's and she felt pinned in a corner by him. After the initial working relationship was established and LaPak came into Petitioner's work area, he would touch her on her arms or shoulder in order to get her attention. In December, 1990, Petitioner complained to DuBose about LaPak touching her and making her uncomfortable. Both Petitioner and DuBose talked to LaPak about the fact that Petitioner did not want LaPak to touch her. LaPak honored that request and did not touch her again. He made every reasonable effort to get her attention when he needed to talk to her without touching her. In October, 1991, Petitioner complained to the Martin-Marietta EEO office that LaPak was sexually harassing her by inappropriate touching. Respondent then conducted an immediate investigation into the allegations and attempted to resolve the matter through internal mediation. Petitioner's testimony and other witnesses' testimony concerning sexual comments, innuendoes or propositions and inappropriate touching allegedly made by LaPak that occurred between December, 1990 and October, 1991 were inconsistent and are not credible. Petitioner presented no relevant or material evidence to show that Petitioner was the victim of national origin discrimination. Respondent's articulated reason for its decision to remove Petitioner from her contract labor position was not based on gender discrimination or national origin discrimination, nor was it pretextual. Petitioner failed to prove that her termination of employment at the Respondent's company was in retaliation for her complaints of sexual harassment or national origin discrimination.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued in which the Charge of Discrimination is DENIED and the Petition for Relief is DISMISSED. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of April, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: Paragraphs 1, 2, 3, 4, 5(in part), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 13, 14(except as to date of hire), 15(in part), 16(in part), 18(except as to the date of the counseling session), 19(except as to the date of the counseling session), 20, 21(in part). Rejected as against the greater weight of evidence: paragraphs 5(in part: Petitioner was first a contract employee with Associated Temporary Services), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 15(in part), 16(in part), 17. Rejected as immaterial, irrelevant or subsumed: paragraphs 11, 12, 21(in part). Respondent's Proposed Findings of Fact: Accepted in substance: paragraphs 1, 2, 3, 4(in part), 5, 6(in part), 7, 11(in part), 12, 13, 14(in part). Rejected as argument or a conclusion of law: paragraphs: 9, 10, 15, 16, 17. Rejected as irrelevant, immaterial or subsumed: paragraphs 4(in part), 8, 11(in part), 14(in part). Rejected as against the greater weight of evidence: paragraph 6(in part). COPIES FURNISHED: Kay L. Wolf, Esquire John M. Finnigan, Esquire GARWOOD, MCKENNA & MCKENNA, P.A. 815 North Garland Avenue Orlando, Florida 32801 James Sweeting, III, Esquire 2111 East Michigan Street Suite 100 Orlando, Florida 32806 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Mother & Daughter Cleaning Service, Inc. (Mother & Daughter) is a Florida corporation. Frank Brown, age 65, is the Vice President, Secretary and Treasurer of the corporation, and his wife, Betty Brown, is the corporation's president. The corporation provides house cleaning services to its customers. In addition to Mr. and Mrs. Brown, who serve as the cleaning crew leaders, the corporation has employed numerous other laborers, mostly women, over the past five years and employs five or more employees on a regular basis. The Petitioner was hired to perform cleaning services for Mother & Daughter clients as part of a two or three person cleaning crew on March 13, 1989. The Petitioner, Lisa Glennon, age 26, was initially interviewed for this position in the Brown home by Mrs. Brown and was offered employment. However, the offer was withdrawn when the Petitioner revealed that she did not own her own car. Then, after some discussion between Mr. and Mrs. Brown, the Petitioner was hired in spite of this circumstance. Initially, the Petitioner was trained and supervised by Mrs. Brown as part of her crew, but after about a month she was transferred to the crew led by Mr. Brown (Brown). Evelyn Engle was the other regular member of this crew, although there were a few occasions when Engle did not come to work. There was also a period of about a week when Lori Kent Brady filled in for Engle. Petitioner worked as a part of Brown's crew until June 16, 1989, when she was fired. Mother & Daughter employees would usually report to work at the Brown home. Brown's crew members were transported to various job sites, including private residences, in a van owned and driven by Brown. The crew would take a lunch break, usually at a fast food establishment such as Burger King, and would then proceed to the next job site, although not always directly. The routes to many of Mother & Daughter clients took the crew within the vicinity of the beach or causeway. On many occasions over the period of Petitioner's employment, Brown, while transporting the work crew in the van, would stare at and remark upon the physical appearance of women he would see walking in the beach area. These remarks concerned a woman's breasts or "tits"--that she was a "well-built" or "well-stacked" woman, her rear end, or figure in a T-back swimsuit. These remarks were sometimes accompanied by lip licking or growling sounds. Petitioner informed Brown that this behavior was "rude." Petitioner was offended by these remarks. In addition to drives down the beach enroute to a job site, Brown, frequently between jobs and normally after the lunch break, drove his crew to the beach or causeway to park and pass the time before the next job. During these "waiting times," Brown would comment on female passersby as well. Previous Mother & Daughter employee Joanne Goodale found these parking times disconcerting and described Brown's routes to other job sites, apart from these "parking" incidents, slightly out of the way, and the amount of time spent driving on the beach abnormal for a job circumstance. Brown frequently told off-color jokes in the presence of Petitioner and other employees. Brown constantly commented on Petitioner's appearance and body, mostly her "lovely" breasts, and he admonished Petitioner not to fuss with or adjust her clothing because he found it "distracting"; that on one occasion he suggested she take off her bra (she was complaining about sunburn pain to Engle at the time); that she and Engle take off their shirts while working (they had complained a resident's home was hot and asked about the air conditioning at the time); and that he once recounted to her that he and another unidentified woman had worked without shirts in a residence. On one occasion, Brown encouraged Petitioner to appear in a swimsuit for him. The crew had completed work early and, in reply to a question from Brown, Petitioner said she would go to the beach. Brown suggested that he drive her to her house so she could change into her swimsuit, then he would drive her to her car at his home. Petitioner declined, but Brown pursued the idea, remarking "Oh, you would really want to ruin an old man's day" by not permitting him to see her in her swimsuit. Once on a Monday, Brown told Petitioner he saw her car that weekend at the beach and considered stopping "to give her a hard time." This remark frightened Petitioner, and she protested to him. Brown recounted to Petitioner and Engle an obscene phone call his wife and daughter received at home wherein the caller inquired whether Mrs. Brown or her daughter "spit or swallow [ed]." This was offensive to both Petitioner and Engle. Brown discussed with Petitioner and Engle on more than one occasion his dissatisfaction with his sex life with his wife. In connection with these complaints, Brown stated his desire to find a girlfriend for whom he would provide in exchange for sex "with no strings attached." Petitioner objected to these discussions. On several occasions, Brown displayed the centerfolds of "Playboy" magazines to these women. On one occasion, Brown displayed a "men's" magazine in a residence the three were cleaning, made "mouth noises," and remarked on the models "lips." The women understood this remark to refer to the model's genitalia, which the model was touching with her hand. Brown on several occasions "brushed up against" his female workers that were not unintentional incidents caused by the circumstances of cleaning. Shortly after she started on his crew, Brown swatted Petitioner's rearend in the kitchen of a residence. On the same day, Brown brushed against her hip while loading the van, and Petitioner protested saying "that's enough." Brown replied "I see I'm not going to get very far with you" and told the Petitioner to loosen up and relax. The incidents, remarks and behavior of a sexual nature were sufficiently persistent to constitute a "hostile workplace." These were not isolated incidents described by the Petitioner or her witnesses, but an almost constant stream of discourse on the part of Brown. Petitioner testified, that she was offended by this behavior on the part of Brown, and was disturbed by it to the point that she feared going to work, feared that Brown would approach her during non-working hours and experienced nightmares as a result of his conduct. Brown protested that he did not intend to offend the Petitioner. The Petitioner testified that Brown's behavior and advances were unwelcome to Petitioner, and she communicated her disgust to Brown on many occasions. Petitioner did not casually use foul language at work, but did so when she became angry. On one or two occasions, she did say "fuck you" or some variant thereof to Brown. The Petitioner did not dress in a revealing manner, but normally wore calf length pants, two blouses and always a brassiere to work. Lori Brady's testimony that the Petitioner visited her home dressed in a revealing manner without a brassiere and expressed interest in dating Brady's brother is not relevant. This incident did not occur on the job or in the presence of Brown so as to solicit or incite any sexually explicit behavior on his part. Toward the end of Petitioner's employment with Mother & Daughter, Brown complained to her that she and Engle were treating him "coldly" and that, while previously Brown had been highly complimentary concerning her job performance, he became critical of it. On June 16, 1989, Brown criticized Petitioner's vacuuming. Petitioner questioned his criticism, and Brown instructed her to go to the van. Once all were in the van, an argument ensued, and the Petitioner may have threatened or offered to resign at this point. To which Brown replied, "If you want your job, be here Monday." The Petitioner later received a phone message that she was fired because of her "attitude." After she was fired from her job at Mother & Daughter on June 16, 1989, Petitioner secured part-time evening employment at "Excaliber," five days a week from 5:30 p.m. to 8:30 p.m. at a wage of $4.00 an hour, on approximately June 30, 1989. On August 17, 1989, Petitioner secured additional employment at Pinecrest Place at a wage of $4.25 per hour, working Monday through Friday from 8:00 a.m. to 4:30 p.m. She received one raise of $0.25 after three months and another raise of $0.25 after one year. Petitioner is presently employed at both jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which in favor of Petitioner's Charge of Discrimination, and it is FURTHER RECOMMENDED Petitioner be awarded her actual damages in the total amount of $1,001. DONE AND ENTERED this 10th day of December, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Accepted: paragraphs I, subparagraphs 1,2 Rejected as irrelevant: paragraphs I, subparagraphs 3,4,5 (in part) Rejected, as conclusion of law: paragraphs II and III (substantially), IV and V Proposed Findings of Fact Submitted by Respondent: Accepted: paragraphs 2,3,7,8 (in part), 17 (in part) Rejected as irrelevant: paragraph 14 Rejected as against the greater weight of the evidence: paragraphs 1,9,10,11,12,13,16,19 Rejected, as a conclusion of law: paragraphs 4,5,6,15,18 COPIES FURNISHED: Ronald M. McElrath Manager City of Clearwater Post Office Box 34618-4748 Sally Ruby Clearwater Community Relations Board Post Office Box 4748 Clearwater, FL 34618 Patricia Fields Anderson, Esquire 233 Third Street North St. Petersburg, FL 33701 J. David Haynes, Esquire Sugar Creek Professional Center 655 Ulmerton Road, Building 11 Largo, FL 34641
