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 Whether Respondent, Lincare, Inc., is liable to Petitioner, Sharon Ford, for subjecting her to a hostile work environment based on sexual harassment.
Findings Of Fact The Parties and Complaint Allegations Lincare is a Tampa-based company that focuses on home- healthcare services. It has an annual revenue of over $3 billion and is a wholly-owned subsidiary of a company based in Germany. Ms. Ford, a married woman with children, is an accountant and an attorney. Lincare first hired her as its acquisition counsel in 2001 and promoted her to director of acquisitions in 2002. She held that position for almost 15 years before she left the company on January 27, 2017. Mr. Tripp, a married man with children, served as an Arabic linguist in the Army before obtaining his law degree. Lincare hired Mr. Tripp to replace Ms. Ford as its acquisition counsel in 2002 and promoted him to general counsel in 2013. He still holds that position. On January 19, 2018, almost a year after leaving Lincare, Ms. Ford filed a Complaint with the Commission alleging a hostile work environment. She alleged that Mr. Tripp, over a 15-month period from December 2015 through March 2017, subjected her to severe and pervasive sexual harassment. On July 13, 2018, the Commission issued its notice of determination of no reasonable cause and mailed it to Ms. Ford. The notice advised her that she “may request an administrative hearing . . . by filing a Petition for Relief within 35 days of the date the determination was signed by the Executive Director.” Ms. Ford received the notice in the mail on July 16, 2018. On August 16, 2018, 34 days after the Commission issued its notice, Ms. Ford requested an administrative hearing by mailing her Petition to the Commission via U.S. mail. The Commission received the Petition on August 20, 2018. On the same day, the Commission generated its transmittal letter. But, instead of transmitting the Petition to DOAH, the Commission advised Ms. Ford that the Petition appeared to be untimely because it was received three days beyond the 35-day deadline under section 760.11(7), Florida Statutes. After Ms. Ford responded that she timely requested a hearing by post-marking her Petition before the 35-day deadline, the Commission transmitted the case to DOAH on September 21, 2018. The transmittal letter, dated August 20, 2018, did not dismiss the Petition as untimely but rather requested assignment of a judge to “conduct all necessary proceedings required under the law.” Lincare’s Structure and Policies Between 2015 and 2017 Lincare had three officers: chief executive officer (“CEO”), chief financial officer (“CFO”), and chief operating officer (“COO”). The corporate chart had the CEO at the top and the CFO and COO, who reported to the CEO, immediately thereunder. The second tier of the chart listed six department heads, none of whom were corporate officers: corporate compliance officer, head of business innovation, head of human resources, head of public relations & communications, general counsel, and director of acquisitions. These managers were equal on the hierarchy chart and all reported directly to the CEO. As director of acquisitions, Ms. Ford brought in the deals, negotiated the business side, and quarterbacked them to closing. She helped move the deals along by ensuring that Lincare personnel communicated and accomplished their required tasks. She provided business advice to the legal department and worked closely with the acquisition attorney (on smaller deals) and the general counsel (on larger deals). Ms. Ford received a salary and an objective bonus tied to the deals that closed.2/ As the general counsel, Mr. Tripp oversaw legal affairs and supervised five lawyers in the legal department, but had no control over any other department. As to the deals, Mr. Tripp handled the legal aspects, such as contracts, due diligence, and compliance, provided legal advice, and assessed risks. The CEO, COO, and CFO had sole authority to decide whether a deal closed. Mr. Tripp received a salary and a discretionary bonus tied to the company’s financial success in a given year. Although Ms. Ford and Mr. Tripp gave each other advice, they were equals on the corporate chart. Mr. Tripp had no authority over Ms. Ford and lacked the power to hire, discipline, promote, transfer, fire, or control her compensation. They were coworkers who both answered directly to the CEO. The head of human resources (“head of HR”) ran the HR department and its roughly 15 to 18 employees. Directly under the Head of HR was the employee relations director, Ms. Adams. Among other things, the HR department oversaw the employee handbook and investigated reports of discrimination and harassment. The handbook included a detailed anti-harassment policy forbidding sexual harassment by any employee at work or at work-related events outside the office. Harassment was defined to include unwelcome sexual advances, requests for conduct of a sexual nature, and other unwelcome behavior that was personally offensive and interfered with work effectiveness done in person or through electronic means. The policy prohibited any employee from making employment decisions based on the submission to or rejection of sexual advances, and noted in bold that any violation would subject an employee to discipline up to an immediate discharge. The handbook contained a detailed reporting procedure for employees who believed, had concerns, or suspected they or anyone else may have been harassed. The policy required them “to immediately notify” a named individual based on their location, which included the employee relations director or the HR Manager for employees in the corporate office. The handbook required employees to follow the procedure and noted that the failure to do so could adversely affect their rights to pursue a claim. Lincare took harassment allegations seriously. Once an allegation was reported, the employee relations director or HR managers investigated; the legal department was not involved unless a particular legal question arose. They obtained as much information as possible from the victim, spoke to potential witnesses, reviewed available documents, and interviewed the accused. If the investigation uncovered no corroborating evidence and the accused denied any wrongdoing, a report would be added to the accused’s personnel file; upon a second allegation, the accused would be terminated. If a supervisor retaliated against an employee for reporting harassment, that supervisor would be terminated. Lincare disseminated the handbook and updated versions to employees and required them to sign a form acknowledging that they received the handbook and would abide by its policies. Ms. Ford signed such forms each time she received a revised handbook, including in 2015——the version in effect until she left Lincare in January 2017. She knew about the harassment policy, the reporting requirement, and the fact that her failure to so report could adversely affect her rights. Friends and Coworkers for Over 15 Years Ms. Ford and Mr. Tripp worked closely together at Lincare for 15 years and they became good friends in the process. When Lincare hired Mr. Tripp as acquisition counsel in 2002, he worked closely with Ms. Ford on hundreds of deals. They were in constant, daily contact to strategize, handle diligence and compliance issues, advise each other on the tasks they both had to complete, and ensure the deals closed. They also had a close friendship. They regularly went to lunch alone and with others, as often as three days per week, attended social events with mutual friends, and spoke on the phone and texted about business and personal matters. They had much in common as married parents with kids around the same age and they enjoyed each other’s company. When Mr. Tripp became general counsel in 2013, Ms. Ford initially worked closely with the new acquisition counsel. In late 2014, however, she and Mr. Tripp resumed working closely together when Lincare began negotiating larger transactions. Project Maverick was the largest acquisition of Ms. Ford’s career and it closed in March 2016. Project Falcon was the largest divestiture of her career and it closed in August 2016. These two deals, and others, required Ms. Ford and Mr. Tripp to work even more closely together from 2015 until she left the company in January 2017. They often met multiple times per day. Ms. Ford sought Mr. Tripp’s assistance on the legal side and he sought her assistance on the business side. As before, she remained the quarterback shepherding the deal forward. Their friendship continued during this period. They invited each other to lunch regularly, alone and with coworkers. They attended social events with friends, including holiday dinners in 2015 and 2016. On out-of-town work trips, they rented cars together and sometimes spent time alone, such as for meals. They continued to text and speak on the phone about business and personal matters. They talked about their families, children, and other personal matters much like longtime friends do. They checked in on each other when personal crises occurred. And, when Ms. Ford began tense negotiations with the CEO about her compensation, which ultimately led her to leave Lincare, she relied on Mr. Tripp as a sounding board and for moral support. Even after Ms. Ford left the company in January 2017, she maintained contact with him. They had lunch alone at least once. For months, they continued to text each other, even about personal matters such as when she texted him after he had been in a car accident. However, their communication largely ceased once Ms. Ford filed a lawsuit against Lincare over her compensation. Ms. Ford’s Testimony Accusing Mr. Tripp of Sexual Harassment The first incident occurred on December 11, 2015. In that 10 to 20 minute conversation in her office, Mr. Tripp professed strong feelings for her and that he desired a confidential, sexual relationship with her. She rejected him and said they were just friends. She immediately called her husband and spoke to him all the way home. She felt humiliated, embarrassed, and angry. She did not attend a football game that weekend with other coworkers to avoid Mr. Tripp and kept her communications with him to e-mail for the next week. The second incident occurred in her office later in December 2015. While discussing another affair that may be happening at work, Mr. Tripp said he could not report the other employee because he wanted to do the same thing with Ms. Ford, notwithstanding the professional and personal risks. She again rejected him. For the next few weeks, Ms. Ford tried to avoid him as much as possible, but she had to face him because the deals began to lag. She said he continued to make comments here and there, but she offered no specific details. The third incident occurred in January 2016, after a conference call in Mr. Tripp’s office. He said he knew Ms. Ford was avoiding him, but he could not function. He told her he was willing to leave his wife, but she again rejected him. Over the next few months, the comments and innuendo pretty much ceased so Ms. Ford decided to go back to being friends to ensure that the Maverick and Falcon deals closed. However, a fourth incident occurred in the parking lot after a late conference call in June 2016. Mr. Tripp professed that his feelings were stronger now and that he was waiting for Ms. Ford to change her mind. She said her feelings had not changed and he said he understood. For the remainder of 2016, Ms. Ford testified generally that Mr. Tripp continued to make comments about his inability to function and that he got more obsessive as the year progressed. But she offered little detail about the comments or where and when they occurred, except that she had to be around Mr. Tripp’s wife several times and she and Mr. Tripp agreed it was uncomfortable. The fifth incident occurred in October 2016 when Mr. Tripp told her he was learning Hebrew to “connect” with her in her native language. He tried to communicate with her in Hebrew in person and via text, despite her telling him to stop because it made her very uncomfortable. As a result, she again started to avoid him at the office, though he texted her to see if she was alright and admitted to acting like a high school student. In January 2017, Mr. Tripp continued with innuendo, spoke in Hebrew, and told Ms. Ford that he might move closer to her. She believed he was obsessed, which made her nervous about his stability and her safety. But she offered no specific dates on which these events occurred. Mr. Tripp came to Ms. Ford’s office twice that month after she had heated meetings with the CEO, including on her last day at the company, January 27, 2017. He cried because he could not imagine how he would go on if she left, as she was the only reason he came to work every day. That evening, he told her on the phone that he now knows what a divorce feels like. Mr. Tripp continued to harass her following her departure, including taking his family to the same ski resort in March 2017. She testified that she stayed in her room to avoid him and never initiated contact with him while there, though text messages admitted into evidence confirm she texted him several times, about a security breach and generally about his vacation. In January 2018, a year after she left the company during a mediation of her lawsuit against Lincare, Ms. Ford for the first time accused Mr. Tripp of sexual harassment. She had not reported the allegations pursuant to Lincare’s policy, though she knew it required her to do so. She never informed other coworkers either. In fact, the only person she said she told was her husband, though he did not testify at the hearing. Ms. Ford testified that she did not report the allegations because she had a contentious relationship with the CEO during this period and she believed the CEO would terminate her. She also was concerned that Mr. Tripp was unstable and could decide to kill the deals to ensure she missed out on her bonuses. Lastly, she thought reporting would be futile due to Lincare’s culture of harassment, including by one of the two individuals to whom she was directed to report, the head of HR. Mr. Tripp’s Testimony Denying the Alleged Sexual Harassment Mr. Tripp said that he never harassed Ms. Ford. Indeed, no one has ever accused him of harassment. He said he never expressed romantic feelings for her, suggested having a sexual relationship with her, or did anything to scare her. Ms. Ford’s allegations against him came as a shock. He believed they had been good friends for over 15 years and she never indicated otherwise. They enjoyed each other’s company, had children around the same age, and spoke often about business and personal things, like friends often do. Even during the period of alleged harassment, he noticed no changes in her behavior. They continued to invite each other to lunch regularly, often eating together alone, and continued to discuss deeply personal matters about their families. They texted each other often and attended holiday dinners with friends. She chose to sit next to him at a work event at a hotel in the fall of 2016. The same could be said for business trips during this period. On a March 2016 trip to New York, Ms. Ford left a group dinner early with him because he was sick, they worked out the next day, and had breakfast. On an August 2016 trip to Nashville to celebrate the closing of the Maverick deal, they rented a car together and went to dinner alone after Ms. Ford invited him. On a trip to New York in August/September 2016, Ms. Ford stayed with Mr. Tripp to retrieve his briefcase from the office and went to the airport together after the rest of the team left. Mr. Tripp admitted to learning some Hebrew, but because he liked languages (he was an Arabic linguist in the Army), not to become romantically connected to Ms. Ford. He practiced with her because she was the only person he knew who spoke Hebrew, just as he did with other coworkers who spoke another language. She never said it made her uncomfortable. Mr. Tripp also admitted that his wife suggested moving closer to Plant High School because it had a beneficial program for their son. The idea had nothing to do with Ms. Ford, who did not live nearby, and they decided not to move in any event. Even on her final days at Lincare, they had usual interactions. Mr. Tripp admitted calling Ms. Ford the evening of her last day (but said he had not come down to her office earlier) to express concern for his friend and sadness that they would no longer be working together. He did not recall commenting about a divorce, but if he had, it only related to her being a friend. For a few months after she left Lincare, Mr. Tripp believed their relationship had not changed. They continued to text each other and had lunch alone at least once. Though he took a ski trip to the same resort in March 2017, his wife chose the resort and Ms. Ford reached out to him several times during that trip to see how he was doing. Ms. Ford also texted him after he had a car accident in March/April 2017. It was not until several months after Ms. Ford left Lincare and filed her lawsuit against the company that he noticed a change in her attitude. At one point, he invited her to lunch with a mutual friend, but she did not respond and he later learned they had lunch without him. Ms. Ford also told him on the phone that he was going to hate her someday, though he had no idea then what that meant. After a hurricane in August/September 2017, he reached out to make sure she was safe; she thanked him and wished his family well too. That was their last communication before the sexual harassment allegations were made. Credibility Findings as to the Conflicting Testimony After hearing the conflicting testimony from Ms. Ford and Mr. Tripp and observing their demeanor, the undersigned found it exceedingly difficult initially to determine who is telling the truth and who is quite an effective storyteller. Ms. Ford’s conviction in her accusations against Mr. Tripp was equal to his conviction in his denials. But, when considering all of the record evidence and testimony, the scales of credibility tip in Mr. Tripp’s favor for several reasons. For one, Ms. Ford cultivated a professional and personal relationship with Mr. Tripp throughout the alleged harassment period and continued to do so even after she left Lincare. Although she said she maintained contact because they had to work together and she wanted him as an ally, she also accused him of stalker-like, obsessive, humiliating, and unstable behavior. Her efforts to maintain a friendship with him, even after leaving Lincare, are at odds with someone who feels humiliated and fears for their safety. Ms. Ford’s testimony also veered from the affidavit she filed with the Commission. She testified that he generally made comments between November 2016 and January 2017, yet her affidavit offered more specifics as to the comments allegedly made. Her testimony about him moving to her neighborhood was entirely omitted from her affidavit. Her testimony about his efforts to sometimes communicate with her in Hebrew was at odds with the affidavit’s claim that he did so “continuously.” And, her testimony about the comments he made on her last day at Lincare differed as to substance and degree from her affidavit. Further, Ms. Ford’s testimony was directly refuted by other evidence. She testified that she did not affirmatively communicate with him about anything personal in March 2017, but text messages confirm that she checked in with him several times during the trip about his vacation and engaged in more friendly conversation than initially admitted. Ms. Ford’s reasons for waiting until a year after she left Lincare to report the accusations also call her credibility into doubt. Though she testified that she feared Mr. Tripp would kill two large deals and her bonuses therefrom, those deals closed in March and August 2016, and yet she never reported the allegedly ongoing harassment before she left Lincare at the end of January 2017. It also cannot be ignored that she waited until January 2018 to report the accusations and did so during the mediation of her compensation lawsuit against the company. Lastly, though not fatal to her claim, Ms. Ford’s failure to present any corroborating evidence cannot be ignored. She testified that she lost weight, suffered hair loss, and could not sleep, and said that it was the worst year of her life. Yet, the record is devoid of evidence that any other friends or coworkers noticed such changes, that she missed work or social events, or that she suffered at work in any way. She said he sent her inappropriate text messages, but provided no proof of them. She apparently kept a journal about work issues, but did not document the harassing incidents. And, though she said she immediately told her husband in December 2015, she chose not to present his testimony even though he was the only person who could corroborate her accusations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Sharon Ford, failed to timely file her Complaint and, regardless, that Ms. Ford failed to establish that Respondent, Lincare, Inc., committed an unlawful employment practice against her, both of which warrant dismissal of her Petition for Relief. DONE AND ENTERED this 17th day of May, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 17th day of May, 2019.
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Donald Alvin Jones, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on December 15, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until February 4, 1901, so that Petitioner might secure representation. In the course of the final hearing the Petitioner testified in his own behalf and called as witness Michael Denny, Staff Psychologist in the forensic service at the Florida State Hospital. The Respondent called Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital as its witness. Respondent's Exhibit No. 1 was admitted into evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes, (1977). Petitioner presently resides in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, theRespondent has exhausted treatment in the affiliated programs. Indeed, the Petitioner participated in the program at the North Florida Evaluation and Treatment Center, a sex offender program. This treatment commenced in October, 1977, and lasted for a period of approximately six months, after which time he was returned to the committing court and later placed in the Florida State Hospital forensic unit. The primary program for mentally disordered sex offenders in the Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions and beginning in January, 1980, was assigned to intensive assertion training. In this connection, his group therapy sessions now involve a group which is more confrontation oriented. In the course of the group therapy sessions he has only personally discussed himself one time in his most recent group and that participation discussion occurred on February 3, 1981. The discussion related to the Petitioner's interest in a talent show at the hospital. The Petitioner has learned about his childhood experience while in the program but he will not relate his sexual history or discuss his daily activities. The patient carries a diagnosis of inadequate personality and sexual deviation, namely pedophilia and has subnormal intelligence. His behavior is guarded and evasive and on balance his cooperation and participation is superficial. In the last six or eight months of his treatment, the Petitioner has not made satisfactory progress. The progress that has been achieved in the program relates to the patient's willingness to deal with others more readily, thereby getting along with others and creating a better feeling about himself. The patient has not broken the rules of the Forensic Unit lately but when pushed by others will become angry. The Petitioner has been involved in wood and musictherapy, is a member of the Jaycees and attends dances and dance classes. In January, 1980, the Petitioner was presented to a staff disposition conference consisting of members of the treatment team in the program for mentally disordered sex offenders and it was determined that the patient should be retained for a period of time. Again, in September, 1980, the patient was presented to the conference and it was determined that the hospital had exhausted the treatment possibilities for the Petitioner. Through a staff conference of the heads of the various sex offender programs in the Department's overall system held in October, 1980, it was the unanimous opinion of those members that treatment possibilities for the patient had been exhausted. Although the Petitioner continues to express some motivation about participation in the sex offender program and feels that he needs more assistance, needs a structured environment, further participation in a sex offender program offered by the Respondent would not be sufficiently beneficial to cause the Petitioner to remain in the program.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is hereby, RECOMMENDED That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Donald Alvin Jones and that said Donald Alvin Jones be returned to the committing court for further proceedings. DONE and ENTERED this 27th day of February, 1981, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1981. COPIES FURNISHED: Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit 211 East Jefferson Street Quincy, Florida 32351 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue Whether Elizabeth Stuglik ("Respondent" or "Stuglik") committed the violations alleged in the Amended Administrative Complaint dated August 9, 2010, and, if so, whether such violations are just cause for any discipline against her license.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Stuglik holds Florida Educator’s Certificate No. 1052905, covering the area of Foreign Language Spanish, which is valid through June 30, 2012. She graduated from college in May of 2007 with a Bachelor's of Science in secondary Spanish education from Indiana University. At all times material to this proceeding, Stuglik was employed as a Foreign Languages Spanish teacher at H.L. Watkins Middle School (Watkins) in the Palm Beach County School District. (School District). Her employment at Watkins was for the 2007-2008 and 2008-2009 school years. Stuglik started her teaching career during the 2007- 2008 year. Respondent taught seventh and eighth-grade Spanish. Her classroom was located in the chorus room in a stand-alone building apart from the main school building, across the courtyard area connected to the cafeteria. Stuglik's chorus room was adjacent to Heath Miller's ("Miller") classroom. He was the band teacher. An office divided the two classrooms, which both teachers shared. The shared office had two doors, and each was for entrance into the two classrooms. Each door had the capacity to be locked from the classroom side. The classroom doors could be opened from the office side, even though the classroom doors were locked from the classroom side. Miller and Stuglik saw each other on a daily basis. Stuglik felt that Miller started out their relationship by approaching her as a mentor, offering to assist her with anything she needed including discipline of the students. In the second or third week of school during August 2007, Miller told Stuglik that it was too bad she was married because it would be fun if they could get together. Stuglik failed to respond to the comment. She thought it was his way of being polite and giving her a compliment. Miller made other inappropriate unprofessional related comments to Stuglik afterwards and she never told him the comments were personally offensive or to stop. Miller also tried to grab Stuglik's buttocks quite of few times. The first time was in the shared office. Miller told Stuglik that he and his wife had an open marriage, and that his wife allowed him to have multiple sexual partners. As Respondent admitted in her deposition, Respondent had sex with Miller either three or four times at Watkins. Each time Miller took Stuglik by the hand without protest, took her to the storage room, undressed her by unfastening the top portion of her pants, lowered her pants and then she would cooperate with him by having providing sexual intercourse. Each sexual liaison Stuglik had with Miller was consensual.1 Neither Stuglik nor Miller used protection such as a condom, during sexual intercourse. Stuglik admitted that she wasn't concerned about getting pregnant because she was on birth control. The first sexual encounter took place one morning in September 2007. Miller went in Respondent's classroom before school while she was sitting at her desk, grabbed her hand, and led her "not in a hard manner" without protest to the storage room. Respondent also failed to resist when Miller undid her pants by undoing the buttons, took off her pants with her underwear, and she stepped out of her pants. Respondent, who was naked from the waist down, mounted Miller, who was sitting in a chair with his penis exposed, for the sexual act and hugged him as he instructed during sex intercourse.2 Respondent's response to Miller's actions while they engaged in sex were, "I'm married; I don't believe in this." And, "That's you; that's not me; I'm married; I don't do that." She never told him to stop what he was doing.3 Stuglik put on her clothes after sex with Miller and returned to her class and taught that day. Miller never threatened Stuglik or physically tried to harm or force her to have the sexual liaisons. At no time, did Stuglik refuse, fight, yell, or pull away forcefully during the encounters. Stuglik paused during a sexual liason but never said no or attempted to stop it. Stuglik also testified to a second sexual encounter with Miller. She admitted that several weeks later Miller got to school early again, grabbed Stuglik's hand, and led her back to the storage room where the two of them had sex again without any conversation. Respondent testified that she didn't say anything because she didn't know what was going to happen. At least a third sexual encounter occurred between Stuglik and Miller at either the end of October or the beginning of November. After the 2007 Thanksgiving break, Stuglik did not have sex with Miller again. Respondent never reported any of the sexual encounters with Miller to anyone until April 27, 2009. During the summer of 2008,, Respondent's husband divorced her. During Stuglik's 2008-2009 school year, Respondent taught sixth, seventh, and eighth-grade Spanish. She moved to a different classroom, the general music classroom, in the same music building. Stuglik was provided a key to the classroom that provided a lock for the door, which prevented anybody from entering the classroom without her allowing the individual inside. The principal informed Stuglik that Miller had asked for a key to her room, stating that he needed access to the storage room. The principal provided the option to Stuglik as to whether she provided Miller the key to Stuglik's classroom. Studlik requested that the principal provide Miller a key, which allowed Miller access to her classroom. Several times during the 2008-2009 school year, while Stuglik was working at her desk, Miller approached Respondent, sat on the desk in front of her, and put her hand on his penis. Each time he placed her hand there, he would say, "Let's do it again." During her second year teaching at Watkins, Stuglik volunteered to help with Miller's band activities on weekends and during the evenings, including going on field trips every couple of months or so. Respondent's social relationship continued with Miller and his wife. Stuglik had a discussion with Miller's wife regarding children. Miller's wife informed Respondent that she badly wanted to have a baby. Stuglik also initiated contact with Miller during the 2008-2009 school year and requested concert tickets from him after she heard he could get discounted tickets to see a show. Stuglik obtained the tickets by getting them from Miller's wife. Stuglik took her boyfriend to the concert for Valentines Day. She and her boyfriend sat next to Miller and his wife at the concert. Stuglik attended the Waterway Cafe, a restaurant bar, and socialized with a group of teachers including Miller and his wife. She went there several times. Stuglik had K.H. and T.B. in her second period class and, A.P. in her sixth-period class during the 2008-2009 school year. Miller would ask that K.H., the drum major, and T.B. come to his classroom from out of Stuglik's class. She would allow the female students to leave during her class core time and go with Miller. Other teachers also allowed Miller to remove female students from their classrooms during class and take them to his class. Approximately at the beginning of April 2009, Miller informed Respondent and several other teachers at lunch that there was a rumor that he was involved sexually with students. Respondent was shocked to hear the rumor and did not believe Miller would harm students. On or about April 16, 2009, district officials started an investigation into allegations that Miller had an inappropriate sexual relationship with a female student during the 2008-2009 school year. On Friday, April 17, 2009, K.H. came to Respondent's class crying and upset. Respondent had her step outside and wait while she took attendance. When Stuglik went in the hall to check on K.H., she was gone. When K.H. returned to Respondent's class, she didn't stay long before a person from the main office removed her. Stuglik never talked to K.H. about the crying incident. Friday was also the day Miller was removed from the school for allegedly having sex with female students. Stuglik was in Miller's classroom where he was about to update her on the rumor when the police arrived to remove him from the school. After Miller was removed from the school, he called Stulik on her cell phone at least one time at 4:16 p.m. on Friday; two times on Saturday at 10:11 a.m. and 3:53 p.m.; and one time on Sunday at 6:47 p.m. asking for information regarding the investigation. On April 21, 2009, during the investigative process, Respondent gave a sworn statement to the school detective, Vincent Mintus ("Mintus"), where he asked her, "did she date Miller" and "was she romantically involved with him." Stuglik responded no to both questions.4 Stuglik did not disclose that she had a sexual relationship with Miller during the interview. Subsequently, during the investigation, Mintus discovered that from September through November of 2007, Stuglik engaged in sex with Miller on the school campus during school hours. Stuglik admitted in her deposition that she didn't initially tell the investigator she provided about the sexual relationship with Miller because "I didn't want anybody to know." On April 27, 2009, Respondent provided a second sworn statement to Mintus where she was told by him that she was a victim, and she agreed. The Mintus interview included the following questions and answers: Q. And did it involve sexual intercourse? A. Yes. Q. Okay. Was it here at school? A. Yes. Q. Yes? Um . . . are you . . .when did that occur? Now let me ask you . . .you are a victim in that. A. Yes. Q. Do you understand that? A. Uh-huh (yes) Q. That was against your will? A. Yes. *** Q. Okay, you understand you are a victim? A. Yes. Q. Okay. Um . . . and your . . . our explanation to me is that it was absolutely non-consensual. A. Yes. Q. So you were a victim of sexual battery. A. It's . . . don't know what the terminology is, but . . . Q. Okay, um . . . okay. It was non- consensual though, right? A. Correct. After the interview, Mintus contacted the Victim's Advocate of Palm Beach County for Stuglik and started a criminal investigation into her rape allegations. Stuglik went to see the Victim's Advocate after Mintus called them. The rape investigation required a third interview of Stuglik. Respondent only agreed to provide the statement with the assurance that Miller would not be criminally prosecuted for her allegations. On July 29, 2009, Almarie Thompson ("Thompson"), a Victim's Advocate for Victim Services, and an attorney went with Stuglik to her third interview with Mintus. During that sworn interview, Mintus asked Studlik if she were taken advantage of [by Miller]. She answered, "A little bit, yeah." Thompson referred Stuglik to Norma Asencia ("Asencia"), a licensed mental health provider with Palm County Victim Services. Asencia had an intake visit with Stuglik on December 14, 2009. Asencia did not diagnose Stuglik but determined that she had common symptoms of a rape victim and structured her remaining four sessions to deal with the symptoms.5 The last session was on March 3, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner finding Stuglik did not violate Subsection 1012.795(1)(b), 1012.795(1)(g), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)9a), 6B-1.006(4)(b), and 6B-1.006(5)(m); finding that Stuglik did violate Subsections 1012.795(1)(d), 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(5)(a), and suspending her educator's certificate for one year followed by probation for one year. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 30th day of November, 2010.
The Issue The issue is whether Respondent engaged in an unlawful employment practice in violation of Section 760.10, Florida Statutes (2009),1 by discriminating against Petitioner based on her gender and by allowing her to be sexually harassed.
Findings Of Fact Respondent is a for-profit Florida corporation owned by Robert J. Morrisseau, Sr. Even though he was Respondent's president, Mr. Morrisseau, Sr., was not usually involved in the company's day-to-day operations. Robert J. Morrisseau, Jr., is Respondent's vice- president. Mr. Morrisseau, Jr., was primarily responsible for the company's operation. He also served as crew supervisor. Most of Respondent's work, which involved installing carpeting and tile in commercial facilities, was performed in locations that required the work crew to travel. Respondent's crew often had to stay in motels. Respondent contracted with an employee leasing company to handle Respondent's payroll and workers' compensation administration. All employees filled out an application provided by the employee leasing company, but Respondent made all hiring and firing decisions. Respondent did not give its employees information regarding Respondent's human resource policies and procedures. Employees were not told what to do when they believed someone in the company was discriminating against them. Petitioner is a female who dated Mr. Morrisseau, Jr., in the fall of 2008. While they were dating, Mr. Morrisseau, Jr., told Petitioner he would give her a job and teach her to lay tile. Petitioner and Mr. Morrisseau, Jr., stopped dating in December 2008. However, Mr. Morrisseau, Jr., made good on his promise to Petitioner, hiring her as a laborer on January 26, 2009. In January 2009, Mr. Morrisseau, Jr., wanted to reestablish a personal relationship with Petitioner. Mr. Morrisseau, Jr., hoped giving Petitioner a job would facilitate that goal. Petitioner was thankful for the job, but she did not want to date Mr. Morrisseau, Jr., again. At all times material here, Mr. Morrisseau, Jr., was Petitioner's supervisor. He also employed and supervised Petitioner's sister and her boyfriend and Petitioner's daughter and her boyfriend. Off and on in January 2009 through March 2009, Mr. Morrisseau, Jr., supervised a crew laying carpet and tile in Spanish Fort, Alabama. Petitioner and Petitioner's daughter and sister and their boyfriends were also part of the crew on at least two trips to Alabama. Mr. Morrisseau, Jr., rented three motel rooms for the Alabama job. He took one room with one bed. The other two rooms had two beds. On one occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep in the room with him or with her sister and the sister's boyfriend or the other male employees. On another occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep with her daughter and her daughter's boyfriend or the other male employees. On both occasions, Petitioner chose to sleep on the extra bed in a room with one of the couples. Mr. Morrisseau, Jr., never threatened Petitioner, directly or indirectly, with consequences if she did not choose to stay in his room. There is no evidence that Petitioner felt Mr. Morrisseau, Jr., was giving her a quid pro quo choice. Petitioner's job responsibilities included driving company vehicles, preparing floors for tile, and learning to lay tile. She was not expected to carry 40-foot rolls of carpet or to carry heavy loads of tile up three flights of stairs. However, Petitioner was willing to help any way she could. One time in Alabama, Petitioner and her daughter were on their knees, preparing a floor for tile. Mr. Morrisseau, Jr., took pictures of the women from the back and made a comment about the daughter's backside, stating it was as big as a man's. Respondent also had a job in Daytona Beach, Florida. Petitioner was part of the crew that worked in Daytona Beach, along with Mr. Morrisseau, Jr., and several male employees during the weeks of February 27, 2009, and March 2, 2009. Once again, Mr. Morrisseau, Jr., rented three motel rooms. He gave Petitioner the option of staying in the room with him or with the other men. Mr. Morrisseau, Jr., did not think anything of asking Petitioner if she wanted to stay in the room with him because he and Petitioner had stayed in the same hotel room previously on other occasions. During the weeks of February 27, 2009, and March 2, 2009, Petitioner elected to stay in the room with her co-workers rather than in the room with Mr. Morrisseau, Jr. There is no evidence that Petitioner believed Mr. Morrisseau, Jr., was giving her a quid pro quo choice. On one trip to Daytona Beach, Florida, Mr. Morrisseau, Jr., and another male employee bought cocaine and brought it back to the motel. Petitioner does not deny that she used some of the cocaine that night. The next morning, the crew, including Petitioner, went back to work at 7:30 a.m. On March 11, 2009, Respondent fired Petitioner. During the hearing, Mr. Morrisseau, Jr., testified that he did not fire Petitioner because she used drugs in Daytona Beach. This testimony is contrary to a statement made by Mr. Morrisseau, Sr., in an e-mail dated December 7, 2009. During the hearing, Mr. Morrisseau, Jr., testified that Petitioner was not fired because she was a woman and inadequate to perform the work. However, Petitioner and other employees heard Mr. Morrisseau, Sr., and Mr. Morrisseau, Jr., state that Petitioner and her daughter, as females, were inadequate for the job and/or that women did not need to work out of town. According to Mr. Morrisseau, Jr., he fired Petitioner because, after returning from Daytona Beach, Petitioner's work was not satisfactory. He claims that she failed to report for work because she was using illegal drugs with her boyfriend. He also claims that Petitioner was fighting with other employees, referring to an alleged altercation between Petitioner and her daughter. Mr. Morrisseau, Jr., admitted during the hearing that he had no first-hand knowledge that Petitioner continued to use drugs after returning from Daytona Beach. He did not see Petitioner fighting with other employees. Mr. Morrisseau, Sr., testified at hearing that he had no issue with Petitioner's work the one weekend he went to the Alabama job. According to Mr. Morrisseau, Sr., Petitioner "worked her little tail off" that weekend. The reason Mr. Morrisseau, Jr., gave for terminating Petitioner's employment is not credible. The most persuasive evidence indicates that Mr. Morrisseau, Jr., terminated Petitioner's employment because she was a woman and, in his opinion, inadequate to do the job. Respondent also fired Petitioner's daughter on March 11, 2009. However, Respondent rehired the daughter on March 20, 2009. The daughter worked for Respondent until the company went out of business in June 2009. The jobs in Alabama and Florida were not done properly. Mr. Morrisseau, Sr., had to bring in another company to redo and complete at least five jobs. Mr. Morrisseau, Sr., closed down the business and let all employees go in June 2009. Petitioner was unemployed from March 11, 2009, through January 1, 2010. She is entitled to lost wages for that period of time. However, Petitioner failed to present any evidence regarding the amount of lost wages during the hearing.
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, directing Respondent to cease violating Section 760.10, Florida Statutes. DONE AND ENTERED this 16th day of June, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 16th day of June, 2010.
The Issue The issue is whether respondent's law enforcement certification should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Base upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Lloyd H. Sisk, held law enforcement certificate number 2252 issued by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission). Respondent has held his license since April 3, 1971. When the events herein occurred, Sisk was employed as a detective with the Charlotte County Sheriff's Department. The charges against respondent are based upon an allegation of sexual abuse lodged against him by his niece, S. C., who is now seventeen years of age. The abuse allegedly occurred between December 1986 and February 1988. To place this controversy in proper perspective, a brief discussion of the living arrangements in the Sisk household is appropriate. In 1983 respondent, his wife, Brenda, and Brenda's mother (grandmother) decided to jointly purchase a home in Port Charlotte, Florida. Also residing with the Sisks were their teen-age son, Jeffrey, and the alleged victim. The grandmother had been given legal custody over the alleged victim, who was the daughter of Janis, Brenda's sister. Janis lived in Pinellas County, but because of various legal and personal problems, she had relinquished custody of her daughter to the grandmother shortly after S. C.'s birth. In late 1986, and over the objections of the grandmother and alleged victim, the Sisks decided to sell the home. This in turn engendered antagonism and animosity between the members of the family component and eventually culminated in the sexual abuse charges being made. The home was finally sold in February 1988, or more than a year later. Before the sale occurred, the Sisks advised the grandmother and alleged victim that, because of constant friction, the grandmother and S. C. would not live with the Sisks and their son when they relocated to a new home. At almost the same time the sale took place, S. C. began making sexual abuse allegations against respondent. In this regard, the testimony is sharply conflicting. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence. The allegations first surfaced on an undisclosed date in February 1988 when S. C. told her sixteen year old boyfriend, James, that respondent had touched her breasts, buttocks and vaginal area while giving her back massages and had put a condom on his penis while in her presence. On February 17, 1988, S. C. telephoned her mother in Pinellas County and said respondent had been coming home in the afternoon and asking to give her backrubs. The alleged victim further complained that, during those backrubs, respondent was "rubbing her butt and in between her legs". That same day, S. C. told her grandmother that respondent had touched her breasts, buttocks and vaginal area while giving her backrubs. Three days later, S. C.'s mother, while in an intoxicated state, telephoned the Largo Police Department and relate the abuse allegations to a detective. That led to an investigation by the Charlotte County Sheriff's Office and the eventual filing of criminal charges by the state attorney and sexual abuse charges by the Department of Health and Rehabilitative Services (HRS). 1/ At final hearing, the former boyfriend, grandmother and natural mother related the allegations described in the previous finding of fact. In addition, statements made by S. C. to an HRS counselor were offered into evidence. Finally, the alleged victim gave her version of what transpired. This included a rather graphic account of respondent, while in the presence of S. C., placing a condom on his penis and masturbating, and after attaining an erection a few minutes later, positioning his body next to S. C. and demonstrating various coital positions to his niece. The testimony of the alleged victim is not accepted as being credible for a number of reasons. To begin with, S. C. was extremely upset with respondent because the family home was being sold and she had been told that she could not remain with the Sisks. Her animosity towards respondent is also evidenced by the fact that, just prior to final hearing, she encouraged her mother (Janis) to "slam him (respondent)" with her testimony. It is also noted that the alleged victim's testimony at hearing differed in several material respects with the complaints she made to the Commission, HRS and in prior court testimony. Finally, the testimony of Lloyd, Brenda and Jeffrey Sisk, which is accepted as being credible, demonstrated numerous inconsistencies in S. C.'s testimony. Accordingly, it is found that respondent did not commit a lewd and lascivious act in the presence of his niece by exposing his penis and masturbating, and he did not handle her breasts, buttocks and vaginal area as alleged in the administrative complaint.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ENTERED this 27th day of August, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Heading Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990.
The Issue Whether transsexualism is a disability that is protected by the Florida Civil Rights Act of 1992 (FCRA), Chapter 760, Florida Statutes. Whether an allegation of discrimination based on transsexualism is sex discrimination, pursuant to the FCRA.
Findings Of Fact Respondent is an employer as defined by the FCRA. Petitioner, Connie Fishbaugh, is a transsexual woman who has been diagnosed with Gender Identity Disorder (GID), also known as transsexualism. Transsexualism is a recognized mental health disorder that causes a desire to live and be accepted as a member of the opposite sex. It is usually accompanied by the wish for one's body to be congruent with the preferred sex. When left untreated, persons diagnosed with transsexualism display symptoms of severe anxiety, severe depression, and dysfunction. GID is recognized as a medical condition in the Diagnostic and Statistical Manual of Mental Disabilities (4th ed.) and the International Classification of Disease (World Health Organization 10th ed.). Gender identity, which is established at an early age, is an individual's internal psychological identification as male or female. A transsexual person is someone whose gender identity is in conflict with the person's anatomical sex at birth. This conflict creates emotional pain and suffering. A person's gender identity cannot be changed through psychotherapy or through any other known treatment. Based on contemporary medical knowledge and practice, sex-reassignment is the only effective, medically prescribed treatment for this condition. The medical process of sex reassignment takes place over several years and requires life-long medical treatment and monitoring. Sex reassignment relieves the distress caused by GID for the great majority of transsexual people. Nonetheless, sex reassignment is not a cure. A person who undergoes sex- reassignment continues to carry a diagnosis and requires lifelong medical monitoring and treatment. Prior to undergoing sex-reassignment, Petitioner experienced sever anxiety, depression, and distress based on her lifelong gender dysphoria. As the years progressed, Petitioner's depression, anxiety, and distress about her gender dysphoria became more acute. Although, during this period, Petitioner fathered three children. Petitioner took part in the Harry Benjamin Standards of Care, the accepted medical protocol for the diagnosis and treatment of transsexual persons. As part of this protocol, Petitioner's treatment included: psychological evaluations, during which time she was diagnosed with GID; completion of the "real life experience," which required her to live full-time as a female; administration of hormone therapy to create desired secondary sex characteristics; and sex-reassignment surgery. Petitioner completed sex-reassignment surgery in July 1995. Sex-reassignment surgery is an accepted treatment for transsexualism. Petitioner completed psychiatric and psychological treatment following surgery. She has been undergoing hormone therapy as part of her treatment regime since approximately 1992. Although Petitioner completed sex-reassignment surgery and is now considered medically female, she must continue to undergo hormone treatments and medical monitoring for the rest of her life. Also as a result of the irreversible medical treatment she received, Petitioner is unable to bear or produce children. Several years after completing sex-reassignment, Petitioner applied for a position with the Brevard County Sheriff's Office in the spring of 2001. Petitioner notified the Sheriff's Office of her transgender status before she applied for the position. Petitioner successfully completed Respondent's required pre-employment medical and psychological testing prior to her hire. She did not have any restrictions or request any accommodations on her ability to perform the essential functions of her position. She was hired as a deputy sheriff in May 2001 and was terminated on January 27, 2002. On July 5, 2002, Petitioner filed a Charge of Discrimination with the FCHR alleging employment discrimination under the applicable state and federal law. Following the Determination: No Jurisdiction, Petitioner is pursuing her disability claim only under state law and her sex discrimination claim under both state and federal law. In her Charge of Discrimination, Petitioner alleges that she was harassed based on her transsexuality. When she reported this harassment, Petitioner alleges that Respondent did not take steps to respond to the harassment. Rather, the Inspector stated that she "should have known that it would be hard" and that "because of [her] situation, no one wanted to hire [her]." It is alleged that no steps were ever taken by Respondent to respond to the complaints of harassment. Eventually, Petitioner was terminated based on allegations of insubordination. On February 21, 2003, FCHR issued a determination letter stating that it lacked jurisdiction to consider Petitioner's claims of discrimination on the basis of handicap or on the basis of sex.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination with prejudice because there is no basis to conclude that transsexualism is included in the class of persons protected by the FCRA, under either handicap or sex discrimination. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2003. COPIES FURNISHED: Linda G. Bond, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Tallahassee, Florida 32308 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Karen M. Doering, Esquire National Center for Lesbian Rights 3708 West Swann Avenue Tampa, Florida 33609-4452 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Respondent was certified by the Commission on June 10, 1977, and was issued Law Enforcement Certificate Number 41580. The Administrative Complaint alleges that: (a) On or between January 1, 1973, and December 31, 1974, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Deborah Brice, a child under sixteen years of age, by fondling her breasts and kissing her neck; (b) On or between January l, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dorothy Spickard, a child under sixteen years of age, by putting her on his lap and tickling her near her vaginal area; (c) On or between January 1, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dawn Whitehead, a child under sixteen years of age, by digitally penetrating her vagina areas and placing her hands on his penis; and (d) On or between June 1, 1969, and December 31, 1971, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Susan Kleine, a child under sixteen years of age, by kissing her on the neck, French-kissing her, and forcing her on a bed and getting on top of her, simulating sexual intercourse. Debra Brice, Dorothy A. Spickard, Dawn Allison Steward (f/n/a Dawn Allison Whitehead), and Susan Kleine testified that Respondent touched them inappropriately during the middle 1970's while they were under the age of 18 years. Debra Brice, Dorothy Spickard, and Susan Kleine were around the age of 14 to 15 years at the time the inappropriate touching was alleged to have occurred. Dawn Steward was around the age of 8 to 9 years at the time the inappropriate touching was alleged to have occurred. Debra Brice, Dorothy Spickard, and Dawn Steward are nieces of Respondent's ex-wife, Carol, who was married to Respondent during the time that the alleged incidents were supposed to have occurred. Susan Kleine is a sister of Respondent's ex-wife, Carol. Respondent and Carol were married in 1966, and were divorced sometime around 1978-79. It was not until the latter part of 1993, approximately 20 years later, that Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine told anyone of this alleged inappropriate touching. Sometime around the latter part of 1993, Carol discussed this inappropriate touching with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Sometime around the latter part of 1993, this alleged inappropriate touching was discussed in the presence of Debra Brice or Dorothy Spickard or Dawn Steward or Susan Kleine during therapy sessions involving Carol's and Respondent's child. While Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine appeared to be relatively clear on the facts concerning the alleged inappropriate touching, they were not clear on all the facts surrounding the alleged incidents. There was no evidence presented to corroborate the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, or Susan Kleine. Respondent denies any inappropriate touching of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Respondent admits tickling and wrestling with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in a playful manner but denies touching any of them in an inappropriate manner, specifically in an inappropriate sexual manner. There is insufficient evidence to establish facts to show that Respondent touched Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in an inappropriate manner, sexually or otherwise, notwithstanding the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine to the contrary which I find lacks credibility due to the reasons set forth in Findings of Fact 5 through 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Administrative Complaint filed against the Respondent be dismissed. DONE AND ENTERED this 26th day of June, 1997, in Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Thomas M. Lindsey 21367 Anderson Road Brooksville, Florida 34601 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner, Mary Anna Cline (Ms. Cline), is a fifty-two year old female who was employed by USBI Company (USBI) from 1985 until November 15, 1994. USBI refurbishes the solid rocket boosters for the space shuttle program at the Kennedy Space Center, Brevard County, Florida. It employs substantially more than fifteen full-time employees. Ms. Cline was hired for the position of technical illustrator, which position is responsible for drawing mechanical components, doing illustration and charts, and preparing manuals and documents that apply to the day-to-day work of the company. She was a good employee and had excellent technical skills, as reflected in her performance evaluations and numerous commendations. At the time that she left the company, she was in a position titled "senior technical illustrator." In early 1992 the company had some internal reorganization, and Ms. Cline and a group of employees were transferred from Management Services to Documentation Support. The job duties remained substantially the same, but the new group also had responsibility for the Routing of Documents (RODS) program, which involved the tracing of detailed technical drawings, to be used on a computer mainframe by the "techs" (engineers). Documentation Support generated technical documentation for the rockets, all technical manuals, standard procedures, testing, fliers and presentations - generally all of the paperwork used by the company, including verbiage and graphics. The supervisor of Documentation Support, then and now, is a woman, Monica Teran. Approximately seventy-five percent of Ms. Cline's work group were women. In June 1992, Richard Bowen was hired by USBI as a technical illustrator and was assigned to Documentation Support. He became a coworker of Ms. Cline and their assigned work stations were side-by-side without a partition. Richard Bowen's two main hobbies are photography and computers. He was generally accepted as the computer expert in the work group; when there were problems with the computers, Richard Bowen could often work them out. Bowen's interest in photography is also more than a casual avocation. He attended photography school in Chicago when he was younger and worked with a modeling agency. He holds an occupational license to conduct a photography business and performs commercial photography services that do not conflict with his 9-5 job: weddings, portraits, some modeling photographs and some work with a theme park in Orlando. He is a member of the Audubon Society and takes wildlife photographs and does computer work for the organization. The Photograph Incident Staff in the work group were interested in Bowen's photographs. He brought samples of his pictures to work to show off. He usually left the pictures on his desk, face up, so that people could come to his work area and look at them. Some time in the latter months of 1992, Bowen purchased an expensive special soft-focus lens that gives the subject a soft, romantic, mystical look and deletes the wrinkles or blemishes. He discussed the lens with a fellow photographer at work and brought in a sample of photographs he had taken with the lens. Most of the pictures among the twelve to fifteen which he brought on this occasion were wildlife; there also were a few photographs of a model. She was bare-breasted, but was not exposed from the waist down. While there is no clear description of her pose in the record, she was described by some as nude and others as partially nude. None described the photographs as sexually suggestive or pornographic. In the early morning before work started, some female staff members were shuffling through the photographs. Ms. Cline was part of the group looking on. Bowen said something semi-jokingly like, "You might not want to look at these; there's a bare-breasted model." One of the women replied that it was nothing that she had not seen before, and continued shuffling through the photographs. Ms. Cline saw the model's photograph, remarked that the girl had pretty eyes, and returned to her own work station. Several months later, after a workshop that management had initiated to deal with problems in the workplace, Ms. Cline reported the photographs to Carol DuBray, Director of Human Resources and Darryl LeCanne, the immediate supervisor of Monica Teran. Ms. Cline was embarrassed by the photographs. Management's Response As soon as Ms. Cline left Darryl LaCanne's office, he called Monica Teran, and the two supervisors met with Richard Bowen. They informed him that USBI had a policy of not tolerating nude photography or pin-up calendars in the workplace and that his bringing the photographs to work was unacceptable behavior. Darryl LaCanne told Richard Bowen that the next time severe disciplinary action would be taken. Richard Bowen was also called in to speak with USBI's director of security, Barry Wysocki. Mr. Wysocki informed him that nude pictures were prohibited by USBI's regulations. Mr. Bowen received the message in clear terms that the matter was very serious. Bowen never again brought nude or semi-nude photographs to work and Ms. Cline never again saw such photographs at work. Offensive Shop Talk Work stations in the Documentation Support unit were divided into cubicles, some separated by dividers, some (Richard Bowen's and Ms. Cline's) were side by side, facing a partition with two other workers on the opposite side. Workers interacted within a small space and moved about to use different computer equipment, printers, files, and similar work tools. Among some of the workers there was occasional bawdy banter and comment about boyfriends, weekends and vacations, and the like. It was sexually oriented in a sophomoric, adolescent schoolyard manner. It included terms like "shit" and "fuck" and included conversation about "blow jobs" or "hard-ons," and other slang words involving male genitalia. With one exception, the language was not directed to Ms. Cline. That exception was one occasion when Richard Bowen responded to her criticism of some work with the expletive "fuck." Both male and female workers engaged in the banter, which was overheard by Ms. Cline and others. Ms. Cline was particularly offended by banter between Bowen and a female worker, Anna Silvestri, who occupied a workstation on the other side of the partition in front of Ms. Cline and Mr. Bowen. Ms. Silvestri sometimes initiated this banter. In May or June of 1993 Ms. Cline reported to her supervisor, Monica Teran, that Richard Bowen and Anna Silvestri used the word "fuck" and engaged in sexually explicit conversations. Ms. Teran went to her supervisor to see what to do about the complaint and Carol DuBray requested that Barry Wysocki conduct an investigation. Barry Wysocki interviewed and took statements from employees in the Document Support Unit, including Ms. Cline. She complained that Richard Bowen created a hostile environment; that she heard him say "fuck" on one occasion in the past two months and that she heard Anna Silvestri say the word on two occasions. Ms. Cline said that Bowen and Silvestri discussed Ms. Silvestri's sex life and that on one occasion Ms. Silvestri tried to discuss her sex life with Ms. Cline, but she cut her off with a comment that it was improper. Ms. Cline reported hearing Monica Teran and Beth Seaman use the word "fuck" in the work area. Bowen and Silvestri did not deny mild profanity and mildly sexual conversations. Other employees reported hearing some profanity, primarily "shit," "damn" and "bullshit." Richard Bowen and Anna Silvestri were seriously reprimanded by Barry Wysocki, by Barry Smoyer, by Darryl LaCanne and by Monica Teran. Each supervisor impressed on the two employees that the use of foul language was not tolerated and was against company policy. Barry Smoyer gave the two employees a letter "for the record," documenting the counselling session and reprimand. Monica Teran moved Ms. Cline to Anna Silvestri's workstation on the other side of the partition from Richard Bowen. She moved Anna Silvestri two cubicles away, with several partitions between her and Mr. Bowen. And George Roberts was placed next to Richard Bowen in Ms. Cline's former workstation. The intent by the supervisor was to accommodate Ms. Cline's concerns and to separate the two prime offenders. In the two years that he worked for USBI, including the time that he worked next to Richard Bowen, George Roberts heard nothing more than "hell" or "damn" from Bowen. Nevertheless, around August 1994, during her performance review, Ms. Cline informed Monica Teran that the sexual conversations were continuing. Ms. Teran informed her supervisors and another investigation commenced, this time by USBI's new security director, Al Eastlack. Mr. Eastlack conducted an interview with Ms. Cline, among others, and took her formal statement in September 1994. Barry Smoyer reviewed a draft report of Mr. Eastlack's investigation and although he understood the results were "inconclusive," Mr. Smoyer renewed his admonishments to Richard Bowen and Anna Silvestri in separate memoranda to the two, reminding them of USBI's intolerance of sexual harassment in any form and warning them that inappropriate language would result in disciplinary action. Alleged Threats After the photograph incident, but before she complained, Richard Bowen and Mary Anna Cline had a conflict over the use of some computer graphics software. Bowen was advocating one type of software that Ms. Cline opposed. Monica Teran had to intervene and instructed Ms. Cline to install the program and learn how to use it. After she complained about the photographs, Ms. Cline became convinced that Richard Bowen was going to retaliate. She complained to Monica Teran that she was afraid of Bowen but her complaints were non-specific. She began to complain of stress and sleep problems. Ms. Teran recommended that she go to the Employee Assistance Program (EAP) counsellor or to see her own counsellor or doctor. This was around the same time that Ms. Cline complained about the offensive language and conversations, and Ms. Cline took the recommendation to mean that Ms. Teran did not believe her, or that Ms. Teran felt Ms. Cline was at fault. Ms. Teran also commented to Ms. Cline that she should simply tell Bowen to stop talking like that. Another employee, Dorothy Stokey, who was offended by Bowen's use of "fuck" had told him to stop. Ms. Cline was too intimidated by him to confront him directly. Some time in the latter months of 1993, Monica Teran found Ms. Cline in the ladies' room crying and upset to the point of incoherence. Ms. Cline had overheard a conversation between Richard Bowen and Anna Silvestri involving a gun and made a connection between that and incidents of violence in the workplace and coworkers being shot. With the help of Barry Smoyer, Ms. Teran was able to get Ms. Cline out of the ladies' room and calmed down. Then, at Mr. Smoyer's direction, Ms. Teran called Ms. Silvestri and Mr. Bowen into her office to find out what had happened. Mr. Bowen did not have a gun at work and he had been discussing a gun show early that morning. Ms. Teran was satisfied that the discussion had been innocuous and reported her findings to Barry Smoyer. No other employee reported that Bowen had a gun or saw him with a gun. None, including Ms. Cline, ever complained that Bowen had threatened them with a gun. Alleged Retaliation Ms. Cline contends that USBI retaliated against her for reporting sexual harassment. Specifically she claims that her job duties were shifted from work on RODS, which she liked, to word processing, which she disliked and with which she had difficulty, due to some dyslexia. It is undisputed that Ms. Cline was a very competent graphics illustrator. She and Mr. Bowen and a couple of other employees in the unit were considered the core of the illustration function, and other employees in the unit preferred and were more skilled in the word processing and language component of the unit's responsibilities. However, the work assignments were not so clearly divided between "illustration" and "word processing." The production and modification of company manuals required both types of work. Monica Teran was interested in cross-training her staff to do a variety of tasks. There was a time, after mid-1993, when Ms. Cline's assignments involved word processing. She also continued to do a substantial amount of RODS work, as evidenced by handwritten logs maintained by the employees. Monica Teran never instructed the staffperson responsible for making assignments to remove Ms. Cline from RODS or other graphics work. RODS was not considered high profile or creative work since it primarily involved tracing technical components repetitively. There was a period when RODS work was put on hold. There was another period when temporary employees, such as George Roberts, were taken in to work exclusively on RODS. At no time during her employment with USBI was Ms. Cline demoted in job title or pay. In 1993 and 1994 her employment evaluations reflected a need to improve communications and attendance, but she was still rated "excellent," "good" and "acceptable" in all categories, and overall "excellent" and "good." There is no evidence to indicate that anyone tampered with Ms. Cline's computer or sabotaged her computer, as she claimed. On occasion it was necessary for Monica Teran or other staff to work at Ms. Cline's and other stations, to see if programs were loaded or the machine was set up properly. Although certain equipment, such as a printer, was located at an individual workstation, other staff needed access to that equipment. Job-Related Stress Ms. Cline's attendance did suffer and she did experience job-related stress. She went to an EAP counsellor and to a psychiatrist. She was on medication and there were problems with adjusting the type and amount of medication. Ms. Cline experienced sleep disorders; she reported falling asleep at the wheel of her car and had a minor accident. She also experienced other physical phenomena such as pains in her chest and arms, or numbness. Her psychiatrist diagnosed her medical condition as "adjustment reaction of adult life with mixed emotions, basically depression and anxiety." (T-415) Accommodation and Resignation Monica Teran's staff was located in two buildings: the modular unit occupied by Ms. Cline, Mr. Bowen, Ms. Silvestri and others; and another separate building which also included other USBI employees. Ms. Teran's staff was moved around routinely, as new employees were added or other work space needs arose. In Fall 1993 USBI offered to move Ms. Cline to the other building, allowing her to retain her same position and duties; she declined, and the company did not insist that she move. Later, Ms. Cline was offered a lateral position at the same pay and position level. Carol DuBray met with Ms. Cline to discuss this attempt to accommodate her. Ms. Cline also rejected that offer. She explained at hearing that she was afraid she would have been in line for a layoff, if she transferred. However, there is no competent evidence to support that fear. Ms. DuBray explained to Ms. Cline in their meeting that she would retain all benefits, including seniority. In fact, USBI has no departmental seniority policy. Seniority is based on the date an individual is hired by the company, rather than time within a department in the company. On November 15, 1994, Ms. Cline voluntarily resigned, citing "continuing stress brought on by sexual harassment, discrimination, retaliation and the flagrant disregard by USBI and its management in the handling of this problem. . . ." (Petitioner's exhibit no. 31) The Formal Complaints At the time she resigned Ms. Cline had already filed her complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC). That charge is dated December 6, 1993. The charge of discrimination alleges violations of Title VII of the Civil Rights Act, by sexual harassment and retaliation. It does not cite the Florida Civil Rights Act, Chapter 760, Florida Statutes. Pursuant to a worksharing agreement between EEOC and FCHR, the charge was sent to the Florida agency for initial investigation. That workshare agreement, which refers to the FCHR as the "FEPA," provides, in pertinent part: FILING OF CHARGES OF DISCRIMINATION In order to facilitate the filing of charges of employment discrimination, the EEOC and the FEPA each designate the other as its agent for the purpose of receiving and drafting charges. The FEPA shall take all charges alleging a violation of Title VII, ADEA, EPA, or the ADA where the parties have mutual juris- diction and refer them to the EEOC for dual filing, so long as the allegations meet the minimum requirements of those Acts. Each Agency will inform individuals of their rights to file charges with the other Agency and to assist any person alleging employment discrimination to draft a charge in a manner which will satisfy the require- ments of both agencies to the extent of their common jurisdiction. As part of the intake duties, investigators are to verify with the charging parties if they have filed a charge of discrimination with other agencies prior to filing the charge. For charges that are to be dual-filed, each Agency will use EEOC Charge Form 5 (or alternatively, an employment discrim- ination charge form which within statutory limitations, is acceptable in form and content to EEOC and the FEPA) to draft charges. When a charge is taken based on disability, the nature of the disability shall not be disclosed on the face of the charge. * * * H. The delegation of authority to receive charges contained in Paragraph II. a. does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge. * * * DIVISION OF INITIAL CHARGE-PROCESSING RESPONSIBILITIES * * * D. EEOC will not defer or refer any charge for the FEPA to process that is not jurisdictional on its face with both Agencies. If it is apparent that one Agency might have jurisdiction when another does not, then the Charging Party will be referred to the appropriate Agency. * * * (Petitioner's exhibit no. 41) (emphasis added) A notice dated December 20, 1993, on EEOC form 212, states that the FCHR has received the charge and will initially investigate the charge. The FCHR did investigate the charge and the FCHR investigator's report is dated July 13, 1994. A document styled "Determination: No Cause" is dated August 25, 1994 and has the apparent signature of FCHR's Executive Director. An accompanying document, with the same date, is styled "Notice of Determination: No Cause" and informs Ms. Cline as complainant of her right to file her petition for relief within 35 days. The petition for relief dated September 27, 1994, was filed with FCHR, and cites the Florida Civil Rights Act of 1992, as well as Title VII. The petition alleges sexual harassment and retaliation. FCHR transmitted the petition to the Division of Administrative Hearings on October 6, 1994. The amended petition for relief, filed on April 10, 1995, and referenced in the order and notice of hearing dated May 16, 1995 deletes any reference to Title VII and recites instead that the claims for relief are based on Section 760.10, Florida Statutes. The amended petition does not claim constructive discharge nor does it mention that Ms. Cline left the company approximately five months earlier. Sexual Harassment Policy and Summary of Findings USBI has, and during the relevant period had a sexual harassment policy which provides: The Equal Employment Opportunity Commission's amended "Guidelines on Discrimination Because of Sex" include a section prohibiting sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature when: submission to such conduct is either an explicit or implicit term or condition of employment, or submission to or rejection of such conduct is used as a basis for an employment decision affecting the person rejecting or submitting the conduct, or such conduct has the purpose or effect of unreasonably interfering with an affected person's work performance or creating an intimidating, hostile, or offensive work environment. Sexual harassment is unacceptable behavior by any USBI employee or outside vendor. Any form of harassment, like any conduct contrary to common decency or morality, cannot and will not be tolerated. The company will take whatever corrective action necessary to prevent or deal with acts of sexual harassment in the work place. (Respondent's exhibit no. 61) The policy provides names and phone numbers for persons to report sexual harassment and states that reports at that point will be confidential. Employees are informed of the policy through annual letters from the company head, through posters on the facility walls and through mandatory workshops for managers and their staff. USBI responded appropriately to Ms. Cline's complaints. Its response as to the photographs was effective; the sexually-themed banter, however, continued. The banter did not constitute sexual harassment of Ms. Cline, nor did it create a sexually hostile work environment. No one at USBI ever made a sexual advance towards Ms. Cline; no one suggested or requested sex from her or asked her for a date. No one touched her inappropriately. The sexual banter was never directed to or about her. The banter overheard by Ms. Cline, and the use of the "f word," were occasional, not daily or even weekly. The banter was not directed solely to, or about women; it was engaged in, and was overheard, by men and women, alike. The work quarters were close; the unit which included Ms. Cline was in a small "modular" building with work stations divided by movable partitions. By necessity, workers moved around the office to use various equipment. Coworkers of Ms. Cline did not find the environment sexually hostile, offensive or intimidating. No one else of the primarily female group complained about a sexually hostile or intimidating work environment. According to both a friend and her psychiatrist, Ms. Cline was more sensitive than most to profanity and off-color language. Without question, Ms. Cline suffered from stress at work. The stress was manifest in the myriad physical symptoms which caused absenteeism and loss of performance. USBI appropriately offered to Ms. Cline accommodations which would have allowed her to continue working at the same job level and salary but outside of the environment she found intolerable. She rejected the offers and voluntarily resigned. The resignation was not urged, directly or indirectly, by the company.
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 Ms. Cline's complaint and petitions for relief in this cause. DONE and ENTERED this 25th day of March, 1996, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5634 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact. Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in paragraph 60. Rejected as unnecessary. Adopted by implication in paragraph 60. Adopted in substance in paragraph 48. Rejected as unnecessary. Adopted in paragraph 50. Adopted in paragraph 52. Adopted in paragraph 53. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Subparagraphs are addressed as follows: Adopted in substance: a (but not the date), b, c, h, i, m, n. Rejected as unnecessary, immaterial or misleading: d, e, f, g, j, k, l. Rejected, as to the "escalation," as unsupported by the greater weight of the evidence; adopted generally in summary in paragraph 17; but some of the specifics alleged were not established (for example, the "sucking" statement). Rejected as a mischaracterization of the incident, although use of the word, "fuck," was proven. 19.-22. Rejected as not credible. 23.-24. Adopted in substance in paragraph 17. 25.-28. Rejected as contrary to the weight of evidence. Adopted in part in paragraphs 39-41, but it was not proven that the stress was the result of a "hostile work environment," within the scope of gender-based discrimination. Rejected as unnecessary. 31.-32. Rejected as contrary to the weight of evidence. 33.-34. Accepted that she complained, but the dates and frequency were not established with competent evidence 35. Conclusion that the steps were "inadequate" is rejected as contrary to the weight of the evidence. 36.-41. Rejected as unnecessary, immaterial, or misleading. 42. Rejected (as to characterization of "retaliation") as contrary to the weight of evidence and the law. 43.-46. Rejected as unnecessary, given the recommended disposition. Respondent's Proposed Findings of Fact. 1.-4. Adopted in substance in paragraphs 48 and 49. 5.-6. Adopted in substance in paragraph 54. 7. Adopted in paragraph 1. 8. Adopted in paragraph 55. 9. Adopted in paragraph 3. 10. Adopted in paragraph 4. 11. Adopted in paragraph 5. 12.-13. Adopted in paragraph 4. 14.-15. Rejected as unnecessary. Adopted in substance in paragraph 34. Adopted in paragraph 6. 18.-21. Adopted in paragraphs 7 and 8. 22. Adopted in paragraph 9. 23. Adopted in substance in paragraph 59. 24. Adopted in paragraph 61. 25. Adopted in paragraph 10. 26. Adopted in paragraph 12. 27.-28. Adopted in substance in paragraphs 11 and 12. 29. Adopted in paragraph 13. 30. Adopted in paragraph 27. 31. Rejected as unnecessary. 32.-35. Adopted in paragraphs 14 and 15. 36.-38. Adopted in paragraph 19. 39.-43. Adopted in paragraphs 20 and 21. 44. Adopted in paragraph 22. 45. Rejected as unnecessary. 46. Adopted in paragraph 23. 47.-48. Rejected as unnecessary. 49. Adopted in substance in paragraph 25. 50. Adopted in paragraph 24. 51. Adopted in paragraph 26. 52. Adopted in paragraph 28. 53. Adopted in paragraph 29. 54. Adopted in paragraph 31. 55. Adopted in paragraph 30. 56. Rejected as unnecessary. 57.-62. Adopted in substance in paragraphs 43 through 46. 63.-64. Adopted in part in paragraph 47; otherwise rejected as unnecessary. 65.-72. Adopted in substance in paragraphs 32 through 38. COPIES FURNISHED: Patricia E. Lowrey, Esquire Mark B. Roberts, Esquire STEEL HECTOR and DAVIS 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Wayne L. Allen, Esquire 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
