The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a white female. Petitioner worked as a salesperson at Respondent’s Melbourne store from April 2006 to September 2006. Petitioner’s primary job duty was selling appliances to retail customers. She also performed ancillary duties, such as tagging merchandise, cleaning and organizing the showroom floor, scheduling deliveries, and making follow-up calls to customers. Petitioner was not paid a salary. Her income was solely commission-based. She earned a total of $11,826.14 while working for Respondent, which equates to an average weekly gross pay of $537.55. Petitioner had several managers during the term of her employment. She did not have a problem with any of her managers, except for Jeffrey Rock. Mr. Rock is a black male, and by all accounts, he was a difficult manager to work for. He was “strict”; he often yelled at the salespersons to “get in the box”2 and “answer the phones”; and, unlike several of the prior managers at the Melbourne store, Mr. Rock held the salespersons accountable for doing their job. Petitioner testified that Mr. Rock "constantly" made sexual comments in the store, including comments about the size of his penis and his sexual prowess; comments about sex acts that he wanted to perform on a female employee in Respondent’s accounting office, Ms. Miho; “stallion” noises directed at Ms. Miho; and a question to Petitioner about the type of underwear that she was wearing. Petitioner’s testimony regarding the sexual comments and noises made by Mr. Rock was corroborated by Neina Blizzard, who worked with Petitioner as a salesperson for Respondent and who has also filed a sexual harassment claim against Respondent. Mr. Rock denied making any sexually inappropriate comments or noises in the store. His testimony was corroborated by Guy Ruscillo and Carissa Howard, who worked as salespersons with Petitioner and Ms. Blizzard and who are still employed by Respondent. Petitioner and Ms. Blizzard testified that Mr. Rock gave favorable treatment to Ms. Howard and two other female salespersons with whom he had sexual relationships and/or who found his sexual comments funny. Mr. Rock denied giving favorable treatment to any salesperson, except for one time when he gave a “house ticket”3 to Ms. Howard because she took herself off the sales floor for six hours one day to help him get organized during his first week as manager at the Melbourne store. Ms. Howard is white. The record does not reflect the race of the other two female salespersons -- Rebecca and Shanna -- who Petitioner and Ms. Blizzard testified received favorable treatment by Mr. Rock, and the anecdotal evidence of the favorable treatment that they allegedly received was not persuasive. Petitioner did not have any complaints regarding her schedule. Indeed, she testified that Mr. Rock changed her schedule at one point during her employment to give her more favorable hours. Petitioner’s testimony about other salespersons having sexual relationships with Mr. Rock and/or receiving favorable treatment from Mr. Rock was based solely upon speculation and rumor. Indeed, Rebecca, one of the salespersons with whom Mr. Rock allegedly had a sexual relationship, was “let go” by Mr. Rock because of the problems with her job performance observed by Petitioner and Ms. Blizzard. Petitioner’s last day of work was Saturday, September 30, 2006. On that day, Petitioner came into the store with Ms. Blizzard at approximately 8:00 a.m. because, according to Petitioner, another manager had changed her schedule for that day from the closing shift to the opening shift. Mr. Rock confronted Petitioner when she arrived, asking her why she came in at 8:00 a.m. since he had put her on the schedule for the closing shift. An argument ensued and Petitioner went into the warehouse in the back of the store to compose herself. When Petitioner returned to the showroom several minutes later, Mr. Rock was engaged in an argument with Ms. Blizzard. During the argument, Ms. Blizzard demanded a transfer to another store, which Mr. Rock agreed to give her. Then, as a “parting shot,” Ms. Blizzard told Mr. Rock that he was a “racist” who was “prejudiced against white women.” Ms. Blizzard testified that Mr. Rock told her that she was fired immediately after she called him a racist. Petitioner testified that after Mr. Rock fired Ms. Blizzard, he asked her whether she wanted to be fired too. Petitioner testified that even though she did not respond, Mr. Rock told her that “you are fired too.” Then, according to Ms. Blizzard and Petitioner, Mr. Rock escorted them both out of the store. Mr. Rock denies telling Ms. Blizzard or Petitioner that they were fired. He testified that they both walked out of the store on their own accord after the argument. Mr. Rock’s version of the events was corroborated by Mr. Ruscillo, who witnessed the argument. Mr. Ruscillo testified that he heard a lot of yelling, but that he did not hear Mr. Rock tell Ms. Blizzard or Petitioner at any point that they were fired. Petitioner and Ms. Blizzard met with an attorney the Monday after the incident. The following day, Petitioner gave Ms. Blizzard a letter to deliver on her behalf to Respondent’s human resources (HR) Department. The letter, which Petitioner testified that she wrote on the day that she was fired by Mr. Rock, stated that Petitioner “was sexually harassed and discriminated against based on being a white female by my manager, Jeff Rock”; that Petitioner “previously reported numerous incidents of this discrimination and sexual harassment to upper management”; and that she was fired “as a result of this discrimination and the refusal to put up with Mr. Rock’s sexual advancement.” This letter was the first notice that Respondent had of Petitioner’s claims of sexual harassment or discrimination by Mr. Rock. Petitioner considers herself to be a very good salesperson, but Mr. Rock described her as an “average” salesperson. Mr. Rock’s characterization of Petitioner’s job performance is corroborated by Petitioner’s acknowledgement that her sales figures were lower than those of at least Mr. Ruscillo, Ms. Blizzard, and Ms. Howard. Petitioner complained to another manager, Al Sierra, about Mr. Rock’s management style at some point in mid-September 2006. She did not complain to Mr. Sierra or anyone else in Respondent’s upper management about the sexual comments allegedly made by Mr. Rock. Indeed, as noted above, the first time that Petitioner complained about the sexual comments allegedly made by Mr. Rock was in a letter that she provided to Respondent’s HR Department several days after she was fired and after she met with a lawyer. Petitioner testified that she did not complain about the sexual harassment by Mr. Rock because he threatened to fire any salesperson who complained to upper management about the way that he ran the store and because she did not know who to complain to because she never received an employee handbook. There is no evidence that Mr. Rock fired any salesperson for complaining about how he ran the store, and he denied making any such threats. He did, however, acknowledge that he told the salespersons that they were all replaceable. Mr. Rock’s testimony was corroborated by Mr. Ruscillo and Ms. Howard, who were at the sales meetings where Petitioner and Ms. Blizzard claim that the threats were made. The training that Petitioner received when she started with Respondent was supposed to include a discussion of Respondent’s policies and procedures, including its policy against sexual harassment. The trainer, Kit Royal, testified that he remembered Petitioner attending the week-long training program and that the program did include a discussion of the sexual harassment policy and other policies and procedures. Petitioner, however, testified that no policies and procedures were discussed during the training program. Petitioner was supposed to have received and signed for an employee handbook during the training program. No signed acknowledgement form could be located for Petitioner, which is consistent with her testimony that she never received the handbook. The fact that Petitioner did not receive the employee handbook does not mean that the training program did not include discussion of Respondent’s sexual harassment policies. Indeed, Petitioner’s testimony that the training program did not include any discussion regarding salary and benefit policies (as Mr. Royal testified that it did) and that she was never told what she would be paid by Respondent despite having given up another job to take the job with Respondent calls into question her testimony that the sexual harassment policy was not discussed at the training program. Petitioner was aware that Respondent had an HR Department because she met with a woman in the HR Department named Helen on several occasions regarding an issue that she had with her health insurance. She did not complain to Helen about the alleged sexual harassment by Mr. Rock, but she did tell Helen at some point that Mr. Rock “was being an ass” and “riding her,” which she testified were references to Mr. Rock’s management style not the alleged sexual harassment. Petitioner collected employment compensation of $272 per week after she left employment with Respondent. Petitioner testified that she looked for jobs in furniture sales and car sales while she was collecting unemployment, but that she was unable to find another job for approximately three months because of the slow economy at the time. She provided no documentation of those job-search efforts at the final hearing. Petitioner is currently employed by Art’s Shuttle. She has held that job for approximately nine months. Petitioner drives a van that takes cruise ship passengers to and from the airport. The record does not reflect how many hours per week Petitioner works at Art’s Shuttle, but she testified that she works seven days a week and earns approximately $500 per week. No written documentation of Petitioner’s current income was provided at the final hearing. Respondent has a “zero tolerance” policy against sexual harassment according to its president, Sam Pak. He credibly testified that had he been aware of the allegations of sexual harassment by Mr. Rock that he would have conducted an investigation and, if warranted, done something to fix the problem. The policy, which is contained in the employee handbook, states that Respondent “will not, under any circumstances, condone or tolerate conduct that may constitute sexual harassment on the part of its management, supervisors, or non-management personnel.” The policy defines sexual harassment to include “[c]reating an intimidating, hostile, or offensive working environment or atmosphere by . . . [v]erbal actions, including . . . using vulgar, kidding, or demeaning language . . . .” Mr. Pak agreed that the allegations against Mr. Rock, if true, would violate Respondent’s sexual harassment policy. The employee handbook includes a “grievance procedure” for reporting problems, including claims of sexual harassment. The first step is to bring the problem to the attention of the store manager, but the handbook states that the employee is “encouraged and invited to discuss the problem in confidence directly with Human Resources” if the problem involves the manager. Additionally, the handbook states in bold, underlined type that “[a]nyone who feels that he or she . . . is the victim of sexual or other harassment, must immediately report . . . . all incidents of harassment in writing to your manager or the store manager, or if either person is the subject of the complaint, to the president.” Mr. Pak had an office at the Melbourne store. He testified that he had an “open door policy” whereby employees could bring complaints directly to him. The only complaint that Mr. Pak ever received about Mr. Rock was from another salesperson, Rod Sherman, who complained that Mr. Rock was a “tough manager.” Mr. Pak did nothing in response to the complaint and simply told Mr. Sherman that different managers have different management styles.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 26th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2007.
The Issue Whether Respondent committed the unlawful employment practices alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. The County Park and Recreation Department (Department) is a department of County government. At all times material to the instant case, Carolyn Gibson was a Region Manager with the Department, having ultimate supervisory authority over the operations at the County parks in her region (Region 2), including Arcola Park and West Little River Park. At all times material to the instant case, Rhonda Ham was a Recreational Specialist 2/Service Area Manager with the Department, who was based at Arcola Park and worked under the immediate supervision of Ms. Gibson. Ms. Ham has been married to her husband Earl for the last 13 or 14 years. Although Ms. Gibson considers Ms. Ham to be a friend,4 her friendship with Ms. Ham has not prevented her from taking disciplinary action against Ms. Ham when the "facts" have warranted. Petitioner is a single, custodial father of three children (two daughters and son) aged three, five, and seven. He is now, and was at all times material to the instant case, "the sole support of these children." Unlike Ms. Ham, Petitioner is college educated. He attended the University of Miami and Clarksdale Community College in Clarksdale, Mississippi, before receiving his Bachelor of Arts degree from Virginia State University (VSU) in 1993. After finishing his undergraduate studies, he spent a year in graduate school at VSU. Petitioner played football in college, and he went on to play the sport professionally after being selected in the National Football League (NFL) draft. One of Petitioner's teammates on the University of Miami football team was James Stewart.5 As teammates, Petitioner and Mr. Stewart "got along with one another and communicated from time to time," but they were not "close friends" and did not "hang out" together. Mr. Stewart also went on to play in the NFL. Following his playing career, he was convicted of a felony, and, in 2001, began serving a five-year prison sentence. He was released from prison in 2006 and is currently on probation. From March 20, 2006, until December 14, 2006, Petitioner was employed by the County as a Park and Recreation Manager 1 at West Little River Park. In that capacity, he had supervisory authority over the other Department employees assigned to work at the park. At all times during his employment with the County, he was a probationary employee with no entitlement to continuing employment.6 Ms. Ham was Petitioner's immediate supervisor for the duration of Petitioner's employment with the County except for a three-week period in April and/or May 2006.7 Her office (at Arcola Park) was located approximately two miles from Petitioner's office (at West Little River Park). Ms. Ham had the authority to monitor and evaluate Petitioner's job performance and to counsel and reprimand Petitioner, both verbally and in writing. The authority to terminate Petitioner's employment resided, not with Ms. Ham, but with Ms. Gibson. It was Ms. Gibson who hired Petitioner. She did so after reviewing Petitioner's application and interviewing him. Petitioner had applied for the position on or about March 2, 2006, by submitting a filled out and signed County employment application form. By signing the application, he "certified," among other things, the following: I certify that to the best of my knowledge and belief, all of the statements contained herein, and any attachments, are correct, complete and made in good faith. I understand that a background check will be conducted and that should an investigation disclose any misrepresentation, I may be subject to dismissal. The application form had an "Employment History" section, which contained the following instructions: List previous employment history, starting with your current or most recent employment. If you have held more than one position within the same organization, list each position as a separate period of employment. Be sure to indicate where employment may be verified. Please include job-related volunteer, temporary, part-time work and military experience. On his application, Petitioner knowingly failed to disclose that he had been employed from May 30, 2005, to September 17, 2005 as a Recreation Aide V with the City of Miami Parks and Recreation Department, working under the supervision of Lewis Mahoney, who was the Park Manager at Gibson Park. As a City of Miami Parks and Recreation Department employee, Petitioner had had a poor work record and had not gotten along with Mr. Mahoney. He undoubtedly knew, at the time he filled out the County employment application form in March 2006, that Mr. Mahoney, if contacted by the County, would not have good things to say about him. Ms. Gibson did not find out about Petitioner's failure to disclose his employment with the City of Miami on the County employment application form until after she had terminated Petitioner. Had she known about this non-disclosure, she would have never hired Petitioner and allowed him to work for the County. As part of the application and hiring process, Petitioner signed various forms in addition to the County application form. One of these forms was an Oath on Outside Employment for Full-Time Employees form that Petitioner signed on March 2, 2006. It read as follows: I, Damacio Green, a full-time employee of Miami-Dade Park and Recreation Department, certify that I am not engaged in any type of outside employment. I certify that I am not paid by, nor do I receive any equivalent gratuities from, any employer for any of my services except as performed during the normal course of my employment with the Miami-Dade Park and Recreation Department. I certify that before accepting outside employment, I will submit a complete record of intended outside employment to my Department Director for approval. I will abide by the Department Director's decision on the matter. I further certify that I fully understand the County policy on outside employment outlined below. MIAMI-DADE COUNTY POLICY ON OUTSIDE EMPLOYMENT (SEC. 2-11 OF THE CODE OF METROPOLITAN DADE COUNTY, FLORIDA) No full-time County employee shall accept outside employment, either incidental, occasional or otherwise, where County time, equipment or material is to be used or where such employment or any part thereof is to be performed on County time. A full-time County employee may accept incidental or occasional outside employment so long as such employment is not contrary, detrimental or adverse to the interest of the County or any of the department and the approval required in subsection (C) is obtained. Any outside employment by any full-time County employee must first be approved in writing by the employee's department head who shall maintain a complete record of such employment. Any employee convicted of violating any provision of this section shall be punished as provided in Section 1-5, and, in addition thereto, shall be subjected to dismissal by his Department. (Ord. No. 58-5, Sec. 25.01, 2-18-58) When Petitioner "first started working" for the County, he asked Ms. Gibson if, under the County's Policy on Outside Employment, he would be able to operate his mobile food service business, Damacio's Mr. Tasty, LLC, while employed with the County. Ms. Gibson responded to Petitioner's inquiry by telling him, "You can't do it." On at least two occasions during his employment with the County, Petitioner operated his mobile food service business without Departmental approval, despite knowing that doing so was in violation of the County's Policy on Outside Employment. It was not until after Petitioner had been terminated that Ms. Gibson discovered that Petitioner had committed this violation of the County's Policy on Outside Employment. Ms. Gibson would have terminated Petitioner's employment had he still been employed with the County at the time she learned of the violation. Among the other forms that Petitioner signed during the application and hiring process was an Acknowledgment of Receipt of the County's Unlawful Harassment Policy (Administrative Order No. 7-37). He signed this form on March 2, 2006. By doing so, he acknowledged the following: I have received a copy of this Unlawful Harassment Policy and understand that it contains important information on filing a complaint of harassment with my department or the Office of Fair Employment Practices. I will familiarize myself with the Unlawful Harassment Policy and understand that I am governed by its contents. If I have questions about the policy I can contact my Department Affirmative Action Officers Yolanda Fuentes-Johns or William Lindley at (305)755-7866 or the Office of Fair Employment Practices at (305)375-2784. The County's Unlawful Harassment Policy (which was printed on the form) provided, in pertinent part, as follows: POLICY The policy of Miami-Dade County is to ensure that all employees are able to enjoy a work environment free from all forms of discrimination, including harassment, on the basis of race, sex, color, national origin, religion, retaliation, age, disability, ancestry, marital status, pregnancy, sexual orientation, or the exercise of their constitutional or statutory rights. Administrative Order 7-28 was adopted in 1987 specifically to protect County employees from sexual harassment. Administrative Order 7-28 and Administrative Order 7-6, Personnel Policy on Equal Employment Opportunity, have since been interpreted to extend similar protection to employees who believe they have been harassed for unlawful reasons other than sex. This Administrative Order is intended to make clear that all County employees who believe they have been unlawfully harassed must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and may file a complaint for prompt and proper investigation. Employees who are found guilty of unlawfully harassing other employees shall be subject to appropriate sanctions, depending on the circumstances. These may range from counseling up to and including termination. Miami-Dade County will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. The County, in exercising reasonable care to prevent and promptly correct harassment or retaliation for reporting harassment, will protect victims from further unlawful harassment and retaliation. * * * COMPLAINT PROCEDURE Employees who believe they have been the subject of harassment prohibited by this Administrative Order, must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and, if they choose, may file a formal complaint with the County's Office of Fair Employment Practices. Employees may, if they desire, also report such incidents of unlawful harassment to their supervisor but are under no obligation to do so. Employees are encouraged to report harassment before it becomes severe or pervasive. This will facilitate early mediation and effective resolution of potential unlawful harassment complaints. All complaints of harassment, subsequent investigations and corrective actions shall be handled on a confidential basis to the extent possible under the law. Protective measures will be instituted to protect the complainant. Miami-Dade County has established procedures for resolving, filing and processing complaints of unlawful harassment. If the investigation confirms the existence of unlawful harassment, the Fair Employment Practices Office will pursue prompt corrective action, including remedial relief for the victim, and appropriate disciplinary action against the offender. * * * At no time during his employment with the County did Petitioner complain, in accordance with the "complaint procedure" described in the County's Unlawful Harassment Policy, that he was being, or had been, sexually harassed by Ms. Ham. During much of the time that Petitioner worked under Ms. Ham's immediate supervision, the two had an amicable relationship--so amicable that on one occasion, without being asked by Ms. Ham, Petitioner gave her a check in the amount $125.00 to help her purchase a dance outfit for her daughter. What started out as a friendly, non-physical relationship evolved into a sexual one, in which both Petitioner and Ms. Ham freely and willingly participated. They engaged in sexual activity on three separate occasions--once in Petitioner's office at West Little River Park and twice in Ms. Ham's office at Arcola Park. The first of these consensual sexual encounters occurred in August 2006. The third and final encounter was in October 2006. On each occasion, Petitioner was the one who initiated the physical contact. "[A]shamed and embarrassed" by her conduct, Ms. Ham decided to put an end to her adulterous affair with Petitioner. There was no further sexual activity between Ms. Ham and Petitioner after October 2006. Ms. Ham oversaw a Children's Trust-funded after-school program at Arcola Park in which Petitioner's daughter, DK, was registered. It was Ms. Ham's responsibility to make sure that children in the program were picked up from their respective schools at the end of the school day and transported to Arcola Park. After the end of the school day on November 6, 2006, Petitioner received word from DK's school that DK had not been picked up and was still at school. Petitioner ultimately telephoned Ms. Gibson on her cell phone and, in a "very loud" tone of voice, said, "Ms. Ham left my daughter, she didn't pick my daughter up from school, what are you going to do about it?" Ms. Gibson later met with Petitioner and Ms. Ham to discuss the matter and try to sort things out. During the meeting, Petitioner was, in Ms. Gibson's eyes, "irate" and "out of control." He told Ms. Gibson that she "couldn't tell him anything" because she did not "have any kids" and she "kn[e]w nothing about parenting." Ms. Gibson sensed from Petitioner's and Ms. Ham's "body language" and the way that they were "glaring at each other" at the meeting that they might be involved in a non-work- related relationship. She therefore asked them, before they left, whether they had "crossed the line." They both denied that there was anything going on between them. A few days later, Petitioner came into Ms. Gibson's office and asked her, rhetorically, "Do you think I'm interested in Ms. Ham?" He then told her, "Well, Ms. Gibson, I'm not interested in Ms. Ham, I'm interested in you." Ms. Gibson's response to this come-on was to direct Petitioner to "get out of [her] office." Petitioner was due to be evaluated on or about September 24, 2006, but it was not until November 17, 2006, that he received his first Management Performance Evaluation. This November 17, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater") with input from Ms. Gibson (who signed the evaluation as the "reviewer"). The overall rating was unsatisfactory. The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Unsatisfactory Mr. Green, you entered this department on March 28, 2006 as a Park & Recreation Manager 1 at West Little River Park. From your inception there has been an increase in participant enrollment in spring and summer camp, and [the] after school program. However, there has been a decrease in registration/attendance in your sports development program, which is the region's primary program. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, over the past 6 months I have had the opportunity to observ[e] your decision- making skills and often times your decisions are hasty. At your level you should take the opportunity to first identify the problem, gather the facts and make decisions based on facts and not what you are feeling at the time, i.e. sending part-timers home and then call[ing] them back to work within the hour.[8] Also, it is important that you understand parents are our customers, they might not always be right in their actions. However, as professionals we must always maintain our composure by allowing them to vent and then by explaining the circumstances rather than trying to talk over them and suggesting they bring a spouse to deal with the situation instead, as you have done.[9] PERSONAL DEVELOPMENT RATING: Satisfactory Mr. Green, you have a solid educational foundation and you have taken the initiative to enroll in PAR training to aid you in better understanding the payroll attendance record. You are currently involved in the recreation modular training. However, being new to the department it is extremely important that you make a concentrated effort to enroll in trainings in the following areas[:] time management and dealing with conflict in the workplace, progressive discipline and a host of other trainings relative to your professional development. You need to encourage your subordinate staff to enroll in training to improve their knowledge and skills. PLANNING AND ORGANIZING RATING: Needs Improvement Mr. Green, during your first six months in the department you have not taken the initiative to plan, organize or implement any special events, activities or sporting events.[10] You have not shown any creativity or enthusiasm. INTERPERSONAL SKILLS RATING: Needs Improvement Mr. Green, your relationship with your subordinate staff has been less than cohesive. There have been instances of verbal conflict and derision between you and Mr. Morgan and Ms. Johnson,[11] a seasonal employee[,][12] and several parents of patrons that you were not able to resolve satisfactorily as the leader. Although we have discussed strategies on how you can improve in this area improvement is still needed to foster the teamwork ethic at West Little River Park. You have not made an effort to understand[] how the chain of command works. It is very important that you understand your first point of contact is your Service Area Manager. If we cannot resolve the situation at my level and if you're not satisfied with the resolution, you can then request a meeting with the next level in the chain of command. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, your very limited knowledge of the computer has been a hindrance for you as a Park & Recreation Manager 1. It is very important for you to have a basic working knowledge of the computer. The computer is an essential tool that is used everyday. Our reliance on them is an ever increasing fact. Mr. Green, you are not taking the initiative to learn what you need to know in order to function in your capacity as a manager. During our regional staff meetings you are not attentive and you do not take notes, yet you come back to me with questions that were covered during the staff meetings.[13] I have been supportive by consistently aiding you with your assignments. However, in many instances you have not comprehended the information well and have looked to me for more than just support. You are now faced with spreading your part- time budget and coming up with goals and objectives. You have missed every deadline given. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Needs Improvement Mr. Green, an improvement is needed in the area. You have been encouraged to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. However, you have been challenged in your role as a leader in applying them in the daily operations of the park and rapport with your staff and patrons. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Re-evaluate in 1 1/2 months/ Is employee eligible for permanent status? N/A IN WHAT WAYS CAN OR MUST THE EMPLOYEE IMPROVE PERFORMANCE? Mr. Green, to improve your overall performance, concentrate on the following: Increase participant registration/ attendance in the Sports Development Program which has declined under your supervision. Demonstrate more leadership before subordinate staff. Enroll in department management courses. They will help in your professional growth. Enroll for "Service Excellence" training to enhance you customer service skills with patrons. Plan, organize and market at least 2 annual special events at West Little River Park. Enroll [in] computer courses to be more proficient in the use of the personal computer. Follow the chain of command as mandated by our Regional Manager and your immediate supervisor. You will be re-evaluated in the next 1 1/2 months. If there has been no substantial improvement stronger measures will be made. Petitioner prepared a written rebuttal to his November 17, 2006, evaluation, which he provided to Ms. Ham and Ms. Gibson on or about November 27, 2006. It read as follows: SECTION 2: DECISION MAKING AND JUDGMENT: RATING: NEEDS IMPROVEMENT In the subject of decision-making and judgment, I received a rating of need[s] improvement. I totally feel that this rating is unfair because of one incident that happened in a six-month period. However, the situation with the parent being treated unprofessionally is completely wrong. The parent made the statement to me of having her husband deal with the issue rather than herself. I simply responded, "If you feel that this is necessary for your spouse to speak with me rather than you, then I have no problem with it. I will be here in my office whenever he ha[s] time to speak with me." The entire ordeal was handled totally in a professional manner. SECTION 4: PLANNING AND ORGANIZING: RATING: NEEDS IMPROVEMENT In the area of planning and organizing, I received a rating of need[s] improvement, which I feel is totally unfair and incorrect. During the entire six month[] period, I never once received a memo or any corresponden[ce] to the effect that my planning and organizing skills was not up to par.[14] When I received this position on March 21st, 2006, I was given a brief overview pre-training of my duties and responsibilities i.e., administrative paper work, sports development participation, seasonal camp programming, after school daily programming and maintenance responsibilities. Special events were never mentioned. My facility participated in spring break and summer camps in which we increase[d] the numbers a great deal from past history. We also participated in every sport development cycle. According to the directions I was given, I felt as if I was totally within my responsibilities. Now to receive an impromptu surprise that I am not on task is not only incorrect but also absolutely unprofessional. SECTION 5: INTERPERSONAL SKILLS: RATING: NEEDS IMPROVEMENT I feel that this rating, needs improvement, is unfair and incorrect. During my first six months, I've had two situations with parents that are sisters, which was a misunderstanding about the kids coming into the facility unsupervised. After explaining the danger of that to the parents, they both agreed with me. The second situation had already been explained in section 2 when a parent felt she would like for her husband to address the issue rather than herself. At that time the situation was resolved without further discussion. The issues that I had with Mr. Morgan, I feel personally w[ere] created by Mrs. Ham by allowing him to break the chain of command by calling you without discussing anything with me first was wrong. When I give Mr. Morgan an assignment that he does not like, he feels that he could call you to change it. Must I remind you that Ms. Gibson warned you about this behavior during summer camp. Ms. Gibson also stated to you, "Rhonda, this is wrong! You wouldn't want Mr. Green to do this to you with me." This is not the support I expected from my immediate supervisor. I feel sabotaged, betrayed and set up for failure. In my evaluation, you mentioned me breaking the chain of command and asked me to call my immediate supervisor about any issue before contacting the regional manager. If I remained unsatisfied, what did I violate if you were contacted twice, you were told that I was unhappy with your answer and I needed immediate attention? This would mean that I followed the chain of command to the letter. SECTION 6: COMMUNICATIONS: RATING: UNSATISFACTORY The rating that I received in section 6 communication: Unsatisfactory, I feel that it is unfair and incorrect. I have basic knowledge of the computer and can perform all of my duties as a Park and Recreation Manager 1. During our regional staff meetings, I did not always take written notes because at times I recorded the meetings. However, I feel my immediate supervisor should be someone I can go to for clarity which is not outside of her responsibilities. On top of this, I was faced with spreading a part-time budget in this department for the very first time and was left hanging out to dry by Mrs. Ham. I received very little directions and had to look toward other colleagues for help. Mrs. Ham set meeting dates when I asked for help and never met them. When she finally did show, she took the work that I had already done and said, "I'll handle it from this point." Mrs. Ham may have her method of assisting her staff but I feel the more hands on involvement I have with the new work and assignments will make me effective in learning the process and being more self- sufficient with the budget assignments as well as other paper work. However, I received no correspondence or memos of any type reflecting how off the mark I was in the area of communication during the entire six months. As a matter of fact, I felt the communication between Mrs. Ham and I was great. It was so great that I had no problem doing financial favors for her when she needed it. Now for everything to turn so bad so fast, I have no choice but to feel it is retaliation [for] the call made to Ms. Gibson on the day my daughter was an hour and a half late being picked up from her school which was supposed to be done by one of Mrs. Ham's staff workers which I had to do myself because of the number of calls I received from her school. This is pertaining to the issue of the broken chain of command. SECTION 7: ADMINISTRATIVE POLICIES AND PROCEDURE: RATING: NEEDS IMPROVEMENT I received a rating of need[s] improvement, which I feel it is only natural that a new employee to need improvement in this area if it is based on the knowledge of the manual instead of knowing where to go in the manual to retrieve the information. However, I will continue to read through my operation manual and my personal handbook in my sp[are] and down time. Overall, I feel this evaluation was a personal attack for some personal reason, i.e. contacting Ms. Gibson after trying to resolve the issue with Mrs. Ham to no satisfaction. This is when I first found out I was doing such a poor job as a manager and feel th[ere] will be more retaliation. While Petitioner's written rebuttal contained various accusations against Ms. Ham of supervisory wrongdoing, it was devoid of any allegation that Ms. Ham had subjected Petitioner to any type of sexual harassment.15 On November 30, 2006, after it had been brought to her attention that Petitioner was having his subordinates complete for him written assignments that Petitioner was supposed to be doing himself for a Department-sponsored management training class he was taking, Ms. Ham sent the following memorandum to Petitioner: I was informed by your PSA Jerome Jamison that you have been delegating your Recreation Module Training assignments to him and PSA Tremaine Morgan to complete. If this is correct, please stop this immediately. The training series that you have been recommended to participate [in] requires you to complete these assignments. These exercises [are] a part of your development and training as a manager. On December 5, 2006, Ms. Ham sent another memorandum to Petitioner. This memorandum was about an incident that had occurred the previous day. It read as follows: On Monday, December 4, at approximately 2:18 p.m. you called to let me know that the key for the West Little River Park's van was misplaced and that you could not find the key. I asked you why you were just now reporting this when your driver is scheduled to be at your first scheduled pickup point at 2:00 p.m. You began to yell in a loud voice at me, "You were the one that told me to schedule my driver to report at 2 p.m." I responded that you needed to lower your voice and that you were being insubordinate and that this is my last warning. Your statement was untrue as well. I directed you to schedule your staff to report at least one half hour prior to the first pick up anticipating travel time and to inspect the van. This is not the first instance of offensive conduct to me and I am aware that you acted similarly toward our Region Manager. I have discussed your conduct with you before. Mr. Green, there must be an immediate and sustained improvement in your performance or more serious disciplinary action will result. I need the Unusual Incident Report detailing the details on the missing van keys today. On December 5, 2006, in response to the November 30, 2006, and December 5, 2006, memoranda he had received from Ms. Ham, Petitioner sent a memorandum of his own to Ms. Ham. He provided a copy of this memorandum to Ms. Gibson. The memorandum read as follows: Ms. Ham, pertaining to the memo I received on Nov. 30, 2006, stating you were told by Mr. Jamison that I was delegating my module training to him and Mr. Morgan. That alleged statement you claimed Mr. Jamison made after speaking with Mr. Jamison, he stated that it was not true. Mr. Jamison stated that he was only inquiring more about the module. Now, let me tell you what really happened. What I simply did was shared the information that was in the module training with my staff because of their daily hands on with the participants. I felt as the Park Manager that I was well within my rights to discuss the information with my staff and ask for feedback w[hether] it was verbal or written. The reason I did this was because the questions in the training w[ere] not only rel[evant] to me but to them as well because of their dealings with the participants on a daily basis. When I told them why I was doing this, they both agreed. Mr. Jamison and Mr. Morgan also told me that the few questions they went over [were] not only intriguing but also very helpful in dealing with some of the issues they encounter with some of the participants. By the way Mrs. Ham, I was told in a discussion with Mr. Jamison that the question about the module was asked three weeks ago prior to [the] Nov 30, 2006 memo I received from you. My question to you is why give me a memo pertaining to this now. Pertaining to the memo I received today on my alleged conduct on December 4, 2006 is not only unfair but also untrue that I was yelling at you when I called about the missing key. I deplore that statement. What is true that I did do the right thing by notifying and informing you about the missing key. What is also true is that contrary to popular opinion, you were the one that became angry with me because I was asking you what else could I do in terms of getting my after school participants picked up. I also asked you should I go in my personal van to make sure that they were all picked up in a timely manner. You then started . . . yelling at me in sequence, "when did you first notice that the key was missing, Mr. Jamison must be just getting to work, what time do[es] he come in and why is he coming in at 2 p.m. when he has a 2 o'clock pick-up.["] I simply stated to you that "you were the one that made me change his scheduled time to come in from 1 o'clock to 1:30 p.m. to now 2:00 p.m." which was all I said in return with my regular tone of voice. Then you replied "you better watch [your] tone of voice with me. This is your last warning about that tone of voice." When in fact, you were the one that was doing all of the yelling and I have a witness to prove it. As I stated in my rebuttal to my regretful performance evaluation which came a week later after my call to our Regional Manager when I was doing so well before then. "I feel that th[ere] will be more retaliation to come" and it is now clear that I was right. You are doing just that because of my phone call to our Regional Manger about my daughter being an hour and a half late picked up by one of [your] subordinates which I had to do myself. In his memorandum, Petitioner alleged retaliation only for his having complained to Ms. Gibson about Ms. Ham's not having picked up his daughter on time. He made no allegations of sexual harassment. On December 5, 2006, Petitioner attended a Department- sponsored training class, the title of which was "How to Maintain a Harassment Free Work Environment." The class was lead by Beatriz Lee, the Department's Human Resources Manager and its Affirmative Action Officer. In her introductory remarks, Ms. Lee told the class "what [her] role [was with] the [D]epartment." The class lasted approximately three hours, during which Ms. Lee discussed, among other things, the County's Unlawful Harassment Policy, including how to file an unlawful harassment complaint. After the class ended Petitioner walked up to Ms. Lee and indicated that he wanted to talk to her. Ms. Lee took Petitioner into her office so that they could converse in private. Petitioner told Ms. Lee that he was "having problems with his supervisor," Ms. Ham, and then showed Ms. Lee the November 17, 2006, evaluation he had received. Ms. Lee asked Petitioner why he thought these "problems" existed. Petitioner replied that he and Ms. Ham were "tight" and were "good friends" and that he "didn't understand why [Ms. Ham] was being so demanding with him, because he had even helped her out financially." During their conversation, Petitioner told Ms. Lee about Ms. Gibson's having asked him and Ms. Ham if they had "crossed the line." Ms. Lee then inquired why Ms. Gibson would ask such a question. Petitioner responded, "I guess because we were so close. Because we-–you've got to understand me and Rhonda [Ham] are very tight . . . ." Petitioner crossed his middle finger over his index finger to show Ms. Lee how "tight" he and Ms. Ham were. At no time during his talk with Ms. Lee did Petitioner claim he had been sexually harassed by Ms. Ham. On Thursday, December 14, 2006, less than one and a half months after receiving his first Management Performance Evaluation, Petitioner received his second (and last) Management Performance Evaluation. This December 14, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater"). Ms. Gibson was on vacation, so Bobby Johnson signed the evaluation as the "reviewer" in her stead. Ms. Gibson, however, "concur[ed] with the statements contained in this performance evaluation" and had already decided that Petitioner's "probation [would] be failed." The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Satisfactory Mr. Green, the sports development program registration increased by 4, however you need to continue this effort by better utilizing your present staff and by developing a recruitment strategy. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, your continued effort is still needed for your improvement in this area. Please follow the recommendations given to you in your last performance evaluation. PERSONAL DEVELOPMENT RATING: Unsatisfactory Mr. Green, you completed the recreation module training, although I had to advise you that you are not allowed to delegate any of the related assignments to your subordinate staff.[16] You have enrolled for department training as I recommended. Remember, you need to encourage your subordinate staff to enroll in training likewise to improve their knowledge and skills. Your effort to recruit satisfactory seasonal and year round part-time staff has been a challenge for you. I recommended that you visit the local colleges for satisfactory applicants, however, thus far you have resisted my suggestions.[17] PLANNING AND ORGANIZING RATING: Unsatisfactory Mr. Green, there have no special events, activities or sporting events implemented by you for West Little River Park or as a regional event. On December 6 during the trial budget reviews with the Region Manager it was noted that you had set a goal of forming a basketball league to operate from January-May 2007. However in your planning you failed to include adequate time for publicizing the event in the community. You should have routed all your budget related items through your Service Area Manager. INTERPERSONAL SKILLS RATING: Unsatisfactory Mr. Green, improvement is still needed to foster teamwork at West Little River Park. During this rating period you were verbally reprimanded for your unprofessional conduct when speaking to me and our Region Manager, during presentation of your 6 month performance evaluation for a merit increase, during a phone conversation with me about a missing van key and during a phone conversation with Ms. Gibson. You have also reacted defensively when receiving constructive criticism from your supervisor. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, use of the computer and related programs has been a challenge for you. Your registration paper work was not organized as I had directed and as a result the input of West Little [River Park] Program registrants into the CITRIX system has not been completed.[18] As I stated in your earlier evaluation, the computer is an essential tool and our reliance on them is an ever increasing fact. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Satisfactory Mr. Green, I encourage you to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Not Granted. Is employee eligible for permanent status? Not Granted. Because she considered Petitioner to be a "substandard employee" who had performed poorly during his probationary period (and for this reason alone), Ms. Gibson decided to "fail [Petitioner's] probation" and terminate his employment with the County. Ms. Gibson's decision was based on: (1) Ms. Ham's evaluation of Petitioner's performance; (2) information provided to Ms. Gibson by other employees about Petitioner's performance19; and (3) Ms. Gibson's "independent observations of [Petitioner's] performance." On the evening of December 14, 2006, after having been presented with his second Management Performance Evaluation, Petitioner was advised that he was being terminated. Later that evening, Petitioner telephoned a friend of his, Jennifer Williams. (Ms. Williams taught reading to Petitioner's daughter DK and to the other children in the Children's Trust-funded after-school program at Arcola Park.) Petitioner began his conversation with Ms. Williams by telling her, "That bitch fired me," referring to Ms. Ham. He then asked if he could come by Ms. Williams' home. Ms. Williams told him that he could. Petitioner arrived at Ms. Williams' home shortly thereafter, and Ms. Williams invited him in. They went to the den, sat down, and talked. Petitioner again explained to Ms. Williams that "Ms. Ham had terminated him." He then told Ms. Williams that Ms. Ham had been "harassing him sexually." When Ms. Williams heard this she "just started laughing." Having seen Petitioner and Ms. Ham and "their interactions," she "could not believe" that Ms. Ham had sexually harassed Petitioner. Petitioner then asked Ms. Williams "to help him type up a letter" (on Ms. Williams' computer) describing "exactly what [had] happened between [Petitioner] and Ms. Ham." Ms. Williams agreed to provide such help. Following Petitioner's directions, Ms. Williams typed a letter addressed to Ms. Gibson, which read as follows: Subject: Wrongful Conduct from Immediate Supervisor This letter is in reference to the meeting that took place yesterday on December 7, 2006 around 3:00 p.m. at the region office.[20] You stated to me that you have a problem with me not being truthful about things that have happened between Mrs. Ham and I. As I indicated to you "yes, you are right! I have not told you everything that has happened." I feared that if I had told you Ms. Gibson about the constant request for money as well as the constant request for sexual favors that I would be terminated. Mrs. Ham has explained to me on several occasions that I can be terminated anytime she felt like it and it would be nothing I could do about it, each time before financial and sexual favors were requested. Mrs. Ham and I have been sexually involved over 10 times. These sexual acts have taken place at West Little River and Arcola Park. Also, at times when Mrs. Ham has told me to take her [to] lunch she has then pulled into a nearby motel and again requested sexual favors. Many times I wanted to tell you about these issues between Mrs. Ham and me, however, I feared for my job and I wanted to pass probation so that I could then start denying Mrs. Ham of these favors. Sincerely Damacio Green Petitioner asked Ms. Williams to "backdate the letter" to December 8, 2006, and Ms. Williams complied. The following day, Friday, December 15, 2006, Petitioner (or someone acting on his behalf) went to the Region 2 office to return his Department uniforms and, while there, surreptitiously placed in Ms. Gibson's desk an envelope containing the backdated "Wrongful Conduct from Immediate Supervisor" letter Jennifer Williams had typed the evening before. Ms. Gibson was not in the office that day, and her administrative secretary, Debbie Williams,21 was on break when the envelope was placed in Ms. Gibson's desk. Later that day, Petitioner telephoned Ms. Lee, complaining that Ms. Ham had sexually harassed him and had "fired" him because he had refused to "put up with it any more." Ms. Lee asked Petitioner why he had not said anything to her previously about Ms. Ham's sexually harassing him. Petitioner responded that he "had been afraid" and thought he might "lose [his] job." During his conversation with Ms. Lee, Petitioner falsely told her that, prior to his termination, he had "provided a letter to Ms. Gibson telling her that [Ms. Ham] had been forcing him to engage in sex." Ms. Lee asked Petitioner to send her a copy of that letter. At approximately 3:00 p.m. on December 15, 2006, Petitioner faxed to Ms. Lee a copy of the backdated "Wrongful Conduct from Immediate Supervisor" letter that Jennifer Williams had typed for Petitioner the evening of December 14, 2006. Ms. Lee showed the letter to her supervisor, Yolanda Johns, who subsequently telephoned Ms. Gibson to inquire about the matter. Ms. Gibson informed Ms. Johns that she did not know anything about a "Wrongful Conduct from Immediate Supervisor" letter addressed to her from Petitioner. Ms. Johns then faxed a copy of the letter to Ms. Gibson, who was at Martin Luther King Park attending a Christmas party. After reviewing the letter, Ms. Gibson confirmed that she had never seen it before. On Monday, December 18, 2006, Ms. Gibson (who was on leave) came by her office and discovered the letter inside an envelope in her desk drawer (where it had been placed on December 15, 2006, the day after Petitioner's termination). Ms. Lee conducted an investigation of Petitioner's allegations of sexual harassment. As part of her investigation, she interviewed Petitioner and numerous other individuals. Based on the information she obtained, Ms. Lee determined (correctly, as it turns out) "that Mr. Green and Mrs. Ham not only engaged in a consensual sexual relationship, but . . . Mr. Green was persistent in pursuing Mrs. Ham to engage in such activity." Consequently, Ms. Lee concluded that Petitioner's allegations of sexual harassment were unfounded. Ms. Lee issued her investigative report in February 2007. In her report, Ms. Lee recommended that Ms. Ham be suspended 30 days without pay for her "lack of judgment in succumbing to the pursuit of a subordinate." By letter dated March 15, 2007, Ms. Ham was given "formal notification" that she was being "suspended without pay for four (4) weeks to be served beginning Monday, April 9, 2007 through Sunday May 6, 2007," for having "engaged in a consensual sexual relationship with a subordinate employee, Mr. Damacio Green, former Park and Recreation Manager 1, which affected [her] ability to properly supervise this employee."
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 the County not guilty of the unlawful employment practices alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 29th day of May, 2009.
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.
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 issues to be resolved in this proceeding concern whether the Petitioner was subjected to sexual harassment in the form of a sexually hostile work environment and was retaliated against for complaining about the alleged harassment in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, James E. Gonzales, is a male person who was hired by the Respondent, Pepsi Bottling Group, on March 13, 1995. He was hired as a route sales trainee in the Central Florida marketing unit of that employer. The Pepsi Bottling Group (Pepsi) is responsible for the manufacture sale and delivery of Pepsi products to its vendors. Over the last three years the Central Florida unit has been the foremost marketing unit in the United States. The management of the Central Florida Marketing Unit has been rated by its employees as being the top management team in the country for Pepsi. The Petitioner applied for a Pre-sale Customer Representative (CR) position on March 27, 2003. On April 21, 2003, the Petitioner was assigned to a Pre-Sell (CR) position. As a Pre-Sell CR, the Petitioner was responsible for serving his own accounts; creating and maintaining good will with all customers; ordering customer's products in advance; and developing all assigned accounts relative to sales volume, market share, product distribution, space allocation and customer service. He was responsible for solicitation of new business; selling and executing promotions; soliciting placement of equipment; selling sufficient inventory; and utilizing point of purchase materials to stimulate sales. He was also charged with maintaining "shelf facings" cleaning and shelving and rotating product and merchandising product sections and building displays to stimulate sales. Additionally, he was required to complete and submit all related paperwork regarding sales and promotional operations in an accurate and timely manner. The Petitioner's direct supervisor initially was David Lopez. He was replaced by Wanzell Underwood in approximately August 2003. On December 5, 2002, the Petitioner received the Respondent's employee handbook. The handbook contains the Respondent's Equal Employment Opportunity Policy and Sexual Harassment Policy. The Equal Employment Opportunity Policy prohibits discrimination on the basis of race, color, religion, gender, age, disability, etc. including sexual orientation. It encourages employees to immediately report any complaint, without fear of retaliation, to the Human Resources Manager or Human Resources Director. The Respondent's policy has a zero tolerance for retaliation and forbids any retaliatory action to be taken against an individual who in good faith reports a perceived violation of that policy. Employees who feel they have been retaliated against are required to report such retaliation to the Human Resources Manager or Director. The sexual harassment policy of the Respondent prohibits all forms of harassment and clearly sets out complaint procedures for employees to follow in the event they have experienced harassment. They are directed to report any complaint immediately to the Human Resources Manager or Director. Throughout his employment the Respondent received numerous customer complaints regarding the Petitioner's poor performance. The Petitioner received five disciplinary actions against him from the period 2003 through 2005. These "write- ups" were for failing to service customers according to the Respondent's standards and were dated August 2003, April 2004, September 2004, October 2004, and May 2005. On August 1, 2003, the Petitioner received a documented verbal warning after the Respondent received a complaint from a customer regarding the amount of out-of-date product in his store and the poor level of service he was receiving from the Petitioner. On April 9, 2004, the Petitioner received a documented verbal warning for his failure to prepare his three Circle K stores for a "customer tour," although he had assured his direct supervisor, Mr. Underwood, and the Key Account Manager, Eric Matson, that the store would be ready. The Petitioner's failure to prepare his Circle K stores for the customer's tour embarrassed both his supervisor and the Key Account Manager. On June 23, 2004, the assistant manager at ABC Liquor, a store Gonzales was responsible for, sent an e-mail to Eric Matson complaining about the lack of service provided by Gonzales and requested a new CR to service his store. The customer stated that Gonzales had given nothing but "crappy" service, bad attitude, and sometimes no service. On September 21, 2004, Eric Matson received an e-mail regarding the Petitioner's failure to order product for the Mt. Dora Sunoco store. The Petitioner's supervisor, Wanzell Underwood, visited the Mt. Dora Sunoco store and confirmed the manager's complaints. The Petitioner received a written warning for not properly servicing the Mt. Dora Sunoco store. In the Petitioner's contemporaneous written comments in opposition to the written warning he failed to note that the manager of the Mt. Dora Sunoco was purportedly sexually harassing him. On October 11, 2004, the Petitioner received a final written warning and one-day suspension after his direct supervisor re-visited the same Mt. Dora Sunoco store that complained previously. The Petitioner was warned that a similar problem in the future would lead to his termination. Again, in the Petitioner's written comments in opposition to his written warning, he made no mention that the manager of the Mt. Dora Sunoco store was sexually harassing him. On October 11, 2004, after the Petitioner was suspended for one day, he requested that the Human Resources Manager, Christopher Buhl, hold a meeting. During the meeting he complained for the first time to the Unit Sales Manager, Howard Corbett, the Sales Operations Manager, Tom Hopkins, and Mr. Buhl, that three years previously, in 2001, one person had told the Petitioner that everyone thought he was "gay" (meaning co-employees). One person asked him if he was gay, according to the Petitioner's story, and one person said, "We all know you're gay," before he became a Pre-Sell CR. The Petitioner, however, refused to cooperate with Mr. Buhl in obtaining information regarding his complaints. At no time during the meeting did the Petitioner complain about being sexually harassed by the manager of the Mt. Dora Sunoco store. During the October 11, 2004, meeting the Petitioner claimed his supervisor, Wanzell Underwood, threatened him. However, the Petitioner conceded during the meeting that the alleged statement made by Mr. Underwood was made to a group of Customer Representatives, to the effect that he would "kill you guys if you do not make the sales numbers." Mr. Underwood denied ever threatening to kill the Petitioner. During the meeting the Petitioner also complained that his route was too large and he requested that it be reduced. At no time during that October 11, 2004, meeting did the Petitioner complain that he was sexually harassed by Alice Marsh, the Mt. Dora Sunoco manager. His extensive notes and comments on his Disciplinary Action Reports did not document any such complaint. In November 2004, the Petitioner was asked to go to K- Mart and place an order, but the Petitioner failed to follow instructions and visit the store. Instead, the Petitioner placed the order over the phone. The manager of the store called the Respondent three times to complain about the poor service provided by Mr. Gonzales. Each year the Respondent changes its delivery routes. During the end of 2004 or the beginning of 2005, the Respondent re-routed all of its Pre-sell CR routes. The Respondent reduced the Petitioner's route as he had requested and in conformity with its route standards. Despite the Petitioner's allegation to the contrary, in fact the Petitioner's route was not reduced by as much as 50 percent. In May 2005, Key Account Manager, Mike Lewis, visited the Petitioner's K-Mart store to conduct a "Look at the Leader" audit. The Petitioner had been trained and was responsible for preparing the K-Mart for the audit. When Mr. Lewis arrived at the store, the store did not meet the Respondent's standards. Additionally, required product was missing from the displays. Mr. Lewis called Howard Corbett to inform him of the problems. Mr. Corbett called the Petitioner to ask about the missing product. The Petitioner assured him that the product was in the store and on display. The missing product was not displayed, however, and was later found in the back room of the K-Mart store. On May 18, 2005, the Respondent received another e- mail from Charles Pippen, District Manager for Sunoco, complaining of the Petitioner's poor service at the Mt. Dora Sunoco store. He claimed that the Petitioner did not reply to phone calls and rarely ordered enough product. On May 19, 2005, the Territory Sales Manager, John York, followed up on that complaint by visiting the Mt. Dora Sunoco store and meeting with the Manager, Alice Marsh. Mr. York was substituting for Mr. Underwood who was out on medical leave. During the meeting, Ms. Marsh complained that the Petitioner did not order the quantity of product she requested, failed to provide adequate signage, and refused to place product where she requested. While at the Mt. Dora Sunoco store, Mr. York observed the problems about which Ms. Marsh had complained. After meeting Ms. Marsh, Mr. York spoke with the Petitioner to inform him of Ms. Marsh's complaints. During his conversation with Mr. York, the Petitioner admitted to failing to service the account by not placing the product by the gas pumps as requested, not ordering the amount of product requested, and not hanging certain signs. Later in this conversation with Mr. York, the Petitioner informed Mr. York that he believed that the Sunoco Manager's reason for complaining about his service was that he had refused her sexual advances. The Petitioner did not tell Mr. York what the alleged advances consisted of or when they might have occurred. Mr. York, however, in fact was never the Petitioner's supervisor. The Petitioner was responsible for two CVS stores in Mt. Dora. On Friday, May 20, 2005, the Petitioner made an unusual request of his temporary Manager, Dan Manor, for a Saturday delivery to his CVS stores. The Respondent does not normally schedule Saturday deliveries for such "small format" stores like CVS. When Mr. Manor approved the Saturday delivery, he specifically instructed the Petitioner that must meet the bulk delivery driver at the stores to "merchandise" the product, because bulk delivery drivers do not merchandise the product delivered and Mr. Manor did not have a merchandiser assigned to the Mt. Dora stores. The Petitioner agreed to meet the bulk delivery driver at the CVS stores on Saturday. The Petitioner did not advise his supervisor that he had made arrangements with the CVS store manager or a merchandiser regarding alternate arrangements for the Saturday delivery. The supervisor would have expected the Petitioner to do so. On Saturday, May 21, 2005, the Petitioner failed to meet the bulk driver to assist in merchandising the orders at the two CVS stores as instructed. The customer refused to take delivery of the product until a merchandiser was present to merchandise the product. Mr. Manor was unable to reach the Petitioner by telephone because the Petitioner was at Sea World with his family. Mr. Manor had to send a merchandiser from Longwood in order to merchandise the product that the Petitioner had ordered for the CVS stores. On May 23, 2005, the Petitioner failed to attend a weekly mandatory 5:00 a.m. meeting. He did not call his supervisor advising of his unavailability. The Petitioner did call Mr. Manor at about 6:15 a.m. and told him that he had overslept. When Mr. Manor questioned the Petitioner about why he did not meet the bulk driver on Saturday, he said that "he did not get a chance to make it out on Saturday." On May 23, 2005, Mr. Corbett decided to terminate the Petitioner based on his very poor performance. That decision to terminate him was approved by the Respondent's Human Resources Department. On May 26, 2005, the Respondent terminated the Petitioner for failing to service the CVS stores at a critical time, for the services issues at the Sunoco and the K-Mart, and for failing to attend the Monday morning meeting. At the time of his termination the Petitioner was on a final warning and had been advised that he could be terminated. The Petitioner never alleged during his termination meeting that he was being sexually harassed. Howard Corbett provided the Petitioner with documents to file an internal appeal on the day he was terminated. The Petitioner, however, did not appeal his termination as permitted by the Respondent's policy. The Petitioner claims he was the victim of sexual harassment by being subjected to (1) homosexual related comments made in 2001, and (2) alleged sexual overtures by the Sunoco Manager, Alice Marsh, in 2003. According to Ms. Marsh, she was never interested in the Petitioner sexually. She did not socialize with the Petitioner, and did not want a relationship with him. She did not touch him and did not state that she wanted the Petitioner fired. She also testified that she never stated that she wanted a sexual relationship with the Petitioner. The Petitioner's allegations regarding sexual harassment by Ms. Marsh related the following behaviors: She touched his back and arm; She was too close to him when he was around; She was nice to him until informed that he was married; She suggested sexual interest by her body language and eyes; and She wore provocative clothing. David Lopez supervised the Petitioner for approximately two years in the 2001 to 2003 time period. During this time period the Petitioner never complained to Mr. Lopez that he had been sexually harassed. Mr. Lopez did not witness the Petitioner being harassed while working with the Respondent either. Wanzell Underwood supervised the Petitioner for approximately two years in the 2003 to 2005 time period. During this time, the Petitioner never complained to Mr. Underwood that he had been sexually harassed. Mr. Underwood did not witness the Petitioner being harassed while he worked for the Respondent. The Petitioner never made a compliant regarding the alleged sexual harassment by the Sunoco Manager, Alice Marsh, to the Human Resources Department, in accordance with the Respondent's policy. He did not explain the nature of any sexual harassment, even when he finally claimed that he was being harassed. The Respondent would have terminated the Petitioner for his poor performance regardless of whether he engaged in the purported protected activity by complaining of sexual harassment. The Petitioner alleges he was terminated for reasons other than complaining about sexual harassment, including his alleged knowledge of theft in Lake County. In any event, on July 15, 2005, the Petitioner filed the Charge of Discrimination with the Commission and the resulting dispute and formal proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 29th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James E. Gonzales 26437 Troon Avenue Sorrento, Florida 32757 Nicole Alexandra Sbert, Esquire Jackson Lewis LLP 390 North Orange Avenue Orlando, Florida 32802
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 committed an unlawful employment practice by discriminating against Petitioner based upon her sex/gender and/or disability. For the reasons more fully explained below, Respondent did not sexually harass Petitioner nor did it discriminate against her on the basis of her alleged disability.
Findings Of Fact Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Respondent operates a chain of fast food restaurants, including several in the Pensacola area. Petitioner, an African-American female, began working for Respondent in April or May 2008. Petitioner was still working for Respondent on December 22, 2009, when she filed her complaint with FCHR. Petitioner was hired to work 10 to 15 hours per week. She worked the late-night shift and worked primarily in the cash register area inside the restaurant where she took customers' orders and delivered them food. Additionally, Petitioner typically cleaned the front of the restaurant. During the late-night shift, the restaurant is typically staffed with just three or four people—one manager and two to three employees. Consequently, everyone is expected to work hard during the entire shift. Further, the late-night shift is when the restaurant undergoes its daily major cleaning, which Petitioner typically performed. Petitioner has a long history of pursuing discrimination or workers' compensation claims against her employers. Petitioner admitted that she had filed discrimination claims against every employer for whom she had worked, except Waffle House. She claims that at other jobs (not at Whataburger) her co-workers had assaulted her, cast Satanic spells on her, intentionally hurt her (e.g., poured hot grease on her and hit her in the face with a pan), and threatened to kidnap her children. She also alleged she had been discriminated against before, such as being called "Kunta Kinte" at two different jobs. Petitioner has not been previously successful in pursuing any of these claims. Petitioner claims to have written to and/or discussed these various claims with the FBI and President Obama. She also claims that she sees events before they occur through dreams and "flashes." She claims to have foreseen the kidnapping of a young local boy and that she has the ability to "block" hurricanes in the Gulf of Mexico from harming Pensacola "where her babies live" and even predict hurricanes. All of Petitioner's prior claims and her boasts of mystical powers undermine her credibility in this case. Sexual Harassment Petitioner claims to have been the victim of sexual harassment. At the hearing, she testified that one of her supervisors, James Cook, touched another supervisor, Shurnita Ruffin, in a sexual way (put his hands in her pants and shirt), on more than one occasion, and allegedly asked Petitioner if she was going to tell his wife what she witnessed. Petitioner claims this occurred because Mr. Cook wanted to somehow prove she was a racist (Mr. Cook is Caucasian, and Ms. Ruffin is African-American), and because Petitioner's son was dating Caroline Dickerson's babysitter. Petitioner claimed this was a racist action on the part of the two supervisors, not sex or gender discrimination. Petitioner further claimed that Mr. Cook encouraged one of Petitioner's co-workers, Jordan Yeager, to talk about his homosexuality at work. Finally, Petitioner alleged that Ms. Ruffin frequently cursed out Mr. Cook, the same individual she allegedly allowed to put his hands on her in a sexual way on multiple occasions in Petitioner's presence. Petitioner did not explain how these alleged actions were related to her sex or gender. Petitioner claimed that Ms. Ruffin treated everyone (except Jordan Yeager) poorly, regardless of the person's sex or gender. Mr. Cook, Ms. Ruffin, and Mr. Yeager testified. Each denied all of the allegations against them, and each denied doing or witnessing anything that could be construed as sexual harassment. The testimony of each of these witnesses was straightforward and credible. Mr. Yeager testified that he was sensitive to talking about his homosexuality since he was the only homosexual employee to his knowledge. Regardless, talking about one's sexuality is not sexual harassment even if it did occur and even if Petitioner were offended by homosexuality. After Petitioner filed her complaint with FCHR, Respondent investigated the allegations by interviewing all of the people with whom Petitioner worked and reviewing video taken in the store at the time of Petitioner's alleged sexual harassment. Respondent has eight different video cameras positioned around the restaurant (except in the bathrooms in which no claims of harassment had been made) and no footage corroborated any of Petitioner's allegations. Further, all of the employees interviewed signed statements that they had witnessed no incidents of sexual harassment. The restaurant is small enough that it is highly unlikely any sexual activity alleged by Petitioner could have occurred outside the view of the cameras. Petitioner's testimony regarding the claims of sexual harassment was not credible, and she failed to prove the existence of a sexually hostile work environment. Further, Petitioner never complained about or reported the alleged sexual harassment to her supervisors or through any of the prescribed channels provided by Respondent for reporting harassment or discrimination. This was despite the fact that she was aware Respondent has a zero tolerance policy towards sexual harassment, provided multiple ways for her to report sexual harassment, and even required that she take a sexual harassment quiz when she was hired. Also, Petitioner was no stranger to the corporate office when she had a complaint or needed information. Since she worked only a block away from the corporate office, she had visited there several times on a variety of issues. Petitioner failed to utilize the well-known procedures put in place by Whataburger for reporting the alleged harassment. Disability Discrimination Petitioner also claims she was the victim of disability discrimination because her hours were reduced from 10 to 15 per week down to only three hours per week because Respondent perceived her as being disabled. Petitioner described in detail an accident in June 2008 when she slipped and fell in the back of the restaurant on some grease or pickle juice that had been spilled on the floor. She completed her shift on the date of the fall, but sought medical attention the next day. Petitioner claimed to have suffered a second accident on the job in June 2009, when she hit her knee on a toilet in the restaurant. Petitioner filed a workers' compensation claim after the first accident, but not the second. Respondent was aware of the first accident, but not the second. Petitioner claimed these incidents were not accidents, but were intentional acts on the part of Respondent's employees. She could not identify the particular employees involved, and she could not testify as to why anyone would have caused these accidents other than her belief that they did not like her. The evidence does not support any of these allegations, especially Petitioner's claims that the accidents were intentionally caused. There was no showing these accidents had anything to do with her sex or gender, sexual harassment, or alleged disability. Petitioner's claim that her hours were reduced from 10 to 15 per week to three per week due to Respondent perceiving her as disabled is not supported by credible evidence. Petitioner acknowledged she was hired to work part-time for 10 to 15 hours a week and could not even provide a timeframe of when her hours were further reduced to only three per week, other than to say this occurred sometime in July 2009. Respondent noted that the reduction in hours occurred during a four-week period in October and November 2009, when Petitioner underwent the first of her two surgeries on both knees. She had surgery on her left knee on November 11, 2009, and on her right knee on February 12, 2010. Petitioner admitted that Ms. Ruffin, one of Respondent's managers, reduced her hours around the time of her first surgery because she was working too slowly, and Petitioner admitted she moved 60-70 percent slower during this period than when she first started working for Respondent. Petitioner further admitted she was in chronic pain every day, that both her knees swelled up constantly, and that her leg would lock constantly. Petitioner also admitted she called Respondent's corporate office and told them she could not stand the pain she was suffering, and that she also had stomach and rectal bleeding. Petitioner did not know whether Ms. Ruffin was aware of this call. Petitioner also admitted that she was often sent home early by Ms. Ruffin once the restaurant stopped serving customers inside (typically around midnight or 1:00 a.m.), and business slowed down. Petitioner admitted Ms. Ruffin did this to reduce the restaurant's labor costs which, in turn, enhanced Ms. Ruffin's bonus. Petitioner testified that Ms. Ruffin never told her she was being sent home early for anything related to her health or alleged disability. Respondent's witnesses testified that Petitioner's hours were reduced only because Petitioner had a habit of calling out of work (before her scheduled shift began) and asking to leave early almost every time she was scheduled to work (generally after she had finished cleaning the front of the restaurant). In each instance, Petitioner initiated her own reduction in work time. Also, in March 2010, Petitioner was warned about calling in advance after a "no call/no show" where she failed to call her supervisor and did not show up for work that night. She used the same excuse that she had used two weeks earlier (that all four of her car's tires had been slashed). This created a hardship for her supervisor who had to work short- handed that night since she was unable to find a last-minute replacement. Such behavior of not calling in advance or calling at the last minute was repeated by Petitioner on other occasions. Respondent considers this a serious offense because the manager is left without sufficient personnel to operate the restaurant at the last minute. Additionally, Petitioner experienced a slow recovery from each surgery and missed long periods of work before she was able to return. When she did return to work, she missed several scheduled shifts due to pain and/or slipping and falling outside of work. Petitioner's reduction in hours caused by these absences was not the result of Respondent perceiving her as being disabled and was not otherwise the result of disability discrimination. Respondent's witnesses were more credible than Petitioner concerning this claim. Petitioner did not prove that she was disabled or that Respondent treated her as though she were disabled. Although Respondent was aware of Petitioner's first accident on the job in June 2008, it was not aware of her alleged second accident in July 2009. Petitioner never filed a workers' compensation claim based upon the alleged second accident. Regardless of such knowledge, Respondent provided legitimate, non-discriminatory reasons for Petitioner's receiving fewer work hours, which Petitioner did not show were mere pretexts for unlawful discrimination. Therefore, any reduction in Petitioner's hours was not the result of Respondent's perceiving her as being disabled and was not otherwise the result of disability discrimination.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 13th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 S. Gordon Hill, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33602 Carolyn Johnson Post Office Box 4671 Pensacola, Florida 32507 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent violated Section 760.10(1), Florida Statutes, by allowing Petitioner to be sexually harassed by her immediate supervisor.
Findings Of Fact Respondent is an employer within the meaning of Sections 760.01-760.11, Florida Statutes, Florida Civil Rights Act of 1992, as amended. Respondent manufactures rubber parts for housewares, aircraft, and the automotive industry. Respondent typically employs an untrained workforce then provides its employees with on-the-job training. Respondent experiences a high turnover in entry level jobs. Petitioner began working for Respondent on or about November 15, 1995. Her immediate supervisor was Walter Tate. Part of Mr. Tate's job was to train Petitioner how to operate a rubber injection machine. There is no persuasive evidence that Mr. Tate ever touched Petitioner or spoke to her in a sexually inappropriate manner. On December 6, 1995, Petitioner's hand was injured at work. This injury occurred when another employee drove a forklift into the platform where Petitioner was working. Mr. Tate did not blame Petitioner for the accident. He did not use the accident as a means to sexually discriminate against Petitioner. On or about February 16, 1996, Petitioner's machine caused a shut down in production. The machine broke down when someone placed a metal bar in the feed hole. The metal bar broke off between the machine's feed hole and its extruder, preventing the rubber from passing through. The machine was a silicon extruder; this type of machine is usually turned off when the designated operator takes a break. Based on a good faith belief that Petitioner was responsible for damage to her machine, Mr. Tate gave Petitioner a verbal warning for using the metal bar instead of a plastic one. Mr. Tate advised Petitioner that the next time she would be given a written warning. There is no credible evidence that Mr. Tate had any hidden agenda when he reprimanded Petitioner. Petitioner became visibly upset about the verbal reprimand and cursed Mr. Tate. Subsequently, Petitioner signed an employee warning report, indicating that she disagreed with the verbal warning but gave no reasons for her disagreement. Shortly thereafter, Petitioner met with Respondent's plant manager, Steve Wieczorek, and second-shift plant superintendent, Robbie Misenheimer. Petitioner complained that she did not like Mr. Tate telling her what to do because she already knew her job. Petitioner also complained that she did not like Mr. Tate's use of profanity. The greater weight of the evidence indicates that Petitioner never complained to Respondent about any form of sexual harassment or discrimination by Mr. Tate during this or any other meeting. During the meeting, Mr. Wieczorek took handwritten notes of Petitioner's complaints. According to Petitioner, she signed these notes before she left the meeting. Shortly thereafter, Mr. Wieczorek typed the notes in accordance with his customary procedure. Mr. Wieczorek and Mr. Misenheimer signed the typed notes before placing them in Petitioner's personnel file. Petitioner did not sign the typed notes. The location of the handwritten notes was not established during the hearing. After the meeting, Mr. Wieczorek directed Mr. Misenheimer to investigate Petitioner's complaints. In accordance with that directive, Mr. Misenheimer talked to Mr. Tate and several of Petitioner's co-workers. Mr. Misenheimer concluded that there was no merit to Petitioner's complaints that Mr. Tate was treating her unfairly. Nevertheless, Mr. Misenheimer continued to check with Petitioner personally and to observe Mr. Tate for several days to ensure that Petitioner was not being mistreated. On February 27, 1996, Petitioner walked out of the plant, voluntarily leaving her workstation in the middle of her shift. Petitioner did not advise Mr. Tate or any other supervisor of her reason for leaving the work site. There is no persuasive evidence that Mr. Tate threatened Petitioner for turning him in before she abandoned her workstation. After leaving the plant, Petitioner did not call Respondent for three days to explain why she had not returned to work. Respondent did not attempt to contact Petitioner during this time. In accordance with the company's personnel policies, Respondent terminated Petitioner's employment on March 1, 1996. At all times material to this proceeding, Respondent's policy was that sexual harassment was not to be tolerated. This policy was communicated to employees in group meetings. Petitioner admits that she received instruction on the procedure for complaining about sexual discrimination when she began working for Respondent. However, she could not remember whether she received the information in a training session or in a printed form. Respondent posted information in the employee break room about state and federal laws prohibiting discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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, 2000. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Heather Fischer Lindsay, Esquire Gordon, Silberman, Wiggins & Childs 1400 South Trust Tower Birmingham, Alabama 35203 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent, Mojo Old City BBQ ("Mojo"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on his gender.
Findings Of Fact Mojo is an employer as that term is defined in section 760.02(7), Florida Statutes. Mojo owns and operates a restaurant at 5 Cordova Street in St. Augustine. Mojo has put in place written policies and procedures that prohibit, among other things, discrimination or harassment on the basis of race, gender, national origin, or any other categories of persons protected by state or federal anti- discrimination laws. The policies also provide a specific complaint procedure for any employee who believes that he or she is being discriminated against or harassed. At the time of his hiring, Petitioner received an orientation that thoroughly explained the anti-discrimination and reporting policies. Testimony at the hearing established that Petitioner was again informed of these policies at an employee insurance meeting held in October 2013. Petitioner, a black male, was hired by Mojo on August 2, 2013, as a dishwasher. Petitioner testified that “from day one” he was called names and harassed by everyone at Mojo, employees and managers alike. He stated that an employee named Linwood Finley would yell that he didn’t want to work with a man who looked like a girl, or a “he/she.” Mr. Finley said, “I don’t want to work with a man that can't have kids.” Petitioner testified that the managers and staff would accuse him of looking between their legs. Employees would walk up to him and try to kiss him. He was told that he had to go along with these antics or find somewhere else to wash dishes. Petitioner testified that he believed he was fired for refusing to kiss other male employees. He had seen Mr. Finley and another male employee kissing behind the restaurant. He stated that two male employees had tried to kiss him and he refused their advances. Petitioner testified that he complained about the kissing to anyone who would listen. He said, “I’m not a woman, I’m a man. I got to come in here every day to the same stuff over and over. Y’all act like little kids.” Petitioner stated that when he complained, the harassment would stop for the rest of that day but would resume on the following day. Petitioner testified that there is a conspiracy against him in St. Augustine. For the last five years, he has been harassed in the same way at every place he has worked. Petitioner specifically cited Flagler College, the Columbia Restaurant, and Winn-Dixie as places where he worked and suffered name calling and harassment. Petitioner testified that he wanted to call several employees from Mojo as witnesses but that he was unable to subpoena them because Mojo refused to provide him with their addresses. Petitioner could provide no tangible evidence of having made any discovery requests on Mojo. Petitioner was terminated on November 29, 2013, pursuant to a “Disciplinary Action Form” that provided as follows: Roderick closed Wednesday night2/ in the dish pit. Again we have come to the problem with Roderick not working well with others causing a hostile work environment. This has been an ongoing issue. This issue has not resolved itself, and has been tolerated long enough. Roderick has been talked [to] about this plenty of times and written up previously for the same behavior. The documentary evidence established that Petitioner had received another Disciplinary Action Form on October 2, 2013, providing a written warning for insubordination for his hostile reaction when a manager asked him to pick up the pace in the evening. Laura Jenkins, the front-house supervisor at Mojo, was present at Mojo on the night of November 27, 2013. She testified that Petitioner had a history of getting into arguments with other kitchen employees that escalated into screaming matches during which Petitioner would commence calling the other employees “nigger.” Ms. Jenkins stated that on more than one occasion she had asked Petitioner to cease using “the ‘N’ word.” On the night of November 27, Petitioner was running behind on the dishes, so Ms. Jenkins asked another kitchen employee, Colin Griffin, to pitch in and help him. Petitioner did not want the help and argued with Mr. Griffin. Ms. Jenkins testified that Petitioner was screaming and cursing. The situation was so volatile that Ms. Jenkins felt physically threatened by Petitioner. She was afraid to discipline him that evening while she was the sole manager in the restaurant. On November 29, Ms. Jenkins met with kitchen manager Billy Ambrose and general manager Linda Prescott. They decided that Petitioner’s actions could not be tolerated anymore and that his employment would be terminated. Mr. Ambrose testified that on several occasions he sent people to help Petitioner in the dish pit and Petitioner refused their help. Petitioner would get into arguments with other employees over such things as the proper way to stack dishes. Mr. Ambrose named four different employees, including Mr. Finley, whom he sent to help Petitioner. Each one of them reported that Petitioner started an argument. Mr. Ambrose stated he went in to help Petitioner himself on one occasion and that Petitioner “kind of gave me attitude” despite the fact that Mr. Ambrose was his supervisor. Mr. Ambrose testified that Petitioner had an argument with Mr. Finley one morning that resulted in Mr. Ambrose having a cautionary talk with both employees. Mr. Ambrose sent Mr. Finley to help Petitioner in the dish pit. Petitioner stated, “Nigger, I don’t need your help.” Mr. Ambrose asked if there was a problem. Petitioner said, “No, we’re fine.” Mr. Ambrose asked Mr. Finley if everything was all right. Mr. Finley replied, “Yeah, I guess he’s just having a bad day.” Mr. Ambrose returned to his work only to find, five minutes later, that the two men were nose to nose arguing about the fact that Mr. Finley wasn’t washing dishes the way Petitioner liked. Ms. Jenkins, Mr. Ambrose, and Ms. Prescott all testified that they had never seen another employee harass Petitioner and had never heard of such a thing occurring. Petitioner never complained to any of these supervisors about discrimination or harassment of any kind. All three testified that they had never seen male employees kissing one another on the job nor seen any male employee attempt to kiss Petitioner. The three supervisors never heard any employee make comments about Petitioner’s appearing to be a girl. Ms. Jenkins testified that as a gay woman she would absolutely not allow any discrimination based on Petitioner’s gender orientation. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Mojo for his termination. Petitioner offered no credible evidence that Mojo's stated reasons for his termination were a pretext for discrimination based on Petitioner’s gender. Petitioner offered no credible evidence that Mojo discriminated against him because of his gender in violation of section 760.10, Florida Statutes. Petitioner offered no credible evidence that his dismissal from employment was in retaliation for any complaint of discriminatory employment practices that he made while an employee of Mojo. There was no credible evidence that Petitioner ever complained to a superior about the alleged harassment.
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 Mojo Old City BBQ did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 23rd day of February, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 23rd day of February, 2015.