The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a nursing assistant at the community healthcare facility known as Jackson Hospital in Marianna, Florida, at all times relevant to these proceedings. Petitioner obtained his designation as a Certified Nursing Assistant (CNA) subsequent to his employment by Respondent. Petitioner entered into a conversation with a female co-worker and CNA at Jackson Hospital on or about June 12, 2003. In the course of the conversation, he made an unwelcome sexual request of the co-worker. Petitioner was not on duty at the time and had returned to the hospital for other reasons. Subsequently, on June 12, 2003, the female co-worker filed a complaint with Respondent's human resource office at the hospital alleging unwelcome requests for sexual favors by Petitioner, inclusive of a request that the co-worker engage in sexual relations with Petitioner. In the course of his employment with Respondent, Petitioner was made aware of the strict guidelines and "zero tolerance" policy of Respondent toward sexual harassment. Respondent's policy expressly prohibits sexual advances and requests for sexual favors by employees. Discipline for a violation of this policy ranges from reprimand to discharge from employment of the offending employee. Petitioner has received a copy of the policy previously and he knew that violation of that policy could result in dismissal of an erring employee. Violations of this policy resulted in dismissal of a non- minority employee in the past. Corroboration of Petitioner’s policy violation resulted from interviews with other employees in the course of investigation by the hospital director of human resources. Further, in the course of being interviewed by the director, Petitioner admitted he had propositioned his co-worker for sexual favors. As a result of this policy violation, Respondent terminated Petitioner’s employment on June 16, 2003. At final hearing, Petitioner admitted the violation of Respondent's policy, but contended that termination of employment had not been effected for white employees for similar offenses in the past. This allegation was specifically rebutted through testimony of Respondent's hospital human resources director that a white male employee had been previously discharged for the same offense. Accordingly, allegations of Petitioner of dissimilar treatment of employees on a racial basis for violation of Respondent's policy are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ORDERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 13th day of September, 2005. COPIES FURNISHED: James M. Bowles 4193 Evelyn Street Marianna, Florida 32446 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 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
The Issue The issue in this case is whether the Respondent committed an unlawful employment practice against the Petitioner.
Findings Of Fact At some time prior to August of 2013, the Petitioner and Respondent discussed the Petitioner’s potential employment as a “Pharmacy Sales Representative” for the Respondent. The Respondent eventually offered such employment to the Petitioner, the terms of which were set forth in a letter (hereinafter “agreement”) from the Respondent (identified therein as “SCP, LLC” or “company”) to the Petitioner. The agreement stated as follows: Your job title will be Pharmacy Sales Representative and your duties include all aspects of sales and marketing to physicians and patients SCP, LLC can provide for. You will be responsible for producing leads and establishing new pharmacy sales as well as maintaining all existing accounts. You will report to members of SCP, LLC. You may be assigned other duties as needed and your duties may also change on reasonable notice, based on the needs of the company and your skills, as determined by the company. The agreement provided that the Petitioner would be paid an annual base salary of $45,000, and a commission “based on the total sales of compounded products sold to all accounts you are managing.” The salary was to be paid bi-weekly. The commission was to be paid quarterly. The agreement stated that the Petitioner would receive an additional $250 per month for the purposes of obtaining private health insurance, and that the additional payment would cease if a company health insurance plan became available to employees. The agreement stated that the Petitioner would also have access to an expense account, including a company credit card, and receive either a car or a paid car allowance from the Respondent. The agreement specifically provided as follows: YOUR EMPLOYMENT WITH THE COMPANY IS AT-WILL. IN OTHER WORDS, EITHER YOU OR THE COMPANY CAN TERMINATE YOUR EMPLOYMENT AT ANY TIME FOR ANY REASON, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE. According to the agreement, the Petitioner’s employment was to commence on September 3, 2013. Although the Petitioner was dissatisfied with the salary structure offered by the Respondent and believed that the offer was below her market value, the Petitioner signed the agreement on August 1, 2013, and accepted the employment terms set forth therein. The Petitioner’s dissatisfaction with her income was a continuing issue during her employment. The Petitioner repeatedly requested that her base salary be increased, but the Respondent was unprofitable and was unwilling to agree to the Petitioner’s request. Although the Petitioner initially developed some marketing materials for the Respondent, the Respondent was not satisfied with the Petitioner’s overall job performance. Additionally, there appears to have been disagreement between the Petitioner and the Respondent as to the responsibilities of her employment, including continuing friction between the Petitioner and her supervisor. On several occasions, the supervisor requested that the Petitioner come into the office during working hours to meet with him. The Petitioner apparently believed that her time was better utilized meeting with prospective clients; however, some of the prospective clients sought products that, for a variety of reasons, the Respondent could not supply. In any event, rather than come into the office as requested by her supervisor, the Petitioner chose to communicate with him by “after hours” email or by telephone. The supervisor was dissatisfied by the Petitioner’s failure to comply with his request. At some point in December of 2013, the Respondent determined that the Petitioner’s performance was not satisfactory and that a change needed to occur. The Petitioner was advised of the Respondent’s dissatisfaction in a meeting on December 5, 2013, between the Petitioner and a representative of the Respondent. After being advised that some type of change was going to occur, the Petitioner raised a number of complaints about her supervisor. The Petitioner complained that the supervisor used profanity, that he had hung up on her during a telephone call, and that, on one occasion, he had patted her on the head in an apparently demeaning manner. The Respondent had a written “zero tolerance” policy prohibiting all forms of harassment, including sexual harassment. The policy prohibited any form of retaliation against an employee who complained that he or she was a target of harassment. The Respondent also had a written “open door” policy that provided a specific procedure for resolving employment-related disputes. The Petitioner was specifically advised of such policies during an orientation process that occurred at the commencement of her employment with the Respondent. Additionally, the Petitioner received written copies of all relevant policies from the Respondent’s human resource director. There is no evidence that, prior to learning on December 5, 2013, that her employment was in jeopardy, the Petitioner advised any representative or employee of the Respondent that she objected to the supervisor’s alleged behavior. After the meeting on December 5, the Petitioner wrote an email to company officials dated December 17, 2013, wherein she asserted that she had “closed” a number of accounts on behalf of the Respondent, and suggested that her contribution to the company was being undervalued. She also requested reevaluation of her compensation because she believed the commission structure was inadequate. The Respondent apparently disagreed with the Petitioner because few actual sales resulted from the Petitioner’s “closed” accounts. Accordingly, during a meeting with Respondent’s representatives on December 20, 2013, the Petitioner was advised that her employment was officially being terminated. Central to the Respondent’s decision was the lack of revenue generated by the Petitioner’s sales and the unprofitability of the company. The Petitioner’s failure to comply with the requests of her supervisor also provided a basis for her termination from employment. During the meeting on December 20, the Petitioner restated the complaints she had first addressed during the meeting on December 5, and raised a number of additional complaints, including allegations of harassment or sexual harassment by her supervisor or another employee. There is no evidence that, prior to learning on December 20, 2013, that her employment was being terminated, the Petitioner had advised any representative or employee of the Respondent that she had been harassed in any manner by her supervisor or by any other employee of the Respondent. The alleged perpetrators of the harassment dispute the Petitioner’s assertions. The evidence fails to establish that any of the alleged acts of harassment or sexual harassment actually occurred. In a memorandum to the Petitioner dated December 20, 2013, the Respondent advised the Petitioner that her termination package would include salary payments for three weeks (one week of “final” pay and two weeks of severance pay), additional payment for 27 hours of accrued paid time off and unused comp time, and a total commission payment of $31.97. By letter to the Respondent dated December 27, 2013, the Petitioner restated the alleged harassment referenced herein and requested that she receive an additional two weeks of severance pay. The Respondent ultimately paid the Petitioner a total of four weeks of severance pay. The evidence fails to establish that the termination of the Petitioner’s employment by the Respondent was related to any complaint of harassment or sexual harassment, or was retaliatory in any manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's complaint against the Respondent. DONE AND ENTERED this 5th day of January, 2015, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 5th day of January, 2015. COPIES FURNISHED: Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Christina Harris Schwinn, Esquire Pavese Law Firm 1833 Hendry Street Post Office Drawer 1507 Fort Myers, Florida 33901 (eServed) Antonios Poulos, Esquire Poulos Law Firm 1502 West Busch Boulevard Tampa, Florida 33612 (eServed)
The Issue Whether Respondent, Carrabba's Italian Grill, Inc., subjected Petitioners, Jasen Baker and Bernard Southwell, to a hostile work environment and retaliation in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Respondent operates a chain of casual Italian restaurants. Respondent has adopted a policy against discrimination and harassment. In addition to prohibiting harassment, the policy instructs employees whom to contact if they experience harassment. The policy is contained in an employee handbook that is distributed to all employees during the initial orientation process. During orientation, Respondent's manager reviews the employee handbook with the new employee, including the policy on sexual harassment. During the orientation process, Respondent also requires employees to view a video that explains that Respondent will not tolerate harassment. The video familiarizes the employees with the company's expectations regarding the reporting of harassment in the workplace. During the orientation process, the employees are required to sign an acknowledgment on the exterior of their employee folders indicating that they have received and read the policy against harassment. The critical sections of the policy are reprinted on the folders immediately above the signature lines. All of Respondent's restaurants are required to display a poster known as the "Carrabbamico Info" poster in the kitchen area. This poster reprints the harassment policy and provides employees with a list of names to call if they feel that they have been harassed. Respondent has implemented reasonable precautions to prevent harassment from occurring in its restaurants. In the Central Florida market, Respondent's restaurants are overseen by a joint venture partner named Dick Meyer. Meyer is responsible for hiring and firing the managers of the restaurants that he oversees. In March 2000, Lawton DePriest became the managing partner at Respondent's Palm Bay location. DePriest reported to Meyer. DePriest remained in that capacity until September 2003, when he became the managing partner of Respondent's restaurant located in Formosa Gardens. It was DePriest's management style to frequently yell at employees in order to motivate them. It is also possible that he had favorites on the staff of the Palm Bay restaurant. Baker was hired by Respondent's Palm Bay restaurant in January 2002. At the time that Baker began working for Respondent, he attended an orientation session conducted by DePriest. It was DePriest's practice during orientation to discuss harassment issues and instruct employees to come to him directly if they experience any problems with sexual harassment. If for some reason an employee is not comfortable with him, DePriest would encourage the employee to contact any other person listed on the poster. Baker was given a copy of Respondent's handbook, which contains the company's policy against harassment. On that same date, January 19, 2002, Baker signed his employee folder on the blank line under the harassment policy indicating that he had read and received the policy. Whether he reviewed the employee handbook further after that date is irrelevant. Baker "vividly remembers" that during his orientation, he watched the videotape that included instructions on what he should do if he felt harassed. However, during the hearing, Baker denied ever seeing the Carrabbamico Info poster. However, Baker admitted on cross-examination that during his deposition, he had acknowledged seeing the Carrabbamico Info poster posted in the store. During the deposition, Baker specifically remembered that there were business cards with contact information for Meyer and Cheri Ashe attached to the bottom of the poster. Despite Baker's attempt to deny seeing the poster, his earlier answers in deposition were more credible in view of his specific recollection of the attached business cards and the lack of any persuasive explanation for the discrepancy. After completing his orientation, Baker initially worked as a dishwasher. Later, he was shown how to do food preparation work. Before coming to work for Respondent, Baker had previously worked for a restaurant by the name of Golden Corral. During the time that he worked with Golden Corral, he became acquainted with a co-worker named Bernard Southwell. In the summer of 2002, Petitioners discussed the possibility of Southwell coming to work for Respondent. Baker spoke favorably of the restaurant and recommended that Southwell submit an application. At the time, Baker had worked for Respondent for six or seven months. Baker did not express to Southwell that he had observed or experienced any problems with unwelcome harassment. Southwell submitted an application and was hired by Respondent's Palm Bay restaurant in August 2002 as a dishwasher. At the time he began employment with Respondent, Southwell was living with a friend of his named Joe Corbett. At the time, Baker was living in a one-bedroom apartment with his girlfriend. Several weeks later, Baker's girlfriend decided to move out. According to Petitioners, she suggested to Southwell that he move into Baker's apartment to replace her. Around October 2002, Southwell moved out of the Corbett residence and moved in with Baker. A third employee named Chris Germana also moved into the residence around the same time. Because the apartment only had one bedroom, Germana slept on the couch. Petitioners slept in the bedroom. When employees at the restaurant learned of these arrangements, speculation began about whether the two men were homosexual. According to Petitioners, sometime after Southwell started to room with Baker, co-workers at the restaurant started referring to Petitioners by nicknames. The co-workers referred to Baker as "powder," "crack pipe," and "crack head." Baker knew that "powder" was a reference to a character from the movie "Powder" and that the name had nothing to do with his sexuality. The co-workers also referred to Petitioners as "butt buddies." Southwell testified that a male co-worker, Christopher Bouley, told him, "I know you guys are lovers." Bouley, Arnold Samuel and DePriest all used these nicknames on occasion to refer to both Petitioners, according to Baker. After several months, Southwell eventually went to DePriest and complained about the "powder," "crack pipe," and "butt buddies" nicknames. Southwell told DePriest that the nicknames were funny at first, but that they started getting old. DePriest then told Samuel and Bouley to stop using the nicknames. Thereafter, the use of the nicknames stopped. Southwell claimed that Bouley would gyrate his hips behind other employees as they were bending down. However, Petitioners both admitted that Bouley would do these hip motions to both male and female employees. During the hearing, Petitioners claimed that Bouley subjected them to unwelcome touching. Baker claimed that Bouley had touched his buttocks once. However, Baker acknowledged that when his deposition was taken prior to the final hearing, he did not mention that Bouley touched his buttocks. In fact, when asked during his deposition whether he had been sexually harassed, Baker testified that he had not and that he had only been verbally harassed. Furthermore, Baker made no mention of any physical touching in the Affidavit that he submitted to FCHR at the time he filed his charge of discrimination. Southwell never saw Bouley touch or grab Baker's buttocks. And despite their close relationship, Baker never told Southwell that Bouley had grabbed his buttocks. Accordingly, Baker's allegation that he was touched inappropriately by Bouley or any other of Respondent's employees is not credible. Southwell claimed that Bouley had touched his buttocks on two or three occasions and touched his nipples twice. Southwell also claimed that Bouley had touched his penis on one occasion. According to Southwell, he was bending down to pick up sauté pans when Bouley, who was supposedly standing behind him, reached between Southwell's legs from behind and clutched Southwell's genital area through his trousers. This incident supposedly occurred during the restaurant's hours of operation while customers were in the restaurant. The alleged grabbing supposedly took place in front of a stove that sat in full view of customers seated at the restaurant's bar. Bouley flatly denied ever touching Southwell's genitals or private area. In the Affidavit that Southwell submitted to FCHR at the time he filed his charge of discrimination, Southwell made no mention of Bouley touching Southwell's penis. At the time that he submitted this Affidavit, Southwell was represented by counsel. Southwell did not offer any convincing reason for the omission of any description of his genitals being grabbed. Accordingly, Southwell's allegation that Bouley touched Southwell's genitals is not credible. Although Petitioners testified that they spoke to DePriest on several occasions, they admit that they never spoke to any of the other individuals listed on the harassment poster to complain about sexual harassment. DePriest testified that the only complaint he ever received had to do with the nicknames and that he took prompt action to resolve this problem. Annually, Respondent submits an employee experience survey to its employees that is completed anonymously and forwarded to an outside company for analysis. After the survey is completed, employees participate in a small group feedback session to discuss the results of the survey. On March 11, 2003, DePriest held the feedback session for his store, which was attended by Petitioners. During the session, Southwell commented about the situation with the nicknames. He indicated that the situation was resolved when it was brought to DePriest's attention. This was the sole extent to which either employee complained of unwelcome behavior. Respondent was not on notice of any problems with regard to touching or more serious inappropriate behavior. On March 12, 2003, Petitioners' last day of work, Southwell approached DePriest to complain about scheduling for a special event at the convention center. Southwell stated that he and Baker had signed up to participate in this event. Southwell was scheduled for the event, but Baker was not. DePriest explained that he needed Baker to float, because there were not enough people scheduled to work at the restaurant that night. DePriest later talked to Baker, who indicated that he was not disappointed that he was not participating in the event. That conversation, however, was the last time that DePriest saw Baker. DePriest learned that Petitioners had left before the end of their shift, when the plates in the restaurant were getting low and the sauté pans were getting stacked up. DePriest asked about the whereabouts of Petitioners and learned that they were seen riding their bicycles away from the restaurant. DePriest could not contact them because they did not have a telephone. DePriest eventually terminated their employment for voluntarily walking off the job.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that: Dismisses the Petition for Relief filed by Petitioner, Jasen Baker, in DOAH Case No. 05-0623, FCHR No. 23-03891; and Dismisses the Petition for Relief filed by Petitioner, Bernard Southwell, DOAH Case No. 05-0632, FCHR No. 23-03892. DONE AND ENTERED this 10th day of November, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jason M. Gordon, Esquire Gordon & Cornell 103 North Atlantic Avenue Cocoa Beach, Florida 32931 Kevin D. Johnson, Esquire Thompson, Sizemore & Gonzalez, P.A. 501 East Kennedy Boulevard, Suite 1400 Tampa, Florida 33602 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent is guilty of discrimination in employment based on Petitioner's pregnancy and sexual harassment, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Respondent is a family-owned business engaged in the retail sales of wine, spirits, cigars, specialty gourmet foods, and party favors. Respondent operates about 28 stores, mostly in south Florida. Respondent employs at least 225 employees. Its chief executive officer is Paul (Bubba) Kassal. Other executive officers, superior to Bubba Kassal, are his brother Michael, who also serves as vice-president of personnel, and their father, who, with his father, started the company in 1955. Respondent hired Petitioner on October 13, 2003, as a human resources manager. As such, Petitioner reported to the human resources director. At the time of hiring Petitioner, Bubba Kassal informed her, presumably secretly, of his intent to fire the existing human resources director. Six months later, after the termination of the human resources director, Respondent promoted Petitioner to the position. As human resources director, Petitioner's primary duties were to ensure that all of Respondent's employees were paid, file all reports with the appropriate agencies, prepare internal employment policies, train managers in good hiring practices, run background checks, ensure compliance with all safety, workers' compensation and Family Medical Leave Act (FMLA) issues, terminate employees, counsel employees, file unemployment compensation reports, and participate in the strategic planning for new stores. The Kassals were satisfied with Petitioner's work performance during her entire employment with Respondent. Respondent's main offices are located in Ft. Lauderdale. While working for Respondent, Petitioner commuted over one hour each day from her home in Port St. Lucie to her office in the corporate headquarters. The issues in this case divide neatly into the claims of a hostile work environment and sex discrimination due to pregnancy. The claim of a hostile work environment pertains to Petitioner's first two years with Respondent, which were from late 2003 through late 2005. The claim of discrimination due to pregnancy pertains to Petitioner's last months with Respondent, which were from spring 2008 through fall 2008. As noted below, there is evidence supportive of a claim of a hostile work environment, although this evidence fails to establish such a claim for the reasons explained below. However, the limited evidence of a hostile work environment is in no way linked to the termination of Petitioner's employment in 2008 while she was pregnant. This termination, which was due to complications associated with her pregnancy, was essentially by mutual agreement and in no way was due to some form of quid pro quo sex discrimination or retaliation for her failure to reciprocate Michael Kassal's flirtation or infatuation. Petitioner's version of events for 2003-05 is credited because Michael Kassal did not testify. Petitioner's version of events for 2008 is largely uncredited due to some inconsistencies in her testimony where she implies, for instance, that she understood that Respondent might not keep open her existing job until after she delivered. Petitioner's version of events for 2008 is less than the more plausible testimony of Bubba Kassal and Respondent's outside counsel, Amy Galloway. Shortly after starting work, Petitioner began receiving unwelcome attention from Michael Kassal, whose office was near Petitioner's office. Michael Kassal, who was married at all material times, routinely complimented Petitioner's hairstyle, teeth, shoes, and clothes. When Respondent sponsored a wine tasting at its Port St. Lucie store, Michael Kassal invited Petitioner to attend. Michael Kassal repeatedly asked Petitioner to lunch or dinner. Petitioner went to lunch with Michael Kassal only a couple of times because she was uncomfortable with the level of attention that she was receiving. During her first year of employment, Petitioner was preoccupied with the demands of her job and largely ignored the uninvited attention that Michael Kassal directed toward her. During her second year of employment, Petitioner initiated corporate-wide training sessions in sexual harassment. She used these occasions to remind Michael Kassal, when he made her uncomfortable with his comments or behavior, that he knew better and he needed to stop such inappropriate behavior. Undeterred, Michael Kassal instead confided in Petitioner that he felt trapped in his marriage, could not leave his wife due to their two children, and believed that he would have been much happier if he had met Petitioner a couple of years earlier because they would have been so good together. Michael Kassal said that his wife, who was, at times, an employee of Respondent, was an alcoholic. Petitioner suggested that Michael Kassal or his wife take advantage of Respondent's employee assistance program. Michael Kassal rejected this advice and instead stated that, if Petitioner would not go out with him, he would go out with a woman at the gym where he worked out. On Petitioner's birthday, Michael Kassal routinely gave her a card. Petitioner kept only two of the cards and could not identify the years that they were received. One card contains a handwritten note: "And I need you more than want you[,] and I want you til the end of all time." Michael Kassal printed his name at the bottom of the note, adding a heart- shaped symbol in place of the dot over the "i." The other birthday card states: Dear Angella, It[']s presently July 10th and you are in India and I am wishing I were with you riding on Elephants and protecting you from the dangers so far from home. I must tell you we all miss you and only have kind thoughts about how professionally you have with us with Cami and Johanna. You have always blessed us with organization and administrative magic. I sit here and count the days before I can smell Victor[i]a's Secret Rapture perfume. Thank you for your intervention. You have been a breath of fresh air. I know it[']s been a whirlwind to some of us to catch up but it[']s worth the effort. I always have your back. I hope this year[']s birthday brings happiness and fills your heart with songs and sunshine. I hope you get a new pair of shoes and a toothbrush. Thanks again for all your loyalty and dedication. Sincerely, Michael Kassal. The "i" in "Michael" bears no dot or other symbol. Bubba Kassal testified that Michael sent birthday cards to all of the employees of the company and that this was part of the family atmosphere that characterizes the company, which continues a tradition of family picnics, employee fitness programs, and comprehensive fringe benefits. Bubba Kassal also testified that he and his brother kiss each morning. However, Bubba Kassal did not testify that the contents of the birthday cards quoted above resemble the contents of the birthday cards that Michael Kassal sends to, say, the company truck drivers or warehouse workers. The thoughtfulness that Michael Kassal extends daily to his brother and annually to his employees is distinct from the intimacies inherent in the shorter birthday card and the reference to smelling Petitioner's perfume again. These intimacies corroborate the portion of Petitioner's testimony that describes an inappropriate level of emotional attachment from Michael Kassal toward Petitioner; the inference easily follows that this level of emotional attachment is atypical of the conventional employer-employee relationship at Respondent. Three omissions loom large in Petitioner's proof of her claim of a hostile work environment. These omissions are considered in ascending order of significance. First, at no time during her employment with Respondent did Petitioner complain to anyone about Michael Kassal's behavior. She testified that she believed a complaint would be futile because Michael Kassal was the boss. Respondent countered with evidence that complaints about Michael Kassal's wife led to her termination and argument that Petitioner's complaints would likewise have received a fair hearing. Respondent's contention overlooks the fact that Michael's wife was convicted of driving under the influence, and her continued operation of a company vehicle presented an insurance problem for Respondent that could not be ignored. Petitioner is right on this point--her complaint would have been futile. Bubba Kassal was not in a position to control his brother, and, on this record, their father does not seem to have been playing a prominent role in the business during the time in question. Factually, the failure to lodge a contemporaneous objection to unwelcome sexual behavior in the workplace may sometimes undermine the credibility of the complainant. This is not the situation here, though, because, as noted above, Petitioner's version of events from 2003-05 is unrebutted and confirmed by two birthday cards. Legally, the failure to lodge a contemporaneous objection to unwelcome sexual behavior in the workplace may sometimes preclude a finding of notice to the employer, so as to preclude a conclusion of vicarious liability. This is not the situation here, though, because, as discussed in the Conclusions of Law, Michael Kassal was Respondent for purpose of establishing notice and concluding vicarious liability for his behavior. The second omission is that nothing in the record establishes that the behavior of Michael Kassal impeded Petitioner's work performance. As discussed in the Conclusions of Law, this omission is not outcome-determinative, but, as noted above, Petitioner's work was always satisfactory, at least until her health deteriorated during her pregnancy, which is discussed below. The third omission is that the evidence fails to establish that Michael Kassal continued to lavish inappropriate attention on Petitioner after the end of 2005. The record is silent as to the nature of the relationship between Michael Kassal and Petitioner for the two and one-half years from the end of 2005 until the disclosure of her pregnancy in the spring of 2008. It is at least as plausible that, unfueled by any encouragement from Petitioner, Michael Kassal's infatuation with her tapered off after a couple of years, rather than burned with the same intensity for four and one-half years. The behavior of Michael Kassal from late 2003 through late 2005 suggests nothing more than an infatuation with Petitioner, which, however inappropriate, excludes the sexually charged actions of offensive touching or sexually explicit invitations or comments. The behavior in this case is limited to unaccepted invitations to lunch, dinner, and dates, inappropriate revelations about Michael Kassal's personal life, and transparent attempts at flattery that, at their best, suggest a failure to recognize boundaries and, at their worst, wander between the narcissistic and infantile. The record is not especially rich in detailing Petitioner's response to the inappropriate attention lavished on her by Michael Kassal, except that there is no indication whatsoever that Petitioner welcomed the attention, reciprocated in any fashion, or was in any way flattered by Michael Kassal's two-year infatuation. There is some evidence that the attention made Petitioner embarrassed and somewhat uncomfortable, but this evidence is insufficient to establish that Petitioner's subjective reaction took the form of a feeling that she was physically threatened or personally humiliated or that she was laboring under an alteration of her working conditions. Such reactions, if they had occurred, would have been disproportionate to the level of attention that Michael Kassal directed toward Petitioner. Except for the frequency of comments about attire or appearance, which may have occurred on a daily basis, the record fails to establish the frequency of the invitations to lunch, dinner, and dates or the inappropriate revelations about Michael Kassal's personal life, but these occurrences were probably infrequent. Objectively considered, none of Michael Kassal's behavior was physically threatening or humiliating, none of his behavior was so pervasive or severe as to alter the conditions of Petitioner's employment, and none of his behavior could reasonably have adversely affected Petitioner's work performance. Based on these findings and the Conclusions of Law below, Petitioner has failed to prove a hostile work environment from 2003-05. The inception of the claims arising out of Respondent's treatment of her pregnancy is March or April 2008, when Petitioner learned that she was pregnant and due to deliver in November. In June, Petitioner decided to reveal her pregnancy to family, friends, and Respondent. On the morning that Petitioner had decided to inform Respondent of her pregnancy, the first person who came to her office was Bubba Kassal. He congratulated Petitioner, laughingly saying, in a manner that did not offend Petitioner, that he did not know that she had a boyfriend. Bubba Kassal then spoke of his two boys and added that he was sorry that Petitioner's mother was no longer alive to support her at this time. Bubba Kassal called his mother and told her, and she called Petitioner the next day and congratulated her. The record does not disclose whether Petitioner told Michael Kassal at this time, or, if she did, the nature of his response. A short while later, on June 13, Petitioner had an office visit with her physician, who became concerned about her high blood pressure. The physician asked if Petitioner could work at home, and Petitioner assured him that she could. The physician wrote a note to this effect. Driving back to the office, Petitioner called Ms. Galloway, with whom Petitioner had worked on human-resource issues. Petitioner told Ms. Galloway about her pregnancy, the health risks, and the support that she had already received from "the Kassals." Ms. Galloway advised Petitioner just to go in and tell them that she needed to work at home. Toward this end, Petitioner arranged a meeting with Michael and Bubba Kassal on June 18. At the meeting, Petitioner gave the Kassals a copy of her physician's note. Petitioner acknowledged that she had been with Respondent a long time, and she thanked them for the work that she had been allowed to do. She mentioned her pregnancy complications, which included blacking out and falling--these made the long drive between work and home especially dangerous. Petitioner offered to recruit someone to replace her, but she wanted to be kept on the payroll in return for performing various human resource duties as best as she could, mostly from home. Michael Kassal reacted to the request poorly. He replied that it had not been his idea to purchase a house so far from the office in Port St. Lucie, and the human resources director needed to be onsite. Notwithstanding Michael Kassal's reaction, Respondent accepted Petitioner's request, as Bubba Kassal and Petitioner generally agreed to an arrangement in which Petitioner would continue to be paid her normal salary through delivery in return for working on human resources matters on a limited basis. An important component of the understanding reached at the June 18 meeting was its term, which was through the birth of the baby. Bubba Kassal asked what would happen if, after baby was born, Petitioner decided not to return to work. Petitioner was unable to promise that she would return to work, but replied that she needed to work, and she could bring her aunt from Jamaica to watch the baby. Bubba Kassal asked when the work-at- home arrangement would go into effect, and Petitioner replied it was intended to go into effect right away, but she would try to work with them and offered to help find someone to perform her duties in her absence. Bubba Kassal replied that he had someone in mind. Petitioner herself testified that Bubba Kassal asked what would happen if they liked the replacement, and Petitioner replied that she understood that they had a business to run, implying that, consistent with this understanding, they might not have a position for her after the baby were born, just as she might not want to return to work with Respondent. Bubba Kassal promised to memorialize the understandings reached at the meeting. Despite the doctor's orders, Petitioner continued to report to the office until the July 4 weekend. At that time, she asked Bubba Kassal about the document to memorialize their understandings, and he said that Amy Galloway was working on it. On July 7, Ms. Galloway emailed to Bubba Kassal a draft letter agreement, which, among other things, confirmed that neither party was committing to Petitioner's ongoing employment after the birth of the baby. On July 8, Petitioner sent an email to Bubba and Michael Kassal and Ms. Galloway advising them that she was on bed rest and would submit FMLA paperwork as soon as possible. For some reason, the recipients did not receive this email, so they were unaware in early July of the status of Petitioner, who, understandably, did not undertake any unnecessary communications during her period of bed rest in order to save the baby. On July 11, Petitioner visited the doctor, who found that her blood pressure had soared to 200/100. Petitioner talked him out of ordering an ambulance to take her to the hospital, but the doctor ordered bed rest for Petitioner. By this time, Petitioner realized that, for the remainder of her pregnancy, she would not be able to perform even at the limited level that she had said she would work at the June 18 meeting. From this point forward, the June 18 understanding was superseded by Petitioner's medical issues. On July 11, Petitioner returned to the office briefly to advise her staff that she would be going home for the time being. While at the office, she saw an invoice from Ms. Galloway's law firm that reflected legal research conducted a couple of days after the June 18 meeting and concerned the Title VII ramifications of Petitioner's situations. Petitioner assumed that Respondent was terminating her and began to cry. On the same day, Petitioner returned to the doctor's office and had him complete the FMLA paperwork, which Petitioner had previously thought was unnecessary. The necessity for FMLA paperwork was as much Petitioner's realization, on July 11, that she could not perform even the limited duties contemplated by the June 18 understanding as her discovery, also on July 11, that Respondent had ordered its counsel to research Title VII. Later on July 11, Petitioner returned to the office with the completed FMLA paperwork and left it for Bubba Kassal. Pursuant to this paperwork, the FMLA period, during which Respondent would have to keep open her job, expired before the projected delivery date. On July 14, Petitioner returned a telephone call of Ms. Galloway and updated her on her condition. As Ms. Galloway confirmed in an email of the same date to Bubba Kassal, Petitioner wanted to take her FMLA time and understood that she would not be able to perform the transitioning tasks contemplated in the June 18 understanding. Ms. Galloway promised Petitioner that she would discuss with Bubba Kassal a reworking of her benefits, including maintaining present health benefits and obtaining disability benefits. On August 5, Petitioner sent an email to Bubba and Michael Kassal advising that she had not received her paycheck on August 2 and stating that she "continued" to be available to perform her end of the June 18 understanding. This is an attempt to document a fact that was untrue: Petitioner had not been able to perform her responsibilities under the June 18 understanding at any time after July 11. Ten minutes after receiving the email, Bubba Kassal emailed Ms. Galloway stating that they would proceed by paying Petitioner disability benefits through the birth, paying the company's portion of the health insurance until the birth, and giving Petitioner access to her company laptop computer and cellphone until October 1 in return for a release, presumably from any employment-related liability claims. It is impossible to infer that Bubba Kassal was miffed at Petitioner's misstatement, but it is likely that the misstatement motivated Bubba Kassal to define the status of Petitioner's employment relationship. By letter dated August 5 from a human relations employee to Ms. Galloway, the position of Respondent was documented, at least internally. This letter states that Petitioner's FMLA start date is July 11, 2008, and end date is October 4, 2008. This letter restates the undertakings that Bubba Kassal detailed in his August 5 email and notes that Petitioner has exhausted all of her sick and vacation time. The letter notes that the June 18 understanding was superseded by Petitioner's subsequent incapacitation. On August 14, Ms. Galloway emailed a letter to Petitioner reiterating much of the contents of the August 5 email and noting that, due to Petitioner's emergent health needs, Respondent had hired an acting human resources director on July 28. Ms. Galloway's letter restates the conditions set forth in Bubba Kassal's email of August 5, adding only that there is no expectation that Petitioner can perform any human resource duties and omitting the request for a release. A couple of weeks later, Petitioner emailed a brief message to Ms. Galloway acknowledging receipt of the letter and thanking her for all that she "does," but not otherwise responding to the letter. On October 8, Ms. Galloway sent another letter to Petitioner noting that the FMLA period had expired and that Respondent continued to perform the conditions detailed in the August 14 letter. The letter asks for the return of the laptop computer and cellphone. On November 5, Petitioner delivered her baby. One month later, she spoke with Ms. Galloway exploring, in Ms. Galloway's opinion, the possibility of returning, if her replacement were not working out, or obtaining additional severance pay. Ms. Galloway explained the company's view that the termination was voluntary, not involuntary. Eventually, Respondent agreed to pay Petitioner another week's salary, through July 18, and extended her insurance through December 31, so that Petitioner would have another chance to exercise her COBRA rights. Respondent advised that it was treating Petitioner's termination date as October 4, which was when the FMLA period had expired. There is no evidence of discrimination in Respondent's handling of Petitioner's pregnancy. Respondent assigned no role of substance in the 2008 events to Michael Kassal, whose objections to the June 18 understanding were completely ignored. There is no evidence that the company's actions in 2008 were influenced in any way by Michael Kassal's 2003-05 infatuation. Petitioner testified to a 4-6 week period during which she had previously worked at home. However, this earlier period of working at home was when Petitioner was engaged in the solitary task of converting payroll systems on the computer, and she needed a quiet place to work. Working at home under these conditions is entirely appropriate. During this period, Petitioner was working exclusively on this task, leaving her other human resources duties to others or deferring them until the conversion was finished. Any insistence by Respondent in 2008 that Petitioner work in the office is justified because Petitioner's duties generally required her to be in the office, where she would be available for, among other things, drop-in visits by corporate management needing assistance in the wide range of personnel matters that arise daily in a business of this size. However, Petitioner's claim of discriminatory treatment regarding working at home misses the larger point that, in the June 18 understanding, Respondent allowed her to work at home for the duration of her pregnancy. This understanding was defeated, not by Respondent's insistence that she work in the office, but by Petitioner's deteriorating medical condition. Petitioner also testified that Respondent allowed other managers to work at home. Again, this proof overlooks the fact that Respondent also allowed Petitioner to work at home under the June 18 understanding, and her subsequent inability to do so was due to her deteriorating health, not the demands of Respondent. Also, the other situations are distinguishable, even if Respondent had prohibited Petitioner from working at home. While one district manager's wife recovered from a broken leg and another district manager recovered from a heart attack and stroke, they worked in some fashion, either with reduced hours in the office or reduced hours from home. Petitioner's situation was different in the nature of her duties, which were corporate-wide, not district-wide; the fact that she was completely unavailable for an extended period of time; and probably for the fact that, for a substantial period of time, she failed or was unable timely to communicate her situation to Respondent. Based on these findings, Petitioner has failed to prove any form of sex discrimination in Respondent's handling of her pregnancy in 2008.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of June, 2010, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2010 . COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert A. Bogdan, Esquire Robert Anthony Bogdan, P.A. 410 Southeast 1st Terrace Pompano Beach, Florida 33060-7108 Salvatore H. Fasulo, Esquire Trip Scott, P.A. 110 Southeast Sixth Street, 15th Floor Fort Lauderdale, Florida 33301
The Issue The issue is whether Respondent, Rural Metro of North Florida, Inc., violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was hired by Respondent on October 11, 1999, as an Emergency Medical Technician Basic, until July 2001 when he was reclassified with Respondent as an Emergency Medical Technician Paramedic, until his termination from employment with Respondent on April 16, 2003. In July 2001, Petitioner told his then manager, Dominic Persichini, that he no longer wanted to work with his partner, Marlene Sanders, and he requested a transfer. Petitioner gave as his reason for the transfer that Ms. Sanders was interested in him in an inappropriate way which disrupted his family life. He never actually heard Ms. Sanders make any inappropriate sexual remarks directed at him. Ms. Sanders accused Petitioner of allowing his wife to interfere with their working relationship and to involving herself in Ms. Sanders' personal life, which made her uncomfortable working with Petitioner. On March 27, 2002, Stephen Glatstein, Respondent's new General Manager, wrote a letter to Petitioner in which he acknowledged that problems had occurred between Petitioner and Ms. Sanders, that the two of them would be separated and reassigned to new shifts, and that Petitioner was being reassigned to the B-shift rotation (1800-0600 hours), which conflicted with his family duties. Petitioner received a good evaluation and a pay raise dated February 15, 2003, in which his supervisor, Ryan Jenkins, stated that "Michael's abilities meet or exceed industry standards. Michael keeps current by completing CEU's and taking refresher classes. There is one new Corrective Action Notice in his file since last year involving a post move. The incident was on 08-07-02 and to my knowledge there have not been any further problems since." Further, the evaluation reads that "Michael shows a great attitude and appears to really enjoy his job. This makes him very easy to work with. Michael's good personality and working knowledge of E.M.S. is a benefit to the customers that he serves. It is clear that we should be proud to have Michael as part of our team." Petitioner received letters of commendation from his supervisors and letters of thanks from patients and their families he had served. In April 2003, Natashia Duke, a new employee with Respondent, went to the General Manager, Mr. Chalmers, and accused Petitioner of having made statements of a sexual nature to her and of touching her inappropriately. Ms. Duke provided a written statement to Mr. Chalmers who forwarded the information to the Division General Manager, Chris Rucker. Mr. Rucker advised Mr. Chalmers to place Petitioner on paid administrative leave pending the outcome of an investigation concerning Ms. Duke's complaint. Mr. Chalmers followed this instruction and placed Petitioner on leave. Mr. Rucker traveled to Pensacola to meet with Mr. Chalmers and Ms. Duke. At this meeting, Ms. Duke reaffirmed what she had written in the complaint against Petitioner and told Mr. Rucker and Mr. Chalmers about another employee she believed had been sexually harassed by Petitioner, Kristy Bradberry. The next day, Mr. Rucker and Mr. Chalmers interviewed Ms. Bradberry who informed them that she had been sexually harassed by Petitioner. She provided a written statement which described the alleged harassment in detail. Ms. Bradberry told the interviewers of another person she believed had suffered sexual harassment by Petitioner, Tina Dunsford (Tina Richardson at the time of her complaint). Mr. Rucker and Mr. Chalmers next interviewed Ms. Dunsford who confirmed that Petitioner had sexually harassed her as well by making sexual comments and propositions to her, and by touching her inappropriately. After Ms. Dunsford's interview, Ryan Jenkins, another of Respondent's employees, reported that Ms. Dunsford had complained to him of sexual harassment by Petitioner a few months earlier. Mr. Jenkins had failed to take any action on the previous complaint. After interviewing the three complainants, Ms. Duke, Ms. Bradberry, and Ms. Dunsford, Mr. Rucker and Mr. Chalmers met with Petitioner. At that meeting, Petitioner denied all of the allegations made by the three female co-workers and gave no explanation for what they alleged had happened. Mr. Rucker believed the statements given by the three female co-workers who complained of sexual harassment by Petitioner were credible. Mr. Rucker made the decision with Mr. Chalmers to terminate Petitioner's employment. Respondent had no prior history of problems with any of the three female co-workers who complained of sexual harassment by Petitioner. Petitioner believes the sexual harassment charges were trumped up against him so that Respondent could fire him, since he was beyond the company probationary period and therefore could be terminated only for a business purpose pursuant to the company employee handbook. No evidence was produced at hearing to support a violation of company policy by Respondent in Petitioner's termination. At the time of hearing, Petitioner was employed with the Escambia County E.M.S.
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 dismissing Petitioner's claim for relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael J. Welch 2060 Burjonik Lane Navarre, Florida 32566-2118 John B. Trawick, Esquire Shell, Fleming, Davis & Menge 226 Palafox Place Post Office Box 1831 Pensacola, Florida 32591-1831 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues for determination are whether Petitioner, Kenneth Davis, made sexually harassing statements and made body contact with a female counselor so as to constitute sexual harassment and a hostile work environment, in violation of Pinellas County Sheriff Office Civil Service Act and the rules and regulations of the Pinellas County Sheriff's Office, and, if so, what is the appropriate penalty.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes, and the entire record compiled herein, the following relevant and material facts are found: Respondent, Sheriff Everett S. Rice (Sheriff), is a constitutional officer of the State of Florida, responsible for providing law enforcement and correctional services within the geographic boundaries of Pinellas County, Florida. Petitioner, Detention Deputy Kenneth Davis (Deputy Davis), is a 23-year employee with the Pinellas County Sheriff's Office, having spent his entire career as a detention officer. As a result of years of training and experience, Deputy Davis is intimately familiar with the Sheriff's policy regarding sexual harassment, detention policies, operations, procedures, and the priority of security applicable to detention deputies. The evidence demonstrates that in the collective opinions of those detention deputies who worked longest with Deputy Davis, all agreed that his personality was that of one who "[was] loud and obnoxious--to pretty much everybody," "play[ed] around a lot," "never insulted anybody," and "[didn't] mean any harm." At all times pertinent to this cause, Deputy Davis held the rank of detention corporal until the Sheriff reduced his rank to Deputy and removed him from his position of detention corporal on March 10, 2003. Deputy Davis' chain-of-command consisted of Major Kirk Brunner, Detention and Correction Bureau commander; Captain Nesbitt; Lieutenant Keith George; and Sergeant Buckingham. Deputy Davis did not have authority over Lori Atwater (Ms. Atwater), the complainant in this cause. He was not in her chain-of-command nor was he one of her bosses in the sense that he could assign her tasks. At all times pertinent to this cause, Deputy Davis worked in detention barrack C, North Division. Barrack C is a two-storied structure divided into B block and C block, with each cellblock divided into an upper level and lower level. Deputy Davis had four deputies under his supervision in cellblock C. At all times pertinent to this cause, Control Deputy Salazar worked the control center at barrack C. The control deputy is stationed in a glassed enclosure with clear view of individuals desiring entrance into the waiting room of barrack C and with clear view of inmates desiring to leave the cellblock and enter the waiting room. On or about March 4, 2002, Ms. Atwater, an African- American and a long-time resident of St. Petersburg, Florida, commenced employment with the Pinellas County Sheriff's Office as an inmate-counselor. Ms. Atwater has an Associate of Science degree in Computer Technology Engineering and a Bachelor of Science degree in Management Information Systems. Her inmate- counselor duties consisted of identifying inmates who had family, legal, and personal issues requiring her intervention. The Department of Children and Family Services (DCFS) employed Ms. Atwater for ten years before she began employment with the Pinellas County Sheriff's Office. While employed with DCFS, she worked in food stamps, Medicaid, protective services, adoptions, and several community recruitment programs. DCFS also has a policy against sexual harassment. The Sheriff has adopted Pinellas County Sheriff's Office General Order 3-4, which defines and prohibits sexual harassment. Pursuant to General Order 3-4, sexual harassment is defined as: All unwelcome or unwanted advances; including sexual advances or unwanted sexual attention, whether between person(s) of the opposite or same sex. This includes, but is not limited to, leering, touching, patting, brushing against, hugging, kissing, fondling, any other similar physical contact, or quid pro quo arrangements (i.e., a situation in which an employee is forced to engage in unwelcomed sexual conduct in order to protect or advance his/her job.) Unwelcome requests or demands for favors, including sexual favors. This consists of subtle or blatant expectations, pressures, or request for any type of favor, including sexual favor, including unwelcome requests for dates, whether or not the request is accompanied by an implied or stated promise of preferential treatment or negative consequences. Inappropriate third party comments or one time comments made which do not constitute a hostile work environment, language not directed at the offended member, jokes (spoken, printed or drawn) that are not directed at the offended member or joint banter of a sexual or offensive nature in which the offended member may or may not be a party. All employees of the Sheriff, including Deputy Davis and Ms. Atwater, received instructions regarding the Sheriff's Sexual Harassment Policy. The evidence demonstrates that beginning in March of 2002 and continuing through the months of April and May 2002, Ms. Atwater noticed, without telling him to stop and without reporting her resulting complaint to her supervisor, that Lieutenant George would call her "Ms. Ashwood." At some unspecified time prior to March of 2002, Ms. Atwater concluded that the name "Ms. Ashwood" was offensive. Ms. Atwater based her conclusion on her interpretation and knowledge of the general reputation of a Ms. Ashwood (no first name given) within the African-American community of St. Petersburg. According to Ms. Atwater, Ms. Ashwood was known throughout the African- American community for engaging in sexual encounters with multiple partners. As a direct result of her superior, Lieutenant George, continuously calling her Ms. Ashwood, a name she considered to be sexually offensive, Ms. Atwater chose not to report her sexual harassment complaint against Lieutenant George through the proper protocol. The record contains no evidence that Ms. Atwater asked Lieutenant George what was his intended meaning by calling her Ms. Ashwood. The evidence demonstrates that Lieutenant George, having been involved in both the hiring of Ms. Atwater as well as involved in her performance evaluation, knew her name to be Ms. Atwater. Alleged statements made by Deputy Davis to Ms. Atwater in the cafeteria during a lunch period. The evidence demonstrated that Ms. Atwater and Deputy Davis initially enjoyed a rather cordial relationship at work during the period of March through May 2002, at least by outward appearances. Deputy Davis and Ms. Atwater both attended read- off sessions; on occasions, they walked together from the read- off sessions back to barrack A; and on two separate occasions, they were seated at the same table in the compound's buffet- styled cafeteria. They did not have contact with each other beyond what was necessary in the performance of their respective duties. They did not have contact with each other outside the workplace. On some unspecified date during lunch in the compound cafeteria, Ms. Atwater chose to ask Deputy Davis why Lieutenant George kept calling her Ms. Ashwood. According to Ms. Atwater, Deputy Davis came over to the table where she sat and she allegedly initiated the following conversation: Atwater: I really don't appreciate that, him [Lieutenant George] calling me Ms. Ashwood. Davis: He's probably P-U-S-S-Y whipped and you probably remind him of her. Atwater: He just alluded to--and used the term inside whore. Atwater: What's an inside whore? Davis: That's when you sleep with someone that makes Decisions for your career. Atwater: If I ever get promoted around here it will not be because I've slept with anybody, but based on my own merits. At the final hearing, Deputy Davis denied the allegations regarding the above statements attributed to him by Ms. Atwater. Thus, the evidence is irreconcilably in conflict as to whether Deputy Davis made those statements attributed to him with the intent of sexually harassing Ms. Atwater, and if the statements were, in fact, made, whether his answers were truthful responses to her question. The compound cafeteria has several long tables seating six to eight persons and several shorter tables seating four to six persons. It is significant that not a single witness, from among others who were seated at the same table with Ms. Atwater and Deputy Davis in the cafeteria on that unspecified day, was called to corroborate the statements allegedly made by Deputy Davis to Ms. Atwater. With knowledge of the Sheriff's sexual harassment policy coupled with her prior knowledge of DCFS's similar sexual harassment policy, and having been highly offended by Deputy Davis' conversation, it is significant that Ms. Atwater, whose counseling job included accurate record keeping, made no attempt to record this first incident with Deputy Davis resulting from repeated incidents with Lieutenant George. Additionally, Ms. Atwater chose not to follow protocol and report to her immediate supervisor her complaint of sexual harassment by a relatively new co-worker. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity, thus proving by a preponderance of the evidence that Deputy Davis made unwelcome or unwanted sexual comments or advances and/or unwelcome unwanted sexual demands, nor created a hostile work environment as Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what was said or not said by Ms. Atwater or by Deputy Davis during the alleged conversation that took place on some unspecified date in the compound cafeteria. Alleged intentional body contact by Deputy Davis with Ms. Atwater in the cafeteria buffet serving line. Ms. Atwater further testified that on another unspecified day while she was in the cafeteria buffet serving line fixing her salad, she felt "a brazen--it felt maybe like his [Deputy Davis] radio or something-it was hard--and then he went in my ear 'boo.' It made me jumpy and I made a squealing noise-because I didn't expect anything to braze in the back on my----." Continuing, Ms. Atwater testified that Lieutenant George came in the cafeteria at that time, and she asked him "why don't you tell your friend to just cut it out?" The Sheriff did not call Lieutenant George to testify. No other witness testified to corroborate Ms. Atwater's statements. Deputy Davis denied this second allegation of intentionally making body contact with Ms. Atwater and speaking in her ear. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity and that Deputy Davis engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur on that unspecified date between Deputy Davis and Ms. Atwater in the buffet serving line in the compound cafeteria. It is significant that Ms. Atwater, whose counseling job required accurate and detailed daily record keeping, made no record of Deputy Davis' second alleged sexual harassment of her person. With firsthand knowledge of the Sheriff's sexual harassment policy plus her ten-year experience with a similar sexual harassment policy during her employment with DCFS, Ms. Atwater chose again not to follow proper protocol. She chose not to properly report this second incident to her immediate supervisor. Her second decided refusal to report what she considered sexual harassment by the same co-worker is not a defense, if Deputy Davis was guilty of such conduct, and does not absolve him from liability. Having chosen for the second consecutive occasion not to report the alleged sexual harassment by Deputy Davis does present a significant impediment regarding Ms. Atwater's memory, recall, and credibility. Alleged repeated harassing comments by Deputy Davis resulting from Ms. Atwater's frightened squealing. Concluding, Ms. Atwater testified that "for months" after the undated cafeteria serving line incident, "every time" she would see Deputy Davis (minimum twice a week in barrack C) he would repeatedly come behind her and say--"Ewwww, counselor," and "Counselor, I want to see you." According to her, these statements allegedly resulted from the cafeteria serving line incident and from a subsequent work related discussion and disagreement between Deputy Davis and Ms. Atwater regarding the form "62" (a form used by inmates requesting to see the counselor). Ms. Atwater, when confronted with what she considered a third but continuing sexual harassment by Deputy Davis, again chose not to follow protocol and report this third incident to her supervisor. It is significant that according to Ms. Atwater, she was initially and had been continuously sexually offended by Lieutenant George calling her Ms. Ashwood. When she inquired of Deputy Davis why Lieutenant George called her Ms. Ashwood, she was again sexually offended by his alleged answer to her question. She turns then to Lieutenant George, who was continually sexual harassing her and (did not ask him to stop calling her Ms. Ashwood) asks his assistance (not to file a proper complaint) but to have Deputy Davis (whose answer to her question about Lieutenant George she considered sexual harassment) to "just knock it off." Regarding her third alleged sexual harassment complaint against Deputy Davis (Ms. Atwater with knowledge that Lieutenant George and Deputy Davis were friends and she admittedly intended to take advantage of their friendship), she went to Lieutenant George, who (1) had continuously called her Ms. Ashwood; (2) was in her chain-of-command; and (3) was also in Deputy Davis' chain-of-command (but not file a complaint against Deputy Davis) and asked if he would "talk to his friend [Deputy Davis]--I don't want to make waves over this-I don't want to make a big to do-if you could talk to him--just have him knock it off." At the final hearing, Deputy Davis denied her third allegation that he would repeatedly come behind her and say--"Ewwww, counselor," and "Counselor, I want to see you." It is significant that after months and three separate allegations of sexual harassment by Deputy Davis, Ms. Atwater chose not to follow protocol and make a sexual harassment complaint against Deputy Davis to Lieutenant George, who would have been obligated to initiate a formal investigation. She chose instead to ask a favor from one who had continuously called her the sexually harassing name of Ms. Ashwood. The evidence is irreconcilably in conflict as to whether Deputy Davis continually made the alleged sexual and harassing comments to Ms. Atwater during an unspecified number of months. The Sheriff presented no witness to corroborate Ms. Atwater's allegations on this issue. Lieutenant George was not called to testify, leaving Ms. Atwater's hearsay testimony regarding this particular issue without corroboration. For the third time, Ms. Atwater chose to not follow protocol and report her third sexual harassment incident. The fact finder acknowledges that her third decided refusal to report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a third time not to report the alleged sexual harassment by Deputy Davis to her immediate supervisor does present a significant obstacle in the evaluation of Ms. Atwater's credibility. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity that Deputy Davis for months engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur during unspecified months when Deputy Davis may have been in the presence of Ms. Atwater. Allegations that Deputy Davis intentionally delayed or caused delay of inmates desiring conference with Ms. Atwater. Regarding her final allegation of sexual harassment by retaliation against Deputy Davis, Ms. Atwater recalled that on one occasion, Deputy Davis intentionally caused a "two-hour" delay in getting inmates on her list from their cells to the conference area where she awaited them. The purported intent of this alleged two-hour delay was to threaten or to produce a negative consequence regarding Ms. Atwater's performance of her duties. I find that Ms. Atwater's August 9, 2002, memo to her supervisor, Deputy Armsheimer, purporting to be a chronology of events that occurred on August 8, 2002, conclusively demonstrates that Deputy Davis was not the cause, directly or indirectly, for Ms. Atwater's two-hour delay in getting the two inmates she had requested. The evidence demonstrates that Ms. Atwater gave her form "62" list (inmates to be pulled who had requested a conference with her) to the control deputy, Deputy Salazar, in barrack C and waited 40 minutes. Returning to the holding area and inquiring as to the whereabouts of her inmates, Deputy Davis and not Deputy Salazar informed Ms. Atwater that the top three inmates on her list were not there. Ms. Atwater asked Deputy Davis of the inmates' whereabouts, but he gave her no further explanation. Ms. Atwater thereafter called Deputy Hartfield, who is in her chain-of-command, to ask if he would look into the matter and Deputy Hartfield promised to get back to her. Ms. Atwater waited for Deputy Hartfield's return call. After waiting an unspecified period of time and not receiving Deputy Hartfield's returned message, she called Deputy Hartfield a second time and was told that he had relayed his message to control (Deputy Salazar) about one and one-half hours ago. In that message, Deputy Hartfield explained that her first requested inmate (no name given) had been moved to maximum security and her second inmate (Brandon) was written up earlier that morning by him. In her August 9, 2002, memo to Deputy Armsheimer, Ms. Atwater wrote, "the conversation concluded with me stating [to Deputy Hartfield] if I had known 1 1/2 hours ago, I would have just left out of here and could have eaten lunch." It is significant that Ms. Atwater authored her August 9, 2002, memorandum to Deputy Armsheimer, for the singular purpose of explaining the exact cause (and persons involved) of her two-hour plus wait for inmates who were not pulled for her. At the final hearing in May 2003, she contradicts her August 9, 2002, written statements by testifying that Deputy Davis caused her a "two-hour" delay in pulling her inmates. This obvious contradiction is a severe detriment upon her credibility. Ms. Atwater's memorandum to Sergeant Groff, dated October 30, 2002, was written to give a recount of her experiences with Deputy Davis during all times pertinent to this case. She began her memorandum with the statement: "[S]o for the whole story to be clear, I must tell you how we ended up here and start from the beginning." In her first sentence of the second paragraph appears the first conflict in the evidence of record. In that sentence, Ms. Atwater writes, "Shortly after starting to work here, I began to experience unpleasantness from Cpl. Kenneth Davis. His obnoxious gestures, comments and disposition could not be tolerated any longer." (This conclusion consisted of the three separate allegations against Deputy Davis made herein above.) With this opportunity to formally complain of sexual harassment in the work place, Ms. Atwater failed to include the fact that it was she who initially asked Deputy Davis why Lieutenant George called her the sexually offensive name of "Ms. Ashwood." Intentionally choosing to allege that Deputy Davis' answer to her question why Lieutenant George kept calling her "Ms. Ashwood" was the initial sexual harassment that created a hostile work place is contradictory to her testimony. Continuing, Ms. Atwater wrote--"I did tell him that I felt he 'played too much,' and need[ed] to stop moaning and groaning behind me." Even though she recounted moaning and groaning, she specifically omitted her alleged verbatim statements made by Deputy Davis (Finding of Fact 12 hereinabove) when he answered her question "why Lieutenant George calls me Ms. Ashwood." This is significant in that Ms. Atwater's testimony was that Deputy Davis' alleged verbatim statements when he answered her question were so "sexually harassing" that she was "immediately" offended the moment she heard them. Yet, she omits any mention that it was Lieutenant George continuously calling her "Ms. Ashwood" that initially and repeatedly offended her. The name Ashwood she considered had such a negative sexual reputation in the community that she was immediately offended and sexually harassed when Lieutenant George first called her Ms. Ashwood and each time thereafter. She omits any mention that it was her inquiry of Deputy Davis, "why Lieutenant George [sexually harassing her] was calling her the offensive name of Ms. Ashwood" that produced the alleged response. Based upon Ms. Atwater's acknowledgement contained in her October 30, 2002, memorandum to Sergeant Groff, I find that her allegations that Deputy Davis caused a delayed wait of two hours to get inmates pulled and, thus, "creat[ed] a hostile work environment" to be contrary to her August 9, 2002, memorandum to Sergeant Armsheimer, admitting that had she known her inmates were not in barrack C, she would have left and had lunch "one and one-half" hours prior. Ms. Atwater further admits in writing that from May of 2002 forward, she and Deputy Davis "barely" spoke to one another. If Ms. Atwater's memory is presumed to be accurate and she and Deputy Davis discontinued speaking to one another during the March through May 2002 period, it was not logical to conclude that Deputy Davis repeatedly and continually moaned and groaned in her ear for "months" thereafter (i.e. June, July, August, and October). For the fourth time, Ms. Atwater chose not to and did not report this fourth incident to her immediate supervisor at or near the time it occurred. Her sexual harassment complaint against Deputy Davis was filed after her October 2002 complaint was filed against Lieutenant George. Her fourth decided refusal to immediately report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a fourth time not to report the initial alleged sexual harassment by Deputy Davis during the March through May period, when coupled with the contradiction between her testimony that Deputy Davis was the cause of a two-hour delay in pulling her inmates, and her memorandum wherein she acknowledges that her inmates had been written up by Sergeant Hartfield, presents a credibility obstacle. Ms. Atwater makes no further mention of Deputy Davis in her October 30, 2002, memoranda, devoting the remainder to Lieutenant George. She recounts in detail their initial friendly relationship, turning to a cold and unfriendly relationship, the keeping-your-distance treatment, their many phone conversations at work, their lunch dates away from the work place, and their private phone calls when at home, ending on October 24, 2002, with an incident of kissing and Lieutenant George rubbing his groin against her buttocks and her resisting his advances. (See Joint Exhibit J-1.) In her final paragraph, Ms. Atwater relates how, unbeknownst to Lieutenant George, she arranged for a three-way call between herself, Lieutenant George, and her uncle, a City of St. Petersburg employee. She arranged the three-way call for the purpose of securing a witness to corroborate her statements regarding the Lieutenant George sexual harassment encounter. Though her alleged initial sexual harassment was initiated by Deputy Davis and continued for months, Ms. Atwater made no similar attempt to corroborate her claims of sexual harassment against Deputy Davis. Knowing that Deputy Davis was not within her chain-of-command and not in a supervisory position over her, there was no logical reason for Ms. Atwater to fear promotions and job security. Ms. Atwater knew that filing a complaint against a lieutenant within her chain-of- command presented a greater risk than filing a complaint against Deputy Davis who was not in her chain-of-command. Her choosing not to record (or procure corroboration) the Deputy Davis incidents, when coupled with her delay of many months in reporting her compliant through proper channels because of fear of reprisal, rings hollow. It was after the Administrative Review Board had begun an investigation of Ms. Atwater's October 2002 complaint of sexual harassment against Lieutenant George that the Sheriff initiated an investigation of Deputy Davis. Only after her egregious October 24, 2002, incident involving Lieutenant George did she file a subsequent and separate sexual harassment compliant against Deputy Davis. In the absence of corroboration, Ms. Atwater's testimony of a single incident of intentional touching and her testimony of alleged verbatim statements made by Deputy Davis and his unequivocal denial presents a "she said-he said" dilemma. Neither party's testimony is inherently more credible than the other party's testimony. Contrary to the opinion of Major Brunner, who sat on the Administrative Review Board, that when the Administrative Review Board questioned Deputy Davis regarding those allegations, Deputy Davis was "in denial." This assumption and by implication presumed guilt, thereby lending credibility to Ms. Atwater's allegations, is a conclusion not based on fact and is contrary to the evidence adduced during the de novo proceeding. Ms. Atwater's testimony of incidents having occurred over a four-month or more period and the lack of time or specific dates coupled with the contradictions between her testimony during the final hearing and her August 9, 2002, memorandum to her supervisor, creates an unfathomable chasm in the evaluation of her credibility. The Inspection Bureau of the Administrative Inspection Division investigated Ms. Atwater's complaint and submitted their investigative results to the Administrative Review Board, made up of various employees with the Pinellas County Sheriff's Office. The Administrative Review Board determined that Petitioner, Deputy Davis, had violated the Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, Subsection 4: violation of provisions of the law or rules, regulations, and operating procedures of the Pinellas County Sheriff's Office. The Administrative Review Board determined that Deputy Davis' conduct was a violation of the rules and regulations of the Pinellas County Sheriff's Office, Rules 3-1.1 (level five violation) and 5.16, relating to sexual harassment and discrimination as defined in the Sheriff's General Order 3-4. The Administrative Review Board determined that Deputy Davis' available range of discipline was calculated in conformance with the matrix contained within General Order 10-2 of the Pinellas County Sheriff's Office that allocates a point scale to various violations. The matrix provides that a level five offense, which includes sexual harassment, results in a 50- point assessment. Deputy Davis scored a total of 50 cumulative points with a discipline range of five-day suspension up to and including termination. Demotion is also authorized under the applicable General Order. After considering the evidence and available sanctions, the Sheriff notified Deputy Davis on March 10, 2003, that he was imposing a ten-day suspension without pay and demoting him from the rank of corporal to the rank of detention deputy. After weighing all the evidence, including the Sheriff's evidentiary presentation of Ms. Atwater's testimony of verbal comments made and intentional body conduct allegedly engaged in by Deputy Davis, this fact finder finds the uncorroborated hearsay evidence insufficient to prove, by a preponderance of the evidence, the allegations that Deputy Davis made sexually harassing verbal comments to Ms. Atwater, and that he made intentional sexually harassing body contact with her, so as to create a hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a final order finding that: Petitioner did not commit the verbal and physical conduct alleged in the charging document and that there was no violation of the rules, regulations, and policies of the Pinellas County Sheriff's Office as alleged. Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office was therefore inappropriate. Petitioner's demotion from his previous rank of detention corporal to the rank of detention deputy was therefore inappropriate. Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office be restored with full detention corporal's pay and benefits. Petitioner be restored to the rank of detention corporal2 and given full duties and responsibilities as previously held. DONE AND ENTERED this 20th day of August, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2003.
Findings Of Fact Petitioner, Mary Anna Cline (Ms. Cline), is a fifty-two year old female who was employed by USBI Company (USBI) from 1985 until November 15, 1994. USBI refurbishes the solid rocket boosters for the space shuttle program at the Kennedy Space Center, Brevard County, Florida. It employs substantially more than fifteen full-time employees. Ms. Cline was hired for the position of technical illustrator, which position is responsible for drawing mechanical components, doing illustration and charts, and preparing manuals and documents that apply to the day-to-day work of the company. She was a good employee and had excellent technical skills, as reflected in her performance evaluations and numerous commendations. At the time that she left the company, she was in a position titled "senior technical illustrator." In early 1992 the company had some internal reorganization, and Ms. Cline and a group of employees were transferred from Management Services to Documentation Support. The job duties remained substantially the same, but the new group also had responsibility for the Routing of Documents (RODS) program, which involved the tracing of detailed technical drawings, to be used on a computer mainframe by the "techs" (engineers). Documentation Support generated technical documentation for the rockets, all technical manuals, standard procedures, testing, fliers and presentations - generally all of the paperwork used by the company, including verbiage and graphics. The supervisor of Documentation Support, then and now, is a woman, Monica Teran. Approximately seventy-five percent of Ms. Cline's work group were women. In June 1992, Richard Bowen was hired by USBI as a technical illustrator and was assigned to Documentation Support. He became a coworker of Ms. Cline and their assigned work stations were side-by-side without a partition. Richard Bowen's two main hobbies are photography and computers. He was generally accepted as the computer expert in the work group; when there were problems with the computers, Richard Bowen could often work them out. Bowen's interest in photography is also more than a casual avocation. He attended photography school in Chicago when he was younger and worked with a modeling agency. He holds an occupational license to conduct a photography business and performs commercial photography services that do not conflict with his 9-5 job: weddings, portraits, some modeling photographs and some work with a theme park in Orlando. He is a member of the Audubon Society and takes wildlife photographs and does computer work for the organization. The Photograph Incident Staff in the work group were interested in Bowen's photographs. He brought samples of his pictures to work to show off. He usually left the pictures on his desk, face up, so that people could come to his work area and look at them. Some time in the latter months of 1992, Bowen purchased an expensive special soft-focus lens that gives the subject a soft, romantic, mystical look and deletes the wrinkles or blemishes. He discussed the lens with a fellow photographer at work and brought in a sample of photographs he had taken with the lens. Most of the pictures among the twelve to fifteen which he brought on this occasion were wildlife; there also were a few photographs of a model. She was bare-breasted, but was not exposed from the waist down. While there is no clear description of her pose in the record, she was described by some as nude and others as partially nude. None described the photographs as sexually suggestive or pornographic. In the early morning before work started, some female staff members were shuffling through the photographs. Ms. Cline was part of the group looking on. Bowen said something semi-jokingly like, "You might not want to look at these; there's a bare-breasted model." One of the women replied that it was nothing that she had not seen before, and continued shuffling through the photographs. Ms. Cline saw the model's photograph, remarked that the girl had pretty eyes, and returned to her own work station. Several months later, after a workshop that management had initiated to deal with problems in the workplace, Ms. Cline reported the photographs to Carol DuBray, Director of Human Resources and Darryl LeCanne, the immediate supervisor of Monica Teran. Ms. Cline was embarrassed by the photographs. Management's Response As soon as Ms. Cline left Darryl LaCanne's office, he called Monica Teran, and the two supervisors met with Richard Bowen. They informed him that USBI had a policy of not tolerating nude photography or pin-up calendars in the workplace and that his bringing the photographs to work was unacceptable behavior. Darryl LaCanne told Richard Bowen that the next time severe disciplinary action would be taken. Richard Bowen was also called in to speak with USBI's director of security, Barry Wysocki. Mr. Wysocki informed him that nude pictures were prohibited by USBI's regulations. Mr. Bowen received the message in clear terms that the matter was very serious. Bowen never again brought nude or semi-nude photographs to work and Ms. Cline never again saw such photographs at work. Offensive Shop Talk Work stations in the Documentation Support unit were divided into cubicles, some separated by dividers, some (Richard Bowen's and Ms. Cline's) were side by side, facing a partition with two other workers on the opposite side. Workers interacted within a small space and moved about to use different computer equipment, printers, files, and similar work tools. Among some of the workers there was occasional bawdy banter and comment about boyfriends, weekends and vacations, and the like. It was sexually oriented in a sophomoric, adolescent schoolyard manner. It included terms like "shit" and "fuck" and included conversation about "blow jobs" or "hard-ons," and other slang words involving male genitalia. With one exception, the language was not directed to Ms. Cline. That exception was one occasion when Richard Bowen responded to her criticism of some work with the expletive "fuck." Both male and female workers engaged in the banter, which was overheard by Ms. Cline and others. Ms. Cline was particularly offended by banter between Bowen and a female worker, Anna Silvestri, who occupied a workstation on the other side of the partition in front of Ms. Cline and Mr. Bowen. Ms. Silvestri sometimes initiated this banter. In May or June of 1993 Ms. Cline reported to her supervisor, Monica Teran, that Richard Bowen and Anna Silvestri used the word "fuck" and engaged in sexually explicit conversations. Ms. Teran went to her supervisor to see what to do about the complaint and Carol DuBray requested that Barry Wysocki conduct an investigation. Barry Wysocki interviewed and took statements from employees in the Document Support Unit, including Ms. Cline. She complained that Richard Bowen created a hostile environment; that she heard him say "fuck" on one occasion in the past two months and that she heard Anna Silvestri say the word on two occasions. Ms. Cline said that Bowen and Silvestri discussed Ms. Silvestri's sex life and that on one occasion Ms. Silvestri tried to discuss her sex life with Ms. Cline, but she cut her off with a comment that it was improper. Ms. Cline reported hearing Monica Teran and Beth Seaman use the word "fuck" in the work area. Bowen and Silvestri did not deny mild profanity and mildly sexual conversations. Other employees reported hearing some profanity, primarily "shit," "damn" and "bullshit." Richard Bowen and Anna Silvestri were seriously reprimanded by Barry Wysocki, by Barry Smoyer, by Darryl LaCanne and by Monica Teran. Each supervisor impressed on the two employees that the use of foul language was not tolerated and was against company policy. Barry Smoyer gave the two employees a letter "for the record," documenting the counselling session and reprimand. Monica Teran moved Ms. Cline to Anna Silvestri's workstation on the other side of the partition from Richard Bowen. She moved Anna Silvestri two cubicles away, with several partitions between her and Mr. Bowen. And George Roberts was placed next to Richard Bowen in Ms. Cline's former workstation. The intent by the supervisor was to accommodate Ms. Cline's concerns and to separate the two prime offenders. In the two years that he worked for USBI, including the time that he worked next to Richard Bowen, George Roberts heard nothing more than "hell" or "damn" from Bowen. Nevertheless, around August 1994, during her performance review, Ms. Cline informed Monica Teran that the sexual conversations were continuing. Ms. Teran informed her supervisors and another investigation commenced, this time by USBI's new security director, Al Eastlack. Mr. Eastlack conducted an interview with Ms. Cline, among others, and took her formal statement in September 1994. Barry Smoyer reviewed a draft report of Mr. Eastlack's investigation and although he understood the results were "inconclusive," Mr. Smoyer renewed his admonishments to Richard Bowen and Anna Silvestri in separate memoranda to the two, reminding them of USBI's intolerance of sexual harassment in any form and warning them that inappropriate language would result in disciplinary action. Alleged Threats After the photograph incident, but before she complained, Richard Bowen and Mary Anna Cline had a conflict over the use of some computer graphics software. Bowen was advocating one type of software that Ms. Cline opposed. Monica Teran had to intervene and instructed Ms. Cline to install the program and learn how to use it. After she complained about the photographs, Ms. Cline became convinced that Richard Bowen was going to retaliate. She complained to Monica Teran that she was afraid of Bowen but her complaints were non-specific. She began to complain of stress and sleep problems. Ms. Teran recommended that she go to the Employee Assistance Program (EAP) counsellor or to see her own counsellor or doctor. This was around the same time that Ms. Cline complained about the offensive language and conversations, and Ms. Cline took the recommendation to mean that Ms. Teran did not believe her, or that Ms. Teran felt Ms. Cline was at fault. Ms. Teran also commented to Ms. Cline that she should simply tell Bowen to stop talking like that. Another employee, Dorothy Stokey, who was offended by Bowen's use of "fuck" had told him to stop. Ms. Cline was too intimidated by him to confront him directly. Some time in the latter months of 1993, Monica Teran found Ms. Cline in the ladies' room crying and upset to the point of incoherence. Ms. Cline had overheard a conversation between Richard Bowen and Anna Silvestri involving a gun and made a connection between that and incidents of violence in the workplace and coworkers being shot. With the help of Barry Smoyer, Ms. Teran was able to get Ms. Cline out of the ladies' room and calmed down. Then, at Mr. Smoyer's direction, Ms. Teran called Ms. Silvestri and Mr. Bowen into her office to find out what had happened. Mr. Bowen did not have a gun at work and he had been discussing a gun show early that morning. Ms. Teran was satisfied that the discussion had been innocuous and reported her findings to Barry Smoyer. No other employee reported that Bowen had a gun or saw him with a gun. None, including Ms. Cline, ever complained that Bowen had threatened them with a gun. Alleged Retaliation Ms. Cline contends that USBI retaliated against her for reporting sexual harassment. Specifically she claims that her job duties were shifted from work on RODS, which she liked, to word processing, which she disliked and with which she had difficulty, due to some dyslexia. It is undisputed that Ms. Cline was a very competent graphics illustrator. She and Mr. Bowen and a couple of other employees in the unit were considered the core of the illustration function, and other employees in the unit preferred and were more skilled in the word processing and language component of the unit's responsibilities. However, the work assignments were not so clearly divided between "illustration" and "word processing." The production and modification of company manuals required both types of work. Monica Teran was interested in cross-training her staff to do a variety of tasks. There was a time, after mid-1993, when Ms. Cline's assignments involved word processing. She also continued to do a substantial amount of RODS work, as evidenced by handwritten logs maintained by the employees. Monica Teran never instructed the staffperson responsible for making assignments to remove Ms. Cline from RODS or other graphics work. RODS was not considered high profile or creative work since it primarily involved tracing technical components repetitively. There was a period when RODS work was put on hold. There was another period when temporary employees, such as George Roberts, were taken in to work exclusively on RODS. At no time during her employment with USBI was Ms. Cline demoted in job title or pay. In 1993 and 1994 her employment evaluations reflected a need to improve communications and attendance, but she was still rated "excellent," "good" and "acceptable" in all categories, and overall "excellent" and "good." There is no evidence to indicate that anyone tampered with Ms. Cline's computer or sabotaged her computer, as she claimed. On occasion it was necessary for Monica Teran or other staff to work at Ms. Cline's and other stations, to see if programs were loaded or the machine was set up properly. Although certain equipment, such as a printer, was located at an individual workstation, other staff needed access to that equipment. Job-Related Stress Ms. Cline's attendance did suffer and she did experience job-related stress. She went to an EAP counsellor and to a psychiatrist. She was on medication and there were problems with adjusting the type and amount of medication. Ms. Cline experienced sleep disorders; she reported falling asleep at the wheel of her car and had a minor accident. She also experienced other physical phenomena such as pains in her chest and arms, or numbness. Her psychiatrist diagnosed her medical condition as "adjustment reaction of adult life with mixed emotions, basically depression and anxiety." (T-415) Accommodation and Resignation Monica Teran's staff was located in two buildings: the modular unit occupied by Ms. Cline, Mr. Bowen, Ms. Silvestri and others; and another separate building which also included other USBI employees. Ms. Teran's staff was moved around routinely, as new employees were added or other work space needs arose. In Fall 1993 USBI offered to move Ms. Cline to the other building, allowing her to retain her same position and duties; she declined, and the company did not insist that she move. Later, Ms. Cline was offered a lateral position at the same pay and position level. Carol DuBray met with Ms. Cline to discuss this attempt to accommodate her. Ms. Cline also rejected that offer. She explained at hearing that she was afraid she would have been in line for a layoff, if she transferred. However, there is no competent evidence to support that fear. Ms. DuBray explained to Ms. Cline in their meeting that she would retain all benefits, including seniority. In fact, USBI has no departmental seniority policy. Seniority is based on the date an individual is hired by the company, rather than time within a department in the company. On November 15, 1994, Ms. Cline voluntarily resigned, citing "continuing stress brought on by sexual harassment, discrimination, retaliation and the flagrant disregard by USBI and its management in the handling of this problem. . . ." (Petitioner's exhibit no. 31) The Formal Complaints At the time she resigned Ms. Cline had already filed her complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC). That charge is dated December 6, 1993. The charge of discrimination alleges violations of Title VII of the Civil Rights Act, by sexual harassment and retaliation. It does not cite the Florida Civil Rights Act, Chapter 760, Florida Statutes. Pursuant to a worksharing agreement between EEOC and FCHR, the charge was sent to the Florida agency for initial investigation. That workshare agreement, which refers to the FCHR as the "FEPA," provides, in pertinent part: FILING OF CHARGES OF DISCRIMINATION In order to facilitate the filing of charges of employment discrimination, the EEOC and the FEPA each designate the other as its agent for the purpose of receiving and drafting charges. The FEPA shall take all charges alleging a violation of Title VII, ADEA, EPA, or the ADA where the parties have mutual juris- diction and refer them to the EEOC for dual filing, so long as the allegations meet the minimum requirements of those Acts. Each Agency will inform individuals of their rights to file charges with the other Agency and to assist any person alleging employment discrimination to draft a charge in a manner which will satisfy the require- ments of both agencies to the extent of their common jurisdiction. As part of the intake duties, investigators are to verify with the charging parties if they have filed a charge of discrimination with other agencies prior to filing the charge. For charges that are to be dual-filed, each Agency will use EEOC Charge Form 5 (or alternatively, an employment discrim- ination charge form which within statutory limitations, is acceptable in form and content to EEOC and the FEPA) to draft charges. When a charge is taken based on disability, the nature of the disability shall not be disclosed on the face of the charge. * * * H. The delegation of authority to receive charges contained in Paragraph II. a. does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge. * * * DIVISION OF INITIAL CHARGE-PROCESSING RESPONSIBILITIES * * * D. EEOC will not defer or refer any charge for the FEPA to process that is not jurisdictional on its face with both Agencies. If it is apparent that one Agency might have jurisdiction when another does not, then the Charging Party will be referred to the appropriate Agency. * * * (Petitioner's exhibit no. 41) (emphasis added) A notice dated December 20, 1993, on EEOC form 212, states that the FCHR has received the charge and will initially investigate the charge. The FCHR did investigate the charge and the FCHR investigator's report is dated July 13, 1994. A document styled "Determination: No Cause" is dated August 25, 1994 and has the apparent signature of FCHR's Executive Director. An accompanying document, with the same date, is styled "Notice of Determination: No Cause" and informs Ms. Cline as complainant of her right to file her petition for relief within 35 days. The petition for relief dated September 27, 1994, was filed with FCHR, and cites the Florida Civil Rights Act of 1992, as well as Title VII. The petition alleges sexual harassment and retaliation. FCHR transmitted the petition to the Division of Administrative Hearings on October 6, 1994. The amended petition for relief, filed on April 10, 1995, and referenced in the order and notice of hearing dated May 16, 1995 deletes any reference to Title VII and recites instead that the claims for relief are based on Section 760.10, Florida Statutes. The amended petition does not claim constructive discharge nor does it mention that Ms. Cline left the company approximately five months earlier. Sexual Harassment Policy and Summary of Findings USBI has, and during the relevant period had a sexual harassment policy which provides: The Equal Employment Opportunity Commission's amended "Guidelines on Discrimination Because of Sex" include a section prohibiting sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature when: submission to such conduct is either an explicit or implicit term or condition of employment, or submission to or rejection of such conduct is used as a basis for an employment decision affecting the person rejecting or submitting the conduct, or such conduct has the purpose or effect of unreasonably interfering with an affected person's work performance or creating an intimidating, hostile, or offensive work environment. Sexual harassment is unacceptable behavior by any USBI employee or outside vendor. Any form of harassment, like any conduct contrary to common decency or morality, cannot and will not be tolerated. The company will take whatever corrective action necessary to prevent or deal with acts of sexual harassment in the work place. (Respondent's exhibit no. 61) The policy provides names and phone numbers for persons to report sexual harassment and states that reports at that point will be confidential. Employees are informed of the policy through annual letters from the company head, through posters on the facility walls and through mandatory workshops for managers and their staff. USBI responded appropriately to Ms. Cline's complaints. Its response as to the photographs was effective; the sexually-themed banter, however, continued. The banter did not constitute sexual harassment of Ms. Cline, nor did it create a sexually hostile work environment. No one at USBI ever made a sexual advance towards Ms. Cline; no one suggested or requested sex from her or asked her for a date. No one touched her inappropriately. The sexual banter was never directed to or about her. The banter overheard by Ms. Cline, and the use of the "f word," were occasional, not daily or even weekly. The banter was not directed solely to, or about women; it was engaged in, and was overheard, by men and women, alike. The work quarters were close; the unit which included Ms. Cline was in a small "modular" building with work stations divided by movable partitions. By necessity, workers moved around the office to use various equipment. Coworkers of Ms. Cline did not find the environment sexually hostile, offensive or intimidating. No one else of the primarily female group complained about a sexually hostile or intimidating work environment. According to both a friend and her psychiatrist, Ms. Cline was more sensitive than most to profanity and off-color language. Without question, Ms. Cline suffered from stress at work. The stress was manifest in the myriad physical symptoms which caused absenteeism and loss of performance. USBI appropriately offered to Ms. Cline accommodations which would have allowed her to continue working at the same job level and salary but outside of the environment she found intolerable. She rejected the offers and voluntarily resigned. The resignation was not urged, directly or indirectly, by the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Ms. Cline's complaint and petitions for relief in this cause. DONE and ENTERED this 25th day of March, 1996, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5634 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact. Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in paragraph 60. Rejected as unnecessary. Adopted by implication in paragraph 60. Adopted in substance in paragraph 48. Rejected as unnecessary. Adopted in paragraph 50. Adopted in paragraph 52. Adopted in paragraph 53. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Subparagraphs are addressed as follows: Adopted in substance: a (but not the date), b, c, h, i, m, n. Rejected as unnecessary, immaterial or misleading: d, e, f, g, j, k, l. Rejected, as to the "escalation," as unsupported by the greater weight of the evidence; adopted generally in summary in paragraph 17; but some of the specifics alleged were not established (for example, the "sucking" statement). Rejected as a mischaracterization of the incident, although use of the word, "fuck," was proven. 19.-22. Rejected as not credible. 23.-24. Adopted in substance in paragraph 17. 25.-28. Rejected as contrary to the weight of evidence. Adopted in part in paragraphs 39-41, but it was not proven that the stress was the result of a "hostile work environment," within the scope of gender-based discrimination. Rejected as unnecessary. 31.-32. Rejected as contrary to the weight of evidence. 33.-34. Accepted that she complained, but the dates and frequency were not established with competent evidence 35. Conclusion that the steps were "inadequate" is rejected as contrary to the weight of the evidence. 36.-41. Rejected as unnecessary, immaterial, or misleading. 42. Rejected (as to characterization of "retaliation") as contrary to the weight of evidence and the law. 43.-46. Rejected as unnecessary, given the recommended disposition. Respondent's Proposed Findings of Fact. 1.-4. Adopted in substance in paragraphs 48 and 49. 5.-6. Adopted in substance in paragraph 54. 7. Adopted in paragraph 1. 8. Adopted in paragraph 55. 9. Adopted in paragraph 3. 10. Adopted in paragraph 4. 11. Adopted in paragraph 5. 12.-13. Adopted in paragraph 4. 14.-15. Rejected as unnecessary. Adopted in substance in paragraph 34. Adopted in paragraph 6. 18.-21. Adopted in paragraphs 7 and 8. 22. Adopted in paragraph 9. 23. Adopted in substance in paragraph 59. 24. Adopted in paragraph 61. 25. Adopted in paragraph 10. 26. Adopted in paragraph 12. 27.-28. Adopted in substance in paragraphs 11 and 12. 29. Adopted in paragraph 13. 30. Adopted in paragraph 27. 31. Rejected as unnecessary. 32.-35. Adopted in paragraphs 14 and 15. 36.-38. Adopted in paragraph 19. 39.-43. Adopted in paragraphs 20 and 21. 44. Adopted in paragraph 22. 45. Rejected as unnecessary. 46. Adopted in paragraph 23. 47.-48. Rejected as unnecessary. 49. Adopted in substance in paragraph 25. 50. Adopted in paragraph 24. 51. Adopted in paragraph 26. 52. Adopted in paragraph 28. 53. Adopted in paragraph 29. 54. Adopted in paragraph 31. 55. Adopted in paragraph 30. 56. Rejected as unnecessary. 57.-62. Adopted in substance in paragraphs 43 through 46. 63.-64. Adopted in part in paragraph 47; otherwise rejected as unnecessary. 65.-72. Adopted in substance in paragraphs 32 through 38. COPIES FURNISHED: Patricia E. Lowrey, Esquire Mark B. Roberts, Esquire STEEL HECTOR and DAVIS 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Wayne L. Allen, Esquire 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether the Respondent intentionally committed an unlawful employment practice against the Petitioner on the basis on her national origin/Hispanic (Puerto Rican) or gender/female (sexual harassment). Whether Petitioner, a member of a protected class, was removed from her position with the Respondent in retaliation for her filing of a sexual harassment complaint with the Florida Commission on Human Relations on March 12, 1992.
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. Respondent, Martin-Marietta Electronics Information and Missiles Group, is a foreign corporation licensed to do business in Florida which employs more than fifteen employees. Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner, Margarita Coll, is a female, hispanic, citizen of the United States who resides in the State of Florida. Petitioner is a member of a protected class. Petitioner was an employee of Hi-Tec Associates, Inc., during all relevant periods, and was a de facto employee of Respondent for approximately four and one-half years. Petitioner was employed at Respondent company through a temporary agency called Associated Temporary Services and placed with the Respondent on January 5, 1987 as a receptionist/secretary in Martin-Marietta's Fleet Administration Department off Sand Lake Road, Orlando, Florida. Her responsibilities included record keeping, filing and helping Respondent's employees with company vehicles. Petitioner reported to the Respondent's Fleet Manager, Linda Reilly. Her day to day work assignments and supervision were received exclusively from the Fleet Manager. Petitioner worked in her position at the pleasure of the Respondent. She was assigned a "buyer" at Martin- Marietta who worked with the requesting department to fashion a position to meet the department's needs. The work was bidded out and awarded to the temporary employment agency who best met Respondent's criteria, on an annual basis. Over time, Petitioner assumed additional job responsibilities and in June, 1988 received a commendation for exceptional performance from Respondent's supervisors. In an effort to reward her efforts, Reilly successfully upgraded her position, first to Administrative Assistant and then to Fleet Analyst. When she was reclassified as a Fleet Analyst, the contract for her position was awarded to Hi-Tec Associates, Inc., since Associated Temporary Services did not provide technical employees under their contract with Respondent. Petitioner always worked at Martin-Marietta as a temporary employee and was never employed as a regular employee of the company. As such, she had no company benefits; she was classified as a contract laborer and her services were purchased by purchase order. Petitioner completed no company employment application, was not subject to Martin-Marietta performance appraisals and had no Martin-Marietta employment records or personnel file, other than her contract labor time slips. Petitioner received her pay from Hi-Tec. In June, 1990, Marilyn Quinonez was placed in the Fleet Administration Department as a Fleet Administrative Assistant by a temporary employment agency. Friction quickly developed between Petitioner and Quinonez. Petitioner believed that Quinonez was hired to assist her and became upset when she would not follow Petitioner's supervision or directions. Quinonez understood that she was to report to the Fleet Manager, and objected to the way Petitioner treated her. On November 15, 1990, Reilly was laid off by Respondent as part of a reduction in force and was replaced by Joseph LaPak. LaPak observed the bickering between Petitioner and Quinonez and that it continued to escalate over time. In December, 1990, the temporary positions in the department were reevaluated and the contract requirements for both positions were rewritten. The titles of both Petitioner and Quinonez were changed to that of Fleet Administrative Assistant. Any language in the contract which called for Petitioner to direct the clerical duties of the department were eliminated. In the fall of 1991, Quinonez met with LaPak and Wally DuBose to clarify her reporting responsibilities. It was confirmed that Quinonez and Petitioner were to report to the Fleet Manager, and that Petitioner did not have supervisory authority over Quinonez. Nevertheless, disputes between Petitioner and Quinonez continued. Attempts by management to resolve the problems were unsuccessful. On February 17, 1992, during the normal lunch hour, an altercation occurred between Petitioner and Quinonez. When Quinonez returned from lunch, she found Petitioner at her computer terminal. Quinonez asked for it back. Petitioner refused and an argument ensued. The two women became so angry and loud that a neighboring supervisor had to come over and separate them. Wally DuBose sent both Petitioner and Quinonez home for the day. Petitioner's immediate supervisor, LaPak was not in the office at the time. DuBose then discussed the matter with his supervisor, Paul Smilgen, and it was decided that Petitioner would be removed from the contract for her failure to work with fellow employees and management, and for general insubordination. LaPak was not involved in the decision to remove Petitioner. The decision was communicated to Hi-Tec. They, in turn, notified Petitioner that same evening that she was being replaced on the contract and not return to the Fleet Administration Department. Hi-Tec offered to attempt to place Petitioner elsewhere at Martin-Marietta but Petitioner refused because the openings available at the time paid less that the Fleet Administrative Assistant position. When LaPak first became the Fleet Manager in November of 1990, Petitioner and Quinonez worked in a very small work space. While Petitioner was training LaPak and working on the computer, LaPak's body was frequently close to Petitioner's and she felt pinned in a corner by him. After the initial working relationship was established and LaPak came into Petitioner's work area, he would touch her on her arms or shoulder in order to get her attention. In December, 1990, Petitioner complained to DuBose about LaPak touching her and making her uncomfortable. Both Petitioner and DuBose talked to LaPak about the fact that Petitioner did not want LaPak to touch her. LaPak honored that request and did not touch her again. He made every reasonable effort to get her attention when he needed to talk to her without touching her. In October, 1991, Petitioner complained to the Martin-Marietta EEO office that LaPak was sexually harassing her by inappropriate touching. Respondent then conducted an immediate investigation into the allegations and attempted to resolve the matter through internal mediation. Petitioner's testimony and other witnesses' testimony concerning sexual comments, innuendoes or propositions and inappropriate touching allegedly made by LaPak that occurred between December, 1990 and October, 1991 were inconsistent and are not credible. Petitioner presented no relevant or material evidence to show that Petitioner was the victim of national origin discrimination. Respondent's articulated reason for its decision to remove Petitioner from her contract labor position was not based on gender discrimination or national origin discrimination, nor was it pretextual. Petitioner failed to prove that her termination of employment at the Respondent's company was in retaliation for her complaints of sexual harassment or national origin discrimination.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued in which the Charge of Discrimination is DENIED and the Petition for Relief is DISMISSED. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: Paragraphs 1, 2, 3, 4, 5(in part), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 13, 14(except as to date of hire), 15(in part), 16(in part), 18(except as to the date of the counseling session), 19(except as to the date of the counseling session), 20, 21(in part). Rejected as against the greater weight of evidence: paragraphs 5(in part: Petitioner was first a contract employee with Associated Temporary Services), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 15(in part), 16(in part), 17. Rejected as immaterial, irrelevant or subsumed: paragraphs 11, 12, 21(in part). Respondent's Proposed Findings of Fact: Accepted in substance: paragraphs 1, 2, 3, 4(in part), 5, 6(in part), 7, 11(in part), 12, 13, 14(in part). Rejected as argument or a conclusion of law: paragraphs: 9, 10, 15, 16, 17. Rejected as irrelevant, immaterial or subsumed: paragraphs 4(in part), 8, 11(in part), 14(in part). Rejected as against the greater weight of evidence: paragraph 6(in part). COPIES FURNISHED: Kay L. Wolf, Esquire John M. Finnigan, Esquire GARWOOD, MCKENNA & MCKENNA, P.A. 815 North Garland Avenue Orlando, Florida 32801 James Sweeting, III, Esquire 2111 East Michigan Street Suite 100 Orlando, Florida 32806 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue Whether Petitioner was subjected to sexual harassment and/or retaliation while employed with Respondent in violation of Subsections 760.10(1)(a) and/or (7), Florida Statutes (2008).1
Findings Of Fact Respondent is an employer within the definition found in Section 760.02, Florida Statutes. Petitioner was hired as an employee of Respondent in July 1993, as an X-ray technologist ("tech") in the Radiology Department. She is an adult female and, as such, is a member of a protected class. During her employee orientation, Petitioner received and read a copy of Respondent's Employee Handbook. Among other things, Respondent's Employee Handbook addresses the issue of sexual harassment in the workplace. Respondent's policy strictly prohibits sexual harassment and states that Respondent "will not tolerate such action by employees." Respondent's policy also encourages any employee who feels that he/she is being subject to sexual harassment to discuss and/or make a complaint with the Human Resources Department. Any such complaint is handled according to Respondent's Policy No. 9510-17, in order to ensure appropriate investigation and action. Respondent's employees also receive computer-based training regarding sexual harassment and Respondent's policy prohibiting the same, every year. Petitioner received this computer-based training regarding sexual harassment. In October 2006, Petitioner started training to be a magnetic resonance imaging ("MRI") tech. Petitioner was chosen to be cross-trained from an X-ray tech to a MRI tech by Greg Phillips, who was then the manager of Diagnostic Imaging. Phillips became her unofficial "mentor" at Respondent's facility. Petitioner received on-the-job training for an MRI tech from Chris Depelteau, Amy Brantly, and Lucinda Swales, all of whom were MRI techs at the time. In December 2006, Petitioner received a secondary job code which allowed her to work independently as an MRI tech part-time. Essentially this meant that she could "take call." That same month, Paul Licker was hired by Respondent as lead MRI tech. Depelteau had also applied for this job, but had not been chosen. Upon being hired by Respondent, Licker was also made aware of its policy regarding sexual harassment. As lead MRI tech, Licker was responsible for scheduling the MRI techs, ordering supplies, working on protocols, ensuring that patients were being properly scanned and treated, and following up with the MRI techs as they cared for patients. Therefore, Licker became Petitioner's immediate supervisor. Like all the other MRI techs, Licker also trained Petitioner in MRI. In training Petitioner, Licker often taught her different techniques or ways of doing things than the way she had been taught by the other MRI techs. Licker, on several occasions, sought to teach Petitioner his way of doing things on the computer, which was different from the others. In doing so, Licker invaded Petitioner's workspace and engaged in inappropriate touching, particularly by covering her hand with his while manipulating the mouse, to the point that she became uncomfortable. Licker also started implementing changes and different ways of doing things throughout the MRI department. As lead MRI tech, Licker had the authority to implement such changes. Also, during this same period, if Licker added patients or made other changes to her schedule, Petitioner would argue with or complain to him. In fact, Petitioner did not like Licker and also told Depelteau and other employees that Licker was a "bad supervisor." Licker himself recognized that Petitioner did not like the way he was supervising the department. A few weeks after Licker started working for Respondent, Petitioner approached Phillips complaining that Licker was calling her, other female employees, and patients, "Babe." For instance, Licker would say, "Babe, I need you to do this for me," when asking Petitioner to complete a task. Petitioner indicated that she thought that the use of this term was inappropriate and demeaning and that it made her uncomfortable. In fact, other employees who were friendly with Petitioner understood that Licker was using the term "Babe" the way another person might use the terms "Sweetie," or "Honey," i.e., in a non-sexual or non-derogatory way. However, understanding that Licker was a new supervisor who may not have understood that the term suggested something sexual in using the term "Babe," Phillips suggested to Petitioner that she speak directly with Licker to resolve this issue. Phillips also spoke to Licker directly regarding his use of the term "Babe." Specifically, Phillips advised Licker that he "needed to carefully choose his words around patients and employees." Phillips also advised Licker that some people did not like being addressed by "Sweetie or Hun or Babe," and that he should refrain from using these terms in the workplace. Licker understood Phillips' suggestion and tried to refrain from calling Petitioner, or anybody else, "Babe" or any word similar to the term. Petitioner did not complain about any other alleged inappropriate conduct by Licker to Phillips, or any other manager, until February 1, 2007. However, shortly after he started working for Respondent, Licker made an inappropriate comment in the cafeteria to Petitioner. Licker stated to other employees that he could not sit next to Petitioner because they were sleeping together. Licker made a similar inappropriate comment to Dana Keach when he first started employment at Parrish. He suggested that there was a lesbian relationship between Keach and another woman. This conduct was not reported until much later. Prior to February 1, 2007, it became readily apparent that the MRI department was suffering serious setbacks because the department employees were not working cooperatively together. The biggest problem in the MRI department appeared to be a lack of teamwork resulting from the staff's inability to communicate effectively with one another. Licker advised Gallacher that he was struggling in his "daily interactions" with Depelteau and Petitioner and that he simply "could not make the group happy, whether it was scheduling or time off or just getting through the day." MRI's problems grew to the point that Phillips and Gallacher both stepped in to try to improve communications and teamwork among Licker, Petitioner, Depelteau, and Shelly Hugoboom, the MRI CT assistant. The entire MRI department engaged in team-building meetings and even worked with the medical center's chaplain in an attempt to learn to work together. These department meetings were intense and discussion often became heated among the MRI staff members. In addition to these team-building meetings, Gallacher met with staff members individually to discuss their concerns. Gallacher also addressed the interpersonal skills issues between Petitioner and Hugoboom. Specifically, Gallacher met with the two employees together "to see if they could put [their issues] to rest and move on." In the midst of these efforts to improve the department, Petitioner came to Phillips on February 1, 2007, complaining that Licker was continuing to call her "Babe," and that he had also offered her some concert tickets. Phillips observed that Petitioner was extremely upset and immediately contacted Human Resources Manager Roberta Chaildin to start an investigation in regard to Licker's alleged behavior. Phillips and Chaildin spoke with Petitioner and Licker, individually, regarding Petitioner's claims. When questioned regarding the concert ticket, Licker explained that he had been looking to sell an extra ticket that he had. Licker advised Phillips and Chaildin that Petitioner had taken his offer to sell her the extra ticket "out of context," when she assumed that he was asking her to the concert on a date. Licker specified that he had asked Petitioner if she wanted to buy his extra ticket and "tag along" with him and his friends to the concert. Licker also offered his extra ticket to other people besides Petitioner. After speaking with Petitioner and Licker, Phillips and Chaildin determined that they were dealing with a "he-said- she-said situation and a misunderstanding." "He said, I was trying to sell the ticket or give it away. She said, he had asked me out on a date to a concert." Phillips and Chaildin determined that this was not a case of "sexual harassment" by Licker. They did, however, warn Licker that as a supervisor, he had to be "extremely careful" in how he spoke to his subordinate employees. Phillips and Chaildin advised Petitioner that they had investigated her claim and concluded that there was no evidence of sexual harassment. They encouraged her, however, to file a report if she continued to have issues with Licker. Over five months passed without a complaint or incident. Then on July 11, 2007, Licker verbally counseled Petitioner regarding her having accumulated nine tardy appearances ("tardies") at work since January 1, 2007. In speaking with Petitioner, Licker wanted to ensure that Petitioner understood that she needed to be on time in the future, as she had exceeded the number of tardies deemed acceptable by Respondent. To ensure that nothing said during the verbal counseling session was misconstrued by Petitioner, Licker had another supervisor, Boyd Wallace, serve as a witness. The tardies cited in Licker's verbal counseling to Petitioner were unrelated to instances when he would excuse her from work due to slower volume in the MRI department. On August 21, 2007, Licker observed Petitioner on the telephone being advised by security that she had parked in a "no parking" zone. During the conversation, Petitioner became agitated. Licker documented and filed the incident. Phillips personally addressed this incident with Petitioner. On October 10, 2007, the MRI department was working an already full schedule when Licker had to add a patient to the schedule due to an emergency situation. Petitioner objected to Licker adding another patient to the day and became withdrawn and resentful. Licker instructed Petitioner that she needed to change her attitude and become more cooperative. The evidence is not persuasive that Licker assigned Petitioner "menial tasks" after she complained about his having offered her the concert tickets in February 2007. In October 2007, Gallacher, Phillips and Chaildin met Petitioner and issued her a Decision Day disciplinary letter. A "Decision Day" meeting and letter is a management tool in which the employee is given a paid day off to contemplate whether they wish to remain an employee of Respondent. This resulted from Respondent's concerns regarding her "interpersonal skills." This was an issue that had been continuously addressed by Licker and other supervisors or managers at Respondent. The incident which prompted the progressive disciplinary action involved Debbie York, a relatively new employee who resigned from the MRI department, claiming that Petitioner and her interactions with other employees and with Licker was the reason for her leaving. During the Decision Day meeting, Petitioner stated that she was the "victim" and brought up the previous incidents of allegedly being sexually harassed. Petitioner was reminded that she had not complained of any other instances of alleged sexual harassment since she complained of Licker's offering her concert tickets in February 2007 and that the matter was investigated and resolved. From the point of view of management, the Decision Day meeting was intended to address Petitioner's on-going issues with her co-workers and her supervisor. However, Petitioner did not bring up any new incidents of alleged sexual harassment by Licker during the Decision Day meeting. Following the meeting, Petitioner took her Decision Day letter and returned to work. The Decision Day letter called for the creation of an Action Plan, which Respondent uses to help a struggling employee "become invested with the organization and with [his or her] team." Thereafter, Petitioner met with Gallacher to discuss what should be included in her Action Plan. On November 7, 2007, an Action Plan was drafted and signed. It included a number of initiatives designed to assist Petitioner in being "re[-]engaged" with the MRI department. Despite being placed on an Action Plan, Petitioner continued to have issues with Licker being her supervisor. On November 20, 2007, Licker verbally counseled Petitioner for her failure to discuss changes in her weekly schedule with him. Licker specifically identified Petitioner's "communication skills" as a continuing issue. On December 19, 2007, Petitioner was suspended without pay for two days for stating that Licker was being an "asshole," or something to that effect, in front of a co-worker. Petitioner accepted responsibility for her comment. Along with her suspension, Petitioner was also issued a written warning stated in pertinent part, "Upon your return [from suspension], you will be expected to demonstrate a high level of interpersonal skills towards your co-workers, management and this organization and work on completion of your Action Plan items. Any reports of less than acceptable behavior or performance or deviation from a Diagnostic Imaging or PMC policy or procedure will result in immediate termination." As a result of the written warning, Petitioner also lost 50 percent of her annual merit increase. In January 2008, management considered that the MRI department was still very "dysfunctional." Scott Hazelbaker, the new executive director of Diagnostics/Cardiovascular, met with all of the MRI employees as a group to discuss his "expectations of working together as a team." Hazelbaker also discerned that Licker lacked leadership skills to be an effective supervisor. In fact, none of the MRI employees had much respect for Licker's management style. On April 10, 2008, Hazelbaker, Gallacher, and Chaildin met with Petitioner to discuss her progress under the Action Plan. During the meeting, Hazelbaker reviewed Petitioner's history toward Respondent, explaining that her negative attitude could not be tolerated. Specifically, her negativity, failure to be a team player, and refusal to embrace or become engaged in Respondent's culture were detrimentally affecting the work of MRI as a whole. Hazelbaker continued by advising Respondent that as a result of her "track record," she could either resign from her employment or be terminated. Petitioner was advised that if she resigned, Respondent would pay her for two weeks in lieu of having her work through her notice period, pay her the balance of her personal leave bank, extend her health benefits for two weeks so that she could fill her prescriptions, and even designate her eligible for rehire in its system. At the end of the meeting, Petitioner tendered her resignation notice to Respondent. At no time during the meeting did Petitioner ask to leave the room or make a call in order to seek advice or legal counsel. Further, at no time during the meeting did Petitioner raise her past issues regarding Licker and the alleged sexual harassment she suffered. The evidence is persuasive that Licker did not influence the decision to terminate Petitioner. He had not asked for her to be terminated. In August 2009, more than one year after Petitioner resigned, Respondent received a complaint regarding Licker from then-X-Ray Tech Dana Keach, who claimed that Licker made sexually suggestive comments to her. Following an investigation, Licker was terminated, effective September 24, 2009, for "communication unsuitability between care partners." It does not appear that Licker was terminated for engaging in sexual harassment. The evidence is not persuasive that during the time he was employed by Respondent that Licker had inappropriate discussions in the workplace on numerous occasions in front of both male and female employees; nor that Licker would also discuss pornography in the workplace.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Lesa Burkavage's, claims of unlawful sexual harassment and retaliation against Respondent, Parrish Medical Center. DONE AND ENTERED this 19th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2010.
