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
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 The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Respondent operates the Best Western Admiral’s Inn and Conference Center in Winter Haven. Petitioner worked as a waitress in the hotel’s first floor restaurant from March 8, 2005, through March 18, 2006. Petitioner testified that she was sexually harassed “for months” by Marcus Owens, a cook who worked with her in the restaurant. According to Petitioner, Mr. Owens made vulgar and sexually-explicit comments to her on a number of occasions while they were working together. Petitioner could not recall precisely when the harassment started, but she estimated that it started approximately two weeks after Mr. Owens started working at the restaurant. Mr. Owens started working in the restaurant on July 28, 2005, which means that the harassment would have started in mid- August 2005. Petitioner did not complain about the harassment until November 9, 2005, when she reported it to her supervisor, Cory Meeks. This was the first notice that Respondent had about the alleged harassment. Petitioner’s testimony that she complained to the hotel’s general manager, Jeffrey Vandiver, about the harassment several weeks prior to her complaint to Mr. Meeks was not persuasive. Petitioner and Mr. Meeks met with the hotel’s human resources manager, Lin Whitaker, on the same day that the complaint was made, November 9, 2005. Ms. Whitaker told Petitioner that she needed to put her complaint in writing for the hotel to take formal action. Petitioner refused to do so because she was scared of retribution by Mr. Owens, even though Mr. Meeks and Ms. Whittaker assured her that she would be protected from Mr. Owens. Petitioner asked Mr. Meeks and Ms. Whitaker to address the situation with Mr. Owens without using her name, which they did. Mr. Owens denied sexually harassing anyone when confronted by Mr. Meeks and Ms. Whitaker. On December 2, 2005, Petitioner again complained to Mr. Meeks about Mr. Owens. She told Mr. Meeks that the harassment had not stopped and that it had gotten worse through even more vulgar comments. Petitioner again did not want a formal investigation into the allegations, but Ms. Whitaker told her that an investigation was required by company policy since this was the second complaint. Mr. Owens was immediately suspended without pay pending the completion of the investigation. The investigation was conducted by Mr. Vandiver, Mr. Meeks, and Ms. Whitaker on December 7, 2005. They first met with Petitioner to get her side of the story. Then, they met separately with Mr. Owens to get his side of the story. Finally, they interviewed all of the employees who worked with Petitioner and Mr. Owens. This was the first time that Petitioner went into detail about what Mr. Owens had said and done. She stated that, among other things, Mr. Owens asked her whether she had “ever had a black man” and whether her boyfriend “is able to get it up or does he require Viagra.” She also stated that there were no witnesses to the harassment because Mr. Owens was "discreet" about making the comments to her when no one else was around. Mr. Owens again denied sexually harassing anyone. He acknowledged asking Petitioner whether she had ever dated a black man, but he stated that the question was in response to Petitioner asking him whether he had ever dated a white woman. (Mr. Owens is black, and Petitioner is white.) The other employees who were interviewed as part of the investigation stated that they had not witnessed any sexual harassment or overheard any sexually explicit conversations in the restaurant. Mr. Vandiver, Mr. Meeks, and Ms. Owens concluded based upon their investigation that “there is not enough evidence of sexual harassment to terminate Marcus Owens.” They decided to let Mr. Owens continue working at the hotel, provided that he agreed to be moved to the hotel’s second floor restaurant and that he agreed to attend a sexual harassment training program. On December 8, 2005, Mr. Meeks and Ms. Whitaker conveyed the results of their investigation and their proposed solution to Petitioner. She was “fine” with the decision to move Mr. Owens to the second floor restaurant where she would not have contact with him. On that same day, Mr. Meeks and Ms. Whitaker conveyed their proposed solution to Mr. Owens. He too was “fine” with the decision, and he agreed that he would not go near Petitioner. Mr. Owens came back to work the following day, on December 9, 2005. On December 14, 2005, Mr. Owens was involved in an altercation with Stephen Zulinski, a dishwasher at the hotel and a close friend of Petitioner’s. The altercation occurred at the hotel during working hours. Mr. Zulinski testified that the incident started when Mr. Owens made vulgar and sexually explicit comments and gestures about Mr. Zulinski’s relationship with Petitioner. Mr. Zulinski was offended and angered by the comments, and he cursed and yelled at Mr. Owens. Mr. Zulinski denied pushing Mr. Owens (as reflected on Mr. Zulinski’s Notice of Termination), but he admitted to putting his finger on Mr. Owens’ shoulder during the altercation. Mr. Owens and Mr. Zulinski were immediately fired as a result of the altercation. Petitioner continued to work as a waitress at the hotel’s first floor restaurant after Mr. Owens was fired. Petitioner received awards from Respondent for having the most positive customer comment cards for the months of October and November 2005, even though according to her testimony she was being sexually harassed by Mr. Owens during those months. She testified that her problems with Mr. Owens affected her job performance only to a “very small degree.” Petitioner had no major problems with her job performance prior to December 2005, notwithstanding the sexual harassment by Mr. Owens that had been occurring “for months” according to Petitioner’s testimony. Petitioner was “written up” on a number of occasions between December 2005 and February 2006 because of problems with her job performance. The problems included Petitioner being rude to the on-duty manager in front of hotel guests; taking too many breaks and not having the restaurant ready for service when her shift started; failing to check the messages left for room service orders; and generating a guest complaint to the hotel’s corporate headquarters. Petitioner was fired after an incident on March 11, 2006, when she left the restaurant unattended on several occasions and the manager-on-duty received complaints from several hotel guests about the quality of service that they received from Petitioner that night. Petitioner ended up being sent home from work that night because, according to her supervisor, “she was in a crying state,” unable to work, and running off the restaurant’s business. Petitioner’s employment with Respondent was formally terminated on March 18, 2006. The stated reason for the termination was “unsatisfactory work performance” and “too many customer complaints.” None of the supervisors who wrote up Petitioner were aware of her sexual harassment complaints against Mr. Owens. Petitioner claimed that the allegations of customer complaints and poor job performance detailed in the write-ups were “ludicrous,” “insane,” “almost a complete fabrication,” and “a joke.” The evidence does not support Petitioner’s claims. Petitioner admitted to having “severe” bi-polar disorder, and she acknowledged at the hearing and to her supervisor that she was having trouble with her medications over the period that she was having problems with her job performance. For example, the comment written by Petitioner on the January 27, 2006, write-up stated that she was “at a loss” to explain her job performance and that she “hope[d] to have [her] mental stability restored to what everyone else but [her] seems normalcy.” Petitioner worked 25 to 30 hours per week while employed by Respondent. She was paid $5.15 per hour, plus tips, and she testified that her biweekly take-home pay was between $200 and $250. Petitioner applied for unemployment compensation after she was fired. Respondent did not dispute the claim, and Petitioner was awarded unemployment compensation of $106 per week, which she received for a period of six months ending in September 2006. Petitioner has not worked since she was fired by Respondent in March 2006. She has not even attempted to find another job since that time. Petitioner does not believe that she is capable of working because of her bi-polar disorder. She applied for Social Security disability benefits based upon that condition, but her application was denied. Petitioner’s appeal of the denial is pending. Petitioner testified that one of the reasons that she has not looked for another job is her concern that doing so would undermine her efforts to obtain Social Security disability benefits. Respondent has a general “non-harassment” policy, which prohibits “harassment of one employee by another employee . . . for any reason.” Respondent also has a specific sexual harassment policy, which states that “sexual harassment of any kind will not be tolerated.” The policy defines sexual harassment to include verbal sexual conduct that “has the purpose or effect of interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The general non-harassment policy and the specific sexual harassment policy require the employee to immediately report the harassment to his or her supervisor or a member of the management staff. The Standards of Conduct and the Work Rules adopted by Respondent authorize immediate dismissal of an employee who is disrespectful or discourteous to guests of the hotel. The Standards of Conduct also authorize discipline ranging from a written reprimand to dismissal for an employee’s “[f]ailure to perform work or job assignments satisfactorily and efficiently.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald T. Ryce, Esquire 908 Coquina Lane Vero Beach, Florida 32963 Nora E. Bartolone 119 Alachua Drive Southeast Winter Haven, Florida 33884
The Issue Whether Respondent, Lincare, Inc., is liable to Petitioner, Sharon Ford, for subjecting her to a hostile work environment based on sexual harassment.
Findings Of Fact The Parties and Complaint Allegations Lincare is a Tampa-based company that focuses on home- healthcare services. It has an annual revenue of over $3 billion and is a wholly-owned subsidiary of a company based in Germany. Ms. Ford, a married woman with children, is an accountant and an attorney. Lincare first hired her as its acquisition counsel in 2001 and promoted her to director of acquisitions in 2002. She held that position for almost 15 years before she left the company on January 27, 2017. Mr. Tripp, a married man with children, served as an Arabic linguist in the Army before obtaining his law degree. Lincare hired Mr. Tripp to replace Ms. Ford as its acquisition counsel in 2002 and promoted him to general counsel in 2013. He still holds that position. On January 19, 2018, almost a year after leaving Lincare, Ms. Ford filed a Complaint with the Commission alleging a hostile work environment. She alleged that Mr. Tripp, over a 15-month period from December 2015 through March 2017, subjected her to severe and pervasive sexual harassment. On July 13, 2018, the Commission issued its notice of determination of no reasonable cause and mailed it to Ms. Ford. The notice advised her that she “may request an administrative hearing . . . by filing a Petition for Relief within 35 days of the date the determination was signed by the Executive Director.” Ms. Ford received the notice in the mail on July 16, 2018. On August 16, 2018, 34 days after the Commission issued its notice, Ms. Ford requested an administrative hearing by mailing her Petition to the Commission via U.S. mail. The Commission received the Petition on August 20, 2018. On the same day, the Commission generated its transmittal letter. But, instead of transmitting the Petition to DOAH, the Commission advised Ms. Ford that the Petition appeared to be untimely because it was received three days beyond the 35-day deadline under section 760.11(7), Florida Statutes. After Ms. Ford responded that she timely requested a hearing by post-marking her Petition before the 35-day deadline, the Commission transmitted the case to DOAH on September 21, 2018. The transmittal letter, dated August 20, 2018, did not dismiss the Petition as untimely but rather requested assignment of a judge to “conduct all necessary proceedings required under the law.” Lincare’s Structure and Policies Between 2015 and 2017 Lincare had three officers: chief executive officer (“CEO”), chief financial officer (“CFO”), and chief operating officer (“COO”). The corporate chart had the CEO at the top and the CFO and COO, who reported to the CEO, immediately thereunder. The second tier of the chart listed six department heads, none of whom were corporate officers: corporate compliance officer, head of business innovation, head of human resources, head of public relations & communications, general counsel, and director of acquisitions. These managers were equal on the hierarchy chart and all reported directly to the CEO. As director of acquisitions, Ms. Ford brought in the deals, negotiated the business side, and quarterbacked them to closing. She helped move the deals along by ensuring that Lincare personnel communicated and accomplished their required tasks. She provided business advice to the legal department and worked closely with the acquisition attorney (on smaller deals) and the general counsel (on larger deals). Ms. Ford received a salary and an objective bonus tied to the deals that closed.2/ As the general counsel, Mr. Tripp oversaw legal affairs and supervised five lawyers in the legal department, but had no control over any other department. As to the deals, Mr. Tripp handled the legal aspects, such as contracts, due diligence, and compliance, provided legal advice, and assessed risks. The CEO, COO, and CFO had sole authority to decide whether a deal closed. Mr. Tripp received a salary and a discretionary bonus tied to the company’s financial success in a given year. Although Ms. Ford and Mr. Tripp gave each other advice, they were equals on the corporate chart. Mr. Tripp had no authority over Ms. Ford and lacked the power to hire, discipline, promote, transfer, fire, or control her compensation. They were coworkers who both answered directly to the CEO. The head of human resources (“head of HR”) ran the HR department and its roughly 15 to 18 employees. Directly under the Head of HR was the employee relations director, Ms. Adams. Among other things, the HR department oversaw the employee handbook and investigated reports of discrimination and harassment. The handbook included a detailed anti-harassment policy forbidding sexual harassment by any employee at work or at work-related events outside the office. Harassment was defined to include unwelcome sexual advances, requests for conduct of a sexual nature, and other unwelcome behavior that was personally offensive and interfered with work effectiveness done in person or through electronic means. The policy prohibited any employee from making employment decisions based on the submission to or rejection of sexual advances, and noted in bold that any violation would subject an employee to discipline up to an immediate discharge. The handbook contained a detailed reporting procedure for employees who believed, had concerns, or suspected they or anyone else may have been harassed. The policy required them “to immediately notify” a named individual based on their location, which included the employee relations director or the HR Manager for employees in the corporate office. The handbook required employees to follow the procedure and noted that the failure to do so could adversely affect their rights to pursue a claim. Lincare took harassment allegations seriously. Once an allegation was reported, the employee relations director or HR managers investigated; the legal department was not involved unless a particular legal question arose. They obtained as much information as possible from the victim, spoke to potential witnesses, reviewed available documents, and interviewed the accused. If the investigation uncovered no corroborating evidence and the accused denied any wrongdoing, a report would be added to the accused’s personnel file; upon a second allegation, the accused would be terminated. If a supervisor retaliated against an employee for reporting harassment, that supervisor would be terminated. Lincare disseminated the handbook and updated versions to employees and required them to sign a form acknowledging that they received the handbook and would abide by its policies. Ms. Ford signed such forms each time she received a revised handbook, including in 2015——the version in effect until she left Lincare in January 2017. She knew about the harassment policy, the reporting requirement, and the fact that her failure to so report could adversely affect her rights. Friends and Coworkers for Over 15 Years Ms. Ford and Mr. Tripp worked closely together at Lincare for 15 years and they became good friends in the process. When Lincare hired Mr. Tripp as acquisition counsel in 2002, he worked closely with Ms. Ford on hundreds of deals. They were in constant, daily contact to strategize, handle diligence and compliance issues, advise each other on the tasks they both had to complete, and ensure the deals closed. They also had a close friendship. They regularly went to lunch alone and with others, as often as three days per week, attended social events with mutual friends, and spoke on the phone and texted about business and personal matters. They had much in common as married parents with kids around the same age and they enjoyed each other’s company. When Mr. Tripp became general counsel in 2013, Ms. Ford initially worked closely with the new acquisition counsel. In late 2014, however, she and Mr. Tripp resumed working closely together when Lincare began negotiating larger transactions. Project Maverick was the largest acquisition of Ms. Ford’s career and it closed in March 2016. Project Falcon was the largest divestiture of her career and it closed in August 2016. These two deals, and others, required Ms. Ford and Mr. Tripp to work even more closely together from 2015 until she left the company in January 2017. They often met multiple times per day. Ms. Ford sought Mr. Tripp’s assistance on the legal side and he sought her assistance on the business side. As before, she remained the quarterback shepherding the deal forward. Their friendship continued during this period. They invited each other to lunch regularly, alone and with coworkers. They attended social events with friends, including holiday dinners in 2015 and 2016. On out-of-town work trips, they rented cars together and sometimes spent time alone, such as for meals. They continued to text and speak on the phone about business and personal matters. They talked about their families, children, and other personal matters much like longtime friends do. They checked in on each other when personal crises occurred. And, when Ms. Ford began tense negotiations with the CEO about her compensation, which ultimately led her to leave Lincare, she relied on Mr. Tripp as a sounding board and for moral support. Even after Ms. Ford left the company in January 2017, she maintained contact with him. They had lunch alone at least once. For months, they continued to text each other, even about personal matters such as when she texted him after he had been in a car accident. However, their communication largely ceased once Ms. Ford filed a lawsuit against Lincare over her compensation. Ms. Ford’s Testimony Accusing Mr. Tripp of Sexual Harassment The first incident occurred on December 11, 2015. In that 10 to 20 minute conversation in her office, Mr. Tripp professed strong feelings for her and that he desired a confidential, sexual relationship with her. She rejected him and said they were just friends. She immediately called her husband and spoke to him all the way home. She felt humiliated, embarrassed, and angry. She did not attend a football game that weekend with other coworkers to avoid Mr. Tripp and kept her communications with him to e-mail for the next week. The second incident occurred in her office later in December 2015. While discussing another affair that may be happening at work, Mr. Tripp said he could not report the other employee because he wanted to do the same thing with Ms. Ford, notwithstanding the professional and personal risks. She again rejected him. For the next few weeks, Ms. Ford tried to avoid him as much as possible, but she had to face him because the deals began to lag. She said he continued to make comments here and there, but she offered no specific details. The third incident occurred in January 2016, after a conference call in Mr. Tripp’s office. He said he knew Ms. Ford was avoiding him, but he could not function. He told her he was willing to leave his wife, but she again rejected him. Over the next few months, the comments and innuendo pretty much ceased so Ms. Ford decided to go back to being friends to ensure that the Maverick and Falcon deals closed. However, a fourth incident occurred in the parking lot after a late conference call in June 2016. Mr. Tripp professed that his feelings were stronger now and that he was waiting for Ms. Ford to change her mind. She said her feelings had not changed and he said he understood. For the remainder of 2016, Ms. Ford testified generally that Mr. Tripp continued to make comments about his inability to function and that he got more obsessive as the year progressed. But she offered little detail about the comments or where and when they occurred, except that she had to be around Mr. Tripp’s wife several times and she and Mr. Tripp agreed it was uncomfortable. The fifth incident occurred in October 2016 when Mr. Tripp told her he was learning Hebrew to “connect” with her in her native language. He tried to communicate with her in Hebrew in person and via text, despite her telling him to stop because it made her very uncomfortable. As a result, she again started to avoid him at the office, though he texted her to see if she was alright and admitted to acting like a high school student. In January 2017, Mr. Tripp continued with innuendo, spoke in Hebrew, and told Ms. Ford that he might move closer to her. She believed he was obsessed, which made her nervous about his stability and her safety. But she offered no specific dates on which these events occurred. Mr. Tripp came to Ms. Ford’s office twice that month after she had heated meetings with the CEO, including on her last day at the company, January 27, 2017. He cried because he could not imagine how he would go on if she left, as she was the only reason he came to work every day. That evening, he told her on the phone that he now knows what a divorce feels like. Mr. Tripp continued to harass her following her departure, including taking his family to the same ski resort in March 2017. She testified that she stayed in her room to avoid him and never initiated contact with him while there, though text messages admitted into evidence confirm she texted him several times, about a security breach and generally about his vacation. In January 2018, a year after she left the company during a mediation of her lawsuit against Lincare, Ms. Ford for the first time accused Mr. Tripp of sexual harassment. She had not reported the allegations pursuant to Lincare’s policy, though she knew it required her to do so. She never informed other coworkers either. In fact, the only person she said she told was her husband, though he did not testify at the hearing. Ms. Ford testified that she did not report the allegations because she had a contentious relationship with the CEO during this period and she believed the CEO would terminate her. She also was concerned that Mr. Tripp was unstable and could decide to kill the deals to ensure she missed out on her bonuses. Lastly, she thought reporting would be futile due to Lincare’s culture of harassment, including by one of the two individuals to whom she was directed to report, the head of HR. Mr. Tripp’s Testimony Denying the Alleged Sexual Harassment Mr. Tripp said that he never harassed Ms. Ford. Indeed, no one has ever accused him of harassment. He said he never expressed romantic feelings for her, suggested having a sexual relationship with her, or did anything to scare her. Ms. Ford’s allegations against him came as a shock. He believed they had been good friends for over 15 years and she never indicated otherwise. They enjoyed each other’s company, had children around the same age, and spoke often about business and personal things, like friends often do. Even during the period of alleged harassment, he noticed no changes in her behavior. They continued to invite each other to lunch regularly, often eating together alone, and continued to discuss deeply personal matters about their families. They texted each other often and attended holiday dinners with friends. She chose to sit next to him at a work event at a hotel in the fall of 2016. The same could be said for business trips during this period. On a March 2016 trip to New York, Ms. Ford left a group dinner early with him because he was sick, they worked out the next day, and had breakfast. On an August 2016 trip to Nashville to celebrate the closing of the Maverick deal, they rented a car together and went to dinner alone after Ms. Ford invited him. On a trip to New York in August/September 2016, Ms. Ford stayed with Mr. Tripp to retrieve his briefcase from the office and went to the airport together after the rest of the team left. Mr. Tripp admitted to learning some Hebrew, but because he liked languages (he was an Arabic linguist in the Army), not to become romantically connected to Ms. Ford. He practiced with her because she was the only person he knew who spoke Hebrew, just as he did with other coworkers who spoke another language. She never said it made her uncomfortable. Mr. Tripp also admitted that his wife suggested moving closer to Plant High School because it had a beneficial program for their son. The idea had nothing to do with Ms. Ford, who did not live nearby, and they decided not to move in any event. Even on her final days at Lincare, they had usual interactions. Mr. Tripp admitted calling Ms. Ford the evening of her last day (but said he had not come down to her office earlier) to express concern for his friend and sadness that they would no longer be working together. He did not recall commenting about a divorce, but if he had, it only related to her being a friend. For a few months after she left Lincare, Mr. Tripp believed their relationship had not changed. They continued to text each other and had lunch alone at least once. Though he took a ski trip to the same resort in March 2017, his wife chose the resort and Ms. Ford reached out to him several times during that trip to see how he was doing. Ms. Ford also texted him after he had a car accident in March/April 2017. It was not until several months after Ms. Ford left Lincare and filed her lawsuit against the company that he noticed a change in her attitude. At one point, he invited her to lunch with a mutual friend, but she did not respond and he later learned they had lunch without him. Ms. Ford also told him on the phone that he was going to hate her someday, though he had no idea then what that meant. After a hurricane in August/September 2017, he reached out to make sure she was safe; she thanked him and wished his family well too. That was their last communication before the sexual harassment allegations were made. Credibility Findings as to the Conflicting Testimony After hearing the conflicting testimony from Ms. Ford and Mr. Tripp and observing their demeanor, the undersigned found it exceedingly difficult initially to determine who is telling the truth and who is quite an effective storyteller. Ms. Ford’s conviction in her accusations against Mr. Tripp was equal to his conviction in his denials. But, when considering all of the record evidence and testimony, the scales of credibility tip in Mr. Tripp’s favor for several reasons. For one, Ms. Ford cultivated a professional and personal relationship with Mr. Tripp throughout the alleged harassment period and continued to do so even after she left Lincare. Although she said she maintained contact because they had to work together and she wanted him as an ally, she also accused him of stalker-like, obsessive, humiliating, and unstable behavior. Her efforts to maintain a friendship with him, even after leaving Lincare, are at odds with someone who feels humiliated and fears for their safety. Ms. Ford’s testimony also veered from the affidavit she filed with the Commission. She testified that he generally made comments between November 2016 and January 2017, yet her affidavit offered more specifics as to the comments allegedly made. Her testimony about him moving to her neighborhood was entirely omitted from her affidavit. Her testimony about his efforts to sometimes communicate with her in Hebrew was at odds with the affidavit’s claim that he did so “continuously.” And, her testimony about the comments he made on her last day at Lincare differed as to substance and degree from her affidavit. Further, Ms. Ford’s testimony was directly refuted by other evidence. She testified that she did not affirmatively communicate with him about anything personal in March 2017, but text messages confirm that she checked in with him several times during the trip about his vacation and engaged in more friendly conversation than initially admitted. Ms. Ford’s reasons for waiting until a year after she left Lincare to report the accusations also call her credibility into doubt. Though she testified that she feared Mr. Tripp would kill two large deals and her bonuses therefrom, those deals closed in March and August 2016, and yet she never reported the allegedly ongoing harassment before she left Lincare at the end of January 2017. It also cannot be ignored that she waited until January 2018 to report the accusations and did so during the mediation of her compensation lawsuit against the company. Lastly, though not fatal to her claim, Ms. Ford’s failure to present any corroborating evidence cannot be ignored. She testified that she lost weight, suffered hair loss, and could not sleep, and said that it was the worst year of her life. Yet, the record is devoid of evidence that any other friends or coworkers noticed such changes, that she missed work or social events, or that she suffered at work in any way. She said he sent her inappropriate text messages, but provided no proof of them. She apparently kept a journal about work issues, but did not document the harassing incidents. And, though she said she immediately told her husband in December 2015, she chose not to present his testimony even though he was the only person who could corroborate her accusations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Sharon Ford, failed to timely file her Complaint and, regardless, that Ms. Ford failed to establish that Respondent, Lincare, Inc., committed an unlawful employment practice against her, both of which warrant dismissal of her Petition for Relief. DONE AND ENTERED this 17th day of May, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2019.
The Issue Whether Petitioner was subjected to race and gender discrimination, sexual harassment/hostile work environment, and retaliation, as alleged in her Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, a 36-year-old Caucasian female, was employed by Respondent as a sales associate. She first worked for Respondent at its Sebastian, Florida, store where she started in June 2006. She voluntarily resigned from the Sebastian store in October 2006 and was hired by Respondent's Merritt Island, Florida, store one week later. Respondent owns and operates an appliance retail store in Central Florida. Respondent employs more than 15 people. At some time during Petitioner's employment, John Barnaba, an operations manager who rotated among several stores, said things to her that she found "unacceptable." For example, "You would look good on my Harley," "You look like a biker chick," and "You must be anorexic." He also clapped his hands behind her and said, "hurry, hurry, hurry." She reported Mr. Barnaba's conduct to Phil Roundy, her manager and manager of the Merritt Island store, who said "That's just the way he is," or words to that effect. She was unaware of any other action undertaken by Mr. Roundy regarding her complaint. In January 2007, Petitioner began a voluntary sexual relationship with Mr. Roundy, which involved at some point, Petitioner and Mr. Roundy living together. This relationship lasted until April 29, 2007, when the parties separated. She and Mr. Roundy "got back together in May, about a week after her termination." Mr. Roundy did not sexually harass Petitioner based on the voluntary nature of their relationship, nor did he sexually harass Petitioner between April 29 and May 18, 2007. After Petitioner and Mr. Roundy separated, he started treating her "differently." She reports that he became critical of her and would not assist her. Respondent has published an "information resource for common questions and concerns" titled, "Associate Handbook" that addresses sexual harassment and presents a grievance procedure for employees who believe they have been subjected to unfair treatment. It contemplates reporting the unfair treatment to (1) "your immediate manager"; (2) the store manager; or (3) "[s]hould the problem, however, be of a nature which you do not feel free to discuss with your manager, you are encouraged to discuss the problem in confidence directly with Human Resources." Petitioner requested a transfer to another store on May 1, 2007. She requested the transfer before Mr. Roundy started treating her "differently." She called Human Resources on May 9 and 15, 2007; it is unclear as to whether she called to check on the requested transfer or to report the alleged sexual harassment. She did not timely pursue any recourse suggested in the Associate Handbook. On May 9, 2007, Mr. Barnaba, the operations manager mentioned above, authored an email that characterized several of Petitioner's activities of that work day as "completely unprofessional and insubordinate." The following day, Mr. Roundy emailed his supervisor that Petitioner had gone through his private, business-related emails and discovered Mr. Barnaba's May 9, 2007, email. He also related several incidents that he thought unprofessional and that reflected bad customer service. He advised that Petitioner accused Barnaba and himself of conspiring to try to terminate her. Petitioner was scheduled to work on May 16 and 17, 2007, but did not report to work. She was scheduled to work on May 18, 2007; as a result, Kevin Draco, a risk manager for Respondent, went to the Merritt Island store to interview her. When Petitioner did not appear, management made the decision to terminate Petitioner for "absenteeism."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 4th day of April, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maurice Arcadier, Esquire 2815 West New Haven Avenue, Suite 303 Melbourne, Florida 32904 Christopher J. Coleman, Esquire Schillinger & Coleman, P.A. 1311 Bedford Drive, Suite 1 Melbourne, Florida 32940
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
Findings Of Fact Petitioner is a white female. Petitioner worked as a salesperson at Respondent’s Melbourne store from April 2006 to September 2006. Petitioner’s primary job duty was selling appliances to retail customers. She also performed ancillary duties, such as tagging merchandise, cleaning and organizing the showroom floor, scheduling deliveries, and making follow-up calls to customers. Petitioner was not paid a salary. Her income was solely commission-based. She earned a total of $11,826.14 while working for Respondent, which equates to an average weekly gross pay of $537.55. Petitioner had several managers during the term of her employment. She did not have a problem with any of her managers, except for Jeffrey Rock. Mr. Rock is a black male, and by all accounts, he was a difficult manager to work for. He was “strict”; he often yelled at the salespersons to “get in the box”2 and “answer the phones”; and, unlike several of the prior managers at the Melbourne store, Mr. Rock held the salespersons accountable for doing their job. Petitioner testified that Mr. Rock "constantly" made sexual comments in the store, including comments about the size of his penis and his sexual prowess; comments about sex acts that he wanted to perform on a female employee in Respondent’s accounting office, Ms. Miho; “stallion” noises directed at Ms. Miho; and a question to Petitioner about the type of underwear that she was wearing. Petitioner’s testimony regarding the sexual comments and noises made by Mr. Rock was corroborated by Neina Blizzard, who worked with Petitioner as a salesperson for Respondent and who has also filed a sexual harassment claim against Respondent. Mr. Rock denied making any sexually inappropriate comments or noises in the store. His testimony was corroborated by Guy Ruscillo and Carissa Howard, who worked as salespersons with Petitioner and Ms. Blizzard and who are still employed by Respondent. Petitioner and Ms. Blizzard testified that Mr. Rock gave favorable treatment to Ms. Howard and two other female salespersons with whom he had sexual relationships and/or who found his sexual comments funny. Mr. Rock denied giving favorable treatment to any salesperson, except for one time when he gave a “house ticket”3 to Ms. Howard because she took herself off the sales floor for six hours one day to help him get organized during his first week as manager at the Melbourne store. Ms. Howard is white. The record does not reflect the race of the other two female salespersons -- Rebecca and Shanna -- who Petitioner and Ms. Blizzard testified received favorable treatment by Mr. Rock, and the anecdotal evidence of the favorable treatment that they allegedly received was not persuasive. Petitioner did not have any complaints regarding her schedule. Indeed, she testified that Mr. Rock changed her schedule at one point during her employment to give her more favorable hours. Petitioner’s testimony about other salespersons having sexual relationships with Mr. Rock and/or receiving favorable treatment from Mr. Rock was based solely upon speculation and rumor. Indeed, Rebecca, one of the salespersons with whom Mr. Rock allegedly had a sexual relationship, was “let go” by Mr. Rock because of the problems with her job performance observed by Petitioner and Ms. Blizzard. Petitioner’s last day of work was Saturday, September 30, 2006. On that day, Petitioner came into the store with Ms. Blizzard at approximately 8:00 a.m. because, according to Petitioner, another manager had changed her schedule for that day from the closing shift to the opening shift. Mr. Rock confronted Petitioner when she arrived, asking her why she came in at 8:00 a.m. since he had put her on the schedule for the closing shift. An argument ensued and Petitioner went into the warehouse in the back of the store to compose herself. When Petitioner returned to the showroom several minutes later, Mr. Rock was engaged in an argument with Ms. Blizzard. During the argument, Ms. Blizzard demanded a transfer to another store, which Mr. Rock agreed to give her. Then, as a “parting shot,” Ms. Blizzard told Mr. Rock that he was a “racist” who was “prejudiced against white women.” Ms. Blizzard testified that Mr. Rock told her that she was fired immediately after she called him a racist. Petitioner testified that after Mr. Rock fired Ms. Blizzard, he asked her whether she wanted to be fired too. Petitioner testified that even though she did not respond, Mr. Rock told her that “you are fired too.” Then, according to Ms. Blizzard and Petitioner, Mr. Rock escorted them both out of the store. Mr. Rock denies telling Ms. Blizzard or Petitioner that they were fired. He testified that they both walked out of the store on their own accord after the argument. Mr. Rock’s version of the events was corroborated by Mr. Ruscillo, who witnessed the argument. Mr. Ruscillo testified that he heard a lot of yelling, but that he did not hear Mr. Rock tell Ms. Blizzard or Petitioner at any point that they were fired. Petitioner and Ms. Blizzard met with an attorney the Monday after the incident. The following day, Petitioner gave Ms. Blizzard a letter to deliver on her behalf to Respondent’s human resources (HR) Department. The letter, which Petitioner testified that she wrote on the day that she was fired by Mr. Rock, stated that Petitioner “was sexually harassed and discriminated against based on being a white female by my manager, Jeff Rock”; that Petitioner “previously reported numerous incidents of this discrimination and sexual harassment to upper management”; and that she was fired “as a result of this discrimination and the refusal to put up with Mr. Rock’s sexual advancement.” This letter was the first notice that Respondent had of Petitioner’s claims of sexual harassment or discrimination by Mr. Rock. Petitioner considers herself to be a very good salesperson, but Mr. Rock described her as an “average” salesperson. Mr. Rock’s characterization of Petitioner’s job performance is corroborated by Petitioner’s acknowledgement that her sales figures were lower than those of at least Mr. Ruscillo, Ms. Blizzard, and Ms. Howard. Petitioner complained to another manager, Al Sierra, about Mr. Rock’s management style at some point in mid-September 2006. She did not complain to Mr. Sierra or anyone else in Respondent’s upper management about the sexual comments allegedly made by Mr. Rock. Indeed, as noted above, the first time that Petitioner complained about the sexual comments allegedly made by Mr. Rock was in a letter that she provided to Respondent’s HR Department several days after she was fired and after she met with a lawyer. Petitioner testified that she did not complain about the sexual harassment by Mr. Rock because he threatened to fire any salesperson who complained to upper management about the way that he ran the store and because she did not know who to complain to because she never received an employee handbook. There is no evidence that Mr. Rock fired any salesperson for complaining about how he ran the store, and he denied making any such threats. He did, however, acknowledge that he told the salespersons that they were all replaceable. Mr. Rock’s testimony was corroborated by Mr. Ruscillo and Ms. Howard, who were at the sales meetings where Petitioner and Ms. Blizzard claim that the threats were made. The training that Petitioner received when she started with Respondent was supposed to include a discussion of Respondent’s policies and procedures, including its policy against sexual harassment. The trainer, Kit Royal, testified that he remembered Petitioner attending the week-long training program and that the program did include a discussion of the sexual harassment policy and other policies and procedures. Petitioner, however, testified that no policies and procedures were discussed during the training program. Petitioner was supposed to have received and signed for an employee handbook during the training program. No signed acknowledgement form could be located for Petitioner, which is consistent with her testimony that she never received the handbook. The fact that Petitioner did not receive the employee handbook does not mean that the training program did not include discussion of Respondent’s sexual harassment policies. Indeed, Petitioner’s testimony that the training program did not include any discussion regarding salary and benefit policies (as Mr. Royal testified that it did) and that she was never told what she would be paid by Respondent despite having given up another job to take the job with Respondent calls into question her testimony that the sexual harassment policy was not discussed at the training program. Petitioner was aware that Respondent had an HR Department because she met with a woman in the HR Department named Helen on several occasions regarding an issue that she had with her health insurance. She did not complain to Helen about the alleged sexual harassment by Mr. Rock, but she did tell Helen at some point that Mr. Rock “was being an ass” and “riding her,” which she testified were references to Mr. Rock’s management style not the alleged sexual harassment. Petitioner collected employment compensation of $272 per week after she left employment with Respondent. Petitioner testified that she looked for jobs in furniture sales and car sales while she was collecting unemployment, but that she was unable to find another job for approximately three months because of the slow economy at the time. She provided no documentation of those job-search efforts at the final hearing. Petitioner is currently employed by Art’s Shuttle. She has held that job for approximately nine months. Petitioner drives a van that takes cruise ship passengers to and from the airport. The record does not reflect how many hours per week Petitioner works at Art’s Shuttle, but she testified that she works seven days a week and earns approximately $500 per week. No written documentation of Petitioner’s current income was provided at the final hearing. Respondent has a “zero tolerance” policy against sexual harassment according to its president, Sam Pak. He credibly testified that had he been aware of the allegations of sexual harassment by Mr. Rock that he would have conducted an investigation and, if warranted, done something to fix the problem. The policy, which is contained in the employee handbook, states that Respondent “will not, under any circumstances, condone or tolerate conduct that may constitute sexual harassment on the part of its management, supervisors, or non-management personnel.” The policy defines sexual harassment to include “[c]reating an intimidating, hostile, or offensive working environment or atmosphere by . . . [v]erbal actions, including . . . using vulgar, kidding, or demeaning language . . . .” Mr. Pak agreed that the allegations against Mr. Rock, if true, would violate Respondent’s sexual harassment policy. The employee handbook includes a “grievance procedure” for reporting problems, including claims of sexual harassment. The first step is to bring the problem to the attention of the store manager, but the handbook states that the employee is “encouraged and invited to discuss the problem in confidence directly with Human Resources” if the problem involves the manager. Additionally, the handbook states in bold, underlined type that “[a]nyone who feels that he or she . . . is the victim of sexual or other harassment, must immediately report . . . . all incidents of harassment in writing to your manager or the store manager, or if either person is the subject of the complaint, to the president.” Mr. Pak had an office at the Melbourne store. He testified that he had an “open door policy” whereby employees could bring complaints directly to him. The only complaint that Mr. Pak ever received about Mr. Rock was from another salesperson, Rod Sherman, who complained that Mr. Rock was a “tough manager.” Mr. Pak did nothing in response to the complaint and simply told Mr. Sherman that different managers have different management styles.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 26th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2007.
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes (2006), and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a female formerly employed by the School District. From February 2006 to April 18, 2007, she was employed as a paraprofessional in the special education unit at Flagler Palm Coast High School. Petitioner is an "aggrieved person" within the meaning of Section 760.02(6) and (10), Florida Statutes, in that Petitioner is female and filed a complaint of gender discrimination and retaliation with the Commission. Respondent is an "employer" within the meaning of Section 760.02(7), Florida Statutes. From the inception of her employment and until March 13, 2007, Ms. Price was assigned as a paraprofessional (parapro) in Mr. Robert Rinker's classroom. Ms. Price had not been in the work force for several years before taking the job at Flagler Palm Coast High School and was taking classes at night to obtain her teaching degree. Mr. Rinker teaches in what was described as a self- contained classroom for students who are classified as emotionally handicapped in the exceptional education program. At Flagler Palm Coast High School, at least some of the students in the program would attend classes in the 300 building of the campus, and would have fewer classes and teachers compared to a traditional schedule. However, students would not necessarily be limited to one classroom all day. They could, for example, have classes with other special education teachers in the 300 building. Parapros are evaluated by the assistant principal. While teachers with whom the parapro worked might be asked to provide input for evaluations, the teachers are not considered to be their supervisors. Ms. Price was in the classroom with Mr. Rinker during first and second periods, between classes, and during lunch. During third and fourth period, Mr. Rinker supervised students in the gym while Ms. Price remained in the classroom with students who did not go to the gym. Stan Hall also teaches special education in the 300 building of Flagler Palm Coast High School. During Ms. Price’s employment, he was assisted by a parapro named Kathy Picano. Ms. Picano sometimes visited Ms. Price in Mr. Rinker’s classroom. She is significantly younger than both Ms. Price and Mr. Rinker. Mr. Rinker is a jovial man and a veteran teacher. He coaches soccer and has coached basketball. He is well liked by his peers and by the students he teaches. Mr. Rinker often tells jokes and stories, and sometimes his jokes are “off color” or of a sexual nature. The jokes and stories are told to both male and female colleagues and not in the presence of students. No other staff member had ever told Mr. Rinker that his jokes were offensive and no one had ever complained to supervisory personnel that they were offended by Mr. Rinker’s behavior. Mr. Rinker sometimes used the phrase, “a good lovin’ is the universal cure.” He testified that he had heard this phrase since his childhood from his older relatives, and simply meant that when someone is having a bad day, a hug or other encouragement helps make things better. The remark could be addressed to students and staff alike. He did not mean anything sexual by the phrase, and others hearing the phrase did not interpret it as a sexual remark. Mr. Rinker’s testimony is credited. Ms. Price, however, was offended by Mr. Rinker’s jokes. She testified that nearly every conversation with Mr. Rinker became focused on sex. According to Ms. Price, the first week she worked with Mr. Rinker, they were discussing mailboxes in the classroom, and he stated, “let’s talk about the box you are sitting on.” She understood that he was referring to her vagina. Ms. Price stated that she was shocked by this statement, but did not say so because it was her first week on the job. Mr. Rinker does not remember ever making such a statement. Whether or not this incident actually happened, it occurred over a year prior to Ms. Price's complaint to either the School District or the Commission. Also that first week, Ms. Price mentioned in the classroom that she had a headache, and in response Mr. Rinker rubbed her shoulders or neck. Ms. Price was offended but did not tell Mr. Rinker his touch was unwelcome. Ms. Price claims that while things were not too bad the first semester she worked with Mr. Rinker, eventually it got to the point where she was unable to have a conversation with Mr. Rinker without it focusing on sex. She claimed that he sometimes purposefully rubbed up against her in the classroom.1/ In order to avoid talking to him or being physically close to him, she moved her desk to another part of the room. While she claimed the situation was intolerable, she did not report Mr. Rinker’s behavior to any supervisor and did not tell him she was offended by his conduct. Kathy Picano and Ms. Price sometimes spent time together in Mr. Rinker’s classroom. Mr. Rinker sometimes told jokes in Ms. Picano's presence and sometimes “invaded her personal space.” He acknowledged that he might have patted her on the back in passing as part of a greeting, but Ms. Picano described the touch as no different from what she might have received from her grandmother. Although Ms. Picano did not particularly care for Mr. Rinker’s jokes, she attributed them to being “just his personality.” She was not offended by Mr. Rinker’s behavior and, before being questioned with respect to Ms. Price's complaint in this case, never complained about it to him or anyone else in authority at the school. She acknowledged hearing Mr. Rinker make the “good lovin” comment, but found it endearing, as opposed to harassing. Ms. Price, however, was deeply offended by what she viewed as Mr. Rinker’s behavior toward Ms. Picano. The things with which she took offense did not stop with Mr. Rinker’s jokes or the attention she perceived that he gave to Ms. Picano. She did not think that Mr. Rinker or Mr. Hall did an adequate job of teaching, and was upset that Mr. Hall’s students were allowed, on occasion, to come to Mr. Rinker’s classroom to finish assignments because they were disruptive. She did not appreciate the way Mr. Peacock, the assistant principal, performed his job and believed there was an unwritten code where coaches and athletes did not have to follow the same rules as others on campus. Perhaps most of all, she was offended because students in Mr. Rinker’s classroom talked about sex too much and she did not believe that he did enough to stop it. In her view, this was exacerbated when Mr. Hall’s students were allowed to come over and finish work. Further, she believed that the students were using the computers in the classroom to access inappropriate videos and music that were offensive. Computers were in the classroom for students to complete assignments and to do research for school projects. When they were finished with their work, students sometimes played games on the computers and checked sports sites. Sites such as “myspace,” however, were blocked in accordance with school policy. While Ms. Price claimed the students were using the computers for inappropriate purposes, she admitted that she could not see what was on the computer screens from where she sat in the classroom. The testimony of the students did not corroborate her claim. All stated computers were used for school work and when school work was finished, to play games as stated above. Only one student indicated that he watched music videos. All the others denied doing so. There is no question that the students in Mr. Rinker’s class sometimes talked about sex and used profanity in the classroom.2/ One of the classes was a health class. The students were teenagers, many of whom had significant emotional problems with little or no support at home. Some of their individual education plans addressed the problem of too much use of profanity, with a goal of reducing its use in the classroom setting. Staff who testified all stated that trying to eliminate the use of profanity entirely was probably not a realistic goal, but modifying behavior to reduce it was. Their testimony is credited. Ms. Price was not the only one who complained about students talking about sex in the classroom. Barbara Ryan was another parapro who sometimes worked in Mr. Rinker’s classroom. She agreed that the students sometimes talked about sex and remembered a particular incident where she thought the discussion was particularly explicit and she said something to Mr. Rinker. He told the students involved to “knock it off.” In December 2006, an anonymous call came in to Ms. Myra Middleton at the District office complaining about inappropriate language used by students in the 300 building. Ms. Middleton referred the person to Mr. Peacock in accordance with School District policy. She spoke to Mr. Peacock, who said he would take care of it. After the phone call, Mr. Peacock went to each of the classrooms in the 300 building and spoke to the students about the inappropriateness of using profanity and talking about sex in the classroom. There was no evidence, however, that the anonymous call was placed because of conduct occurring in Mr. Rinker's classroom. The talk by students did not necessarily stop after Mr. Peacock spoke to the students. However, the more credible evidence is that these conversations did not involve the entire class, but rather small groups of students. Several students testified they never heard talk about sex in the classroom. The conversations that did occur took place while other conversations were also taking place. When Mr. Rinker heard the conversations, he told students to stop. There is no credible evidence that Mr. Rinker heard each conversation that Ms. Price heard or that he deliberately chose not to address the students’ behavior. Nor is there any evidence that the students’ discussions regarding sex were in any way directed toward her. Mr. Rinker was not particularly computer literate. As a consequence, Ms. Price entered all of the students' grades in the computer. She had access to Mr. Rinker’s password and would print out his e-mail. In early March, 2007, Mr. Rinker received an e-mail from Mr. Peacock’s secretary directing that he see Mr. Peacock regarding his evaluation. Ms. Price did not believe that Mr. Peacock intended to complete the required observation for Mr. Rinker's evaluation, and this offended her. Ms. Price answered the e-mail as if she were Mr. Rinker, noting that no observation had yet taken place. This conduct violated the written standards applicable to parapros. Mr. Peacock discovered that Ms. Price, and not Mr. Rinker, had responded to his secretary's e-mail. On March 9, 2007, Mr. Peacock called Ms. Price into his office and told her that it was improper for her to send e-mails under Mr. Rinker’s name. During the meeting, Ms. Price explained that she was inputting grades, attendance and all other computer data. Mr. Peacock advised that additional training would be made available for Mr. Rinker, but that she was not to perform his duties. Ms. Price was under the impression that she was receiving a reprimand. She also felt that Mr. Rinker, who was also counseled by Mr. Peacock, did not defend her as vigorously as he should, and that he was the one who should be in trouble. In fact, Mr. Rinker told Mr. Peacock that Ms. Price had his permission to use his password for the computer and that she was very helpful. Ms. Price’s reaction to this incident was well out of proportion to the incident itself. Moreover, she did not appear to recognize that what she did in signing Mr. Rinker’s name to the e-mail was wrong. She was crying, both after the meeting and into the next week. The meeting with Mr. Peacock took place on a Friday. On Monday, Ms. Price was on a previously-scheduled day off. On Tuesday, she was still upset to the point of tears, and went to see Sue Marier, the ESE Department head. Although she was told repeatedly, both by Ms. Marier and by Mr. Peacock, that she was not being formally reprimanded for the incident, she continued to believe she was being treated unfairly. She told Mr. Rinker, Ms. Marier and Mr. Peacock that if she was going down, then so was Mr. Rinker. The following day, March 14, 2007, Ms. Price went to the principal, Nancy Willis, and complained that Mr. Rinker had been sexually harassing her since the beginning of her employment. Ms. Willis advised Ms. Price to put her complaint in writing, which she did. The complaint was forwarded immediately to the district office for investigation. During the investigation, Mr. Rinker was suspended with pay. Mrs. Willis also asked Ms. Price if she wanted to be moved to a different classroom, and Ms. Price indicated she did not want to be around Mr. Rinker. Mrs. Willis went to Sue Marier, the ESE Department Head, and asked where there was a need for a parapro so that Ms. Price could be transferred. At the time of the request, Ms. Marier did not know that Ms. Price had filed the complaint regarding sexual harassment and thought Ms. Price was still upset over the computer e-mail incident. She told Mrs. Willis that the greatest need was in the class for autistic children, and Ms. Price was transferred to that class. A decision had been made to add more staff, including another teacher, for that area, but positions had not yet been advertised. Parapros do not generally have the right to choose their assignments. They are placed in the classroom with the greatest need. At the time of Ms. Price's transfer, the autistic classroom was the classroom with the greatest need. This transfer did not result in a change in pay or status. There were significantly fewer students in the autistic class than in Mr. Rinker's class, and at least one of the students had a one-on-one aide in the classroom. While there was a slight change in schedule, it was not significant, and she remained a parapro at the same rate of pay. Both Sue Marier and Nancy Willis went by at different times to check on Ms. Price in her new placement. The more credible evidence indicates that Ms. Price did not complain about being in this classroom. The School District has two policies that deal with sexual harassment: Policy number 662, entitled Prohibition of Sexual Harassment - Employees, and Policy number 217, entitled Prohibiting Discrimination, Including Sexual and Other Forms of Harassment. It is unclear why the School District has both at the same time. The definitions regarding sexual harassment in both policies are similar, with Policy number 217 being slightly more detailed. The complaint procedure outlined in Policy number 217 is clearly more detailed, and it cannot be said that it was followed to the letter in this case. However, Policy number 217 was amended after the investigation took place in this case. No testimony was presented to show whether the more detailed procedures presently listed in Policy number 217 were in place at the time of the investigation. Further, the documents related to the investigation reference Policy number 662, as opposed to Policy number 217. It is found that the investigation was conducted in accordance with Policy number 662, and that to do so was appropriate. Ms. Price’s complaint of sexual harassment was investigated by April Dixon and Harriet Holiday. Over the course of the next several days, both Mr. Rinker and Ms. Price were interviewed (separately) as well as several other staff members. Those staff members included Sue Marier, Kathy Picano, Donna Dopp, Stan Hall, Pat Barile (Sue Marier's assistant), Mr. Tietema (another teacher), and Barbara Ryan. The investigation conducted was reasonable, given the allegations by Ms. Price. Ms. Price's written complaint stated that Mr. Rinker made inappropriate sexual comments; that he rubbed up against her on numerous occasions; that Mr. Rinker allowed the students to talk in the classroom using sexually explicit language and had made no effort to stop it; and that he had made inappropriate sexual comments to Ms. Picano. Policy number 662 provides in pertinent part: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: submission to such conduct is made, either explicitly or implicitly, a term or condition of employment (or of an individual's education). submission to or rejection of such conduct is used as the basis for an employment or employment decisions affecting that individual; or such conduct substantially interferes with an employee's work performance, or creates an intimidating, hostile or offensive work environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal harassment or abuse; pressure for sexual activity; repeated remarks to a person with sexual or demeaning implications; unwelcome or inappropriate touching; suggesting or demanding sexual involvement accompanied by implied or explicit threats concerning one's employment. * * * Procedures. -- Any employee who alleges sexual harassment by any staff member must report the incident directly to the building principal or the employee's immediate supervisor. Alternatively, the employee may make the report to the Assistant Superintendent of Instructional Accountability. Filing a complaint or otherwise reporting sexual harassment will not affect the individual's status, future employment or work assignments. The right of confidentiality, both of the complaint and of the accused will be respected, consistent with the Board's legal obligations, and with the necessity to investigate allegations of misconduct and take corrective action when this conduct has occurred. In determining whether alleged conduct constitutes sexual harassment, the totality of circumstances, the nature of the conduct, and the context in which the alleged conduct occurred will be investigated. The Superintendent or designee has the responsibility of investigating and resolving complaints of sexual harassment. A substantiated charge against a Board employee shall subject such employee to disciplinary action, including but not limited to warning, suspension or termination, subject to applicable procedural requirements. After investigation of Ms. Price's complaints, April Dixon discussed her findings with Mr. Delbrugge, the School District Superintendent. She also turned over to him all of the transcripts of taped interviews and her conclusions regarding the investigation. She concluded, and he agreed, that the investigation showed Mr. Rinker told inappropriate jokes in the workplace but that in all other respects Ms. Price's complaints were not substantiated. The investigation also revealed that Ms. Price also used profanity and occasionally told sexually- related jokes in the workplace. The Superintendent decided that the appropriate penalty (in addition to the suspension with pay already imposed) was to reprimand Mr. Rinker with a letter in his file; to require him to receive additional training on sexual harassment; to warn him that further complaints would result in termination; and to place him on probation for the remainder of the school year. This discipline was consistent with the School District's collective bargaining agreement concerning discipline of instructional staff. Mr. Rinker was informed of this result March 19, 2007, and completed the sexual harassment training as required. Ms. Price was notified informally of the results of the investigation that same day. She received official notification by letter dated May 3, 2007. Ms. Price was very dissatisfied with the results of the investigation and the action taken by the School District. She felt that Mr. Rinker should be fired. It is clear, after hearing, that nothing less then Mr. Rinker's termination would appease her. Ms. Price was also unhappy with her new placement. She did not like being in the classroom with the autistic students and felt they were dangerous. She felt that she should have been allowed to remain in her original classroom and Mr. Rinker should have been removed. After less than three weeks, she tendered her resignation. This three-week period included one week off for Spring Break and some personal leave days taken due to Ms. Price's husband having a stroke. Her resignation is dated April 18, 2007, but her last day working in the classroom was approximately April 6, 2007. Ms. Price's resignation was voluntary. While there was some belief that she left because of her husband's stroke, Ms. Price disputes that assertion and insists that it was because of the conditions in the new classroom to which she was assigned. Her resignation letter, however, references neither reason. It states: Dear Ms. Willis: It is with sincere regret that I am writing this letter of resignation as an ESE Para Professional for Flagler Palm Coast High School. Please accept this as such. I do apologize for the short notice. I would also like to take this opportunity to express to you my appreciation of your handling of my complaint. You are the only one who has validated me as a person and as a worthy employee. I only had a brief encounter with you but it was enough for me to know that working directly under you would have been a pleasure as well as a great learning experience as I respect your leadership abilities. I recognize that this is a trying situation for all involved and that you have done your very best to rectify the matter under the circumstances. It is important for me to let you know that whatever happens in the future in regards to my claim, this is no way a reflection on you. I truly hope that you can appreciate my position and the importance of making positive changes for the future. Based upon the evidence presented, it is found that Ms. Price resigned for a variety of reasons, including her husband's stroke and her unhappiness with the new placement. However, her dissatisfaction with the handling of the complaint regarding Mr. Rinker and his continued employment was at least a part of her decision. Ms. Price was not subjected to an adverse employment action as a result of her complaint. To the contrary, school officials transferred her to another classroom at her request. The conditions in the new classroom setting were not onerous.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Human Relations Commission dismissing Petitioner’s complaint in its entirety. DONE AND ENTERED this 8th day of August, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 8th day of August, 2008.
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent, specifically sex discrimination in the form of sexual harassment due to Petitioner's gender in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a Caucasian female, from sometime in December of 2003 until termination of her employment on June 21, 2004. Petitioner worked in Respondent’s warehouse facility from December, 2003 until sometime in February, 2004, when she was transferred to one of Respondent’s retail stores, the Ocala store, where she worked until she was transferred back to the warehouse at the end of May or beginning of June, 2004. Petitioner conceded at hearing that she was terminated after she argued with her supervisor and called her a bitch. Petitioner does not believe that she was terminated on the basis of her sex. During the course of her employment, Petitioner alleges that Respondent’s president, Barry Lay, made inappropriate comments to her of a sexual nature and touched her in an inappropriate way twice. All alleged sexually inappropriate conduct occurred from December of 2003 through February of 2004, during the period of time Petitioner worked in Respondent's warehouse facility. Petitioner testified that Barry Lay engaged in the following inappropriate conduct: At the end of her initial employment interview when she was hired, and out of the presence of other witnesses, Barry Lay allegedly said to her, “If we were to fuck that’s nobody’s business but ours.” In her charge of discrimination, Petitioner alleged that this statement was “said in front of witnesses.” Due to Petitioner's inconsistencies in testifying, her demeanor while testifying and Barry Lay's candid testimony of denial with regard to making such statements to Petitioner at any time, Petitioner's allegation is not credited. Petitioner testified that, right before Christmas of 2003, Barry Lay told her, "if I would let him eat me out just one time I wouldn't think about any other man." (T. 23). Petitioner testified that other witnesses, including her mother, were sitting nearby at a processing table when this comment was made. No witnesses corroborated Petitioner's testimony on this allegation and, coupled with Barry Lay's denial testimony, Petitioner's allegation is not credited. Petitioner testified that Barry Lay grabbed her face and tried to kiss her about the same time as he allegedly made the comment discussed above. Again, Petitioner alleges that witnesses were present, but all witnesses testifying in the matter, including Barry Lay, denied that such an incident occurred. Petitioner's testimony on this point is not credited. Petitioner also testified that Barry Lay grabbed her hips and tried to pull her from behind when she was bent over at a refrigerator. The allegation was denied by Lay and no corroborating testimony was presented. Petitioner's allegation is not credited. On one occasion, Barry Lay overheard conversation between Petitioner and her mother regarding their breast size and that they could form the “little titty committee.” Lay commented to the duo that both of them could be president of the committee. Barry Lay never attempted to initiate a romantic relationship with Petitioner and never threatened her with job transfer or termination if she failed to provide sexual favors. On one occasion during the course of Petitioner's employment, when employees were discussing a rumor that Barry Lay was having an affair with several people at one time, he overheard the discussion, became irritated, and addressed the employees as a group saying, “It doesn’t matter if I’m fucking you, you, you, or you, it’s none of your business.” Petitioner was transferred to the Ocala Store during the course of her employment to assist her in getting her children to day care on time. Additionally, the store hours were more suitable to her schedule at the time. Petitioner made sexual remarks, participated in discussions of a sexual nature, or participated in sexual horseplay in the workplace during the course of her employment with Respondent. Petitioner was heard and observed to smack or slap Barry Lay’s bottom and say, “I want a piece of that.” Barry Lay did not do anything to provoke Petitioner’s conduct, but responded by saying, “if you did, you’d never go back to your boyfriend.” While at work Petitioner discussed having oral sex with her boyfriend and the length and frequency of those encounters. During Petitioner's assignment to the Ocala store, she developed problems with absenteeism from the job. She quit calling in when she unable to work and demonstrated a poor attitude when she was at work. As a consequence, Petitioner was transferred back to Respondent's warehouse, where any absenteeism by the Petitioner would result in less of a hardship to operations. The transfer occurred at the end of May or beginning of June, 2004. After Petitioner was transferred back to the warehouse, she continued to exhibit a poor attitude and unacceptable conduct while at work. In June of 2004, just before she was terminated, Petitioner screamed at her supervisor that she was not going to perform a requested task due to medical restrictions. The supervisor informed Petitioner that she was not being asked to perform the task by herself, but simply to assist. Petitioner began using abusive language to the supervisor, calling her a “bitch.” Petitioner was asked to leave, but replied that she would not unless and until the supervisor “fucking” fired her. Petitioner pushed the supervisor and call her a “fucking whore” and “bitch.” Eventually, after using further epithets, Petitioner left the premises. Barry Lay did not witness the argument between Petitioner and the supervisor, but when he was later informed he instructed the supervisor to tell Petitioner that her employment was being terminated. The decision to terminate Petitioner’s employment was communicated to her the next day. Petitioner's stated response to the supervisor, before walking away, was “get fucked.”
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 ENTERED this 4th day of October 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 4th day of October, 2005. COPIES FURNISHED: Kenneth M. Hesser, Esquire Seven East Silver Springs Boulevard Suite 300 Ocala, Florida 34470 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod Pope and Weaver, P.A. Post Office Box 550770 Jacksonville, Florida 32255-0770 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Fort Myers Broadcasting Company (FMBC or Respondent) committed an unlawful employment practice against Jaziah Rivera (Ms. Rivera or Petitioner) on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact FMBC operates in an office building located at 2824 Palm Beach Boulevard, Fort Myers, Florida. For at least 20 years prior to September 2018, FMBC outsourced its cleaning needs. In or around August 2018, a management team at FMBC met to discuss its custodial services. The team included Joseph Schwartzel, Jim Schwartzel, Mark Gilson (Mr. Gilson), and Mr. Mayne. Joseph Schwartzel is the general manager of FMBC, and has served in that role for approximately 25 years. Jim Schwartzel, Mr. Gilson, and Mr. Mayne are all senior managers who report directly to Joseph Schwartzel. After the discussion, the management team decided to terminate FMBC’s contract for outside custodial services and hire an in-house custodian. General Manager Joseph Schwartzel was the final decision maker on this matter. In September 2018, FMBC hired Ms. Rivera as a full-time custodial worker. Ms. Rivera was the first in-house custodian hired by FMBC in its history. Her job duties included generalized cleaning like sweeping, mopping, taking out the trash, dusting, restocking supplies in the bathrooms, and vacuuming. Ms. Rivera reported directly to Mr. Mayne, who served as FMBC’s Chief Engineer. During Ms. Rivera’s entire time at FMBC, Mr. Mayne was her direct supervisor. Ms. Rivera’s weekly scheduled hours were Monday through Friday, 9:00 a.m. to 6:00 p.m. She sometimes altered those hours and worked from 10:00 a.m. to 7:00 p.m. Ms. Rivera testified that she would sometimes work “after hours or on the weekend” if she had to make up missed time. FMBC received complaints from employees that some areas at FMBC were not being stocked/cleaned properly or in a timely fashion. Mr. Mayne spoke to Ms. Rivera about the complaints. Ms. Rivera complained to Mr. Mayne that the amount of cleaning she was required to complete was too much for one person and that she needed assistance. In or around December 2018, FMBC hired an in-house, part-time custodial worker to assist Ms. Rivera with the cleaning duties. The part-time custodian was quickly relieved of her duties, because she proved to be unreliable. In April 2019, Ms. Rivera complained that she was experiencing back pain and was unable to take out the trash. She provided FMBC with a doctor’s note which stated that she was not allowed to lift items that weighed more than 15 pounds. FMBC proposed several accommodations to assist Ms. Rivera in taking out the trash, including providing a rolling bin to push the trash to the dumpster. On several occasions, Mr. Mayne also provided two to three non- custodial employees, from the engineering department, to assist Ms. Rivera with taking out the trash. In April 2019, FMBC hired another part-time employee, Imari Porter (Ms. Porter), to help Ms. Rivera with the cleaning duties. Ms. Porter is Ms. Rivera’s sister. In April 2019, FMBC’s upper management team—Joseph Schwartzel, Jim Schwartzel, Mr. Gilson, and Mr. Mayne—met several times over a two- week period to discuss its custodial needs. The team made the decision to eliminate the full-time and part-time in-house custodian positions and return to outsourcing the custodial services. As the general manager, Joseph Schwartzel was, again, the final decision maker. Joseph Schwartzel testified about the reasoning behind FMBC’s decision to move back to its out-sourced custodial services model. He stated as follows: Well, basically, I think, we discovered that we had made a mistake trying to have an in-house custodial position. We thought it was a good idea to begin with as we could have someone work during the day when most the employees were there and provide cleaning services while people were at the office. And if there were spills or things like that, there would be someone immediately available to try and remedy the situation. So it sounded good. What we didn’t realize is how difficult it would be to cover if someone wasn’t there. If they were out sick, if they were on vacation, things of that nature. In Ms. Rivera’s case, where she had a health issue, all of a sudden we were scrambling, trying to figure out how to get the facility cleaned. And we didn’t have anyone else that could do that on the long- term basis. So it became very problematic. Thus, instead of, you know, having an in-house custodial position, we elected to go back to a third party to do it. On April 22, 2019, FMBC terminated Ms. Porter, less than one month after hiring her. The next day, on April 23, 2019, Mr. Mayne and Karen Seiferth (FMBC’s human resources manager) met with Ms. Rivera. Mr. Mayne terminated Ms. Rivera. FMBC immediately returned to its past arrangement of outsourcing its cleaning needs—on April 23, 2019, the same day Ms. Rivera was terminated, FMBC signed a contract with ABC International Cleaning Service. As of the date of the final hearing, FMBC continued to outsource its cleaning and still contracts with ABC International Cleaning Service. Sexual Harassment Allegations Ms. Rivera testified that Mr. Mayne sexually harassed her during her entire period of employment with FMBC. Ms. Rivera testified that Mr. Mayne subjected her to sexual harassment in the following ways: by staring at Ms. Rivera and looking at her body parts, as if he was “undressing [her] with his eyes”; brushing past her on one occasion, causing his leg to “graze” her buttocks; and making comments about her khaki pants and her buttocks being “big.” Ms. Rivera also testified that Mr. Mayne frequently asked her “to go out for drinks” and that she perceived those invitations as sexual advances. Ms. Rivera testified that she rejected Mr. Mayne’s advances, but did not complain about his behavior to anyone at FMBC. Ms. Rivera alleges that she was terminated for refusing to engage in a sexual relationship with Mr. Mayne. Ms. Rivera claims that after she was fired, Mr. Mayne sent her inappropriate sexual messages, pictures, and a video through social media. It is undisputed that, to the extent this claim is true, it happened well after Ms. Rivera was terminated from FMBC. Ms. Rivera submitted a Technical Assistance Questionnaire (TAQ), dated April 9, 2020, to FCHR, which initiated an investigation into her complaints against FMBC. In the TAQ, Ms. Rivera set out the events that occurred during her time at FMBC that she believed to be discriminatory. The majority of Ms. Rivera’s complaint was based on what appears to be allegations of disability discrimination. The only mention of sexual harassment was at the conclusion of her statement. Therein, she stated: “Now present day Mike Mayne is harrassing me by pursuing me thru social media planforms, sending inappropriate images (private part) to try to get me to engage is some type of sexual relationship & offering support to me.” (errors in original). Ms. Rivera’s allegations that Mr. Mayne was sexually harassing her through social media were described as occurring “now” in the “present day,” which, at that time, would have been nearly a year after she was terminated from FMBC. Ultimate Findings of Fact Ms. Rivera’s testimony that Mr. Mayne sexually harassed her while she worked at FMBC is not credible. Ms. Rivera failed to prove that Mr. Mayne sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated for not acquiescing to quid pro quo sexual harassment. Accordingly, Ms. Rivera failed to meet her burden of proving that FMBC committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Rivera’s Petition for Relief. DONE AND ENTERED this 10th day of May, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Zandro E. Palma, Esquire Zandro E. Palma, P.A. Suite 1500 9100 South Dadeland Boulevard Miami, Florida 33156 Suzanne M. Boy, Esquire Boy Agnew Potanovic, PLLC 4415 Metro Parkway, Suite 110 Fort Myers, Florida 33916-9408 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
