The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a nursing assistant at the community healthcare facility known as Jackson Hospital in Marianna, Florida, at all times relevant to these proceedings. Petitioner obtained his designation as a Certified Nursing Assistant (CNA) subsequent to his employment by Respondent. Petitioner entered into a conversation with a female co-worker and CNA at Jackson Hospital on or about June 12, 2003. In the course of the conversation, he made an unwelcome sexual request of the co-worker. Petitioner was not on duty at the time and had returned to the hospital for other reasons. Subsequently, on June 12, 2003, the female co-worker filed a complaint with Respondent's human resource office at the hospital alleging unwelcome requests for sexual favors by Petitioner, inclusive of a request that the co-worker engage in sexual relations with Petitioner. In the course of his employment with Respondent, Petitioner was made aware of the strict guidelines and "zero tolerance" policy of Respondent toward sexual harassment. Respondent's policy expressly prohibits sexual advances and requests for sexual favors by employees. Discipline for a violation of this policy ranges from reprimand to discharge from employment of the offending employee. Petitioner has received a copy of the policy previously and he knew that violation of that policy could result in dismissal of an erring employee. Violations of this policy resulted in dismissal of a non- minority employee in the past. Corroboration of Petitioner’s policy violation resulted from interviews with other employees in the course of investigation by the hospital director of human resources. Further, in the course of being interviewed by the director, Petitioner admitted he had propositioned his co-worker for sexual favors. As a result of this policy violation, Respondent terminated Petitioner’s employment on June 16, 2003. At final hearing, Petitioner admitted the violation of Respondent's policy, but contended that termination of employment had not been effected for white employees for similar offenses in the past. This allegation was specifically rebutted through testimony of Respondent's hospital human resources director that a white male employee had been previously discharged for the same offense. Accordingly, allegations of Petitioner of dissimilar treatment of employees on a racial basis for violation of Respondent's policy are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ORDERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2005. COPIES FURNISHED: James M. Bowles 4193 Evelyn Street Marianna, Florida 32446 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
Findings Of Fact On or about March 8, 1988, Petitioner filed a charge of discrimination based upon sexual harassment with the City of Clearwater, Office of Community Relations, involving Respondent. Petitioner had been employed at Respondent from approximately April, 1987 until she resigned in November, 1987. This case was duly noticed for hearing on August 24, 1988, by Notice of Hearing dated June 6, 1988. Petitioner received this Notice of Hearing, and did appear at the hearing. Petitioner testified, under oath, at the hearing that she did not want to pursue her claim of sexual harassment, and would offer no evidence in support of her claim. In fact, she did not offer any evidence in support of her claim.
Recommendation Based upon the foregoing, it is recommended that Petitioner's claim of discrimination based upon sexual harassment against Respondent be DISMISSED. DONE AND ENTERED this 6th day of September, 1988 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1988. COPIES FURNISHED: Elizabeth Moore 1411 Illinois Avenue Palm Harbor, Florida 34663 Scott McGregor, Owner Heavenly Bodies II 3323 U.S. 19 North Clearwater, Florida 34619 Ronald M. McElrath Office of Community Relations Post Office Box 4748 Clearwater, Florida 34618 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618
The Issue Whether transsexualism is a disability that is protected by the Florida Civil Rights Act of 1992 (FCRA), Chapter 760, Florida Statutes. Whether an allegation of discrimination based on transsexualism is sex discrimination, pursuant to the FCRA.
Findings Of Fact Respondent is an employer as defined by the FCRA. Petitioner, Connie Fishbaugh, is a transsexual woman who has been diagnosed with Gender Identity Disorder (GID), also known as transsexualism. Transsexualism is a recognized mental health disorder that causes a desire to live and be accepted as a member of the opposite sex. It is usually accompanied by the wish for one's body to be congruent with the preferred sex. When left untreated, persons diagnosed with transsexualism display symptoms of severe anxiety, severe depression, and dysfunction. GID is recognized as a medical condition in the Diagnostic and Statistical Manual of Mental Disabilities (4th ed.) and the International Classification of Disease (World Health Organization 10th ed.). Gender identity, which is established at an early age, is an individual's internal psychological identification as male or female. A transsexual person is someone whose gender identity is in conflict with the person's anatomical sex at birth. This conflict creates emotional pain and suffering. A person's gender identity cannot be changed through psychotherapy or through any other known treatment. Based on contemporary medical knowledge and practice, sex-reassignment is the only effective, medically prescribed treatment for this condition. The medical process of sex reassignment takes place over several years and requires life-long medical treatment and monitoring. Sex reassignment relieves the distress caused by GID for the great majority of transsexual people. Nonetheless, sex reassignment is not a cure. A person who undergoes sex- reassignment continues to carry a diagnosis and requires lifelong medical monitoring and treatment. Prior to undergoing sex-reassignment, Petitioner experienced sever anxiety, depression, and distress based on her lifelong gender dysphoria. As the years progressed, Petitioner's depression, anxiety, and distress about her gender dysphoria became more acute. Although, during this period, Petitioner fathered three children. Petitioner took part in the Harry Benjamin Standards of Care, the accepted medical protocol for the diagnosis and treatment of transsexual persons. As part of this protocol, Petitioner's treatment included: psychological evaluations, during which time she was diagnosed with GID; completion of the "real life experience," which required her to live full-time as a female; administration of hormone therapy to create desired secondary sex characteristics; and sex-reassignment surgery. Petitioner completed sex-reassignment surgery in July 1995. Sex-reassignment surgery is an accepted treatment for transsexualism. Petitioner completed psychiatric and psychological treatment following surgery. She has been undergoing hormone therapy as part of her treatment regime since approximately 1992. Although Petitioner completed sex-reassignment surgery and is now considered medically female, she must continue to undergo hormone treatments and medical monitoring for the rest of her life. Also as a result of the irreversible medical treatment she received, Petitioner is unable to bear or produce children. Several years after completing sex-reassignment, Petitioner applied for a position with the Brevard County Sheriff's Office in the spring of 2001. Petitioner notified the Sheriff's Office of her transgender status before she applied for the position. Petitioner successfully completed Respondent's required pre-employment medical and psychological testing prior to her hire. She did not have any restrictions or request any accommodations on her ability to perform the essential functions of her position. She was hired as a deputy sheriff in May 2001 and was terminated on January 27, 2002. On July 5, 2002, Petitioner filed a Charge of Discrimination with the FCHR alleging employment discrimination under the applicable state and federal law. Following the Determination: No Jurisdiction, Petitioner is pursuing her disability claim only under state law and her sex discrimination claim under both state and federal law. In her Charge of Discrimination, Petitioner alleges that she was harassed based on her transsexuality. When she reported this harassment, Petitioner alleges that Respondent did not take steps to respond to the harassment. Rather, the Inspector stated that she "should have known that it would be hard" and that "because of [her] situation, no one wanted to hire [her]." It is alleged that no steps were ever taken by Respondent to respond to the complaints of harassment. Eventually, Petitioner was terminated based on allegations of insubordination. On February 21, 2003, FCHR issued a determination letter stating that it lacked jurisdiction to consider Petitioner's claims of discrimination on the basis of handicap or on the basis of sex.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination with prejudice because there is no basis to conclude that transsexualism is included in the class of persons protected by the FCRA, under either handicap or sex discrimination. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2003. COPIES FURNISHED: Linda G. Bond, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Tallahassee, Florida 32308 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Karen M. Doering, Esquire National Center for Lesbian Rights 3708 West Swann Avenue Tampa, Florida 33609-4452 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue 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 issues to be resolved in this proceeding concern whether the Petitioner was subjected to sexual harassment in the form of a sexually hostile work environment and was retaliated against for complaining about the alleged harassment in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, James E. Gonzales, is a male person who was hired by the Respondent, Pepsi Bottling Group, on March 13, 1995. He was hired as a route sales trainee in the Central Florida marketing unit of that employer. The Pepsi Bottling Group (Pepsi) is responsible for the manufacture sale and delivery of Pepsi products to its vendors. Over the last three years the Central Florida unit has been the foremost marketing unit in the United States. The management of the Central Florida Marketing Unit has been rated by its employees as being the top management team in the country for Pepsi. The Petitioner applied for a Pre-sale Customer Representative (CR) position on March 27, 2003. On April 21, 2003, the Petitioner was assigned to a Pre-Sell (CR) position. As a Pre-Sell CR, the Petitioner was responsible for serving his own accounts; creating and maintaining good will with all customers; ordering customer's products in advance; and developing all assigned accounts relative to sales volume, market share, product distribution, space allocation and customer service. He was responsible for solicitation of new business; selling and executing promotions; soliciting placement of equipment; selling sufficient inventory; and utilizing point of purchase materials to stimulate sales. He was also charged with maintaining "shelf facings" cleaning and shelving and rotating product and merchandising product sections and building displays to stimulate sales. Additionally, he was required to complete and submit all related paperwork regarding sales and promotional operations in an accurate and timely manner. The Petitioner's direct supervisor initially was David Lopez. He was replaced by Wanzell Underwood in approximately August 2003. On December 5, 2002, the Petitioner received the Respondent's employee handbook. The handbook contains the Respondent's Equal Employment Opportunity Policy and Sexual Harassment Policy. The Equal Employment Opportunity Policy prohibits discrimination on the basis of race, color, religion, gender, age, disability, etc. including sexual orientation. It encourages employees to immediately report any complaint, without fear of retaliation, to the Human Resources Manager or Human Resources Director. The Respondent's policy has a zero tolerance for retaliation and forbids any retaliatory action to be taken against an individual who in good faith reports a perceived violation of that policy. Employees who feel they have been retaliated against are required to report such retaliation to the Human Resources Manager or Director. The sexual harassment policy of the Respondent prohibits all forms of harassment and clearly sets out complaint procedures for employees to follow in the event they have experienced harassment. They are directed to report any complaint immediately to the Human Resources Manager or Director. Throughout his employment the Respondent received numerous customer complaints regarding the Petitioner's poor performance. The Petitioner received five disciplinary actions against him from the period 2003 through 2005. These "write- ups" were for failing to service customers according to the Respondent's standards and were dated August 2003, April 2004, September 2004, October 2004, and May 2005. On August 1, 2003, the Petitioner received a documented verbal warning after the Respondent received a complaint from a customer regarding the amount of out-of-date product in his store and the poor level of service he was receiving from the Petitioner. On April 9, 2004, the Petitioner received a documented verbal warning for his failure to prepare his three Circle K stores for a "customer tour," although he had assured his direct supervisor, Mr. Underwood, and the Key Account Manager, Eric Matson, that the store would be ready. The Petitioner's failure to prepare his Circle K stores for the customer's tour embarrassed both his supervisor and the Key Account Manager. On June 23, 2004, the assistant manager at ABC Liquor, a store Gonzales was responsible for, sent an e-mail to Eric Matson complaining about the lack of service provided by Gonzales and requested a new CR to service his store. The customer stated that Gonzales had given nothing but "crappy" service, bad attitude, and sometimes no service. On September 21, 2004, Eric Matson received an e-mail regarding the Petitioner's failure to order product for the Mt. Dora Sunoco store. The Petitioner's supervisor, Wanzell Underwood, visited the Mt. Dora Sunoco store and confirmed the manager's complaints. The Petitioner received a written warning for not properly servicing the Mt. Dora Sunoco store. In the Petitioner's contemporaneous written comments in opposition to the written warning he failed to note that the manager of the Mt. Dora Sunoco was purportedly sexually harassing him. On October 11, 2004, the Petitioner received a final written warning and one-day suspension after his direct supervisor re-visited the same Mt. Dora Sunoco store that complained previously. The Petitioner was warned that a similar problem in the future would lead to his termination. Again, in the Petitioner's written comments in opposition to his written warning, he made no mention that the manager of the Mt. Dora Sunoco store was sexually harassing him. On October 11, 2004, after the Petitioner was suspended for one day, he requested that the Human Resources Manager, Christopher Buhl, hold a meeting. During the meeting he complained for the first time to the Unit Sales Manager, Howard Corbett, the Sales Operations Manager, Tom Hopkins, and Mr. Buhl, that three years previously, in 2001, one person had told the Petitioner that everyone thought he was "gay" (meaning co-employees). One person asked him if he was gay, according to the Petitioner's story, and one person said, "We all know you're gay," before he became a Pre-Sell CR. The Petitioner, however, refused to cooperate with Mr. Buhl in obtaining information regarding his complaints. At no time during the meeting did the Petitioner complain about being sexually harassed by the manager of the Mt. Dora Sunoco store. During the October 11, 2004, meeting the Petitioner claimed his supervisor, Wanzell Underwood, threatened him. However, the Petitioner conceded during the meeting that the alleged statement made by Mr. Underwood was made to a group of Customer Representatives, to the effect that he would "kill you guys if you do not make the sales numbers." Mr. Underwood denied ever threatening to kill the Petitioner. During the meeting the Petitioner also complained that his route was too large and he requested that it be reduced. At no time during that October 11, 2004, meeting did the Petitioner complain that he was sexually harassed by Alice Marsh, the Mt. Dora Sunoco manager. His extensive notes and comments on his Disciplinary Action Reports did not document any such complaint. In November 2004, the Petitioner was asked to go to K- Mart and place an order, but the Petitioner failed to follow instructions and visit the store. Instead, the Petitioner placed the order over the phone. The manager of the store called the Respondent three times to complain about the poor service provided by Mr. Gonzales. Each year the Respondent changes its delivery routes. During the end of 2004 or the beginning of 2005, the Respondent re-routed all of its Pre-sell CR routes. The Respondent reduced the Petitioner's route as he had requested and in conformity with its route standards. Despite the Petitioner's allegation to the contrary, in fact the Petitioner's route was not reduced by as much as 50 percent. In May 2005, Key Account Manager, Mike Lewis, visited the Petitioner's K-Mart store to conduct a "Look at the Leader" audit. The Petitioner had been trained and was responsible for preparing the K-Mart for the audit. When Mr. Lewis arrived at the store, the store did not meet the Respondent's standards. Additionally, required product was missing from the displays. Mr. Lewis called Howard Corbett to inform him of the problems. Mr. Corbett called the Petitioner to ask about the missing product. The Petitioner assured him that the product was in the store and on display. The missing product was not displayed, however, and was later found in the back room of the K-Mart store. On May 18, 2005, the Respondent received another e- mail from Charles Pippen, District Manager for Sunoco, complaining of the Petitioner's poor service at the Mt. Dora Sunoco store. He claimed that the Petitioner did not reply to phone calls and rarely ordered enough product. On May 19, 2005, the Territory Sales Manager, John York, followed up on that complaint by visiting the Mt. Dora Sunoco store and meeting with the Manager, Alice Marsh. Mr. York was substituting for Mr. Underwood who was out on medical leave. During the meeting, Ms. Marsh complained that the Petitioner did not order the quantity of product she requested, failed to provide adequate signage, and refused to place product where she requested. While at the Mt. Dora Sunoco store, Mr. York observed the problems about which Ms. Marsh had complained. After meeting Ms. Marsh, Mr. York spoke with the Petitioner to inform him of Ms. Marsh's complaints. During his conversation with Mr. York, the Petitioner admitted to failing to service the account by not placing the product by the gas pumps as requested, not ordering the amount of product requested, and not hanging certain signs. Later in this conversation with Mr. York, the Petitioner informed Mr. York that he believed that the Sunoco Manager's reason for complaining about his service was that he had refused her sexual advances. The Petitioner did not tell Mr. York what the alleged advances consisted of or when they might have occurred. Mr. York, however, in fact was never the Petitioner's supervisor. The Petitioner was responsible for two CVS stores in Mt. Dora. On Friday, May 20, 2005, the Petitioner made an unusual request of his temporary Manager, Dan Manor, for a Saturday delivery to his CVS stores. The Respondent does not normally schedule Saturday deliveries for such "small format" stores like CVS. When Mr. Manor approved the Saturday delivery, he specifically instructed the Petitioner that must meet the bulk delivery driver at the stores to "merchandise" the product, because bulk delivery drivers do not merchandise the product delivered and Mr. Manor did not have a merchandiser assigned to the Mt. Dora stores. The Petitioner agreed to meet the bulk delivery driver at the CVS stores on Saturday. The Petitioner did not advise his supervisor that he had made arrangements with the CVS store manager or a merchandiser regarding alternate arrangements for the Saturday delivery. The supervisor would have expected the Petitioner to do so. On Saturday, May 21, 2005, the Petitioner failed to meet the bulk driver to assist in merchandising the orders at the two CVS stores as instructed. The customer refused to take delivery of the product until a merchandiser was present to merchandise the product. Mr. Manor was unable to reach the Petitioner by telephone because the Petitioner was at Sea World with his family. Mr. Manor had to send a merchandiser from Longwood in order to merchandise the product that the Petitioner had ordered for the CVS stores. On May 23, 2005, the Petitioner failed to attend a weekly mandatory 5:00 a.m. meeting. He did not call his supervisor advising of his unavailability. The Petitioner did call Mr. Manor at about 6:15 a.m. and told him that he had overslept. When Mr. Manor questioned the Petitioner about why he did not meet the bulk driver on Saturday, he said that "he did not get a chance to make it out on Saturday." On May 23, 2005, Mr. Corbett decided to terminate the Petitioner based on his very poor performance. That decision to terminate him was approved by the Respondent's Human Resources Department. On May 26, 2005, the Respondent terminated the Petitioner for failing to service the CVS stores at a critical time, for the services issues at the Sunoco and the K-Mart, and for failing to attend the Monday morning meeting. At the time of his termination the Petitioner was on a final warning and had been advised that he could be terminated. The Petitioner never alleged during his termination meeting that he was being sexually harassed. Howard Corbett provided the Petitioner with documents to file an internal appeal on the day he was terminated. The Petitioner, however, did not appeal his termination as permitted by the Respondent's policy. The Petitioner claims he was the victim of sexual harassment by being subjected to (1) homosexual related comments made in 2001, and (2) alleged sexual overtures by the Sunoco Manager, Alice Marsh, in 2003. According to Ms. Marsh, she was never interested in the Petitioner sexually. She did not socialize with the Petitioner, and did not want a relationship with him. She did not touch him and did not state that she wanted the Petitioner fired. She also testified that she never stated that she wanted a sexual relationship with the Petitioner. The Petitioner's allegations regarding sexual harassment by Ms. Marsh related the following behaviors: She touched his back and arm; She was too close to him when he was around; She was nice to him until informed that he was married; She suggested sexual interest by her body language and eyes; and She wore provocative clothing. David Lopez supervised the Petitioner for approximately two years in the 2001 to 2003 time period. During this time period the Petitioner never complained to Mr. Lopez that he had been sexually harassed. Mr. Lopez did not witness the Petitioner being harassed while working with the Respondent either. Wanzell Underwood supervised the Petitioner for approximately two years in the 2003 to 2005 time period. During this time, the Petitioner never complained to Mr. Underwood that he had been sexually harassed. Mr. Underwood did not witness the Petitioner being harassed while he worked for the Respondent. The Petitioner never made a compliant regarding the alleged sexual harassment by the Sunoco Manager, Alice Marsh, to the Human Resources Department, in accordance with the Respondent's policy. He did not explain the nature of any sexual harassment, even when he finally claimed that he was being harassed. The Respondent would have terminated the Petitioner for his poor performance regardless of whether he engaged in the purported protected activity by complaining of sexual harassment. The Petitioner alleges he was terminated for reasons other than complaining about sexual harassment, including his alleged knowledge of theft in Lake County. In any event, on July 15, 2005, the Petitioner filed the Charge of Discrimination with the Commission and the resulting dispute and formal proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James E. Gonzales 26437 Troon Avenue Sorrento, Florida 32757 Nicole Alexandra Sbert, Esquire Jackson Lewis LLP 390 North Orange Avenue Orlando, Florida 32802
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her sex and by retaliating against her.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). As a Florida non-profit corporation, all of Respondent's activities are governed by its bylaws. Petitioner, a white female, has worked for Respondent off and on during the last five years. Most recently, Petitioner began working for Respondent on January 18, 2008, as a part-time food preparation (prep) worker and a part-time waitress in Respondent's restaurant. Petitioner accepted the job because she had recently left a full-time position with another employer due to the distance of that job from her house. As a prep worker, Petitioner earned a set hourly wage. Petitioner's responsibilities included assisting the chef in preparing meals and cleaning up the kitchen. The chef, Tony Mongone, directed Petitioner's kitchen work but he was not her supervisor. As a waitress, Petitioner earned $3.35 per hour plus tips. On Tuesdays and Fridays, Petitioner earned an average of $100 in tips per shift. Petitioner worked between five and six hours on Tuesday evenings and between five and eight hours on Friday evenings when Respondent served sit-down dinners to its members. On these occasions, Respondent's kitchen served an average of 200 dinners in a two-hour period of time. Petitioner also worked when Respondent catered for banquets and other special occasions. Petitioner worked a total of 41.66 hours in January 2008; 81.5 hours in February 2008; 45.13 hours in March 2008; and 71.17 hours in April 2008. She worked 10.32 hours for the first week in May 2008. Over the course of her 15.4 week term of employment, Petitioner averaged 16.23 hours per week. Although it varied according to the event, there were five to eight other servers or waitresses (all females) working along with Petitioner on any given night. There always were eight-to-10 workers in and around the kitchen, including the servers, the chef, one pizza maker, and the kitchen prep person. At all times relevant here, Linda Ferguson was the club manager and Petitioner's direct supervisor. Ms. Ferguson was responsible for day-to-day management of all club activities with the authority to enforce all club policies. Ms. Ferguson also was in charge of all aspects of hiring and terminating employees and managing volunteer personnel. Ms. Ferguson was in the restaurant on most Friday evenings. When Ms. Ferguson was not scheduled to work, the assistant manager, Carolyn Weeks, was on duty. On Petitioner’s first night as the kitchen prep worker, Chef Mongone was drinking from a pitcher of beer. Early in the evening, Chef Mongone made comments about her breasts, telling her they were nice and asking whether they were real. Later that evening, when the staff was cleaning the kitchen, Chef Mongone walked up behind Petitioner and touched her backside. Petitioner immediately turned on Chef Mongone, telling him assertively, "Don't ever do that again! How would you like it if someone did that to your wife?" Chef Mongone just stood there as Petitioner turned and walked away. Petitioner immediately informed Ms. Ferguson about the incident. Ms. Ferguson inquired whether Petitioner wanted her "to take care of it." Petitioner responded that she felt she "had already done so." Ms. Ferguson spoke to Chef Mongone about his drinking on the job and his inappropriate conduct. Chef Mongone responded in an insubordinate way, denying all allegations of improper conduct. Ms. Ferguson also spoke to Mike Mercante, Respondent's President at that time. Ms. Ferguson complained to Mr. Mercante about Chef Mongone's drinking and offensive conduct. In the following weeks, Chef Mongone sometimes raised his voice at Petitioner and she back at him. On days that Petitioner worked as a waitress, Chef Mongone held up Petitioner's food orders, causing delays in service that resulted in reduced tips for Petitioner. The delays in releasing Petitioner's food orders usually occurred after Petitioner and Chef Mongone exchanged angry words. On or about February 11, 2008, Petitioner was working as a waitress. When she placed her first food order, Chef Mongone began yelling at her for not putting her name and table number on the ticket. When Petitioner reached to retrieve the ticket, Chef Mongone told her not to touch it. At that point, Petitioner started yelling at Chef Mongone. Petitioner admits her response was not nice and describes herself as having "lost it." When Petitioner returned to the kitchen to get her next order, she overheard Chef Mongone telling the kitchen staff that she was stupid because she could not remember to put her name on a ticket. Once again Petitioner's temper got the best of her. Petitioner called Chef Mongone a drunk, triggering another argument with Chef Mongone. Despite the hard feelings between Chef Mongone and Petitioner, Chef Mongone made additional inappropriate remarks to Petitioner. On one occasion, Chef Mongone observed Petitioner wiping her hand on the seat of her pants. Chef Mongone then stated that he "would like to do that, too." On or about February 15, 2008, Petitioner was scheduled to work first as a prep worker and later as a waitress. While she was in the kitchen, she shared a bag of Valentine candy with the staff. When only one piece of candy was left, Petitioner asked Chef Mongone if he wanted it. Chef Mongone replied that he did not want the candy. However, when Petitioner put the candy in her mouth, Chef Mongone made some comment about the way Petitioner sucked the candy. Chef Mongone immediately stated that he did not mean for his comment to come out like it did. Nevertheless, Petitioner was offended and responded in a negative way. Sometime after February 15, 2008, Petitioner wrote a letter to the members of Respondent's Executive Board. The letter details Petitioner conflict with Chef Mongone. Petitioner gave the letter to Ms. Ferguson, who gave it to Mr. Mercante. February 15, 2008, was Petitioner's last day as a kitchen prep worker. From that time forward, Ms. Ferguson scheduled Petitioner to work only as a waitress in order to reduce the time Petitioner would have to spend in the kitchen. On February 20, 2008, Respondent's Executive Board had a meeting. At the meeting, the board members discussed Petitioner's letter. Chef Mongone attended the meeting and denied all allegations. At the conclusion of the meeting, the Executive Board directed one of its members to draft a letter of reprimand for Chef Mongone. In an internal memorandum dated February 22, 2008, Respondent's Executive Board advised Chef Mongone that he had been warned about his rule infractions and general behavior for the past recent months. According to the memorandum, Chef Mongone would receive no further warnings and any future infractions of club rules or Florida law would result in disciplinary action up to and including immediate termination of employment. Respondent does not have a written policy prohibiting sexual harassment. It does have a rule against drinking on duty. On or about May 6, 2008, Petitioner once again became upset at work because the kitchen was crowded and Chef Mongone yelled at her. Petitioner called her husband to complain that Chef Mongone had cursed at her, saying, "Bitch, get the f--- out of the kitchen.” Petitioner also alleged that Chef Mongone was holding up her food orders. When Petitioner's husband arrived at the restaurant, he met Petitioner, Chef Mongone, Ms. Weeks (Assistant Manager), and Lou Barletta (Respondent's Vice President) in the restaurant's parking lot. Petitioner's husband told Chef Mongone that Petitioner would show him respect if Chef Mongone demonstrated respect for Petitioner. The discussion in the parking lot was civil and ended with Chef Mongone and Petitioner's husband shaking hands. After the meeting, Chef Mongone made it clear that he could no longer work with Petitioner and that one of them had to go. Petitioner did not want to go back into the kitchen after the meeting. Ms. Weeks suggested that Petitioner go home until everything cooled down. Petitioner agreed and left the premises. Petitioner was scheduled to work the following Saturday. Before Petitioner reported to work, Ms. Ferguson talked to Mr. Mercante. After that conversation, Ms. Ferguson told Petitioner that she should not come back to work until Ms. Ferguson could replace Chef Mongone. Ms. Ferguson was actively looking for a new chef. After locating a replacement for Chef Mongone, Mr. Mercante would not approve the termination of Chef Mongone's employment. At the end of June 2008, Respondent did not renew Ms. Ferguson's contract. Ms. Weeks replaced Ms. Ferguson as Respondent's General Manager. Due to financial difficulties, Respondent did not hire an assistant manager when Ms. Weeks became the General Manager. Respondent also eliminated all table-busing positions, using volunteers to clear the tables. Respondent has not called anyone back to work after laying them off. Like Ms. Ferguson, Ms. Weeks had problems with Chef Mongone. She eventually hired a new chef and fired Chef Mongone due to his alcohol consumption at work. Petitioner initially drew unemployment compensation from Respondent's place of business. Except for a couple of days of work, Petitioner has been unemployed since May 6, 2008. She is still drawing unemployment compensation from her most recent employer. Petitioner acknowledges that the economy is the reason she has been unable to obtain a job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 25th day of June, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2009. COPIES FURNISHED: David Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Mary Nelson Morgan, Esquire Cole, Stone, Stoudemire, and Morgan P.A. 201 North Hogan Street Suite 200 Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race or gender, engaged in sexual harassment, or retaliated against Petitioner in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2006).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a Caucasian female and filed a complaint of race and gender discrimination, sexual harassment, and retaliation with the Commission. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent operates retail grocery stores in several states, including Florida. The evidence, in its entirety, does not establish a prima facie showing of discrimination or retaliation. Nor does the evidence prove that Petitioner was sexually harassed. Finally, there is no evidence that Respondent engaged in an unlawful employment practice within the meaning of Section 760.10. Respondent first employed Petitioner sometime in July 2003 as an "at-will" employee. No written employment contract has ever existed between the parties. Respondent trained and promoted Petitioner to assistant manager of a grocery store. In April 2005, however, Mr. William Reners, Respondent's regional director of operations (RDO), offered Petitioner an opportunity to become the administrative assistant/secretary in Respondent's Regional Office without a decrease in compensation.2 Petitioner accepted the offer. Petitioner continued her employment as an administrative assistant, and she voluntary resigned on February 5, 2007. Petitioner earned positive performance evaluations and regular raises during her employment. Petitioner's claim of disparate treatment relates to Mr. Cornelius Hicks, an African-American male, who was compensated at a higher level than the compensation Petitioner received. However, Respondent employed Mr. Hicks as a store manager, and Mr. Hicks never voluntarily transferred to a position of administrative assistant. Respondent gave Mr. Hicks an extraordinary raise sometime in late 2006 or early 2007. Mr. Hicks' job performance was "tremendous." Respondent intended the raise as recognition of the duties Mr. Hicks performed as a "floater" manager. The job required Mr. Hicks to manage a number of different stores and to commute long distances, on short notice, and to perform the duties of a floater manager for extended periods. Petitioner first learned of the alleged disparate treatment when Petitioner entered Mr. Reners' office without permission while he was on vacation sometime in January 2007. Petitioner learned of the raise when she discovered relevant paperwork in Mr. Reners' office. Disparate treatment is not evidenced by Respondent's refusal to give Petitioner a merit pay increase after Petitioner earned a Master's of Business Administration (MBA) degree. Mr. David Gerdes, Respondent's vice president for Human Resources, told Petitioner at the time that Respondent did not give raises to employees when they earned college degrees that do not improve an employee's ability to do his/her job. The MBA did not improve Petitioner's ability to carry out her clerical duties as an administrative assistant. Petitioner was aware that Respondent maintains a uniform, written non-discrimination policy and a "zero tolerance" sexual harassment policy. Petitioner knew the policies were posted in all stores and included in annual training sessions. Petitioner knew the company had an "open door" policy by which employees who are not satisfied with answers to their inquiries at the local level are encouraged to contact corporate headquarters in Minnesota. Finally, Petitioner knew that Respondent promptly investigates employees' complaints of discrimination, retaliation, and harassment. Mr. Reners is the individual who allegedly discriminated and retaliated against Petitioner. As the RDO, Mr. Reners is responsible for overall management and operation of the 11 grocery stores in Florida. However, Mr. Reners did not have the authority to discharge full-time employees, including Petitioner. The so-called whistle-blower evidence pertains to various memoranda about store conditions that Petitioner wrote during her employment as an administrative assistant. When Petitioner discussed the issue with Mr. Reners in September 2006, Mr. Reners invited Petitioner to send the memoranda to Mr. John Boogren, Corporate Director of Operations. Mr. Boogren is Mr. Reners' supervisor. Petitioner sent the memoranda to Mr. Boogren. The memoranda discussed what Petitioner thought were poor conditions and operating procedures in Respondent's stores. The evidence of sexual harassment involves uncorroborated allegations by Petitioner that Mr. Tom DeGovanni, a co-worker, patted Petitioner on her head and shoulders, or back, on October 6, 2006. Petitioner complained of the incident, but qualified her complaint by saying that "it was no big deal" and by saying that she did not want the company to take any action. Several days after the alleged incident, however, Petitioner delivered a memorandum to Mr. Reners complaining of the alleged conduct. Respondent investigated the claim of sexual harassment by Mr. DeGovanni in accordance with Respondent's long-standing "zero tolerance" sexual harassment policy. The investigation did not substantiate Petitioner's allegations. Mr. DeGovanni adamantly denied touching Petitioner, there were no witnesses to the alleged event, and, even though Petitioner and DeGovanni were in front of a security video camera at the time of the alleged event, the touching was not on the videotape. Respondent reminded Mr. DeGovanni of the company's policy against sexual harassment, gave Mr. DeGovanni a written warning, and transferred him to another store location so Petitioner would not have contact with him. Mr. Reners notified corporate headquarters of the complaint, the investigation results, and the corrective action. Petitioner received a satisfactory performance evaluation, a wage increase, and a bonus in December 2006, after her complaint about DeGovanni. Mr. Reners knew of and approved the evaluation, raise, and bonus and could have stopped them if he had wished to do so. Petitioner resigned her employment as Respondent's administrative assistant/secretary on two occasions prior to February 5, 2007. Although Mr. Reners could have accepted both of the prior resignations, he telephoned Petitioner and persuaded her to resume her employment without penalty. However, Mr. Reners warned Petitioner after the second resignation that, if she resigned again, he would accept the resignation. Mr. Reners was on vacation during the week of January 29, 2007. Petitioner had no communication with Mr. Reners during that week. On Saturday, February 3, 2007, Petitioner prepared a letter of resignation and resigned on February 5, 2007. The psychic that Petitioner consults had previously told Petitioner of an impending job termination. Mr. Reners returned from vacation on Monday, February 5, 2007, and commenced a meeting with two other employees to discuss renovations at Respondent's store in Labelle, Florida. Petitioner thought she should be included in the meeting and knocked on the door to the meeting room. Petitioner mistakenly thought the meeting was a staff meeting that often occurred after Mr. Reners returned from a vacation. Mr. Reners explained to Petitioner that there would be a staff meeting afterwards. Petitioner was upset at not being included in the first meeting and viewed her exclusion from the meeting as the job termination predicted by her psychic. Shortly after the first meeting ended, Petitioner walked up to Mr. Reners, handed her store keys to him, said "You win!" and left the building. Petitioner performed her job duties well. Respondent would not have discharged Petitioner on February 5, 2007. Petitioner voluntarily resigned on that day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 28th day of February, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2008.
The Issue Whether Respondent, Carrabba's Italian Grill, Inc., subjected Petitioners, Jasen Baker and Bernard Southwell, to a hostile work environment and retaliation in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Respondent operates a chain of casual Italian restaurants. Respondent has adopted a policy against discrimination and harassment. In addition to prohibiting harassment, the policy instructs employees whom to contact if they experience harassment. The policy is contained in an employee handbook that is distributed to all employees during the initial orientation process. During orientation, Respondent's manager reviews the employee handbook with the new employee, including the policy on sexual harassment. During the orientation process, Respondent also requires employees to view a video that explains that Respondent will not tolerate harassment. The video familiarizes the employees with the company's expectations regarding the reporting of harassment in the workplace. During the orientation process, the employees are required to sign an acknowledgment on the exterior of their employee folders indicating that they have received and read the policy against harassment. The critical sections of the policy are reprinted on the folders immediately above the signature lines. All of Respondent's restaurants are required to display a poster known as the "Carrabbamico Info" poster in the kitchen area. This poster reprints the harassment policy and provides employees with a list of names to call if they feel that they have been harassed. Respondent has implemented reasonable precautions to prevent harassment from occurring in its restaurants. In the Central Florida market, Respondent's restaurants are overseen by a joint venture partner named Dick Meyer. Meyer is responsible for hiring and firing the managers of the restaurants that he oversees. In March 2000, Lawton DePriest became the managing partner at Respondent's Palm Bay location. DePriest reported to Meyer. DePriest remained in that capacity until September 2003, when he became the managing partner of Respondent's restaurant located in Formosa Gardens. It was DePriest's management style to frequently yell at employees in order to motivate them. It is also possible that he had favorites on the staff of the Palm Bay restaurant. Baker was hired by Respondent's Palm Bay restaurant in January 2002. At the time that Baker began working for Respondent, he attended an orientation session conducted by DePriest. It was DePriest's practice during orientation to discuss harassment issues and instruct employees to come to him directly if they experience any problems with sexual harassment. If for some reason an employee is not comfortable with him, DePriest would encourage the employee to contact any other person listed on the poster. Baker was given a copy of Respondent's handbook, which contains the company's policy against harassment. On that same date, January 19, 2002, Baker signed his employee folder on the blank line under the harassment policy indicating that he had read and received the policy. Whether he reviewed the employee handbook further after that date is irrelevant. Baker "vividly remembers" that during his orientation, he watched the videotape that included instructions on what he should do if he felt harassed. However, during the hearing, Baker denied ever seeing the Carrabbamico Info poster. However, Baker admitted on cross-examination that during his deposition, he had acknowledged seeing the Carrabbamico Info poster posted in the store. During the deposition, Baker specifically remembered that there were business cards with contact information for Meyer and Cheri Ashe attached to the bottom of the poster. Despite Baker's attempt to deny seeing the poster, his earlier answers in deposition were more credible in view of his specific recollection of the attached business cards and the lack of any persuasive explanation for the discrepancy. After completing his orientation, Baker initially worked as a dishwasher. Later, he was shown how to do food preparation work. Before coming to work for Respondent, Baker had previously worked for a restaurant by the name of Golden Corral. During the time that he worked with Golden Corral, he became acquainted with a co-worker named Bernard Southwell. In the summer of 2002, Petitioners discussed the possibility of Southwell coming to work for Respondent. Baker spoke favorably of the restaurant and recommended that Southwell submit an application. At the time, Baker had worked for Respondent for six or seven months. Baker did not express to Southwell that he had observed or experienced any problems with unwelcome harassment. Southwell submitted an application and was hired by Respondent's Palm Bay restaurant in August 2002 as a dishwasher. At the time he began employment with Respondent, Southwell was living with a friend of his named Joe Corbett. At the time, Baker was living in a one-bedroom apartment with his girlfriend. Several weeks later, Baker's girlfriend decided to move out. According to Petitioners, she suggested to Southwell that he move into Baker's apartment to replace her. Around October 2002, Southwell moved out of the Corbett residence and moved in with Baker. A third employee named Chris Germana also moved into the residence around the same time. Because the apartment only had one bedroom, Germana slept on the couch. Petitioners slept in the bedroom. When employees at the restaurant learned of these arrangements, speculation began about whether the two men were homosexual. According to Petitioners, sometime after Southwell started to room with Baker, co-workers at the restaurant started referring to Petitioners by nicknames. The co-workers referred to Baker as "powder," "crack pipe," and "crack head." Baker knew that "powder" was a reference to a character from the movie "Powder" and that the name had nothing to do with his sexuality. The co-workers also referred to Petitioners as "butt buddies." Southwell testified that a male co-worker, Christopher Bouley, told him, "I know you guys are lovers." Bouley, Arnold Samuel and DePriest all used these nicknames on occasion to refer to both Petitioners, according to Baker. After several months, Southwell eventually went to DePriest and complained about the "powder," "crack pipe," and "butt buddies" nicknames. Southwell told DePriest that the nicknames were funny at first, but that they started getting old. DePriest then told Samuel and Bouley to stop using the nicknames. Thereafter, the use of the nicknames stopped. Southwell claimed that Bouley would gyrate his hips behind other employees as they were bending down. However, Petitioners both admitted that Bouley would do these hip motions to both male and female employees. During the hearing, Petitioners claimed that Bouley subjected them to unwelcome touching. Baker claimed that Bouley had touched his buttocks once. However, Baker acknowledged that when his deposition was taken prior to the final hearing, he did not mention that Bouley touched his buttocks. In fact, when asked during his deposition whether he had been sexually harassed, Baker testified that he had not and that he had only been verbally harassed. Furthermore, Baker made no mention of any physical touching in the Affidavit that he submitted to FCHR at the time he filed his charge of discrimination. Southwell never saw Bouley touch or grab Baker's buttocks. And despite their close relationship, Baker never told Southwell that Bouley had grabbed his buttocks. Accordingly, Baker's allegation that he was touched inappropriately by Bouley or any other of Respondent's employees is not credible. Southwell claimed that Bouley had touched his buttocks on two or three occasions and touched his nipples twice. Southwell also claimed that Bouley had touched his penis on one occasion. According to Southwell, he was bending down to pick up sauté pans when Bouley, who was supposedly standing behind him, reached between Southwell's legs from behind and clutched Southwell's genital area through his trousers. This incident supposedly occurred during the restaurant's hours of operation while customers were in the restaurant. The alleged grabbing supposedly took place in front of a stove that sat in full view of customers seated at the restaurant's bar. Bouley flatly denied ever touching Southwell's genitals or private area. In the Affidavit that Southwell submitted to FCHR at the time he filed his charge of discrimination, Southwell made no mention of Bouley touching Southwell's penis. At the time that he submitted this Affidavit, Southwell was represented by counsel. Southwell did not offer any convincing reason for the omission of any description of his genitals being grabbed. Accordingly, Southwell's allegation that Bouley touched Southwell's genitals is not credible. Although Petitioners testified that they spoke to DePriest on several occasions, they admit that they never spoke to any of the other individuals listed on the harassment poster to complain about sexual harassment. DePriest testified that the only complaint he ever received had to do with the nicknames and that he took prompt action to resolve this problem. Annually, Respondent submits an employee experience survey to its employees that is completed anonymously and forwarded to an outside company for analysis. After the survey is completed, employees participate in a small group feedback session to discuss the results of the survey. On March 11, 2003, DePriest held the feedback session for his store, which was attended by Petitioners. During the session, Southwell commented about the situation with the nicknames. He indicated that the situation was resolved when it was brought to DePriest's attention. This was the sole extent to which either employee complained of unwelcome behavior. Respondent was not on notice of any problems with regard to touching or more serious inappropriate behavior. On March 12, 2003, Petitioners' last day of work, Southwell approached DePriest to complain about scheduling for a special event at the convention center. Southwell stated that he and Baker had signed up to participate in this event. Southwell was scheduled for the event, but Baker was not. DePriest explained that he needed Baker to float, because there were not enough people scheduled to work at the restaurant that night. DePriest later talked to Baker, who indicated that he was not disappointed that he was not participating in the event. That conversation, however, was the last time that DePriest saw Baker. DePriest learned that Petitioners had left before the end of their shift, when the plates in the restaurant were getting low and the sauté pans were getting stacked up. DePriest asked about the whereabouts of Petitioners and learned that they were seen riding their bicycles away from the restaurant. DePriest could not contact them because they did not have a telephone. DePriest eventually terminated their employment for voluntarily walking off the job.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that: Dismisses the Petition for Relief filed by Petitioner, Jasen Baker, in DOAH Case No. 05-0623, FCHR No. 23-03891; and Dismisses the Petition for Relief filed by Petitioner, Bernard Southwell, DOAH Case No. 05-0632, FCHR No. 23-03892. DONE AND ENTERED this 10th day of November, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jason M. Gordon, Esquire Gordon & Cornell 103 North Atlantic Avenue Cocoa Beach, Florida 32931 Kevin D. Johnson, Esquire Thompson, Sizemore & Gonzalez, P.A. 501 East Kennedy Boulevard, Suite 1400 Tampa, Florida 33602 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner based on her sex and/or in retaliation for complaining about sexual harassment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent's business provides consulting and technical-services management on a contract basis. Specifically, the business involves performing environmental consulting, engineering, remediation/construction, and information technology services to both private and public entities throughout the country. Petitioner began working for Respondent in February 1998 as a receptionist and administrative assistant in Respondent's Jacksonville, Florida, office. Her duties included answering the phones, processing mail, filing, creating, and revising reports. Petitioner's job description also included providing administrative support to the engineers, scientists, project managers, and geologists in the office. Initially, Petitioner worked under the direction of Sam Patterson, Respondent's division director. After Mr. Patterson resigned, Sam Pratt became Respondent's manager and Petitioner's supervisor in the Jacksonville office. On or about March 24, 1998, Respondent evaluated Petitioner's work performance. The evaluation indicates that Petitioner was outstanding in the following expected behavior and performance areas: (a) knowledge; (b) initiative/problem solving; and (c) relations with others. Petitioner received an excellent rating in all other performance areas, including the following: (a) communication/marketing ability; (b) quality of work; (c) dependability; and (d) adaptability/professional development. Respondent paid for Petitioner to attend computer courses. Petitioner completed the following courses on the following dates: (a) April 29, 1998, Beginning Power Point; (b) September 19, 1998, Beginning Excel; (c) January 7, 1999, Beginning Word; (d) March 25, 1999, Intermediate Excel; (e) April 9, 1999, Intermediate Word 97; and (f) April 27, 1999, Advanced Excel. Mr. Pratt evaluated Petitioner's job performance on March 11, 1999. He found that Petitioner met the expected behavior and performance requirements in all areas. Mr. Pratt listed her strengths as follows: (a) has good relationship with clients; (b) works long hours to meet deadlines; (c) has excellent knowledge of company resources and corporate information; and (d) has detailed filing system that allows for tracking data. Mr. Pratt listed her weaknesses as follows: (a) has failed to contact office when unavailable to work due to family illness; (b) lacks computer skills necessary for a project assistant; (c) fails to perform a complete review of her own work; and (d) takes constructive criticism too personally. There were no areas in which Petitioner failed or exceeded her job requirements. In July 1999, Gregg Roof became Respondent's manager and Petitioner's supervisor in the Jacksonville office. Mr. Roof experienced problems with Petitioner's job performance, finding that she had difficulty completing simple tasks, such as copying, without making errors. Merve Dale was a geologist who worked for Respondent. Mr. Dale worked part-time in the field and part-time in Respondent's Jacksonville office. Petitioner found Mr. Dale's behavior offensive on several occasions. In June 1999, Mr. Dale told Petitioner that he could not smell the toxic odor in the warehouse but he could smell her perfume, which made him want to jump her. Petitioner ignored Mr. Dale and did not immediately report this statement to Mr. Roof. Mr. Dale sent Petitioner an e-mail from his home on August 19, 1999. The message stated, "I have sent myself a test message and I thought of you, so here is another test to see if my e-mail works from home. Have a wonderful day." Petitioner responded electronically that she had received the message. Petitioner then called Richard May, Respondent's senior regional manager in the Tallahassee, Florida, office. Petitioner told Mr. May that she was not happy about the content of the e-mail message or the fact that it was sent from Mr. Dale's home at 6:00 a.m. She also informed Mr. May about Mr. Dale's prior comment about smelling her perfume. However, Petitioner did not want Mr. May to take any action against Mr. Dale. She specifically stated that she did not want to file a formal complaint pursuant to Respondent's anti-discrimination or anti-harassment policy. She wanted to deal with the situation herself. Later that same day, Mr. Dale called the office from the field to ask Petitioner to have lunch with him. Petitioner declined the offer, stating that she usually worked through the lunch hour. Petitioner did not report this incident to Mr. Roof or Mr. May immediately. In the afternoon, Mr. Dale asked Petitioner what he was going to get in return for giving her charge numbers for her timecard. Petitioner responded that the question was what he would not get, which was a hard time. When Mr. Dale indicated that it was not a fair exchange, Petitioner replied, "That's the way it is." Mr. Dale then gave Petitioner the information she needed for her timecard. Petitioner did not immediately report this incident to Mr. Roof or Mr. May. On August 20, 1999, Mr. Dale was with Petitioner when another geologist asked her if she was wearing a new outfit because she really looked sharp. Petitioner laughed and responded negatively, stating that she was finally losing weight and able to wear some old clothes. At that point, Mr. Dale stated, "I told her she was really looking hot and she better watch out." Mr. Dale then reached out with a roll of drawings, five feet in length, and slapped Petitioner on her backside. Petitioner immediately told Mr. Dale to behave himself. In a letter to Mr. Dale dated August 24, 1999, Petitioner recounted the above-referenced incidents and demanded an apology. The letter specifically informed Mr. Dale that his actions were unwanted and offensive. Petitioner furnished Mr. Roof with a copy of the letter. Mr. Roof and Petitioner also shared her concerns with Mr. May. Mr. Roof subsequently counseled with Mr. Dale and Petitioner. During the meeting with Mr. Roof on August 25, 2000, Petitioner rejected Mr. Dale's apology. Mr. Roof then proceeded to admonish Mr. Dale, warning him that his behavior towards Petitioner was inappropriate. Petitioner did not request Mr. Roof or Mr. May to take any further action against Mr. Dale even though she knew she could have filed a formal complaint pursuant to Respondent's policies and procedures. On February 18, 2000, Petitioner happened to be alone in the office with Mr. Dale. She was helping him label samples for shipment to a laboratory when Mr. Dale handed Petitioner a doctor's business card. Mr. Dale stated that he found the card on the sidewalk in front of the office entrance and wondered if it might belong to Petitioner. Other than giving Petitioner the business card, Mr. Dale did not say or do anything to Petitioner. Petitioner concedes that it was customary for staff to give found items to her as the office receptionist. However, the business card made Petitioner feel uncomfortable because it listed the name of a gynecologist who specialized in reproductive endocrinology, infertility, pelvic reconstructive surgery, and gynecology. Petitioner kept the business card and faxed a copy of it to Mr. May in Tallahassee. When she called Mr. May, he said he would talk to Mr. Dale. Mr. May was extremely supportive of Petitioner and took her complaints regarding the card seriously. Petitioner requested Mr. May to report the incident to Faye Thompson, Respondent's director of Human Resources. This was the first time that Petitioner had made such a request. During the telephone conversation, Mr. May asked Petitioner if she wanted to transfer to the Tallahassee office so that he could protect her. Mr. May and Petitioner had previously discussed such a transfer because some of her duties were regional in nature. Petitioner responded that she would think about it. In an e-mail dated February 22, 2000, Mr. May asked Petitioner to plan a luncheon for Ms. Thompson and other employees who would attend a project manager's seminar at the Jacksonville office. Petitioner responded that she would be happy to prepare the meal and other refreshments for the seminar. On February 23, 2000, in anticipation of the seminar, Petitioner asked Mr. Roof if he was going to have the warehouse cleaned over the weekend. He responded negatively because the staff had already worked long hours. Petitioner then stated that she would work on the weekend to organize the files and certain areas of the warehouse. Mr. Roof again responded negatively, explaining that he did not want to pay overtime. When Petitioner continued to insist on cleaning the office for the dignitaries, she and Mr. Roof had a verbal exchange in front of other staff. Petitioner followed Mr. Roof into his office. She then asked him what she should do with the extra electronic equipment stored in the cubicles. When Mr. Roof told her to throw it in the dumpster, Petitioner refused and began to question him about the company's policy for disposing of excess equipment. Next, Mr. Roof closed his office door and began to explain that he was tired of having to tell Petitioner things multiple times and that he did not want her to clean the office. Although Mr. Roof inappropriately raised his voice in talking to Petitioner, there is no persuasive evidence that he blocked her exit from the office after Petitioner requested him to move. Mr. Roof lost his temper with Petitioner, but he was not retaliating against her because she accused Mr. Dale of sexual harassment. Instead, Mr. Roof was frustrated because Petitioner would not follow his directions. Before the day was over, Mr. Roof and Petitioner had a civil discussion about the incident. Petitioner was upset about Mr. Roof's behavior. She subsequently expressed her feelings to Mr. May in a telephone call. On February 29, 2000, Ms. Thompson was in the Jacksonville office for the project manager's meeting. After the meeting, Ms. Thompson spoke to Petitioner about her sexual discrimination claim. During the conversation, Petitioner gave Ms. Thompson a copy of the August 24, 1999, letter to Mr. Dale and a copy of the business card. On or about March 1, 2000, Mr. May met with Mr. Roof and Petitioner to complete Petitioner's work evaluation. During the meeting, Mr. May counseled Petitioner and Mr. Roof. Mr. Roof again apologized to Petitioner for his losing his temper on February 23, 2000. The written evaluation indicates that Petitioner did not meet her job requirements in the following areas: (a) decision making; (b) reliability; and (c) quality and quantity of work. According to the evaluation, Petitioner met her job requirements in the following areas: (a) knowledge of job; (b) interpersonal and communication skills; and (c) professional development. The only area that Petitioner exceeded job requirements was in safety. The performance evaluation correctly reflected several areas in which Petitioner had a positive influence in the office. Some examples of her contributions include, but are not limited to, the following: (a) Petitioner successfully coordinated health and safety training for Respondent's offices in Florida; (b) Petitioner was an excellent person to represent Respondent when performing telephone reception duties; (c) Petitioner performed successfully as the regional human resources representative; and (d) Petitioner successfully coordinated partner meetings, including making hotel reservations and arranging for meeting rooms. The evaluation also correctly reflected Petitioner's job performance skills that required improvement. These skills included the following: (a) Petitioner had a poor attitude toward her supervisor as indicated by her failure to follow directions and her failure to understand office hierarchy; Petitioner had difficulty prioritizing her work; Petitioner often seemed overwhelmed by a minimal amount of work resulting in a disorganized desk and poorly maintained files; (d) Petitioner spent too much time in personal telephone conversations; (e) Petitioner rarely made an effort to determine when assigned work was due so that it could be completed in a timely fashion; and (f) Petitioner's word processing and spreadsheet manipulation skills were below standards required for a person in her position. Mr. May wanted all administrative personnel to work more as "project assistants," helping the professionals with the administrative tasks of particular projects. Petitioner assured Mr. Roof and Mr. May that she would make an effort to improve her performance. Soon thereafter, Ms. Thompson called to thank Petitioner for the luncheon and snacks during the project manager's meeting. Ms. Thompson also inquired whether Petitioner had thought more about transferring to the Tallahassee office. Petitioner said she would make the move if the company paid her expenses. Some time after the March 2000 evaluation, Petitioner informed Mr. May that she did not believe she could sufficiently demonstrate her skills to receive the promotion and pay raise she wanted while she worked in the Jacksonville office. Mr. May again offered Petitioner an opportunity for a fresh start in the Tallahassee office working directly for him. However, Mr. May cautioned Petitioner that her work performance had to improve if she were going to accept the offer. Mr. May agreed that Respondent would reimburse Petitioner for her relocation expenses. Petitioner moved to Tallahassee, Florida, and began working in the Tallahassee on or about May 1, 2000. In her new position, Petitioner worked as receptionist and administrative assistant. Once again her duties included providing administrative support to the professionals in the office. At all times material here, Petitioner enjoyed working for Mr. May. She does not attribute any discriminatory or harassing behavior to him. However, immediately after her transfer, Petitioner again demonstrated deficiencies in her job performance. Mr. May had hoped that Petitioner would become a "resource" for him. Instead, the opposite was true despite the additional training provided to Petitioner. Petitioner often went to Mr. May with questions regarding simple tasks that were part of her regular job duties. It did not take Mr. May long to confirm Mr. Pratt's and Mr. Roof's earlier complaints regarding deficiencies in Petitioner's performance. Mr. May began to document his observations about Petitioner's job performance. On May 8, 2000, Petitioner did not get to work until 9:00 a.m. Additionally, another employee had to take the regular FedEx to the kiosk because Petitioner did not get it out on time. On May 9, 2000, Petitioner again failed to get the regular FedEx out on time. This failure was more serious because the package contained checks in the amount of $32,000. On May 10, 2000, Petitioner did not get to work until after 9:00 a.m. Other staff members had to interrupt their work to sign for deliveries. Later that day, Mr. May told Petitioner that she did not have to put cover sheets on all her work. Petitioner then complained that she had to do "regional stuff" all the time. On May 19, 2000, Petitioner did not get the FedEx delivery out on time. The package had several checks in it, as well as an important communication regarding an offer of employment for a new employee. On May 22, 2000, Petitioner was not in the office by 9:15 a.m. In the meantime, Petitioner began to experience interpersonal relationship problems with members of the staff. For example, problems with Karen Harnett, Respondent's systems administrator, began soon after Petitioner made the move. The evidence indicates that Ms. Harnett was a bully who routinely picked on people. Ms. Harnett's attitude caused one employee to quit her job and caused another employee to seek help from Respondent's employee assistance program. However, there is no persuasive evidence that Respondent ever condoned Ms. Harnett's behavior in retaliation for Petitioner's filing of the sexual harassment complaint. In June 2000, Ms. Harnett and two other staff members found it amusing to harass an employee who worked for VALIC, an investment firm located in Respondent's office building. The harassment resulted in a feud over parking spaces in the building's parking lot. Petitioner was aware of Ms. Harnett's inappropriate actions but did not participate in the harassment. Petitioner did not know that it was customary for Respondent's receptionist to accept deliveries for VALIC when its office was closed. One day, Petitioner refused to accept a delivery of a UPS or FedEx package for VALIC. Later, the VALIC employee stormed into Respondent's office demanding to know why Petitioner had refused the delivery. Howard Engle, one of Respondent's project managers, heard the encounter between the VALIC employee and Petitioner. He went to the front of the office to see what was going on. Jimmy Hatcher, the building's owner, later complained to Mr. May about Petitioner's refusal to accept the package. Mr. May was not in the office with the VALIC incident took place. When he returned to the office, he heard several versions about the dispute. He concluded that Petitioner's poor decision-making and reaction to the angry VALIC employee had contributed, at least in part, to undermine Respondent's positive working relationship with Respondent's neighbor. On or about June 14, 2000, Mr. May discussed the VALIC incident with Petitioner. During that conversation, Mr. May also counseled Petitioner regarding her working relationship with other employees. He advised her to pay more attention to details and to improve her technical skills. Mr. May explained to Petitioner that several of the professionals in the office avoided giving her work because they lacked confidence in her work. He encouraged her to work more cooperatively with the professionals in the office. During the conversation on June 14, 2000, Petitioner admitted that she needed to improve her computer skills. She felt that everyone was against her and that Mr. May's only option was to go ahead and fire her. Mr. May later sent Ms. Thompson a summary of his conversation with Petitioner. On June 16, 2000, Mr. Engle sent Mr. May an e-mail complaining about Petitioner's substandard performance. The message stated that Mr. Engle had resorted to doing his own copying because he could not depend on Petitioner. Additionally, she had misplaced an important laboratory report, which would not have been delivered in a timely manner if another employee had not discovered Petitioner's error. Mr. Engle also complained that Petitioner had misfiled and never shown him a time-sensitive letter from the Florida Department of Environmental Protection regarding Respondent's re-certification to perform work in the state. This error could have had a calamitous impact on Respondent's business interests. In a written correspondence dated June 29, 2000, Mr. May gave Petitioner a written warning that she would be terminated if her job performance did not improve. The communication outlined specific job performance areas that required immediate and sustained improvement. As of June 29, 2000, Petitioner had misdirected incoming facsimile transmissions, failed to ensure that outgoing FedEx deliveries met the regular schedule, and sent at least one FedEx delivery to the wrong location. Competent evidence indicates that Petitioner needed to pay more attention to detail. Petitioner failed to proofread final drafts of monthly reports that she prepared. As of June 29, 2000, every such report had errors in them. Petitioner failed to focus on directions for work assignments. She often failed to return the work in the order that it was assigned. Petitioner failed to prioritize her work. She did not give project-related activities priority over day-to-day overhead issues. When Petitioner felt overwhelmed by an assignment, she was unwilling to shift gears to handle a higher priority activity. Petitioner had difficulty working the office schedule. She needed to understand that she could not work a later schedule. She also had to understand that overtime pay would not be authorized except for work directly related to client projects or for important overhead objectives. Petitioner failed to be accountable to the professional staff that depended on her administrative assistance. At times, she was unwilling to accept work assignments from staff members other than Mr. May. At times Petitioner was argumentative with her co-workers and inflexible regarding office procedures and protocols. She needed to moderate her behavior towards her co-workers. Petitioner was paid at Respondent's top pay rate for the second highest administrative support grade. She should have been serving as a resource for staff members that were not expected to have expertise in word processing. However, Petitioner's computer proficiency was at a beginners level at best. At times, Mr. May had to assist Petitioner with computer skills that she should have mastered. After receiving the written warning, Petitioner showed no improvement in her job performance or ability to work with the people in Respondent's Tallahassee office. Therefore, Mr. May terminated Petitioner's employment on July 25, 2000, for substandard work performance. Respondent's decision to fire Petitioner was based solely upon her poor performance record. It was not a result of any complaints she made against Mr. Dale the preceding year when she worked in the Jacksonville office. In making his decision to terminate Petitioner, Mr. May did not receive input from anyone in the Jacksonville office or from any other of Respondent's employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of May, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Sharon Jensen 2692 Spring Lake Road Jacksonville, Florida 32210 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
