The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner on the basis of her sex or age, or in retaliation for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment based on her sex or age.
Findings Of Fact Respondent Frito-Lay, Inc. ("Frito-Lay"), makes and sells snack foods, including many familiar brands of chips. Petitioner Frances G. Danelli ("Danelli") is a former employee of Frito-Lay. Frito-Lay initially hired Danelli in or around 1998 as a packer for its West Valley, Utah, plant. When Danelli's husband was transferred to Florida, she took a job for Frito-Lay in Pompano Beach, Florida, and later moved to the company's West Palm Beach Distribution Center as a route sales representative ("RSR"). Danelli worked in Florida as a Frito-Lay RSR for more than 15 years, and her routes eventually included such large stores as Publix, Walmart, Winn-Dixie, and Target.1/ RSRs sell and deliver Frito-Lay products to retail stores, and these stores, in turn, sell the products to consumers. RSRs are responsible, as well, for presenting the company's products to shoppers in the best way possible to increase sales. So, RSRs not only sell and deliver products to stores, but they also unload the products, stock the shelves, set up displays, and remove unsold items whose sell-by dates have expired. RSRs are paid an hourly wage plus commissions. RSRs are required to compete for sales against other companies' vendors, who (like Frito-Lay's personnel) are trying to place as many of their products as possible onto the shelves of the snack food aisle. Shelf space is essential for growing sales, and competition for product placement can be fierce. There is no dispute that Danelli's performance as an RSR was fine, perhaps even exemplary. Frito-Lay considered her to be a good employee. Danelli went to work early each morning, usually arriving at the warehouse by 4:00 a.m. so that she could get to her first store by 5:00 a.m., which would give her a head start on other vendors. When Danelli got to the warehouse, she would clock in on her handheld computer, which she also used to track the goods she delivered to each store. Upon returning to the warehouse, she had paperwork to complete and print from the handheld computer. In 2013, Frito-Lay started requiring drivers of delivery trucks over a certain size, including RSRs such as Danelli, to comply with U.S. Department of Transportation ("DOT") regulations. As relevant, these regulations require an RSR to take at least a ten-hour break before driving a commercial vehicle, and they prohibit an RSR from driving a commercial vehicle after 14 consecutive hours on duty. Frito-Lay programmed its employees' handheld computers so that an employee subject to the DOT regulations would receive a conspicuous warning if he or she attempted to clock in to work less than ten hours after last going off duty. As Danelli testified at hearing, if the computer told her to wait, she would go to the warehouse, pick up some product, fix her truck, and then sign in when the handheld said she could go. Evidently, however, to get the warning, an employee needed to log on as a "regulated" employee; if, by mistake, a "regulated" employee logged on as "non-regulated," she would not get the warning. Danelli found it difficult to comply with the DOT regulations, which led to Frito-Lay's imposing discipline against her in accordance with the company's Corrective Action Process set forth in its Sales National RSR Handbook, which governed Petitioner's employment. The handbook prescribes a process of progressive discipline that begins with "coaching," which is a form of pre- discipline. As the name suggests, a "coaching" is, essentially, a nondisciplinary intervention whose purpose is to correct an issue before the employee's conduct warrants stronger measures. If coaching is ineffective, the Corrective Action Process calls for increasingly severe steps of discipline. The steps of discipline consist of a Step 1 Written Reminder, a Step 2 Written Warning, a Step 3 Final Written Warning, and a Step 4 Termination. The particular discipline to be imposed depends upon the severity of the infraction and the step of discipline, if any, the employee happens to be on when the infraction is committed. Steps of discipline remain "active" for six to nine months, depending on the step. If the employee does not commit any further disciplinary infractions during the active period, the step "falls off." If the employee commits another disciplinary infraction within the "active" period, however, he or she moves to the next disciplinary step in the Corrective Action Process. On June 5, 2014, after having previously been coached to maintain compliance with the DOT regulations, Danelli received a Step 1 Written Reminder for four violations of the 10-hour rule. She did not appeal this discipline. On July 25, 2014, Danelli received a Step 2 Written Warning for a new violation of the 10-hour rule. Once again, Danelli did not appeal the discipline. On October 7, 2014, Danelli was given another coaching, during which she was informed that (i) an investigation into her DOT hours was in process, and (ii) the company was concerned that she might be getting assistance on her route from her husband in violation of the RSR Performance Standards. On January 27, 2015, Danelli received a Step 3 Final Written Warning for violating the 14-hour rule. She did not appeal this discipline. Under the Corrective Action Process, a Step 3 Final Written Warning remains "active" for nine months and is the final step prior to a Step 4 Termination. On May 2, 2015, Danelli committed another DOT violation. Because she was already on a Step 3 Final Written Warning, she was suspended pending further investigation. Danelli maintains that this violation, and others, resulted from her making a simple mistake with the handheld computer, namely failing to log on as a "regulated" employee, which cost her the electronic warning she otherwise would have received. She points out, too, that in this instance, the violation was minor, merely clocking in ten minutes early. These arguments are not wholly without merit, and if Frito-Lay had fired Danelli for a single, ten-minute violation of the DOT regulations, the undersigned would question the company's motivation. But that is not what happened. Danelli did not just violate the ten-hour rule once or twice, but many times, after multiple warnings, and in the face of increasingly serious disciplinary steps. Further, Frito-Lay did not terminate Danelli's employment over this latest violation of the ten-hour rule, even though it would have been justified in doing so within the parameters of the Corrective Action Process. Instead, the company placed Danelli on a Last Chance Agreement. Last Chance Agreements are not specifically provided for in the Corrective Action Process but are used, at the company's discretion, as a safety valve to avoid the occasional unfortunate termination that might result from strict adherence to rigid rules. In this regard, the agreement given to Danelli, dated May 15, 2015, stated as follows: We strongly considered [terminating your employment]. However, due to the unique facts and circumstances involved here, as well as your 15 years of service with the Company, the Company is willing to issue this Last Chance Warning. This step is over and above our normal progressive disciplinary process, and is being issued on a one-time, non-precedent setting basis. . . . [A]ny subsequent violations by you may result in discipline up to and including immediate termination. More specifically, any future violations [of the DOT regulations] will result in your immediate termination. As Danelli put it, the Last Change Agreement was a "sign of grace" from Frito-Lay. By its terms, it was intended to be "active and in effect for a period of 12 months." The undersigned pauses here to let the Last Chance Agreement sink in, because the fact that Frito-Lay did not fire Danelli in May 2015 when——for objective, easy-to-prove reasons, after a by-the-book application of progressive discipline——it clearly could have, is compelling evidence that the company was not harboring discriminatory animus against Danelli. After all, if Frito-Lay had wanted Danelli gone because of her age or her gender, why in the world would the company not have jumped at this golden opportunity, which Danelli had given it, to fire her with practically no exposure to liability for unlawful discrimination? The irony is that by showing mercy, Frito-Lay set in motion the chain of events that led to this proceeding. In or around November of 2015, Danelli underwent surgery, which required her to take some time off of work. For several years before this leave, Danelli's route had consisted of a Super Walmart and two Publix stores. When she returned, the Super Walmart had been assigned to another RSR, and to make up for its loss, Danelli's supervisor, Stanley Gamble, put a third Publix grocery on Danelli's route, i.e., Publix #1049 located in Tequesta, Florida. Danelli was acquainted with one of the managers at the Tequesta Publix, a Mr. Morgan. On her first day back, Danelli and Mr. Gamble went to that store, where Mr. Morgan told Mr. Gamble that he was "glad Frances is here." Mr. Morgan had complained to Mr. Gamble about the previous RSR, who left the store "all messed up," according to Mr. Gamble. Danelli also met Sarah Oblaczynski, the store's "backdoor receiver," which is the Publix employee who checks in merchandise. On her new route, Danelli usually went to the Tequesta store first, early in the morning. She soon ran into a vendor named Tony who worked for Snyder's of Hanover ("Snyder's"), a snack food company that competes with Frito-Lay. From the start, Tony was nasty to Danelli and aggressive, telling her that "there is no space" for two vendors. Tony was possessive about shelf space within the store, as well as the parking space close to the store's loading dock. Danelli thought, because of Tony's behavior, that he might be using drugs. On Tuesday, April 6, 2016, Petitioner had an argument with Tony over the shelf space that the store manager previously had awarded to her for the display of Frito-Lay products. Tony asserted that he had been promised the same space and said to Danelli, "You're going to take that stuff out of the shelf." Danelli told him, "No, Morgan said that's still my space." At this, Tony began cursing and pushed Danelli's cart into her, yelling, "That fucking Morgan!" Danelli later spoke to Mr. Morgan, who assured Danelli that the shelf space in question was hers and said he would leave a note to that effect for Ms. Oblaczynski. There is a dispute as to when Danelli reported the forgoing incident to Frito-Lay. She claims that, before the end of the day on April 6, she told Mr. Gamble, her supervisor, all about the matter, in detail, and requested that someone be assigned to accompany her on her route the next day because Tony planned on taking her shelf space. According to Danelli, Mr. Gamble just laughed and said he did not have anybody to help her. Mr. Gamble testified, to the contrary, that Danelli had neither reported the April 6, 2016, incident to him nor asked for any assistance. (Danelli admits that she did not report the incident to Mr. Canizares, sales zone director, or to Human Resources ("HR")). Without written documentation regarding this alleged discussion, it is hard to say what, if anything, Danelli reported on April 6, 2016. It is likely that Danelli did complain to Mr. Gamble about Tony on some occasion(s), and might well have done so on April 6. What is unlikely, however, is that Danelli notified Mr. Gamble that she felt she was being sexually harassed by Tony. Tony's boorish and bullying behavior, to the extent directed at Danelli, seems to have been directed to her qua competitor, not as a woman. At the very least, the incident is ambiguous in this regard, and one could reasonably conclude, upon hearing about it, that Tony was simply a jerk who resorted to juvenile antics in attempting to gain the upper hand against a rival vendor. The undersigned finds that if Danelli did speak to Mr. Gamble about Tony on April 6, he—— not unreasonably——did not view the incident as one involving sexual harassment. As far as Mr. Gamble's declining to provide Danelli with an escort, assuming she requested one, his response is reasonable if (as found) Mr. Gamble was not clearly on notice that Danelli believed she was being sexually harassed. Danelli, after all, was by this time an experienced and successful RSR who undoubtedly had encountered other difficult vendors during her career. Indeed, as things stood on April 6, a person could reasonably conclude that Danelli in fact had the situation under control, inasmuch as Mr. Morgan had clearly taken Danelli's side and intervened on her behalf. What could a Frito-Lay "bodyguard" reasonably be expected to accomplish, which would justify the risk of escalating the tension between Tony and Danelli into a hostile confrontation? During the evening of April 6, 2016, Danelli talked to her husband about the problem at Publix #1049, and they decided that he would accompany her to the store the next morning before reporting to his own work, to assist if Tony caused a scene. On April 7, 2016, Danelli's husband drove to Publix #1049 in his own vehicle. Although no longer an employee of the company, Danelli's husband entered the store wearing a Frito-Lay hat, and he stayed in the snack aisle while Danelli went to the back to bring the order in. Ms. Oblaczynski, the receiver, presented Tony with a note from Mr. Morgan stating that Danelli's products and sales items were assigned to aisle one. In response, Tony started swearing about Mr. Morgan and the denial of shelf space, made a hand gesture indicative of a man pleasing himself, and told Ms. Oblaczynski that "they can take a fly[ing] F'n leap." Tony had made this particular hand gesture about Mr. Morgan on a number of previous occasions, in front of both men and women. Mr. Danelli left to go to work once Danelli's product was placed, and she left to go to the next store on her route. When Danelli returned to the warehouse, she went to Mr. Gamble's office and told him about the April 7, 2016, incident. According to Danelli, Mr. Gamble laughed in response. Danelli asked Mr. Gamble if the company would conduct an investigation, and he said yes. She recalls that every day thereafter, she asked Mr. Gamble if he had heard anything because she thought "we [Frito-Lay] were investigating" and that HR was on top of it. Danelli admits, however, that she "intentionally" did not tell Mr. Gamble that her husband had accompanied her to Publix #1049 to assist her in the store that morning. She did not report this detail because she knew it was "bad." In conflict with Danelli's account, Mr. Gamble testified that Danelli did not report that Tony made a sexual gesture in front of her or used coarse or profane language in her presence on April 7, 2016. The undersigned finds that Mr. Gamble most likely did not laugh at Danelli or otherwise treat her dismissively upon hearing her report of the incident. If Mr. Gamble had believed the matter were so trivial or amusing, he would not likely have agreed to investigate. The undersigned finds, further, that however Danelli described the incident, she did not make it clear to Mr. Gamble that she perceived Tony's behavior as a form of sexual harassment. Danelli did not make a formal written complaint to that effect at the time, and the situation at Publix #1049 was, at the very least, ambiguous. More likely than not, Mr. Gamble viewed the troublesome vendor from Snyder's as an unwelcome business problem to be dealt with, not as a perpetrator of unlawful, gender-based discrimination. To elaborate, putting Tony's "sexual gesture" to one side momentarily, the rest of his conduct, even the cursing, while certainly objectionable, is not suggestive of sexual harassment; it is just bad behavior. Tony's temper tantrums and outbursts no doubt upset Danelli and others, but that does not turn them into gender discrimination. Further, Danelli seems to have handled the situation well until she resorted to self-help on April 7, 2016. The responsible Publix employees were already aware of the problem, and in due course, they complained to Snyder's, which unsurprisingly removed Tony from that store. Meantime, had Danelli felt physically threatened or afraid as a result of Tony's more aggressive antics, she (or Publix) could have called the police; this, indeed, would have been a safer and more reasonable alternative to bringing along her husband or another civilian for protection, which as mentioned above posed the risk of provoking a fight, given Tony's volatility. Ultimately, it is Tony's "sexual gesture" that provides a colorable basis for Danelli's sexual harassment complaint. But even this gives little grounds for a claim of discrimination, without more context than is present here. To be sure, the "jerk off gesture" or "air jerk" is obscene, and one would not expect to see it in polite company or in the workplace. Yet, although it clearly mimics a sexual practice, the air jerk is generally not understood as being a literal reference to masturbation. That is, the gesture is not typically used to convey a present intention to engage in masturbation or as an invitation to perform the act on the gesturer. Rather, the jerk off gesture usually signifies annoyance, disgust, disinterest, or disbelief. As with its cousin, the "finger" (or bird) gesture, the sexual connotations of the air jerk are (usually) subliminal. Here, there is no allegation or evidence that Tony's jerk off gesture was undertaken in pursuit of sexual gratification or was intended or perceived as a sexual advance on Danelli (or someone else)——or even as being overtly sexual in nature. (Obviously, if the evidence showed that, under the circumstances, Tony was, e.g., inviting Danelli to participate in sexual activity, this would be a different case. The undersigned is not suggesting, just to be clear, that the air jerk gesture is inconsistent with or could never amount to sexual harassment, but only that it is not unequivocally a sign of such harassment, given its commonly understood meanings.) To the contrary, it is clear from the surrounding circumstances that Tony made the gesture to indicate that he regarded Mr. Morgan's note as pointless and annoying. It was roughly the equivalent of giving them the bird, albeit arguably less contemptuous than that. For these reasons, the undersigned finds it unlikely that, assuming Danelli described the gesture (which is in dispute), Mr. Gamble thought Danelli was complaining about sexual harassment, as opposed to a very difficult vendor. On April 13, 2016, Mr. Gamble visited Publix #1049 and spoke to Ms. Oblaczynski about the situation. During this conversation, Ms. Oblaczynski stated that the "Frito-Lay people" did nothing wrong. She further specified that "the person [Danelli] had with her did nothing wrong." After speaking with Ms. Oblaczynski, Mr. Gamble met with Danelli while she was servicing her second account. Right off the bat, Mr. Gamble asked Danelli who was with her at Publix #1049 on April 7, 2016. She eventually admitted that her husband was with her in the store that day. Aware of the seriousness of her offense and the active Last Chance Agreement, Danelli asked Mr. Gamble, several times, if she would be fired. That same day, Mr. Gamble called Carlos Canizares to tell him what he had learned. Mr. Canizares instructed Mr. Gamble to stay with Danelli while she finished servicing her accounts and then to obtain a written statement from her about the incident. Later on April 13, 2016, Danelli provided a written statement in which she confirmed that her husband had been working with her at Publix #1049 the previous week. Danelli has since described this statement as a "full written account of the harassment [and] rude sexual gestures." Danelli knew, of course, that HR would review her statement, and yet she said nothing therein about having complained to Mr. Gamble or any supervisor about harassment generally or Tony in particular; about Tony's use of course or improper language; or about having requested an escort to help keep Tony in line. On the instructions of the company's HR department, Mr. Gamble conducted an investigation into the "rude sexual gesture" about which Danelli had complained. Specifically, he called Mr. Morgan, the Publix manager, and asked him about the incident. Mr. Gamble also requested that he be allowed to review any videotapes and documents concerning the incident. Mr. Morgan informed Mr. Gamble that Publix was investigating the matter. Mr. Gamble's request to allow Frito-Lay access to Publix videotapes and documents was, however, turned down. Tony's boorish behavior aside, the fact remained that Danelli, without prior approval, had allowed a non-employee to perform work or services for Frito-Lay at one of the stores on her route, which the RSR Performance Standards specifically prohibit without express authorization. RSRs who are found to have permitted non-employees to accompany them on their routes are either discharged or issued multiple steps of discipline, as Danelli knew. Because Danelli violated this rule while on an active Last Chance Agreement, Frito-Lay decided to terminate her employment. On April 26, 2016, Mr. Canizares met with Danelli to inform her that she was fired. Danelli timely appealed her termination pursuant to the company's Complaint and Appeal Procedure, electing to have her appeal decided by a neutral, third-party arbitrator. The arbitration hearing took place in January 2017. Three months later, the arbitrator ruled that Danelli's termination had been proper and carried out in accordance with Frito-Lay's employment policies. Danelli does not presently deny that she violated the DOT regulations and the company policy forbidding the use of non-employees as helpers while on duty, nor does she dispute that Frito-Lay had sufficient grounds for imposing the disciplinary steps leading to the Last Chance Agreement. Indeed, she does not contend that it would have been wrongful for Frito-Lay to have fired her in May 2015 instead of offering the Last Chance Agreement. Her position boils down to the argument that because Frito-Lay could have exercised leniency and not fired her for bringing her husband to work at Publix #1049 (which is probably true2/), its failure to do so can only be attributable to gender or age discrimination. Put another way, Danelli claims that but for her being a woman in her 50s, Frito-Lay would have given her another "last chance." This is a heavy lift. As circumstantial evidence of discrimination, Danelli points to the company's treatment of another RSR, a younger man named Ryan McCreath. Like Danelli, Mr. McCreath was caught with a non-employee assisting him on his route. Unlike Danelli, however, Mr. McCreath was not on any active steps of discipline at the time of the incident, much less a Last Chance Agreement. Although Mr. McCreath's disciplinary record was not unblemished, Frito-Lay did not terminate his employment for this violation of the RSR Performance Standards. Instead, he received three steps of discipline and was issued a Final Written Warning. Mr. McCreath's situation is distinguishable because he was not under a Last Chance Agreement at the time of the violation. Moreover, it is not as though Mr. McCreath got off scot-free. He received a serious punishment. Danelli could not have received a comparable punishment for the same offense because she was already beyond Step 3; her record, unlike his, did not have room for the imposition of three steps of discipline at once. The McCreath incident does not give rise to a reasonable inference that Frito-Lay unlawfully discriminated against Danelli when it terminated her employment for committing a "three-step violation" while on an active Last Chance Agreement. There is simply no reason to suppose that if Danelli, like Mr. McCreath, had not had any active steps of discipline when she violated the rule against having non- employees provide on-the-job assistance, Frito-Lay would have terminated her employment for the April 7, 2016, infraction; or that if Mr. McCreath, like Danelli, had been on a Last Chance Agreement when he violated the rule, Frito-Lay would have issued him a Final Written Warning in lieu of termination. Ultimate Factual Determinations There is no persuasive evidence that any of Frito- Lay's decisions concerning, or actions affecting, Danelli, directly or indirectly, were motivated in any way by age- or gender-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age or gender discrimination could be made. There is no persuasive evidence that Frito-Lay took any retaliatory action against Danelli for having opposed or sought redress for an unlawful employment practice. There is no persuasive evidence that Frito-Lay committed or permitted sexual harassment of Danelli or otherwise exposed her to a hostile work environment. Ultimately, therefore, it is determined that Frito-Lay did not discriminate unlawfully against Danelli on any basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Frito-Lay not liable for gender or age discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 11th day of July, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2018.
The Issue At issue is whether Jeffrey Alshin is subject to discipline for violation of Section 490.009(2)(k), Florida Statutes (1983), by committing an act upon a client which would constitute sexual battery or sexual misconduct as defined in Section 490.0111, Florida Statutes (1983). Sexual misconduct in the practice of mental health counseling is prohibited by Section 490.0111, Florida Statutes (1983); that statute states that sexual misconduct shall be defined by rule. According to the Administrative Complaint, Rule 21U-15.04, Florida Administrative Code, defines sexual misconduct. The Administrative Complaint also alleges a violation of Section 490.009(2)(s), Florida Statutes (1983), for failing to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance. The factual basis for these various grounds for discipline is alleged to have been engaging in sexual activity with a client during the period March, 1984, through July 1984, when a counselor-client relationship existed with the client.
Findings Of Fact The Respondent, Jeffrey R. Alshin, is a mental health counselor who has been licensed by the State of Florida during the times material to the allegations made in the Administrative Complaint. The client with whom Alshin is accused of sexual involvement, J.S., was referred to him by a Dr. Lemberg, who saw J.S. on March 1, 1984 (Tr. 24). J.S. telephoned Alshin's office and made an appointment to see him on Monday, March 5, 1984 (Tr. 24). On March 5, 1984, J.S. went to Alshin's office for a therapy session and met Alshin for the first time. She had another session with him on March 9, 1984 (Tr. 24-25). From March 5, 1984 a counselor-client relationship existed between Alshin and J.S. (Tr. 82). On the morning of Sunday, March 11, 1986, Alshin invited J.S. to his home for a barbecue (Tr. 26). After the barbecue, Alshin and J.S. went to Respondent's apartment and that evening they engaged in sexual intercourse (Tr. 27-28). Alshin engaged in sexual intercourse with his client on five other occasions between March and June, 1984 (Tr. 29). During the period in which Alshin and J.S. were sexually involved, Alshin was counseling J.S. (Tr. 28-29). Alshin was never married to J.S. Expert testimony submitted at the hearing establishes that for a mental health counselor to have a sexual relationship with a client is conduct which falls below the minimum standards of performance in professional activities for a mental health counselor when measured against prevailing peer performance (Tr. 80).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Secretary of the Department of Professional Regulation finding the Respondent guilty of a violation of Sections 490.009(2)(q) and (s), Florida Statutes (1983), and that his license as a mental health counselor be REVOKED. DONE AND ORDERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986.
The Issue Whether Respondent discriminated against Petitioner on the basis of her sex, by sexual harassment, in violation of Subsection 760.10(1) and/or (2), Florida Statutes (2008).1
Findings Of Fact Petitioner is an adult female, and as such, is a member of a protected class. Respondent is an agency of the State of Florida charged with the duty to protect the public through the incarceration and supervision of offenders and to rehabilitate offenders, pursuant to Section 20.315, Florida Statutes. In August 2007, Petitioner applied for a job as a correctional officer with the Florida Department of Corrections through the Charlotte Correctional Institution (the Facility) located in Punta Gorda, Florida. Petitioner's contact person during the application process was Recruitment Sergeant Dennis Britton. Petitioner was initially interviewed by Sergeant Britton. At the conclusion of the interview, Petitioner was about to leave when Britton grabbed her by the shoulder, pulled her to him and bent down to her face in a kissing position. Petitioner put her hands on his chest, pushed him away and left. On other occasions during the interview process, specifically on August 21, 2007, and October 1, 2007, Briton coerced Petitioner to come into his office at the Facility and proceeded to physically and sexually assault Petitioner. Britton would grope, grab, and forcibly kiss Petitioner against her will. Throughout the recruitment process, both Britton and Petitioner exchanged e-mails of a professional and personal nature. On or about September 10, 2007, Warden Adro Johnson approved Petitioner for employment with the DOC. Warden Johnson, not Sergeant Britton, made the hiring decisions at Charlotte Correctional Institution. November 30, 2007, was Petitioner's first day of employment at the Facility. On November 30, 2007, Petitioner was again compelled to appear at Britton's office where he proceeded to physically and sexually assault Petitioner. Britton groped, grabbed, and forcibly kissed Petitioner against her will. On several other occasions between November 2007 and March 2008, Britton would summon Petitioner to his office and proceed to make sexual advances on her against her will. In December 2007, Petitioner completed New Employee Orientation. A component of the New Employee Orientation is training with regard to Respondent's Equal Employment Opportunity Policy and, specifically, the Sexual Harassment policy. Petitioner completed the computer-assisted training on sexual harassment in December 2007. In addition, new employees are routinely provided with hard-copy pamphlets on sexual harassment. Respondent's sexual harassment policy is also posted at various locations at Charlotte Correctional Institution. At no time during this period did Petitioner complain, verbally or in writing, to her supervisor or anyone else at the Facility. On March 14, 2008, Petitioner started the correctional officer training academy at the Facility. On March 17, 2008, Petitioner filled out an incident report stating she had been sexually harassed by Sergeant Dennis Britton. The report was sent up the chain of command, and Warden Johnson immediately removed Sergeant Britton from his position as the recruitment sergeant and reassigned him to a position on the compound. An investigation into the allegations was started on March 19, 2008, by Respondent's Office of the Inspector General. The investigation was led by Inspector Daryl J. McCasland of the Office of the Inspector General. The findings of the investigation were that Britton violated Section 784.03, Florida Statutes, and Florida Administrative Code Rule 33-208.033(22) (Conduct Unbecoming a Public Employee). On April 9, 2008, while the investigation was still pending, Sergeant Britton submitted his resignation, effective May 1, 2008. Britton admitted to the accusations of sexual battery against Petitioner to the warden of the Facility. Britton was removed from the Facility on or about April 9, 2008. Petitioner testified that on at least five separate occasions between April 23, 2008, and May 23, 2008, Respondent allowed Britton to return into the Facility and granted Britton access into the restricted-access inner-compound where Petitioner worked so that he was able to continue to harass Petitioner. However, this testimony was uncorroborated and deemed unreliable. At no time during Petitioner's employment did Sergeant Britton supervise Petitioner or work directly with her. He did not discipline her, set her schedule, or assign her duties. From November 30, 2007, until March 14, 2008, Petitioner worked inside the secure perimeter, while Britton worked as the recruitment sergeant outside the secure perimeter in the administration building at the Facility. Petitioner was in the academy beginning March 14, 2008, and Sergeant Britton had no supervisory or training responsibilities over officers in the training academy. Petitioner was continually in the correctional officer academy from the time she filed her initial complaint on March 17, 2008, until Britton's resignation became effective on May 1, 2008. While in the academy, Petitioner was continually with other trainees and other instructors. Sergeant Britton never made any additional sexual advances or had any conversation with Petitioner following her complaint on March 17, 2008. Inspector Daryl McCasland substantiated the complaint against Sergeant Britton for battery, conduct unbecoming a public employee, and failure to follow written procedures. The inspector forwarded his results to the Office of the State Attorney in Punta Gorda which declined to prosecute. Respondent acted in a prompt and reasonable manner to stop the harassment and address it once it was known. Petitioner failed to exercise reasonable care in the reporting of the harassment. Petitioner presented no evidence on the issue of retaliation. Petitioner presented no evidence of quantifiable damages. Her testimony was that she felt harassed and physically upset by the conduct of Britton and that she felt harassed and physically upset by her fellow officers after her complaint become known, but no proof of an adverse employment action was presented. Given the lack of evidence to support Petitioner's allegations, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issued a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2009.
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary Latham (Latham), has served as a member of the Florida Parole Commission (Parole Commission) since July 24, 1992. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an Administrative Secretary to the General Counsel's Office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be so referred to for purposes of this Complaint. Effective May 27, 1994, Ms. Billingslea was promoted to the position of Executive Secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of Senior Executive Secretary to the Chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as the Executive Secretary to Latham. Latham had previously interviewed Ms. Billingslea for an Executive Secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made Chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed the possibility of transferring Ms. Billingslea to his office with Chairman Wolson and her administrative assistant, Gene Strickland. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a Commissioner's office because the work in the Chairman's office was more administrative than that in a Commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary to Latham. Because there is only one position of Senior Executive Secretary in the Parole Commission (the Chairman's Secretary) this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Executive Secretary to Latham, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billingslea understood that the Chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no, and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will almost be as if he's going to say something, but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At the time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. Whenever the Florida Parole Commission denies parole, a "947.18" report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance of the 947.18 report. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham had been assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told Ms. Billingslea she had done nothing to make him approach her in this way, but that he did not know what had come over him lately, he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she wouldn't be working for him that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later the same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair, preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited or encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billingslea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She had tried to call the office to advise that she would be late but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Although Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal, he began to voice his dissatisfaction with her work hours after she had spurned his advances. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could take which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billingslea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office and after Ms. Billingslea had left, he asked to speak with Chairman Wolson. Latham wanted to know what was going on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching up with it in a victory signal and saying "yes." He left Chairman's Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary for the Clemency Section. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Gary Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed and public censure and reprimand. DONE AND ENTERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3717E To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraph 1: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraph 2: Rejected as unnecessary. Paragraphs 3-5: Accepted. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 11: Accepted. Paragraphs 12-19: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts found. Paragraph 21: Accepted in substance. Paragraphs 22-25: Accepted. Paragraphs 26-30: Accepted in substance. Paragraph 31: The first two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 32-33: Accepted in substance. Paragraph 34: Accepted. Paragraph 35: Accepted in substance. Paragraph 36: Accepted. Paragraph 37: Accepted in substance. Paragraph 38: Rejected as unnecessary. Paragraphs 39-45: Accepted in substance. Paragraphs 46-59: Rejected as irrelevant. Paragraph 60: Rejected as not supported by the evidence. Paragraphs 61-64: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: The first two sentences are accepted. The last sentence is accepted in substance. Paragraphs 5-6: Accepted in substance. Paragraph 7: Accepted. Paragraph 8: The third and fourth sentences are rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 9: The last sentence is accepted. The remainder is accepted in substance. Latham voiced his concerns after the conversation that he had with Ms. Billingslea on September 27. Paragraphs 10-11: Accepted in substance. Paragraphs 12-13: Rejected as unnecessary. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraph 16: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Paragraph 19: The last sentence is accepted in substance except the portion about sexual innuendo. The evidence did establish that he did make sexual innuendos to Ms. Billingslea. The remainder is rejected as subordinate to the facts found. Paragraph 20: The first sentence is rejected as not supported by the record. The second sentence is accepted to the extent that he never directly asked Ms. Billingslea for sex, but he did imply that he wanted a romantic liaison when he asked her to stay after work and be with him. The third, fourth, and fifth sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the record. Latham did tell Ms. Billingslea that he had a lot of political influence. Paragraph 21: The first sentence is rejected as argument. The second sentence is accepted in substance. The third sentence is accepted to the extent that that is what she thought at the time the incident occurred but later she realized that it was not a joke. The third sentence is accepted to the extent that Latham denied the incidents but rejected to the extent that it implies that the incidents did not happen. Having judged the credibility of the witnesses, I find that the incidents did happen. The last sentence is rejected as not supported by the evidence. Paragraph 22: The first four sentences are accepted in substance. The fifth sentence is rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Paragraph 23: Accepted in substance. Paragraph 24: The first sentence is accepted in substance as that is what Latham testified but rejected to the extent that it implies that the conversation did not take place. Accepted in substance that Latham got lost while going to a fund raiser but rejected that he did not go by her house and that he did not comment that she had a nice house and that her blinds were shut. Paragraph 25: The first two sentences are rejected as not supported by the evidence. The third sentence is rejected as unnecessary. The last two sentences are rejected as not supported by the evidence. Paragraph 26: The first four sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts found. Paragraphs 27-28: Accepted in substance. Paragraph 29: The first sentence is accepted in substance. The second sentence is accepted in substance as that was Latham's testimony but rejected to the extent that it implies that he did not describe the graphic sexual details of the case. The third sentence is rejected as not supported by the evidence based on the credibility of the witnesses. The fourth sentence is accepted to the extent that Latham made a comment to Ms. Henry that Ms. Billingslea was interested in the case. The last sentence is accepted in substance. Paragraph 30: Rejected as irrelevant. Paragraph 31: Having judged the credibility of the witnesses, the paragraph is rejected. Paragraph 32: Accepted that Latham disputes Ms. Billingslea's allegations but rejected that Latham's version is credible. Paragraph 33: Accepted in substance. Paragraphs 34-37: Having judged the credibility of the witnesses, the paragraphs are rejected. Paragraph 38: The first and second sentences are accepted in substance. The last sentence is accepted to the extent that Latham did not intentionally restrain Ms. Billingslea but rejected to the extent that it implies that Latham was not asking Ms. Billingslea to stay after work for the purpose of seeking sexual gratification or favors. The remainder is rejected as subordinate to the facts found. Paragraph 39: The first sentence is rejected as constituting argument. The last sentence is rejected as not supported by the evidence. Paragraphs 40-41: Accepted in substance. Paragraph 42: Rejected as constituting argument. Paragraph 43: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 44: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 45: Accepted in substance. Paragraph 46: Rejected as irrelevant. Paragraph 47: Rejected as constituting argument. Paragraphs 48-49: Rejected as irrelevant. Paragraph 50: Rejected as constituting argument. Paragraphs 51-53: Rejected as irrelevant. Paragraph 54: Rejected as constituting argument. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as constituting argument. Paragraph 57: The first two sentences are accepted in substance. The third sentence is accepted as that is what Latham said but rejected as being true. Given other witnesses accounts of Ms. Billingslea's appearance on that date, it is inconceivable that Latham could not have known that she was not sick. The last two sentences are subordinate to the facts found. Paragraph 58: Rejected as constituting argument. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Mark Herron, Esquire Post Office Box 10555 Tallahassee, Florida 32302-2555 Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether Respondent, Lincare, Inc., is liable to Petitioner, Sharon Ford, for subjecting her to a hostile work environment based on sexual harassment.
Findings Of Fact The Parties and Complaint Allegations Lincare is a Tampa-based company that focuses on home- healthcare services. It has an annual revenue of over $3 billion and is a wholly-owned subsidiary of a company based in Germany. Ms. Ford, a married woman with children, is an accountant and an attorney. Lincare first hired her as its acquisition counsel in 2001 and promoted her to director of acquisitions in 2002. She held that position for almost 15 years before she left the company on January 27, 2017. Mr. Tripp, a married man with children, served as an Arabic linguist in the Army before obtaining his law degree. Lincare hired Mr. Tripp to replace Ms. Ford as its acquisition counsel in 2002 and promoted him to general counsel in 2013. He still holds that position. On January 19, 2018, almost a year after leaving Lincare, Ms. Ford filed a Complaint with the Commission alleging a hostile work environment. She alleged that Mr. Tripp, over a 15-month period from December 2015 through March 2017, subjected her to severe and pervasive sexual harassment. On July 13, 2018, the Commission issued its notice of determination of no reasonable cause and mailed it to Ms. Ford. The notice advised her that she “may request an administrative hearing . . . by filing a Petition for Relief within 35 days of the date the determination was signed by the Executive Director.” Ms. Ford received the notice in the mail on July 16, 2018. On August 16, 2018, 34 days after the Commission issued its notice, Ms. Ford requested an administrative hearing by mailing her Petition to the Commission via U.S. mail. The Commission received the Petition on August 20, 2018. On the same day, the Commission generated its transmittal letter. But, instead of transmitting the Petition to DOAH, the Commission advised Ms. Ford that the Petition appeared to be untimely because it was received three days beyond the 35-day deadline under section 760.11(7), Florida Statutes. After Ms. Ford responded that she timely requested a hearing by post-marking her Petition before the 35-day deadline, the Commission transmitted the case to DOAH on September 21, 2018. The transmittal letter, dated August 20, 2018, did not dismiss the Petition as untimely but rather requested assignment of a judge to “conduct all necessary proceedings required under the law.” Lincare’s Structure and Policies Between 2015 and 2017 Lincare had three officers: chief executive officer (“CEO”), chief financial officer (“CFO”), and chief operating officer (“COO”). The corporate chart had the CEO at the top and the CFO and COO, who reported to the CEO, immediately thereunder. The second tier of the chart listed six department heads, none of whom were corporate officers: corporate compliance officer, head of business innovation, head of human resources, head of public relations & communications, general counsel, and director of acquisitions. These managers were equal on the hierarchy chart and all reported directly to the CEO. As director of acquisitions, Ms. Ford brought in the deals, negotiated the business side, and quarterbacked them to closing. She helped move the deals along by ensuring that Lincare personnel communicated and accomplished their required tasks. She provided business advice to the legal department and worked closely with the acquisition attorney (on smaller deals) and the general counsel (on larger deals). Ms. Ford received a salary and an objective bonus tied to the deals that closed.2/ As the general counsel, Mr. Tripp oversaw legal affairs and supervised five lawyers in the legal department, but had no control over any other department. As to the deals, Mr. Tripp handled the legal aspects, such as contracts, due diligence, and compliance, provided legal advice, and assessed risks. The CEO, COO, and CFO had sole authority to decide whether a deal closed. Mr. Tripp received a salary and a discretionary bonus tied to the company’s financial success in a given year. Although Ms. Ford and Mr. Tripp gave each other advice, they were equals on the corporate chart. Mr. Tripp had no authority over Ms. Ford and lacked the power to hire, discipline, promote, transfer, fire, or control her compensation. They were coworkers who both answered directly to the CEO. The head of human resources (“head of HR”) ran the HR department and its roughly 15 to 18 employees. Directly under the Head of HR was the employee relations director, Ms. Adams. Among other things, the HR department oversaw the employee handbook and investigated reports of discrimination and harassment. The handbook included a detailed anti-harassment policy forbidding sexual harassment by any employee at work or at work-related events outside the office. Harassment was defined to include unwelcome sexual advances, requests for conduct of a sexual nature, and other unwelcome behavior that was personally offensive and interfered with work effectiveness done in person or through electronic means. The policy prohibited any employee from making employment decisions based on the submission to or rejection of sexual advances, and noted in bold that any violation would subject an employee to discipline up to an immediate discharge. The handbook contained a detailed reporting procedure for employees who believed, had concerns, or suspected they or anyone else may have been harassed. The policy required them “to immediately notify” a named individual based on their location, which included the employee relations director or the HR Manager for employees in the corporate office. The handbook required employees to follow the procedure and noted that the failure to do so could adversely affect their rights to pursue a claim. Lincare took harassment allegations seriously. Once an allegation was reported, the employee relations director or HR managers investigated; the legal department was not involved unless a particular legal question arose. They obtained as much information as possible from the victim, spoke to potential witnesses, reviewed available documents, and interviewed the accused. If the investigation uncovered no corroborating evidence and the accused denied any wrongdoing, a report would be added to the accused’s personnel file; upon a second allegation, the accused would be terminated. If a supervisor retaliated against an employee for reporting harassment, that supervisor would be terminated. Lincare disseminated the handbook and updated versions to employees and required them to sign a form acknowledging that they received the handbook and would abide by its policies. Ms. Ford signed such forms each time she received a revised handbook, including in 2015——the version in effect until she left Lincare in January 2017. She knew about the harassment policy, the reporting requirement, and the fact that her failure to so report could adversely affect her rights. Friends and Coworkers for Over 15 Years Ms. Ford and Mr. Tripp worked closely together at Lincare for 15 years and they became good friends in the process. When Lincare hired Mr. Tripp as acquisition counsel in 2002, he worked closely with Ms. Ford on hundreds of deals. They were in constant, daily contact to strategize, handle diligence and compliance issues, advise each other on the tasks they both had to complete, and ensure the deals closed. They also had a close friendship. They regularly went to lunch alone and with others, as often as three days per week, attended social events with mutual friends, and spoke on the phone and texted about business and personal matters. They had much in common as married parents with kids around the same age and they enjoyed each other’s company. When Mr. Tripp became general counsel in 2013, Ms. Ford initially worked closely with the new acquisition counsel. In late 2014, however, she and Mr. Tripp resumed working closely together when Lincare began negotiating larger transactions. Project Maverick was the largest acquisition of Ms. Ford’s career and it closed in March 2016. Project Falcon was the largest divestiture of her career and it closed in August 2016. These two deals, and others, required Ms. Ford and Mr. Tripp to work even more closely together from 2015 until she left the company in January 2017. They often met multiple times per day. Ms. Ford sought Mr. Tripp’s assistance on the legal side and he sought her assistance on the business side. As before, she remained the quarterback shepherding the deal forward. Their friendship continued during this period. They invited each other to lunch regularly, alone and with coworkers. They attended social events with friends, including holiday dinners in 2015 and 2016. On out-of-town work trips, they rented cars together and sometimes spent time alone, such as for meals. They continued to text and speak on the phone about business and personal matters. They talked about their families, children, and other personal matters much like longtime friends do. They checked in on each other when personal crises occurred. And, when Ms. Ford began tense negotiations with the CEO about her compensation, which ultimately led her to leave Lincare, she relied on Mr. Tripp as a sounding board and for moral support. Even after Ms. Ford left the company in January 2017, she maintained contact with him. They had lunch alone at least once. For months, they continued to text each other, even about personal matters such as when she texted him after he had been in a car accident. However, their communication largely ceased once Ms. Ford filed a lawsuit against Lincare over her compensation. Ms. Ford’s Testimony Accusing Mr. Tripp of Sexual Harassment The first incident occurred on December 11, 2015. In that 10 to 20 minute conversation in her office, Mr. Tripp professed strong feelings for her and that he desired a confidential, sexual relationship with her. She rejected him and said they were just friends. She immediately called her husband and spoke to him all the way home. She felt humiliated, embarrassed, and angry. She did not attend a football game that weekend with other coworkers to avoid Mr. Tripp and kept her communications with him to e-mail for the next week. The second incident occurred in her office later in December 2015. While discussing another affair that may be happening at work, Mr. Tripp said he could not report the other employee because he wanted to do the same thing with Ms. Ford, notwithstanding the professional and personal risks. She again rejected him. For the next few weeks, Ms. Ford tried to avoid him as much as possible, but she had to face him because the deals began to lag. She said he continued to make comments here and there, but she offered no specific details. The third incident occurred in January 2016, after a conference call in Mr. Tripp’s office. He said he knew Ms. Ford was avoiding him, but he could not function. He told her he was willing to leave his wife, but she again rejected him. Over the next few months, the comments and innuendo pretty much ceased so Ms. Ford decided to go back to being friends to ensure that the Maverick and Falcon deals closed. However, a fourth incident occurred in the parking lot after a late conference call in June 2016. Mr. Tripp professed that his feelings were stronger now and that he was waiting for Ms. Ford to change her mind. She said her feelings had not changed and he said he understood. For the remainder of 2016, Ms. Ford testified generally that Mr. Tripp continued to make comments about his inability to function and that he got more obsessive as the year progressed. But she offered little detail about the comments or where and when they occurred, except that she had to be around Mr. Tripp’s wife several times and she and Mr. Tripp agreed it was uncomfortable. The fifth incident occurred in October 2016 when Mr. Tripp told her he was learning Hebrew to “connect” with her in her native language. He tried to communicate with her in Hebrew in person and via text, despite her telling him to stop because it made her very uncomfortable. As a result, she again started to avoid him at the office, though he texted her to see if she was alright and admitted to acting like a high school student. In January 2017, Mr. Tripp continued with innuendo, spoke in Hebrew, and told Ms. Ford that he might move closer to her. She believed he was obsessed, which made her nervous about his stability and her safety. But she offered no specific dates on which these events occurred. Mr. Tripp came to Ms. Ford’s office twice that month after she had heated meetings with the CEO, including on her last day at the company, January 27, 2017. He cried because he could not imagine how he would go on if she left, as she was the only reason he came to work every day. That evening, he told her on the phone that he now knows what a divorce feels like. Mr. Tripp continued to harass her following her departure, including taking his family to the same ski resort in March 2017. She testified that she stayed in her room to avoid him and never initiated contact with him while there, though text messages admitted into evidence confirm she texted him several times, about a security breach and generally about his vacation. In January 2018, a year after she left the company during a mediation of her lawsuit against Lincare, Ms. Ford for the first time accused Mr. Tripp of sexual harassment. She had not reported the allegations pursuant to Lincare’s policy, though she knew it required her to do so. She never informed other coworkers either. In fact, the only person she said she told was her husband, though he did not testify at the hearing. Ms. Ford testified that she did not report the allegations because she had a contentious relationship with the CEO during this period and she believed the CEO would terminate her. She also was concerned that Mr. Tripp was unstable and could decide to kill the deals to ensure she missed out on her bonuses. Lastly, she thought reporting would be futile due to Lincare’s culture of harassment, including by one of the two individuals to whom she was directed to report, the head of HR. Mr. Tripp’s Testimony Denying the Alleged Sexual Harassment Mr. Tripp said that he never harassed Ms. Ford. Indeed, no one has ever accused him of harassment. He said he never expressed romantic feelings for her, suggested having a sexual relationship with her, or did anything to scare her. Ms. Ford’s allegations against him came as a shock. He believed they had been good friends for over 15 years and she never indicated otherwise. They enjoyed each other’s company, had children around the same age, and spoke often about business and personal things, like friends often do. Even during the period of alleged harassment, he noticed no changes in her behavior. They continued to invite each other to lunch regularly, often eating together alone, and continued to discuss deeply personal matters about their families. They texted each other often and attended holiday dinners with friends. She chose to sit next to him at a work event at a hotel in the fall of 2016. The same could be said for business trips during this period. On a March 2016 trip to New York, Ms. Ford left a group dinner early with him because he was sick, they worked out the next day, and had breakfast. On an August 2016 trip to Nashville to celebrate the closing of the Maverick deal, they rented a car together and went to dinner alone after Ms. Ford invited him. On a trip to New York in August/September 2016, Ms. Ford stayed with Mr. Tripp to retrieve his briefcase from the office and went to the airport together after the rest of the team left. Mr. Tripp admitted to learning some Hebrew, but because he liked languages (he was an Arabic linguist in the Army), not to become romantically connected to Ms. Ford. He practiced with her because she was the only person he knew who spoke Hebrew, just as he did with other coworkers who spoke another language. She never said it made her uncomfortable. Mr. Tripp also admitted that his wife suggested moving closer to Plant High School because it had a beneficial program for their son. The idea had nothing to do with Ms. Ford, who did not live nearby, and they decided not to move in any event. Even on her final days at Lincare, they had usual interactions. Mr. Tripp admitted calling Ms. Ford the evening of her last day (but said he had not come down to her office earlier) to express concern for his friend and sadness that they would no longer be working together. He did not recall commenting about a divorce, but if he had, it only related to her being a friend. For a few months after she left Lincare, Mr. Tripp believed their relationship had not changed. They continued to text each other and had lunch alone at least once. Though he took a ski trip to the same resort in March 2017, his wife chose the resort and Ms. Ford reached out to him several times during that trip to see how he was doing. Ms. Ford also texted him after he had a car accident in March/April 2017. It was not until several months after Ms. Ford left Lincare and filed her lawsuit against the company that he noticed a change in her attitude. At one point, he invited her to lunch with a mutual friend, but she did not respond and he later learned they had lunch without him. Ms. Ford also told him on the phone that he was going to hate her someday, though he had no idea then what that meant. After a hurricane in August/September 2017, he reached out to make sure she was safe; she thanked him and wished his family well too. That was their last communication before the sexual harassment allegations were made. Credibility Findings as to the Conflicting Testimony After hearing the conflicting testimony from Ms. Ford and Mr. Tripp and observing their demeanor, the undersigned found it exceedingly difficult initially to determine who is telling the truth and who is quite an effective storyteller. Ms. Ford’s conviction in her accusations against Mr. Tripp was equal to his conviction in his denials. But, when considering all of the record evidence and testimony, the scales of credibility tip in Mr. Tripp’s favor for several reasons. For one, Ms. Ford cultivated a professional and personal relationship with Mr. Tripp throughout the alleged harassment period and continued to do so even after she left Lincare. Although she said she maintained contact because they had to work together and she wanted him as an ally, she also accused him of stalker-like, obsessive, humiliating, and unstable behavior. Her efforts to maintain a friendship with him, even after leaving Lincare, are at odds with someone who feels humiliated and fears for their safety. Ms. Ford’s testimony also veered from the affidavit she filed with the Commission. She testified that he generally made comments between November 2016 and January 2017, yet her affidavit offered more specifics as to the comments allegedly made. Her testimony about him moving to her neighborhood was entirely omitted from her affidavit. Her testimony about his efforts to sometimes communicate with her in Hebrew was at odds with the affidavit’s claim that he did so “continuously.” And, her testimony about the comments he made on her last day at Lincare differed as to substance and degree from her affidavit. Further, Ms. Ford’s testimony was directly refuted by other evidence. She testified that she did not affirmatively communicate with him about anything personal in March 2017, but text messages confirm that she checked in with him several times during the trip about his vacation and engaged in more friendly conversation than initially admitted. Ms. Ford’s reasons for waiting until a year after she left Lincare to report the accusations also call her credibility into doubt. Though she testified that she feared Mr. Tripp would kill two large deals and her bonuses therefrom, those deals closed in March and August 2016, and yet she never reported the allegedly ongoing harassment before she left Lincare at the end of January 2017. It also cannot be ignored that she waited until January 2018 to report the accusations and did so during the mediation of her compensation lawsuit against the company. Lastly, though not fatal to her claim, Ms. Ford’s failure to present any corroborating evidence cannot be ignored. She testified that she lost weight, suffered hair loss, and could not sleep, and said that it was the worst year of her life. Yet, the record is devoid of evidence that any other friends or coworkers noticed such changes, that she missed work or social events, or that she suffered at work in any way. She said he sent her inappropriate text messages, but provided no proof of them. She apparently kept a journal about work issues, but did not document the harassing incidents. And, though she said she immediately told her husband in December 2015, she chose not to present his testimony even though he was the only person who could corroborate her accusations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Sharon Ford, failed to timely file her Complaint and, regardless, that Ms. Ford failed to establish that Respondent, Lincare, Inc., committed an unlawful employment practice against her, both of which warrant dismissal of her Petition for Relief. DONE AND ENTERED this 17th day of May, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2019.
Findings Of Fact Petitioner, Mary Anna Cline (Ms. Cline), is a fifty-two year old female who was employed by USBI Company (USBI) from 1985 until November 15, 1994. USBI refurbishes the solid rocket boosters for the space shuttle program at the Kennedy Space Center, Brevard County, Florida. It employs substantially more than fifteen full-time employees. Ms. Cline was hired for the position of technical illustrator, which position is responsible for drawing mechanical components, doing illustration and charts, and preparing manuals and documents that apply to the day-to-day work of the company. She was a good employee and had excellent technical skills, as reflected in her performance evaluations and numerous commendations. At the time that she left the company, she was in a position titled "senior technical illustrator." In early 1992 the company had some internal reorganization, and Ms. Cline and a group of employees were transferred from Management Services to Documentation Support. The job duties remained substantially the same, but the new group also had responsibility for the Routing of Documents (RODS) program, which involved the tracing of detailed technical drawings, to be used on a computer mainframe by the "techs" (engineers). Documentation Support generated technical documentation for the rockets, all technical manuals, standard procedures, testing, fliers and presentations - generally all of the paperwork used by the company, including verbiage and graphics. The supervisor of Documentation Support, then and now, is a woman, Monica Teran. Approximately seventy-five percent of Ms. Cline's work group were women. In June 1992, Richard Bowen was hired by USBI as a technical illustrator and was assigned to Documentation Support. He became a coworker of Ms. Cline and their assigned work stations were side-by-side without a partition. Richard Bowen's two main hobbies are photography and computers. He was generally accepted as the computer expert in the work group; when there were problems with the computers, Richard Bowen could often work them out. Bowen's interest in photography is also more than a casual avocation. He attended photography school in Chicago when he was younger and worked with a modeling agency. He holds an occupational license to conduct a photography business and performs commercial photography services that do not conflict with his 9-5 job: weddings, portraits, some modeling photographs and some work with a theme park in Orlando. He is a member of the Audubon Society and takes wildlife photographs and does computer work for the organization. The Photograph Incident Staff in the work group were interested in Bowen's photographs. He brought samples of his pictures to work to show off. He usually left the pictures on his desk, face up, so that people could come to his work area and look at them. Some time in the latter months of 1992, Bowen purchased an expensive special soft-focus lens that gives the subject a soft, romantic, mystical look and deletes the wrinkles or blemishes. He discussed the lens with a fellow photographer at work and brought in a sample of photographs he had taken with the lens. Most of the pictures among the twelve to fifteen which he brought on this occasion were wildlife; there also were a few photographs of a model. She was bare-breasted, but was not exposed from the waist down. While there is no clear description of her pose in the record, she was described by some as nude and others as partially nude. None described the photographs as sexually suggestive or pornographic. In the early morning before work started, some female staff members were shuffling through the photographs. Ms. Cline was part of the group looking on. Bowen said something semi-jokingly like, "You might not want to look at these; there's a bare-breasted model." One of the women replied that it was nothing that she had not seen before, and continued shuffling through the photographs. Ms. Cline saw the model's photograph, remarked that the girl had pretty eyes, and returned to her own work station. Several months later, after a workshop that management had initiated to deal with problems in the workplace, Ms. Cline reported the photographs to Carol DuBray, Director of Human Resources and Darryl LeCanne, the immediate supervisor of Monica Teran. Ms. Cline was embarrassed by the photographs. Management's Response As soon as Ms. Cline left Darryl LaCanne's office, he called Monica Teran, and the two supervisors met with Richard Bowen. They informed him that USBI had a policy of not tolerating nude photography or pin-up calendars in the workplace and that his bringing the photographs to work was unacceptable behavior. Darryl LaCanne told Richard Bowen that the next time severe disciplinary action would be taken. Richard Bowen was also called in to speak with USBI's director of security, Barry Wysocki. Mr. Wysocki informed him that nude pictures were prohibited by USBI's regulations. Mr. Bowen received the message in clear terms that the matter was very serious. Bowen never again brought nude or semi-nude photographs to work and Ms. Cline never again saw such photographs at work. Offensive Shop Talk Work stations in the Documentation Support unit were divided into cubicles, some separated by dividers, some (Richard Bowen's and Ms. Cline's) were side by side, facing a partition with two other workers on the opposite side. Workers interacted within a small space and moved about to use different computer equipment, printers, files, and similar work tools. Among some of the workers there was occasional bawdy banter and comment about boyfriends, weekends and vacations, and the like. It was sexually oriented in a sophomoric, adolescent schoolyard manner. It included terms like "shit" and "fuck" and included conversation about "blow jobs" or "hard-ons," and other slang words involving male genitalia. With one exception, the language was not directed to Ms. Cline. That exception was one occasion when Richard Bowen responded to her criticism of some work with the expletive "fuck." Both male and female workers engaged in the banter, which was overheard by Ms. Cline and others. Ms. Cline was particularly offended by banter between Bowen and a female worker, Anna Silvestri, who occupied a workstation on the other side of the partition in front of Ms. Cline and Mr. Bowen. Ms. Silvestri sometimes initiated this banter. In May or June of 1993 Ms. Cline reported to her supervisor, Monica Teran, that Richard Bowen and Anna Silvestri used the word "fuck" and engaged in sexually explicit conversations. Ms. Teran went to her supervisor to see what to do about the complaint and Carol DuBray requested that Barry Wysocki conduct an investigation. Barry Wysocki interviewed and took statements from employees in the Document Support Unit, including Ms. Cline. She complained that Richard Bowen created a hostile environment; that she heard him say "fuck" on one occasion in the past two months and that she heard Anna Silvestri say the word on two occasions. Ms. Cline said that Bowen and Silvestri discussed Ms. Silvestri's sex life and that on one occasion Ms. Silvestri tried to discuss her sex life with Ms. Cline, but she cut her off with a comment that it was improper. Ms. Cline reported hearing Monica Teran and Beth Seaman use the word "fuck" in the work area. Bowen and Silvestri did not deny mild profanity and mildly sexual conversations. Other employees reported hearing some profanity, primarily "shit," "damn" and "bullshit." Richard Bowen and Anna Silvestri were seriously reprimanded by Barry Wysocki, by Barry Smoyer, by Darryl LaCanne and by Monica Teran. Each supervisor impressed on the two employees that the use of foul language was not tolerated and was against company policy. Barry Smoyer gave the two employees a letter "for the record," documenting the counselling session and reprimand. Monica Teran moved Ms. Cline to Anna Silvestri's workstation on the other side of the partition from Richard Bowen. She moved Anna Silvestri two cubicles away, with several partitions between her and Mr. Bowen. And George Roberts was placed next to Richard Bowen in Ms. Cline's former workstation. The intent by the supervisor was to accommodate Ms. Cline's concerns and to separate the two prime offenders. In the two years that he worked for USBI, including the time that he worked next to Richard Bowen, George Roberts heard nothing more than "hell" or "damn" from Bowen. Nevertheless, around August 1994, during her performance review, Ms. Cline informed Monica Teran that the sexual conversations were continuing. Ms. Teran informed her supervisors and another investigation commenced, this time by USBI's new security director, Al Eastlack. Mr. Eastlack conducted an interview with Ms. Cline, among others, and took her formal statement in September 1994. Barry Smoyer reviewed a draft report of Mr. Eastlack's investigation and although he understood the results were "inconclusive," Mr. Smoyer renewed his admonishments to Richard Bowen and Anna Silvestri in separate memoranda to the two, reminding them of USBI's intolerance of sexual harassment in any form and warning them that inappropriate language would result in disciplinary action. Alleged Threats After the photograph incident, but before she complained, Richard Bowen and Mary Anna Cline had a conflict over the use of some computer graphics software. Bowen was advocating one type of software that Ms. Cline opposed. Monica Teran had to intervene and instructed Ms. Cline to install the program and learn how to use it. After she complained about the photographs, Ms. Cline became convinced that Richard Bowen was going to retaliate. She complained to Monica Teran that she was afraid of Bowen but her complaints were non-specific. She began to complain of stress and sleep problems. Ms. Teran recommended that she go to the Employee Assistance Program (EAP) counsellor or to see her own counsellor or doctor. This was around the same time that Ms. Cline complained about the offensive language and conversations, and Ms. Cline took the recommendation to mean that Ms. Teran did not believe her, or that Ms. Teran felt Ms. Cline was at fault. Ms. Teran also commented to Ms. Cline that she should simply tell Bowen to stop talking like that. Another employee, Dorothy Stokey, who was offended by Bowen's use of "fuck" had told him to stop. Ms. Cline was too intimidated by him to confront him directly. Some time in the latter months of 1993, Monica Teran found Ms. Cline in the ladies' room crying and upset to the point of incoherence. Ms. Cline had overheard a conversation between Richard Bowen and Anna Silvestri involving a gun and made a connection between that and incidents of violence in the workplace and coworkers being shot. With the help of Barry Smoyer, Ms. Teran was able to get Ms. Cline out of the ladies' room and calmed down. Then, at Mr. Smoyer's direction, Ms. Teran called Ms. Silvestri and Mr. Bowen into her office to find out what had happened. Mr. Bowen did not have a gun at work and he had been discussing a gun show early that morning. Ms. Teran was satisfied that the discussion had been innocuous and reported her findings to Barry Smoyer. No other employee reported that Bowen had a gun or saw him with a gun. None, including Ms. Cline, ever complained that Bowen had threatened them with a gun. Alleged Retaliation Ms. Cline contends that USBI retaliated against her for reporting sexual harassment. Specifically she claims that her job duties were shifted from work on RODS, which she liked, to word processing, which she disliked and with which she had difficulty, due to some dyslexia. It is undisputed that Ms. Cline was a very competent graphics illustrator. She and Mr. Bowen and a couple of other employees in the unit were considered the core of the illustration function, and other employees in the unit preferred and were more skilled in the word processing and language component of the unit's responsibilities. However, the work assignments were not so clearly divided between "illustration" and "word processing." The production and modification of company manuals required both types of work. Monica Teran was interested in cross-training her staff to do a variety of tasks. There was a time, after mid-1993, when Ms. Cline's assignments involved word processing. She also continued to do a substantial amount of RODS work, as evidenced by handwritten logs maintained by the employees. Monica Teran never instructed the staffperson responsible for making assignments to remove Ms. Cline from RODS or other graphics work. RODS was not considered high profile or creative work since it primarily involved tracing technical components repetitively. There was a period when RODS work was put on hold. There was another period when temporary employees, such as George Roberts, were taken in to work exclusively on RODS. At no time during her employment with USBI was Ms. Cline demoted in job title or pay. In 1993 and 1994 her employment evaluations reflected a need to improve communications and attendance, but she was still rated "excellent," "good" and "acceptable" in all categories, and overall "excellent" and "good." There is no evidence to indicate that anyone tampered with Ms. Cline's computer or sabotaged her computer, as she claimed. On occasion it was necessary for Monica Teran or other staff to work at Ms. Cline's and other stations, to see if programs were loaded or the machine was set up properly. Although certain equipment, such as a printer, was located at an individual workstation, other staff needed access to that equipment. Job-Related Stress Ms. Cline's attendance did suffer and she did experience job-related stress. She went to an EAP counsellor and to a psychiatrist. She was on medication and there were problems with adjusting the type and amount of medication. Ms. Cline experienced sleep disorders; she reported falling asleep at the wheel of her car and had a minor accident. She also experienced other physical phenomena such as pains in her chest and arms, or numbness. Her psychiatrist diagnosed her medical condition as "adjustment reaction of adult life with mixed emotions, basically depression and anxiety." (T-415) Accommodation and Resignation Monica Teran's staff was located in two buildings: the modular unit occupied by Ms. Cline, Mr. Bowen, Ms. Silvestri and others; and another separate building which also included other USBI employees. Ms. Teran's staff was moved around routinely, as new employees were added or other work space needs arose. In Fall 1993 USBI offered to move Ms. Cline to the other building, allowing her to retain her same position and duties; she declined, and the company did not insist that she move. Later, Ms. Cline was offered a lateral position at the same pay and position level. Carol DuBray met with Ms. Cline to discuss this attempt to accommodate her. Ms. Cline also rejected that offer. She explained at hearing that she was afraid she would have been in line for a layoff, if she transferred. However, there is no competent evidence to support that fear. Ms. DuBray explained to Ms. Cline in their meeting that she would retain all benefits, including seniority. In fact, USBI has no departmental seniority policy. Seniority is based on the date an individual is hired by the company, rather than time within a department in the company. On November 15, 1994, Ms. Cline voluntarily resigned, citing "continuing stress brought on by sexual harassment, discrimination, retaliation and the flagrant disregard by USBI and its management in the handling of this problem. . . ." (Petitioner's exhibit no. 31) The Formal Complaints At the time she resigned Ms. Cline had already filed her complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC). That charge is dated December 6, 1993. The charge of discrimination alleges violations of Title VII of the Civil Rights Act, by sexual harassment and retaliation. It does not cite the Florida Civil Rights Act, Chapter 760, Florida Statutes. Pursuant to a worksharing agreement between EEOC and FCHR, the charge was sent to the Florida agency for initial investigation. That workshare agreement, which refers to the FCHR as the "FEPA," provides, in pertinent part: FILING OF CHARGES OF DISCRIMINATION In order to facilitate the filing of charges of employment discrimination, the EEOC and the FEPA each designate the other as its agent for the purpose of receiving and drafting charges. The FEPA shall take all charges alleging a violation of Title VII, ADEA, EPA, or the ADA where the parties have mutual juris- diction and refer them to the EEOC for dual filing, so long as the allegations meet the minimum requirements of those Acts. Each Agency will inform individuals of their rights to file charges with the other Agency and to assist any person alleging employment discrimination to draft a charge in a manner which will satisfy the require- ments of both agencies to the extent of their common jurisdiction. As part of the intake duties, investigators are to verify with the charging parties if they have filed a charge of discrimination with other agencies prior to filing the charge. For charges that are to be dual-filed, each Agency will use EEOC Charge Form 5 (or alternatively, an employment discrim- ination charge form which within statutory limitations, is acceptable in form and content to EEOC and the FEPA) to draft charges. When a charge is taken based on disability, the nature of the disability shall not be disclosed on the face of the charge. * * * H. The delegation of authority to receive charges contained in Paragraph II. a. does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge. * * * DIVISION OF INITIAL CHARGE-PROCESSING RESPONSIBILITIES * * * D. EEOC will not defer or refer any charge for the FEPA to process that is not jurisdictional on its face with both Agencies. If it is apparent that one Agency might have jurisdiction when another does not, then the Charging Party will be referred to the appropriate Agency. * * * (Petitioner's exhibit no. 41) (emphasis added) A notice dated December 20, 1993, on EEOC form 212, states that the FCHR has received the charge and will initially investigate the charge. The FCHR did investigate the charge and the FCHR investigator's report is dated July 13, 1994. A document styled "Determination: No Cause" is dated August 25, 1994 and has the apparent signature of FCHR's Executive Director. An accompanying document, with the same date, is styled "Notice of Determination: No Cause" and informs Ms. Cline as complainant of her right to file her petition for relief within 35 days. The petition for relief dated September 27, 1994, was filed with FCHR, and cites the Florida Civil Rights Act of 1992, as well as Title VII. The petition alleges sexual harassment and retaliation. FCHR transmitted the petition to the Division of Administrative Hearings on October 6, 1994. The amended petition for relief, filed on April 10, 1995, and referenced in the order and notice of hearing dated May 16, 1995 deletes any reference to Title VII and recites instead that the claims for relief are based on Section 760.10, Florida Statutes. The amended petition does not claim constructive discharge nor does it mention that Ms. Cline left the company approximately five months earlier. Sexual Harassment Policy and Summary of Findings USBI has, and during the relevant period had a sexual harassment policy which provides: The Equal Employment Opportunity Commission's amended "Guidelines on Discrimination Because of Sex" include a section prohibiting sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature when: submission to such conduct is either an explicit or implicit term or condition of employment, or submission to or rejection of such conduct is used as a basis for an employment decision affecting the person rejecting or submitting the conduct, or such conduct has the purpose or effect of unreasonably interfering with an affected person's work performance or creating an intimidating, hostile, or offensive work environment. Sexual harassment is unacceptable behavior by any USBI employee or outside vendor. Any form of harassment, like any conduct contrary to common decency or morality, cannot and will not be tolerated. The company will take whatever corrective action necessary to prevent or deal with acts of sexual harassment in the work place. (Respondent's exhibit no. 61) The policy provides names and phone numbers for persons to report sexual harassment and states that reports at that point will be confidential. Employees are informed of the policy through annual letters from the company head, through posters on the facility walls and through mandatory workshops for managers and their staff. USBI responded appropriately to Ms. Cline's complaints. Its response as to the photographs was effective; the sexually-themed banter, however, continued. The banter did not constitute sexual harassment of Ms. Cline, nor did it create a sexually hostile work environment. No one at USBI ever made a sexual advance towards Ms. Cline; no one suggested or requested sex from her or asked her for a date. No one touched her inappropriately. The sexual banter was never directed to or about her. The banter overheard by Ms. Cline, and the use of the "f word," were occasional, not daily or even weekly. The banter was not directed solely to, or about women; it was engaged in, and was overheard, by men and women, alike. The work quarters were close; the unit which included Ms. Cline was in a small "modular" building with work stations divided by movable partitions. By necessity, workers moved around the office to use various equipment. Coworkers of Ms. Cline did not find the environment sexually hostile, offensive or intimidating. No one else of the primarily female group complained about a sexually hostile or intimidating work environment. According to both a friend and her psychiatrist, Ms. Cline was more sensitive than most to profanity and off-color language. Without question, Ms. Cline suffered from stress at work. The stress was manifest in the myriad physical symptoms which caused absenteeism and loss of performance. USBI appropriately offered to Ms. Cline accommodations which would have allowed her to continue working at the same job level and salary but outside of the environment she found intolerable. She rejected the offers and voluntarily resigned. The resignation was not urged, directly or indirectly, by the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Ms. Cline's complaint and petitions for relief in this cause. DONE and ENTERED this 25th day of March, 1996, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5634 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact. Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in paragraph 60. Rejected as unnecessary. Adopted by implication in paragraph 60. Adopted in substance in paragraph 48. Rejected as unnecessary. Adopted in paragraph 50. Adopted in paragraph 52. Adopted in paragraph 53. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Subparagraphs are addressed as follows: Adopted in substance: a (but not the date), b, c, h, i, m, n. Rejected as unnecessary, immaterial or misleading: d, e, f, g, j, k, l. Rejected, as to the "escalation," as unsupported by the greater weight of the evidence; adopted generally in summary in paragraph 17; but some of the specifics alleged were not established (for example, the "sucking" statement). Rejected as a mischaracterization of the incident, although use of the word, "fuck," was proven. 19.-22. Rejected as not credible. 23.-24. Adopted in substance in paragraph 17. 25.-28. Rejected as contrary to the weight of evidence. Adopted in part in paragraphs 39-41, but it was not proven that the stress was the result of a "hostile work environment," within the scope of gender-based discrimination. Rejected as unnecessary. 31.-32. Rejected as contrary to the weight of evidence. 33.-34. Accepted that she complained, but the dates and frequency were not established with competent evidence 35. Conclusion that the steps were "inadequate" is rejected as contrary to the weight of the evidence. 36.-41. Rejected as unnecessary, immaterial, or misleading. 42. Rejected (as to characterization of "retaliation") as contrary to the weight of evidence and the law. 43.-46. Rejected as unnecessary, given the recommended disposition. Respondent's Proposed Findings of Fact. 1.-4. Adopted in substance in paragraphs 48 and 49. 5.-6. Adopted in substance in paragraph 54. 7. Adopted in paragraph 1. 8. Adopted in paragraph 55. 9. Adopted in paragraph 3. 10. Adopted in paragraph 4. 11. Adopted in paragraph 5. 12.-13. Adopted in paragraph 4. 14.-15. Rejected as unnecessary. Adopted in substance in paragraph 34. Adopted in paragraph 6. 18.-21. Adopted in paragraphs 7 and 8. 22. Adopted in paragraph 9. 23. Adopted in substance in paragraph 59. 24. Adopted in paragraph 61. 25. Adopted in paragraph 10. 26. Adopted in paragraph 12. 27.-28. Adopted in substance in paragraphs 11 and 12. 29. Adopted in paragraph 13. 30. Adopted in paragraph 27. 31. Rejected as unnecessary. 32.-35. Adopted in paragraphs 14 and 15. 36.-38. Adopted in paragraph 19. 39.-43. Adopted in paragraphs 20 and 21. 44. Adopted in paragraph 22. 45. Rejected as unnecessary. 46. Adopted in paragraph 23. 47.-48. Rejected as unnecessary. 49. Adopted in substance in paragraph 25. 50. Adopted in paragraph 24. 51. Adopted in paragraph 26. 52. Adopted in paragraph 28. 53. Adopted in paragraph 29. 54. Adopted in paragraph 31. 55. Adopted in paragraph 30. 56. Rejected as unnecessary. 57.-62. Adopted in substance in paragraphs 43 through 46. 63.-64. Adopted in part in paragraph 47; otherwise rejected as unnecessary. 65.-72. Adopted in substance in paragraphs 32 through 38. COPIES FURNISHED: Patricia E. Lowrey, Esquire Mark B. Roberts, Esquire STEEL HECTOR and DAVIS 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Wayne L. Allen, Esquire 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The ultimate issue is whether the Respondent, Tallahassee Coca-Cola Bottling Company (Coke), engaged in an unlawful employment practice on the basis of race in its termination of James Andrews, the Petitioner. Andrews was purportedly terminated because of allegations that he had repeatedly sexually harassed and touched female employees. Resolution of the ultimate issue does not require a determination of whether such sexual harassment actually occurred. Instead, the issue is whether Coke's motivation for the termination was racially based and thus impermissible.
Findings Of Fact Andrews, who is black, was initially hired by Coke in 1969 and worked on the production line until he quit in 1971. Andrews was rehired by Coke in 1973, also in the production department. He worked in various positions in both the production department and in the inventory warehouse, and was promoted to assistant production superintendent in 1977. When the production department was closed in June 1982, Andrews transferred to the warehouse as assistant warehouse supervisor. In 1983, he assumed the responsibilities of head shipping and receiving clerk, and was placed in charge of inventory control, plant security and vehicle maintenance. Warehouse Supervisor Dale Dunlap resigned in July 1988 and Andrews was promoted to Warehouse Supervisor. As warehouse supervisor, Andrews had primary responsibility for the overall management of the warehouse, including inventory control, shipping and receiving, personnel management, and warehouse and vehicle maintenance. Andrews' performance evaluations were generally excellent, but the most recent evaluations were less favorable than his earlier reviews. Reports of Sexual Harassment Prior to Andrews' termination reports of sexual harassment were made to Coke by three employees: Susan Lingerfelt, Mandy Stinson, and Sue Rosenthal (now Rubin). In summer 1989, Lingerfelt reported to Office Supervisor Mandy Stinson that Andrews had just grabbed her in the warehouse by the Coke machine and had forced her head back and kissed her. She had shoved Andrews into the Coke machine, told him not to do that, and went to report it to her supervisor. Because the Sales Center Manager had resigned and his replacement had not yet been appointed, the two women agreed not to tell anyone about the incident, but instead to wait until the new manager arrived. In February 1990, around Valentine's Day, Lingerfelt reported that Andrews came up behind her when she was sitting alone at a computer terminal, grabbed her hair, pulled her head back, and again kissed her on the lips. Lingerfelt again protested and tried to get away from Andrews. Lingerfelt again reported the incident immediately to Stinson. Stinson and Lingerfelt went immediately to Lee Burk, the new Sales Center Manager, and reported the incident and the earlier incident at the Coke machine. During this same meeting with Lee Burk, Stinson also complained that she had been repeatedly harassed by Andrews and that Andrews had come up behind her, given her a "bear hug," and tried to kiss her. Burk was confused about what had happened to Lingerfelt because a black employee, Roosevelt Humphrey, had reported to him a couple of months before that he had seen two employees consensually embracing at the Coke machine. Humphrey had not identified the two employees except to say one was a supervisor. Burk mistakenly believed that the two separate Coke machine incidents were the same event. Based on this mistaken belief, Burk thought that a supervisors' meeting would be enough to solve the problem. A few days later, Burk called a supervisors' meeting and discussed several topics, including sexual harassment. He redistributed and discussed Coke's written policy forbidding sexual harassment. Burk told all the supervisors in no uncertain terms that he would not tolerate unwelcome sexual advances at the plant and that if anything of that sort had happened, the supervisor had better clean up his act. In August 1990, Andrews again was reported by Lingerfelt for grabbing her hair, pulling her head back and kissing her on the lips. Lingerfelt tried to slap Andrews, but missed, hitting him on the shoulder. Lingerfelt went immediately to Stinson and they went to see Burk. Lingerfelt was quite upset and was crying. When Burk heard the report, he said he would take care of it. Lingerfelt left the plant for about an hour to collect herself. While Lingerfelt was gone, Burk called Andrews to his office and confronted him with the two women's allegations, including the previous reports by both women. Andrews categorically denied the allegations, except that he had once put his arms around Lingerfelt. He denied ever kissing her and said he did not mean anything by his actions. Burk stressed to Andrews that he could not touch any female employee again, even if he didn't think anything was wrong with it--that he must stop it. Andrews claimed that Lingerfelt had invited the contact by bumping against him and that she was making the allegations because he was black. Andrews also claimed that Lingerfelt had allowed sexually explicit advances from a white supervisor, Doc Roddenberry, and that Roddenberry, not Andrews, should be the subject of Burk's admonitions. Burk told Andrews that he had only gotten complaints about him (Andrews) and that if he continued with his unwelcome conduct, he could lose his job. No advances were reported by Lingerfelt for a few months, but she did complain that Andrews was uncooperative with her about work. In January 1991, Lingerfelt noted that Andrews was calling her frequently and spending long periods of time in her office. Because this behavior was similar to Andrews' conduct before the previous incidents, Lingerfelt became concerned. On January 16, 1991, Stinson was in Jacksonville at Coke's regional office. Lingerfelt became so concerned that she called Stinson in Jacksonville and reported that Andrews had spent several hours that day in Lingerfelt's office staring at her. Stinson immediately asked the Regional Human Resources Manager, Thomas Bauman, for assistance. Stinson informed Bauman of all the prior alleged sexual harassment by Andrews. The next day Stinson returned to Tallahassee and she and Lingerfelt spoke with Burk. Lingerfelt, who was visibly scared and crying, explained to Burk that Andrews had been standing around her office staring at her. Burk said he would address the problem immediately. After talking with Bauman and obtaining his approval, Burk called Andrews into his office and confronted him again. Andrews denied that he had been hanging around Lingerfelt's office staring at her. Burk then brought Stinson into his office to confront Andrews about his persistent harassment against her. Andrews denied the allegations and accused Stinson of "coming on" to him. Andrews again asserted that the women's allegations were racially motivated. He also brought up his allegations against Roddenberry and Lingerfelt and demanded to know why Roddenberry could "get away with it" and he couldn't. Burk advised Andrews that it was only his own misconduct which was being addressed at the moment. Burk also informed Andrews that the allegations of Andrews' misconduct would be brought to the attention of Bauman for further action. Shortly thereafter, Coke's Special Events Supervisor, Sue Rosenthal (now Rubin), reported several events of sexual harassment by Andrews. She had come forward to help support Lingerfelt. Coke's Investigation After discussing the situation and receiving instructions from Buddy Donaldson, Coke's Florida Human Resources Director, Bauman travelled to Tallahassee to conduct an investigation on January 24 and 25, 1991, into the allegations against Andrews. Bauman first met with Burk and received a briefing on the series of allegations. Burk reported the incident which Roosevelt Humphrey had reported to him, still thinking that incident involved Andrews. Bauman interviewed Lingerfelt, who related in great detail each of the alleged incidents set forth above. Bauman took notes and Lingerfelt signed those notes as being an accurate account of her statement. Bauman asked Lingerfelt whether she had any racial motivation for her reports. Lingerfelt denied that Andrews' race had anything to do with her allegations. At this meeting, Lingerfelt told Bauman that she had hired an attorney and had filed sexual harassment charges against Coke with the Florida Commission on Human Relations. Bauman next interviewed Roosevelt Humphrey. Humphrey told Bauman that the two people he had reported were Lingerfelt and Roddenberry, not Lingerfelt and Andrews. Humphrey also acknowledged that he had not seen any other such incidents involving Lingerfelt and Roddenberry since the one incident he had reported to Burk without giving names. Bauman then went to Lingerfelt and asked if Roddenberry had sexually harassed her. Lingerfelt denied that Roddenberry had ever harassed her. Bauman next interviewed Rosenthal. Rosenthal told Bauman that before she became a supervisor in early 1989, Andrews had engaged in unwelcome sexual conduct toward her on three occasions. The first two times, Andrews came up behind her in her office, lifted the hair on the back of her neck, and kissed her on the neck. The third time, Andrews surprised her by kissing her on the lips after she had finished a telephone call and had turned around. Rosenthal said she was too startled to say anything after the first incident, but after the second and third events, she told Andrews not to do that. She said she did not report these incidents at the time because she was new, young and nervous. Rosenthal also reported that she had recently seen Andrews "stalking" Lingerfelt, staring at her for long periods of time and waiting for Rosenthal to leave so that he could be alone with Lingerfelt. Bauman asked Rosenthal whether her allegations could be racially motivated. Rosenthal said race had nothing to do with it and, in fact, she lived with a black roommate. Rosenthal had selected that woman from a pool of applicants who had responded to her newspaper ad seeking a roommate. Bauman next interviewed Stinson. Stinson told Bauman of the harassment she had suffered from Andrews, which included several attempts by Andrews to hug and kiss her. She also related information about the times Lingerfelt would come to her and they would go to Burk about Andrews' actions toward Lingerfelt. On January 25, 1991, Bauman officially interviewed Burk. Burk related the actions he had taken, including the supervisors' meeting in February 1990 and the personal meetings with Andrews in August 1990 and January 1991. Burk also recommended that Andrews be terminated for sexual harassment and stalking. Suspension and Termination Bauman then called Donaldson and discussed the information he had learned. They decided that Andrews should be suspended immediately, pending a final decision. They also decided not to interview Andrews again because he had denied any wrongdoing twice, most recently a week earlier. They had no reason to believe that Andrews would recede from his denials. Before suspending Andrews, Bauman asked Lingerfelt and Stinson to leave the building. He did so because of his concern and the women's concerns about their personal safety, especially when Andrews was told of the suspension. As soon as the two women had left the building, Bauman called Andrews to Burk's office. They told Andrews that he was being suspended for conduct unbecoming a supervisor. Andrews wanted to know "who said what" about him, but Bauman declined to give him further details. As he was leaving Burk's office, not knowing that Lingerfelt and Stinson had left the building, Andrews shouted to the closed door of Stinson's office something to the effect of "Did you women hear that--are you happy now?" As soon as Andrews was escorted from the premises, Coke changed all the locks at the Tallahassee facility, which was standard procedure. Bauman also had an automatic front door lock installed so that no one could enter the front office without being pre-screened. The following week, Bauman and Donaldson reviewed all the information, including the interview notes which had been attested to by the three women. They concluded that sufficient evidence existed to require termination of Andrews' employment. On January 31, 1991, Donaldson came to Tallahassee, summoned Andrews to the facility, and terminated him for misconduct. The decision to terminate Andrews was based on a good faith belief that he had engaged in inappropriate sexual conduct on multiple occasions, despite and in the face of at least two warnings by the sales center manager. Coke did not immediately replace Andrews. Due to a "cost containment" program that had recently been instituted and because Tallahassee's volume was too low, Burk was not permitted to hire a replacement. In February 1992, more than a year later and after two neighboring sales centers were closed and their operations consolidated at the Tallahassee facility, Burk was allowed to hire a replacement. He hired the warehouse manager from one of the closed sales centers, a white male. Other Victims Come Forward While Coke knew of only three female employees who had been harassed by Andrews when Coke terminated him, three additional women also came forward to testify about sexual harassment they had suffered at the hand of Andrews. Johnnie Mae Marshall, a black woman who had worked for Coke as a receptionist, said Andrews had suggestively rubbed her arms and hands when she handed him documents. To stop it, she ceased to hand him papers, instead placing all such documents in a mail tray for him. Christen Cheshire, a white female telephone sales operator, testified that Andrews harassed her beginning in late 1988. She said Andrews came into her office once or twice a day, hugged her around the neck, and kissed or attempted to kiss her. This went on for about two months before Cheshire was able to persuade Andrews to stop the unwelcome advances. While Cheshire never reported Andrews' advances, Marshall remembers Cheshire complaining to her about it. Jeanie Benton, a white female who worked for Coke from 1987 to 1990, also testified about Andrews' unwelcome advances. One time when she rose from her desk and turned around, Andrews was right behind her and tried to kiss her. She told him to get back and leave her alone. On a later occasion, Andrews tried to massage her shoulders and she told him to stop. Thereafter, Andrews would stand in her office door and stare at her. Andrews' Claims of Discrimination Andrews' claims that the termination was motivated by racial discrimination and that Coke's reasons for terminating him were pretexts for discrimination. As evidence, he offered a story that Roddenberry committed egregious acts of sexual harassment and misconduct, but was not disciplined. Additionally, he alleged that a "white clique" wanted to get rid of him because they did not like that a black man was made warehouse supervisor. Not one shred of credible evidence was given to support Andrews' claims. Besides Andrews' own testimony, the only witness who claimed to have seen any sexually inappropriate conduct between Roddenberry and anyone, including Lingerfelt, was Roosevelt Humphrey. Humphrey was not a credible witness. First, he was terminated by Coke for stealing a check from a coworker and cashing it. Next, he said he saw Roddenberry and Lingerfelt three times a week with Roddenberry kissing Lingerfelt, rubbing her buttocks and her breasts. However, he was not even working at the warehouse during most of the time he said he saw this and his testimony was filled with contradictions and discrepancies. Finally, he named others who saw and discussed this behavior; but each of those named persons denied ever seeing any sexually inappropriate behavior between Roddenberry and Lingerfelt or other female employees. Andrews' suggestion that his termination was racially motivated by false reports from a group of white employees, including Lingerfelt, Stinson, Rosenthal, and Roddenberry, is also unworthy of belief. Andrews' purported to support his conspiracy theory with anecdotes about other white employees, Jeanie Benton and William Beck, who tried to help him in the face of the covert actions of the alleged conspirators. However, Benton and Beck both denied that the events Andrews described in his anecdotes ever occurred. Additionally, Andrews' version of all these incidents was simply implausible and inconsistent with the credible and substantial evidence. Finally, Andrews presented no credible evidence to rebut Coke's evidence of its legitimate reason for the termination. Andrews simply offered no competent or probative evidence of a racial motivation for his termination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying and dismissing the Petition for Relief filed by James Andrews, Jr. DONE and ENTERED this 23rd day of September, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2063 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Andrews, Jr. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 9-12(8-11); 17-19(13- 15); 23-25(20-22); 34(29); 36(31); 37(32); 40(35); 41(36 & 37); 42(38); 45(42); 46(43); 50 & 51(46); and 53(47). 2. Proposed findings of fact 4-8, 13-16, 20-22, 26-33, 35, 38, 39, 43, 44, 47-49, and 54 are subordinate to the facts actually found in this Recommended Order. 3. Proposed finding of fact 52 and 55 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Tallahassee Coca-Cola Bottling Co. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 53(35). 2. Proposed findings of fact 4, 5, 12-17, 19, 20, 22-27, 29-36, 40, 43, 44, 47-52, 55, 56, 79, 80, 87-90, 127, and 137 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 6-9, 11, 18, 85, 91, 102, 107-113, 117, 118, 121, 128-130, 134, and 136 are unsupported by the credible, competent and substantial evidence. 4. Proposed findings of fact 10, 21, 28, 37-39, 41, 42, 45, 46, 54, 57-78, 81-84, 86, 92-101, 103-106, 114-116, 119, 120, 122-126, 131-133, 135, and 138-152 are irrelevant, repetitive, unnecessary, and contain summaries of testimony and argument which are not appropriate proposed findings of fact. COPIES FURNISHED: Marie A. Mattox Attorney at Law 3045 Tower Court Tallahassee, Florida 32303 William R. Radford Attorney at Law 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practices alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. The County Park and Recreation Department (Department) is a department of County government. At all times material to the instant case, Carolyn Gibson was a Region Manager with the Department, having ultimate supervisory authority over the operations at the County parks in her region (Region 2), including Arcola Park and West Little River Park. At all times material to the instant case, Rhonda Ham was a Recreational Specialist 2/Service Area Manager with the Department, who was based at Arcola Park and worked under the immediate supervision of Ms. Gibson. Ms. Ham has been married to her husband Earl for the last 13 or 14 years. Although Ms. Gibson considers Ms. Ham to be a friend,4 her friendship with Ms. Ham has not prevented her from taking disciplinary action against Ms. Ham when the "facts" have warranted. Petitioner is a single, custodial father of three children (two daughters and son) aged three, five, and seven. He is now, and was at all times material to the instant case, "the sole support of these children." Unlike Ms. Ham, Petitioner is college educated. He attended the University of Miami and Clarksdale Community College in Clarksdale, Mississippi, before receiving his Bachelor of Arts degree from Virginia State University (VSU) in 1993. After finishing his undergraduate studies, he spent a year in graduate school at VSU. Petitioner played football in college, and he went on to play the sport professionally after being selected in the National Football League (NFL) draft. One of Petitioner's teammates on the University of Miami football team was James Stewart.5 As teammates, Petitioner and Mr. Stewart "got along with one another and communicated from time to time," but they were not "close friends" and did not "hang out" together. Mr. Stewart also went on to play in the NFL. Following his playing career, he was convicted of a felony, and, in 2001, began serving a five-year prison sentence. He was released from prison in 2006 and is currently on probation. From March 20, 2006, until December 14, 2006, Petitioner was employed by the County as a Park and Recreation Manager 1 at West Little River Park. In that capacity, he had supervisory authority over the other Department employees assigned to work at the park. At all times during his employment with the County, he was a probationary employee with no entitlement to continuing employment.6 Ms. Ham was Petitioner's immediate supervisor for the duration of Petitioner's employment with the County except for a three-week period in April and/or May 2006.7 Her office (at Arcola Park) was located approximately two miles from Petitioner's office (at West Little River Park). Ms. Ham had the authority to monitor and evaluate Petitioner's job performance and to counsel and reprimand Petitioner, both verbally and in writing. The authority to terminate Petitioner's employment resided, not with Ms. Ham, but with Ms. Gibson. It was Ms. Gibson who hired Petitioner. She did so after reviewing Petitioner's application and interviewing him. Petitioner had applied for the position on or about March 2, 2006, by submitting a filled out and signed County employment application form. By signing the application, he "certified," among other things, the following: I certify that to the best of my knowledge and belief, all of the statements contained herein, and any attachments, are correct, complete and made in good faith. I understand that a background check will be conducted and that should an investigation disclose any misrepresentation, I may be subject to dismissal. The application form had an "Employment History" section, which contained the following instructions: List previous employment history, starting with your current or most recent employment. If you have held more than one position within the same organization, list each position as a separate period of employment. Be sure to indicate where employment may be verified. Please include job-related volunteer, temporary, part-time work and military experience. On his application, Petitioner knowingly failed to disclose that he had been employed from May 30, 2005, to September 17, 2005 as a Recreation Aide V with the City of Miami Parks and Recreation Department, working under the supervision of Lewis Mahoney, who was the Park Manager at Gibson Park. As a City of Miami Parks and Recreation Department employee, Petitioner had had a poor work record and had not gotten along with Mr. Mahoney. He undoubtedly knew, at the time he filled out the County employment application form in March 2006, that Mr. Mahoney, if contacted by the County, would not have good things to say about him. Ms. Gibson did not find out about Petitioner's failure to disclose his employment with the City of Miami on the County employment application form until after she had terminated Petitioner. Had she known about this non-disclosure, she would have never hired Petitioner and allowed him to work for the County. As part of the application and hiring process, Petitioner signed various forms in addition to the County application form. One of these forms was an Oath on Outside Employment for Full-Time Employees form that Petitioner signed on March 2, 2006. It read as follows: I, Damacio Green, a full-time employee of Miami-Dade Park and Recreation Department, certify that I am not engaged in any type of outside employment. I certify that I am not paid by, nor do I receive any equivalent gratuities from, any employer for any of my services except as performed during the normal course of my employment with the Miami-Dade Park and Recreation Department. I certify that before accepting outside employment, I will submit a complete record of intended outside employment to my Department Director for approval. I will abide by the Department Director's decision on the matter. I further certify that I fully understand the County policy on outside employment outlined below. MIAMI-DADE COUNTY POLICY ON OUTSIDE EMPLOYMENT (SEC. 2-11 OF THE CODE OF METROPOLITAN DADE COUNTY, FLORIDA) No full-time County employee shall accept outside employment, either incidental, occasional or otherwise, where County time, equipment or material is to be used or where such employment or any part thereof is to be performed on County time. A full-time County employee may accept incidental or occasional outside employment so long as such employment is not contrary, detrimental or adverse to the interest of the County or any of the department and the approval required in subsection (C) is obtained. Any outside employment by any full-time County employee must first be approved in writing by the employee's department head who shall maintain a complete record of such employment. Any employee convicted of violating any provision of this section shall be punished as provided in Section 1-5, and, in addition thereto, shall be subjected to dismissal by his Department. (Ord. No. 58-5, Sec. 25.01, 2-18-58) When Petitioner "first started working" for the County, he asked Ms. Gibson if, under the County's Policy on Outside Employment, he would be able to operate his mobile food service business, Damacio's Mr. Tasty, LLC, while employed with the County. Ms. Gibson responded to Petitioner's inquiry by telling him, "You can't do it." On at least two occasions during his employment with the County, Petitioner operated his mobile food service business without Departmental approval, despite knowing that doing so was in violation of the County's Policy on Outside Employment. It was not until after Petitioner had been terminated that Ms. Gibson discovered that Petitioner had committed this violation of the County's Policy on Outside Employment. Ms. Gibson would have terminated Petitioner's employment had he still been employed with the County at the time she learned of the violation. Among the other forms that Petitioner signed during the application and hiring process was an Acknowledgment of Receipt of the County's Unlawful Harassment Policy (Administrative Order No. 7-37). He signed this form on March 2, 2006. By doing so, he acknowledged the following: I have received a copy of this Unlawful Harassment Policy and understand that it contains important information on filing a complaint of harassment with my department or the Office of Fair Employment Practices. I will familiarize myself with the Unlawful Harassment Policy and understand that I am governed by its contents. If I have questions about the policy I can contact my Department Affirmative Action Officers Yolanda Fuentes-Johns or William Lindley at (305)755-7866 or the Office of Fair Employment Practices at (305)375-2784. The County's Unlawful Harassment Policy (which was printed on the form) provided, in pertinent part, as follows: POLICY The policy of Miami-Dade County is to ensure that all employees are able to enjoy a work environment free from all forms of discrimination, including harassment, on the basis of race, sex, color, national origin, religion, retaliation, age, disability, ancestry, marital status, pregnancy, sexual orientation, or the exercise of their constitutional or statutory rights. Administrative Order 7-28 was adopted in 1987 specifically to protect County employees from sexual harassment. Administrative Order 7-28 and Administrative Order 7-6, Personnel Policy on Equal Employment Opportunity, have since been interpreted to extend similar protection to employees who believe they have been harassed for unlawful reasons other than sex. This Administrative Order is intended to make clear that all County employees who believe they have been unlawfully harassed must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and may file a complaint for prompt and proper investigation. Employees who are found guilty of unlawfully harassing other employees shall be subject to appropriate sanctions, depending on the circumstances. These may range from counseling up to and including termination. Miami-Dade County will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. The County, in exercising reasonable care to prevent and promptly correct harassment or retaliation for reporting harassment, will protect victims from further unlawful harassment and retaliation. * * * COMPLAINT PROCEDURE Employees who believe they have been the subject of harassment prohibited by this Administrative Order, must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and, if they choose, may file a formal complaint with the County's Office of Fair Employment Practices. Employees may, if they desire, also report such incidents of unlawful harassment to their supervisor but are under no obligation to do so. Employees are encouraged to report harassment before it becomes severe or pervasive. This will facilitate early mediation and effective resolution of potential unlawful harassment complaints. All complaints of harassment, subsequent investigations and corrective actions shall be handled on a confidential basis to the extent possible under the law. Protective measures will be instituted to protect the complainant. Miami-Dade County has established procedures for resolving, filing and processing complaints of unlawful harassment. If the investigation confirms the existence of unlawful harassment, the Fair Employment Practices Office will pursue prompt corrective action, including remedial relief for the victim, and appropriate disciplinary action against the offender. * * * At no time during his employment with the County did Petitioner complain, in accordance with the "complaint procedure" described in the County's Unlawful Harassment Policy, that he was being, or had been, sexually harassed by Ms. Ham. During much of the time that Petitioner worked under Ms. Ham's immediate supervision, the two had an amicable relationship--so amicable that on one occasion, without being asked by Ms. Ham, Petitioner gave her a check in the amount $125.00 to help her purchase a dance outfit for her daughter. What started out as a friendly, non-physical relationship evolved into a sexual one, in which both Petitioner and Ms. Ham freely and willingly participated. They engaged in sexual activity on three separate occasions--once in Petitioner's office at West Little River Park and twice in Ms. Ham's office at Arcola Park. The first of these consensual sexual encounters occurred in August 2006. The third and final encounter was in October 2006. On each occasion, Petitioner was the one who initiated the physical contact. "[A]shamed and embarrassed" by her conduct, Ms. Ham decided to put an end to her adulterous affair with Petitioner. There was no further sexual activity between Ms. Ham and Petitioner after October 2006. Ms. Ham oversaw a Children's Trust-funded after-school program at Arcola Park in which Petitioner's daughter, DK, was registered. It was Ms. Ham's responsibility to make sure that children in the program were picked up from their respective schools at the end of the school day and transported to Arcola Park. After the end of the school day on November 6, 2006, Petitioner received word from DK's school that DK had not been picked up and was still at school. Petitioner ultimately telephoned Ms. Gibson on her cell phone and, in a "very loud" tone of voice, said, "Ms. Ham left my daughter, she didn't pick my daughter up from school, what are you going to do about it?" Ms. Gibson later met with Petitioner and Ms. Ham to discuss the matter and try to sort things out. During the meeting, Petitioner was, in Ms. Gibson's eyes, "irate" and "out of control." He told Ms. Gibson that she "couldn't tell him anything" because she did not "have any kids" and she "kn[e]w nothing about parenting." Ms. Gibson sensed from Petitioner's and Ms. Ham's "body language" and the way that they were "glaring at each other" at the meeting that they might be involved in a non-work- related relationship. She therefore asked them, before they left, whether they had "crossed the line." They both denied that there was anything going on between them. A few days later, Petitioner came into Ms. Gibson's office and asked her, rhetorically, "Do you think I'm interested in Ms. Ham?" He then told her, "Well, Ms. Gibson, I'm not interested in Ms. Ham, I'm interested in you." Ms. Gibson's response to this come-on was to direct Petitioner to "get out of [her] office." Petitioner was due to be evaluated on or about September 24, 2006, but it was not until November 17, 2006, that he received his first Management Performance Evaluation. This November 17, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater") with input from Ms. Gibson (who signed the evaluation as the "reviewer"). The overall rating was unsatisfactory. The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Unsatisfactory Mr. Green, you entered this department on March 28, 2006 as a Park & Recreation Manager 1 at West Little River Park. From your inception there has been an increase in participant enrollment in spring and summer camp, and [the] after school program. However, there has been a decrease in registration/attendance in your sports development program, which is the region's primary program. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, over the past 6 months I have had the opportunity to observ[e] your decision- making skills and often times your decisions are hasty. At your level you should take the opportunity to first identify the problem, gather the facts and make decisions based on facts and not what you are feeling at the time, i.e. sending part-timers home and then call[ing] them back to work within the hour.[8] Also, it is important that you understand parents are our customers, they might not always be right in their actions. However, as professionals we must always maintain our composure by allowing them to vent and then by explaining the circumstances rather than trying to talk over them and suggesting they bring a spouse to deal with the situation instead, as you have done.[9] PERSONAL DEVELOPMENT RATING: Satisfactory Mr. Green, you have a solid educational foundation and you have taken the initiative to enroll in PAR training to aid you in better understanding the payroll attendance record. You are currently involved in the recreation modular training. However, being new to the department it is extremely important that you make a concentrated effort to enroll in trainings in the following areas[:] time management and dealing with conflict in the workplace, progressive discipline and a host of other trainings relative to your professional development. You need to encourage your subordinate staff to enroll in training to improve their knowledge and skills. PLANNING AND ORGANIZING RATING: Needs Improvement Mr. Green, during your first six months in the department you have not taken the initiative to plan, organize or implement any special events, activities or sporting events.[10] You have not shown any creativity or enthusiasm. INTERPERSONAL SKILLS RATING: Needs Improvement Mr. Green, your relationship with your subordinate staff has been less than cohesive. There have been instances of verbal conflict and derision between you and Mr. Morgan and Ms. Johnson,[11] a seasonal employee[,][12] and several parents of patrons that you were not able to resolve satisfactorily as the leader. Although we have discussed strategies on how you can improve in this area improvement is still needed to foster the teamwork ethic at West Little River Park. You have not made an effort to understand[] how the chain of command works. It is very important that you understand your first point of contact is your Service Area Manager. If we cannot resolve the situation at my level and if you're not satisfied with the resolution, you can then request a meeting with the next level in the chain of command. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, your very limited knowledge of the computer has been a hindrance for you as a Park & Recreation Manager 1. It is very important for you to have a basic working knowledge of the computer. The computer is an essential tool that is used everyday. Our reliance on them is an ever increasing fact. Mr. Green, you are not taking the initiative to learn what you need to know in order to function in your capacity as a manager. During our regional staff meetings you are not attentive and you do not take notes, yet you come back to me with questions that were covered during the staff meetings.[13] I have been supportive by consistently aiding you with your assignments. However, in many instances you have not comprehended the information well and have looked to me for more than just support. You are now faced with spreading your part- time budget and coming up with goals and objectives. You have missed every deadline given. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Needs Improvement Mr. Green, an improvement is needed in the area. You have been encouraged to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. However, you have been challenged in your role as a leader in applying them in the daily operations of the park and rapport with your staff and patrons. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Re-evaluate in 1 1/2 months/ Is employee eligible for permanent status? N/A IN WHAT WAYS CAN OR MUST THE EMPLOYEE IMPROVE PERFORMANCE? Mr. Green, to improve your overall performance, concentrate on the following: Increase participant registration/ attendance in the Sports Development Program which has declined under your supervision. Demonstrate more leadership before subordinate staff. Enroll in department management courses. They will help in your professional growth. Enroll for "Service Excellence" training to enhance you customer service skills with patrons. Plan, organize and market at least 2 annual special events at West Little River Park. Enroll [in] computer courses to be more proficient in the use of the personal computer. Follow the chain of command as mandated by our Regional Manager and your immediate supervisor. You will be re-evaluated in the next 1 1/2 months. If there has been no substantial improvement stronger measures will be made. Petitioner prepared a written rebuttal to his November 17, 2006, evaluation, which he provided to Ms. Ham and Ms. Gibson on or about November 27, 2006. It read as follows: SECTION 2: DECISION MAKING AND JUDGMENT: RATING: NEEDS IMPROVEMENT In the subject of decision-making and judgment, I received a rating of need[s] improvement. I totally feel that this rating is unfair because of one incident that happened in a six-month period. However, the situation with the parent being treated unprofessionally is completely wrong. The parent made the statement to me of having her husband deal with the issue rather than herself. I simply responded, "If you feel that this is necessary for your spouse to speak with me rather than you, then I have no problem with it. I will be here in my office whenever he ha[s] time to speak with me." The entire ordeal was handled totally in a professional manner. SECTION 4: PLANNING AND ORGANIZING: RATING: NEEDS IMPROVEMENT In the area of planning and organizing, I received a rating of need[s] improvement, which I feel is totally unfair and incorrect. During the entire six month[] period, I never once received a memo or any corresponden[ce] to the effect that my planning and organizing skills was not up to par.[14] When I received this position on March 21st, 2006, I was given a brief overview pre-training of my duties and responsibilities i.e., administrative paper work, sports development participation, seasonal camp programming, after school daily programming and maintenance responsibilities. Special events were never mentioned. My facility participated in spring break and summer camps in which we increase[d] the numbers a great deal from past history. We also participated in every sport development cycle. According to the directions I was given, I felt as if I was totally within my responsibilities. Now to receive an impromptu surprise that I am not on task is not only incorrect but also absolutely unprofessional. SECTION 5: INTERPERSONAL SKILLS: RATING: NEEDS IMPROVEMENT I feel that this rating, needs improvement, is unfair and incorrect. During my first six months, I've had two situations with parents that are sisters, which was a misunderstanding about the kids coming into the facility unsupervised. After explaining the danger of that to the parents, they both agreed with me. The second situation had already been explained in section 2 when a parent felt she would like for her husband to address the issue rather than herself. At that time the situation was resolved without further discussion. The issues that I had with Mr. Morgan, I feel personally w[ere] created by Mrs. Ham by allowing him to break the chain of command by calling you without discussing anything with me first was wrong. When I give Mr. Morgan an assignment that he does not like, he feels that he could call you to change it. Must I remind you that Ms. Gibson warned you about this behavior during summer camp. Ms. Gibson also stated to you, "Rhonda, this is wrong! You wouldn't want Mr. Green to do this to you with me." This is not the support I expected from my immediate supervisor. I feel sabotaged, betrayed and set up for failure. In my evaluation, you mentioned me breaking the chain of command and asked me to call my immediate supervisor about any issue before contacting the regional manager. If I remained unsatisfied, what did I violate if you were contacted twice, you were told that I was unhappy with your answer and I needed immediate attention? This would mean that I followed the chain of command to the letter. SECTION 6: COMMUNICATIONS: RATING: UNSATISFACTORY The rating that I received in section 6 communication: Unsatisfactory, I feel that it is unfair and incorrect. I have basic knowledge of the computer and can perform all of my duties as a Park and Recreation Manager 1. During our regional staff meetings, I did not always take written notes because at times I recorded the meetings. However, I feel my immediate supervisor should be someone I can go to for clarity which is not outside of her responsibilities. On top of this, I was faced with spreading a part-time budget in this department for the very first time and was left hanging out to dry by Mrs. Ham. I received very little directions and had to look toward other colleagues for help. Mrs. Ham set meeting dates when I asked for help and never met them. When she finally did show, she took the work that I had already done and said, "I'll handle it from this point." Mrs. Ham may have her method of assisting her staff but I feel the more hands on involvement I have with the new work and assignments will make me effective in learning the process and being more self- sufficient with the budget assignments as well as other paper work. However, I received no correspondence or memos of any type reflecting how off the mark I was in the area of communication during the entire six months. As a matter of fact, I felt the communication between Mrs. Ham and I was great. It was so great that I had no problem doing financial favors for her when she needed it. Now for everything to turn so bad so fast, I have no choice but to feel it is retaliation [for] the call made to Ms. Gibson on the day my daughter was an hour and a half late being picked up from her school which was supposed to be done by one of Mrs. Ham's staff workers which I had to do myself because of the number of calls I received from her school. This is pertaining to the issue of the broken chain of command. SECTION 7: ADMINISTRATIVE POLICIES AND PROCEDURE: RATING: NEEDS IMPROVEMENT I received a rating of need[s] improvement, which I feel it is only natural that a new employee to need improvement in this area if it is based on the knowledge of the manual instead of knowing where to go in the manual to retrieve the information. However, I will continue to read through my operation manual and my personal handbook in my sp[are] and down time. Overall, I feel this evaluation was a personal attack for some personal reason, i.e. contacting Ms. Gibson after trying to resolve the issue with Mrs. Ham to no satisfaction. This is when I first found out I was doing such a poor job as a manager and feel th[ere] will be more retaliation. While Petitioner's written rebuttal contained various accusations against Ms. Ham of supervisory wrongdoing, it was devoid of any allegation that Ms. Ham had subjected Petitioner to any type of sexual harassment.15 On November 30, 2006, after it had been brought to her attention that Petitioner was having his subordinates complete for him written assignments that Petitioner was supposed to be doing himself for a Department-sponsored management training class he was taking, Ms. Ham sent the following memorandum to Petitioner: I was informed by your PSA Jerome Jamison that you have been delegating your Recreation Module Training assignments to him and PSA Tremaine Morgan to complete. If this is correct, please stop this immediately. The training series that you have been recommended to participate [in] requires you to complete these assignments. These exercises [are] a part of your development and training as a manager. On December 5, 2006, Ms. Ham sent another memorandum to Petitioner. This memorandum was about an incident that had occurred the previous day. It read as follows: On Monday, December 4, at approximately 2:18 p.m. you called to let me know that the key for the West Little River Park's van was misplaced and that you could not find the key. I asked you why you were just now reporting this when your driver is scheduled to be at your first scheduled pickup point at 2:00 p.m. You began to yell in a loud voice at me, "You were the one that told me to schedule my driver to report at 2 p.m." I responded that you needed to lower your voice and that you were being insubordinate and that this is my last warning. Your statement was untrue as well. I directed you to schedule your staff to report at least one half hour prior to the first pick up anticipating travel time and to inspect the van. This is not the first instance of offensive conduct to me and I am aware that you acted similarly toward our Region Manager. I have discussed your conduct with you before. Mr. Green, there must be an immediate and sustained improvement in your performance or more serious disciplinary action will result. I need the Unusual Incident Report detailing the details on the missing van keys today. On December 5, 2006, in response to the November 30, 2006, and December 5, 2006, memoranda he had received from Ms. Ham, Petitioner sent a memorandum of his own to Ms. Ham. He provided a copy of this memorandum to Ms. Gibson. The memorandum read as follows: Ms. Ham, pertaining to the memo I received on Nov. 30, 2006, stating you were told by Mr. Jamison that I was delegating my module training to him and Mr. Morgan. That alleged statement you claimed Mr. Jamison made after speaking with Mr. Jamison, he stated that it was not true. Mr. Jamison stated that he was only inquiring more about the module. Now, let me tell you what really happened. What I simply did was shared the information that was in the module training with my staff because of their daily hands on with the participants. I felt as the Park Manager that I was well within my rights to discuss the information with my staff and ask for feedback w[hether] it was verbal or written. The reason I did this was because the questions in the training w[ere] not only rel[evant] to me but to them as well because of their dealings with the participants on a daily basis. When I told them why I was doing this, they both agreed. Mr. Jamison and Mr. Morgan also told me that the few questions they went over [were] not only intriguing but also very helpful in dealing with some of the issues they encounter with some of the participants. By the way Mrs. Ham, I was told in a discussion with Mr. Jamison that the question about the module was asked three weeks ago prior to [the] Nov 30, 2006 memo I received from you. My question to you is why give me a memo pertaining to this now. Pertaining to the memo I received today on my alleged conduct on December 4, 2006 is not only unfair but also untrue that I was yelling at you when I called about the missing key. I deplore that statement. What is true that I did do the right thing by notifying and informing you about the missing key. What is also true is that contrary to popular opinion, you were the one that became angry with me because I was asking you what else could I do in terms of getting my after school participants picked up. I also asked you should I go in my personal van to make sure that they were all picked up in a timely manner. You then started . . . yelling at me in sequence, "when did you first notice that the key was missing, Mr. Jamison must be just getting to work, what time do[es] he come in and why is he coming in at 2 p.m. when he has a 2 o'clock pick-up.["] I simply stated to you that "you were the one that made me change his scheduled time to come in from 1 o'clock to 1:30 p.m. to now 2:00 p.m." which was all I said in return with my regular tone of voice. Then you replied "you better watch [your] tone of voice with me. This is your last warning about that tone of voice." When in fact, you were the one that was doing all of the yelling and I have a witness to prove it. As I stated in my rebuttal to my regretful performance evaluation which came a week later after my call to our Regional Manager when I was doing so well before then. "I feel that th[ere] will be more retaliation to come" and it is now clear that I was right. You are doing just that because of my phone call to our Regional Manger about my daughter being an hour and a half late picked up by one of [your] subordinates which I had to do myself. In his memorandum, Petitioner alleged retaliation only for his having complained to Ms. Gibson about Ms. Ham's not having picked up his daughter on time. He made no allegations of sexual harassment. On December 5, 2006, Petitioner attended a Department- sponsored training class, the title of which was "How to Maintain a Harassment Free Work Environment." The class was lead by Beatriz Lee, the Department's Human Resources Manager and its Affirmative Action Officer. In her introductory remarks, Ms. Lee told the class "what [her] role [was with] the [D]epartment." The class lasted approximately three hours, during which Ms. Lee discussed, among other things, the County's Unlawful Harassment Policy, including how to file an unlawful harassment complaint. After the class ended Petitioner walked up to Ms. Lee and indicated that he wanted to talk to her. Ms. Lee took Petitioner into her office so that they could converse in private. Petitioner told Ms. Lee that he was "having problems with his supervisor," Ms. Ham, and then showed Ms. Lee the November 17, 2006, evaluation he had received. Ms. Lee asked Petitioner why he thought these "problems" existed. Petitioner replied that he and Ms. Ham were "tight" and were "good friends" and that he "didn't understand why [Ms. Ham] was being so demanding with him, because he had even helped her out financially." During their conversation, Petitioner told Ms. Lee about Ms. Gibson's having asked him and Ms. Ham if they had "crossed the line." Ms. Lee then inquired why Ms. Gibson would ask such a question. Petitioner responded, "I guess because we were so close. Because we-–you've got to understand me and Rhonda [Ham] are very tight . . . ." Petitioner crossed his middle finger over his index finger to show Ms. Lee how "tight" he and Ms. Ham were. At no time during his talk with Ms. Lee did Petitioner claim he had been sexually harassed by Ms. Ham. On Thursday, December 14, 2006, less than one and a half months after receiving his first Management Performance Evaluation, Petitioner received his second (and last) Management Performance Evaluation. This December 14, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater"). Ms. Gibson was on vacation, so Bobby Johnson signed the evaluation as the "reviewer" in her stead. Ms. Gibson, however, "concur[ed] with the statements contained in this performance evaluation" and had already decided that Petitioner's "probation [would] be failed." The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Satisfactory Mr. Green, the sports development program registration increased by 4, however you need to continue this effort by better utilizing your present staff and by developing a recruitment strategy. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, your continued effort is still needed for your improvement in this area. Please follow the recommendations given to you in your last performance evaluation. PERSONAL DEVELOPMENT RATING: Unsatisfactory Mr. Green, you completed the recreation module training, although I had to advise you that you are not allowed to delegate any of the related assignments to your subordinate staff.[16] You have enrolled for department training as I recommended. Remember, you need to encourage your subordinate staff to enroll in training likewise to improve their knowledge and skills. Your effort to recruit satisfactory seasonal and year round part-time staff has been a challenge for you. I recommended that you visit the local colleges for satisfactory applicants, however, thus far you have resisted my suggestions.[17] PLANNING AND ORGANIZING RATING: Unsatisfactory Mr. Green, there have no special events, activities or sporting events implemented by you for West Little River Park or as a regional event. On December 6 during the trial budget reviews with the Region Manager it was noted that you had set a goal of forming a basketball league to operate from January-May 2007. However in your planning you failed to include adequate time for publicizing the event in the community. You should have routed all your budget related items through your Service Area Manager. INTERPERSONAL SKILLS RATING: Unsatisfactory Mr. Green, improvement is still needed to foster teamwork at West Little River Park. During this rating period you were verbally reprimanded for your unprofessional conduct when speaking to me and our Region Manager, during presentation of your 6 month performance evaluation for a merit increase, during a phone conversation with me about a missing van key and during a phone conversation with Ms. Gibson. You have also reacted defensively when receiving constructive criticism from your supervisor. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, use of the computer and related programs has been a challenge for you. Your registration paper work was not organized as I had directed and as a result the input of West Little [River Park] Program registrants into the CITRIX system has not been completed.[18] As I stated in your earlier evaluation, the computer is an essential tool and our reliance on them is an ever increasing fact. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Satisfactory Mr. Green, I encourage you to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Not Granted. Is employee eligible for permanent status? Not Granted. Because she considered Petitioner to be a "substandard employee" who had performed poorly during his probationary period (and for this reason alone), Ms. Gibson decided to "fail [Petitioner's] probation" and terminate his employment with the County. Ms. Gibson's decision was based on: (1) Ms. Ham's evaluation of Petitioner's performance; (2) information provided to Ms. Gibson by other employees about Petitioner's performance19; and (3) Ms. Gibson's "independent observations of [Petitioner's] performance." On the evening of December 14, 2006, after having been presented with his second Management Performance Evaluation, Petitioner was advised that he was being terminated. Later that evening, Petitioner telephoned a friend of his, Jennifer Williams. (Ms. Williams taught reading to Petitioner's daughter DK and to the other children in the Children's Trust-funded after-school program at Arcola Park.) Petitioner began his conversation with Ms. Williams by telling her, "That bitch fired me," referring to Ms. Ham. He then asked if he could come by Ms. Williams' home. Ms. Williams told him that he could. Petitioner arrived at Ms. Williams' home shortly thereafter, and Ms. Williams invited him in. They went to the den, sat down, and talked. Petitioner again explained to Ms. Williams that "Ms. Ham had terminated him." He then told Ms. Williams that Ms. Ham had been "harassing him sexually." When Ms. Williams heard this she "just started laughing." Having seen Petitioner and Ms. Ham and "their interactions," she "could not believe" that Ms. Ham had sexually harassed Petitioner. Petitioner then asked Ms. Williams "to help him type up a letter" (on Ms. Williams' computer) describing "exactly what [had] happened between [Petitioner] and Ms. Ham." Ms. Williams agreed to provide such help. Following Petitioner's directions, Ms. Williams typed a letter addressed to Ms. Gibson, which read as follows: Subject: Wrongful Conduct from Immediate Supervisor This letter is in reference to the meeting that took place yesterday on December 7, 2006 around 3:00 p.m. at the region office.[20] You stated to me that you have a problem with me not being truthful about things that have happened between Mrs. Ham and I. As I indicated to you "yes, you are right! I have not told you everything that has happened." I feared that if I had told you Ms. Gibson about the constant request for money as well as the constant request for sexual favors that I would be terminated. Mrs. Ham has explained to me on several occasions that I can be terminated anytime she felt like it and it would be nothing I could do about it, each time before financial and sexual favors were requested. Mrs. Ham and I have been sexually involved over 10 times. These sexual acts have taken place at West Little River and Arcola Park. Also, at times when Mrs. Ham has told me to take her [to] lunch she has then pulled into a nearby motel and again requested sexual favors. Many times I wanted to tell you about these issues between Mrs. Ham and me, however, I feared for my job and I wanted to pass probation so that I could then start denying Mrs. Ham of these favors. Sincerely Damacio Green Petitioner asked Ms. Williams to "backdate the letter" to December 8, 2006, and Ms. Williams complied. The following day, Friday, December 15, 2006, Petitioner (or someone acting on his behalf) went to the Region 2 office to return his Department uniforms and, while there, surreptitiously placed in Ms. Gibson's desk an envelope containing the backdated "Wrongful Conduct from Immediate Supervisor" letter Jennifer Williams had typed the evening before. Ms. Gibson was not in the office that day, and her administrative secretary, Debbie Williams,21 was on break when the envelope was placed in Ms. Gibson's desk. Later that day, Petitioner telephoned Ms. Lee, complaining that Ms. Ham had sexually harassed him and had "fired" him because he had refused to "put up with it any more." Ms. Lee asked Petitioner why he had not said anything to her previously about Ms. Ham's sexually harassing him. Petitioner responded that he "had been afraid" and thought he might "lose [his] job." During his conversation with Ms. Lee, Petitioner falsely told her that, prior to his termination, he had "provided a letter to Ms. Gibson telling her that [Ms. Ham] had been forcing him to engage in sex." Ms. Lee asked Petitioner to send her a copy of that letter. At approximately 3:00 p.m. on December 15, 2006, Petitioner faxed to Ms. Lee a copy of the backdated "Wrongful Conduct from Immediate Supervisor" letter that Jennifer Williams had typed for Petitioner the evening of December 14, 2006. Ms. Lee showed the letter to her supervisor, Yolanda Johns, who subsequently telephoned Ms. Gibson to inquire about the matter. Ms. Gibson informed Ms. Johns that she did not know anything about a "Wrongful Conduct from Immediate Supervisor" letter addressed to her from Petitioner. Ms. Johns then faxed a copy of the letter to Ms. Gibson, who was at Martin Luther King Park attending a Christmas party. After reviewing the letter, Ms. Gibson confirmed that she had never seen it before. On Monday, December 18, 2006, Ms. Gibson (who was on leave) came by her office and discovered the letter inside an envelope in her desk drawer (where it had been placed on December 15, 2006, the day after Petitioner's termination). Ms. Lee conducted an investigation of Petitioner's allegations of sexual harassment. As part of her investigation, she interviewed Petitioner and numerous other individuals. Based on the information she obtained, Ms. Lee determined (correctly, as it turns out) "that Mr. Green and Mrs. Ham not only engaged in a consensual sexual relationship, but . . . Mr. Green was persistent in pursuing Mrs. Ham to engage in such activity." Consequently, Ms. Lee concluded that Petitioner's allegations of sexual harassment were unfounded. Ms. Lee issued her investigative report in February 2007. In her report, Ms. Lee recommended that Ms. Ham be suspended 30 days without pay for her "lack of judgment in succumbing to the pursuit of a subordinate." By letter dated March 15, 2007, Ms. Ham was given "formal notification" that she was being "suspended without pay for four (4) weeks to be served beginning Monday, April 9, 2007 through Sunday May 6, 2007," for having "engaged in a consensual sexual relationship with a subordinate employee, Mr. Damacio Green, former Park and Recreation Manager 1, which affected [her] ability to properly supervise this employee."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding the County not guilty of the unlawful employment practices alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice pursuant to Section 760.10, Florida Statutes, by discriminating against Petitioner based upon her sex (gender). Specifically, whether Petitioner was sexually harassed in the work place and/or unlawfully terminated for refusing sexual favors.
Findings Of Fact Respondent is a corporation engaged in the utility construction business. Respondent employs approximately 150 people for a variety of tasks. At all times material, Respondent's president, Bill Beers (male), had at least a partial ownership interest in the company. He currently "owns" the company. Petitioner is female. Petitioner was initially employed with Respondent as an accounting assistant on July 22, 1998. Petitioner had earned a high school diploma and an accounting certificate from Lake Technical Center. She has completed approximately one year of junior college. Jerry Schinderle (male), Respondent's Vice-President of Finance and its Comptroller, made the decision to hire Petitioner. He was in charge of Respondent's accounting department in which Petitioner was employed. Bill Beers did not participate in, or have input for, the decision to hire Petitioner. Mr. Schinderle promoted Petitioner to an accounts payable position on or about August 21, 1998, when another female employee was either terminated or quit. With her promotion, Petitioner received a raise in pay. In her new position, Petitioner's duties were to handle accounts payable, job costing reports, and job tracking. From Petitioner's date of hire until approximately October 1999, Mr. Schinderle was Petitioner's sole immediate supervisor. At all times during this period there were a total of four employees in the accounting department, including Petitioner, Mr. Schinderle, and two female employees. From approximately October 1998 to October-November 1999, Petitioner and Bill Beers engaged in a consensual and intimately sexual romantic relationship. While they were dating in 1998 and 1999, Petitioner gave Mr. Beers a kiss in the morning in his office on the ground floor of the employer's building, before she reported to work in her second floor office. However, it is undisputed that Petitioner and Mr. Beers never had sexual relations at the office. During the period from October 1998 to October-November 1999, their sexual activities occurred only after the work day was over or during their mutual lunch hours in Petitioner's home, in Mr. Beers' home, or in a car. In 1999, Deborah Goodnight (female) was hired from outside the company as Mr. Schinderle's Assistant Comptroller. As such, Ms. Goodnight became Petitioner's immediate superior, and Mr. Schinderle remained in a supervisory capacity over the entire accounting department, which continued to be made up of four employees, counting himself, Ms. Goodnight, Petitioner, and one other female employee. Petitioner complained herein that Mr. Beers promised her the promotion and that she should have been promoted instead of Respondent's hiring Ms. Goodnight from outside the company. Mr. Beers testified that he had refused Petitioner's request to intervene on her behalf with Mr. Schinderle about the promotion. Mr. Schinderle confirmed that Ms. Goodnight was hired solely by himself. Ms. Goodnight had a four-year bachelor's degree in accounting and had been comptroller of another company previously. Ms. Goodnight's qualifications for the position for which she was hired clearly exceeded those of Petitioner. Thereafter, until Petitioner was laid off by Respondent on June 1, 2001, there continued to never be more than a total of four employees in the accounting department: Mr. Schinderle, Deborah Goodnight, Petitioner, and one other female employee. Most of Respondent's employees became aware that Petitioner and Mr. Beers were dating when Mr. Beers escorted Petitioner to a company Christmas party (year unspecified). Petitioner personally told Ms. Goodnight that they were dating. However, no employee who testified was aware of any unprofessional or inappropriate conduct by Mr. Beers with Petitioner in the office at any time while she was employed by Respondent. Sadly, Petitioner's and Mr. Beers' relationship was rocky, and in October or November 1999, Mr. Beers initiated a break-up of their consensual sexual relationship. Petitioner initially claimed that she initiated the break-up but ultimately admitted that she and Mr. Beers mutually agreed to terminate their consensual sexual relationship at that time. Petitioner and Mr. Beers have different views of who pursued whom between November 1999 and February 2000, but both agree that in February 2000, they resumed a sexual relationship outside the office. By each protagonist's account, during a large part of the period from February 2000 to late summer or the autumn of 2000 (see Findings of Fact 16-17), there were periods of good relations and periods of bad relations between the two of them. There were break-ups, one-night stands, and reconciliations at various times. It was, at best or worst, an "on-again-off- again" romance, but there still was no unprofessional or improper conduct observed by anyone at the office. Any sexual liaisons occurred outside the office as previously described. It is undisputed that in July 2000, Mr. Beers left a note on Petitioner's vehicle in which he expressed his desire to terminate their relationship once and for all. Mr. Beers and Petitioner disagree as to whether or not they had sexual relations after July 2000. Petitioner claimed that Mr. Beers importuned her at every possible opportunity, in or out of the office, to have sex with him and had sex with her as late as January 2001. Mr. Beers denied any pursuit of Petitioner and denied any sexual contact with Petitioner after July 2000. Both Petitioner and Mr. Beers have some confusion of dates between what happened at their November 1999 break-up versus their July 2000 breakup, and it is possible to interpret part of Mr. Beers' testimony to the effect that there was a sexual encounter between them as late as November 2000, but upon the greater weight of the credible evidence as a whole, it is found that their sexual relationship ended once and for all in July 2000.. In August 2000, Mr. Beers began dating another woman. In February 2001, he became engaged to her, and she moved into his home. They were married in July 2001. Petitioner claimed to have been harassed by co-workers at Mr. Beers' instigation from the beginning of her employment in 1998 to its end on June 1, 2001. She further alleged that from February 2000 until her termination on June 1, 2001, she strongly felt that she had to comply with Mr. Beers' requests for sexual favors or she would receive some "punishment" in the workplace or lose her job. Likewise, she believed that any advantage she gained in the employment field also was a "gift" from Mr. Beers either to woo her for future sexual favors or to reward her for immediately past sexual favors. Some of Petitioner's allegations in this regard are less than credible simply because she claimed that she was "punished" even while she was engaging in admittedly consensual sex with Mr. Beers from October 1998 to November 1999. Other of her specific allegations of receiving quid pro quo advantages and punishments from Mr. Beers after February 2000, were either not credible on their face or were affirmatively refuted as set out infra. Testimony from other employees and record evidence indicated that Respondent's employment practices were uniform towards all employees, including Petitioner. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers, she received the benefit of being assigned a company cell phone, but that when she refused to perform sexual favors for Mr. Beers that benefit was taken away. The better evidence shows that soon after they started dating in 1998, Mr. Beers loaned Petitioner a company cell phone, assigned to himself, which he let her use for approximately one week, because she had confided to him that the man that she was living with was abusive and she was afraid of him. Also, when Petitioner or anyone else handled the payroll, that person had the use of a company cell phone. Petitioner was unable to show that at any time during her employment from 1998 to 2001, there was any permanent, or even lengthy, assignment of a company cell phone to her, or that such an assignment was taken away from her. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers she received the benefit of being assigned a company car for personal use. Petitioner was able to establish only that, occasionally, during their first consensual relationship in 1998-1999, Mr. Beers loaned her the use of his company-issued car and also provided her with his company-issued credit card with which to pay for gassing-up that car for both of them to use. While this may constitute a misuse of the employer's car and card by Mr. Beers, the greater weight of the credible evidence is still contrary to Petitioner's unsupported testimony that a company vehicle was assigned to her and then removed from her custody due to her refusal of sexual favors to Mr. Beers. The testimony of several witnesses on this point was corroborated by a list of vehicles and the names of employees to whom those vehicles had been assigned. Petitioner's name does not appear on this list. The list further supports a finding that the majority of vehicles owned by Respondent employer were trucks and other types of heavy equipment which were assigned to male employees working in the field, as opposed to ordinary vehicles assigned to any office staff, either male or female. Like all Respondent's other employees, Petitioner had access to a company pool vehicle which any employee was allowed to use for company business or for personal use when his or her own vehicle was being repaired or was otherwise out of commission. This vehicle was never individually assigned to any employee. Petitioner claimed that during and after her sexual relationships with Mr. Beers, and continually until her 2001 termination, he directed other employees to purposefully harass her, withhold information or invoice sheets, or create other road blocks to her successfully performing her job duties or completing her assignments at work. Petitioner's testimony is particularly incredible on this point because she specifically contended that several of the instances when other employees harassed her or made her job more difficult took place during the time she admittedly was engaging in a consensual relationship with Mr. Beers in 1998-1999. Also, no other evidence or testimony corroborated Petitioner's analysis in this regard for any time period. No employees were affirmatively shown to have intentionally tried to prevent Petitioner from being able to perform her job duties at any time, including 2000-2001. Moreover, at no time did Petitioner report any harassment by co-workers to Ms. Goodnight or Mr. Schinderle. Petitioner was only occasionally reprimanded for not doing her job well, and she continued to be employed and to receive regular raises throughout her 1998-2001 employment Petitioner contended that Mr. Beers described in lurid detail their sexual activities to other male employees, who then accosted her with suggestive comments. There was no corroboration for this allegation. Although it is probable that rough-and-tumble male employees speculated about the relationship between their boss and Petitioner and it is further probable that they occasionally goaded Petitioner with their speculations, there is no corroboration, whatsoever, that Mr. Beers discussed Petitioner with co-workers or encouraged any bad behavior toward Petitioner by them. The comments, if they occurred, certainly were not shown to be pervasive behavior in the workplace. Petitioner also incredibly claimed that, in general, other employees were instructed not to talk to her both during and after the end of her sexual relationship with Mr. Beers. Other employees testified that they were not aware of any instructions at any time by Mr. Beers or anyone else that they should refuse to speak with Petitioner. Even Petitioner conceded that Ms. Goodnight was reasonably cordial to her at all times. Petitioner specifically claimed that one particular employee, Glen Busby, was instructed by Mr. Beers not to speak to her and was "punished" for speaking with her by having a company vehicle taken away entirely or replaced with an older, poorer quality car. She conjectured that Mr. Busby was also terminated by Respondent as a result of befriending her. Contrariwise, Mr. Busby testified credibly that he was never instructed by Mr. Beers or his supervisors not to speak to Petitioner. Mr. Busby stated that he had left Respondent's employment for approximately a year in order to care for his mother, who was dying. He also related that when he returned to work for Respondent, he was not assigned a vehicle such as he had previously been assigned, because he came back as a project manager, working primarily in the office, as opposed to returning as a construction site employee who needed a heavy duty vehicle on a jobsite. He acknowledged that while he had been in the field, several company vehicles had been assigned to him and that these were frequently replaced with newer, better- conditioned vehicles. Petitioner was unable to show that any professional training element of her employment was dependent on whether she did, or did not, provide sexual favors. The greater weight of the credible testimony, plus records and calendars, demonstrated that Petitioner received the same internal accounting training as other accounting department employees, mostly from Mr. Schinderle on a rotating basis. Mr. Schinderle testified, and Petitioner acknowledged, that she also was provided with specialized accounting programming training by an outside computer company representative. Petitioner described one instance, apparently in late 1998, possibly while the consensual relationship with Mr. Beers was still "on," when she took off from work for approximately two weeks. She passed the first week as a Mayo Clinic outpatient for kidney problems and passed the second week in her home or in hospital emergency rooms, due to postoperative problems. She claimed that during these two weeks, she was unable to have sexual relations with Mr. Beers and refused to have sex with him when he personally delivered her paycheck to her home after the first week. She claimed that he had promised her that she would get her check for the second week, too, but when she refused him, he refused to pay her for the second week that she was unable to work. Actually, Respondent's records show that Respondent had paid Petitioner regular wages for ten days, but she was required to reimburse the employer for the tenth day she was off work that was not covered by saved sick leave or another leave policy. Although Petitioner showed some abuses of company policy regarding breaks and smoking committed by individual employees, the greater weight of the credible evidence is that such company policies were equally applied and enforced among all employees, including Petitioner. Petitioner characterized a bonus she got in February 2000, the first month of the February 2000-July 2000 reconciliation, as a quid-pro-quo reward from Mr. Beers because she had agreed to resume her relationship with him. However, in fact, it was company policy to distribute annual bonuses to everyone in the company in February of each year. The amount paid out by the company depended on the amount authorized by auditors based on the prior year's business profit. Petitioner received an annual bonus each February she worked for Respondent, but the amount varied, according to the company's profit, for Petitioner and for all other employees. In February 2000, all employees received their annual bonuses. Petitioner and two other members of Respondent's office staff, who were not having an affair with the company president, received identical amounts of $2,500.00 annual bonus based on their function within the company. It is undisputed that on January 19, 2001, after their final break-up, Petitioner approached Mr. Beers in his office and indicated that she was having difficulty accepting the end of their relationship. She had apparently anticipated that they would eventually marry, and was struggling with the fact that Mr. Beers was romantically involved with the woman he had begun dating in August 2000. Petitioner asked Mr. Beers to pay her money so that she could go away and find other employment. Petitioner contends that this was a request for Mr. Beers to pay her the bonus that Respondent annually paid its employees each February. Mr. Beers interpreted Petitioner's January 19, 2001, request for money as a demand that he pay her to quit her job and get out of his life. He refused to accept her offered letter of resignation. Petitioner claims that on January 26, 2001, Respondent advertised as vacant her position as "account payable specialist" in the newspaper, but no date appears on the supporting exhibit; Petitioner was not terminated; and no replacement for Petitioner was hired. At all times material, Respondent had a sexual harassment policy in place which required a victim of sexual harassment to report such harassment to his/her supervisor or the company president. Petitioner received a copy of the policy when she was hired in 1998. Petitioner admittedly did not complain to her immediate superior, Ms. Goodnight, at any time. Although Petitioner claimed she reported harassment by Mr. Beers, the company president, to Mr. Schinderle in late 1998, just prior to her first break-up with Mr. Beers, Mr. Schinderle recalls no such report. Although Mr. Schinderle testified that if Petitioner had reported any alleged sexual harassment by the company president he would have brought the complaint to the attention of the company's then-majority stock-holder, Mr. Schinderle is less than credible on that single point. However, Petitioner's "resignation letter" of January 19, 2001, may be considered notification to Mr. Beers and Respondent employer of most of the allegations raised in this case. Sometime in February of 2001, Petitioner received her annual bonus, like any other employee. It was based on the earnings of the company in the year 2000. Every employee on the second floor of Respondent's office got the same amount. On February 23, 2001, Petitioner received a raise from $13.00 to $13.50 per hour for taking on the additional responsibility of adding a new phone system. The appropriate paperwork was filled out for this raise, and witnessed by Mr. Schinderle and Mr. Beers. Given the foregoing, plus Petitioner's admission that she voluntarily took on the additional phone duties in order to get the raise, Petitioner's characterization of the raise as her reward for giving Mr. Beers sexual favors is not credible. Sometime in March 2001, Petitioner showed up at Mr. Beers' home intoxicated. Mr. Beers' fiancée and his son were residing in the home. Petitioner asked to come in, and Mr. Beers asked her to go away and not make a scene because he did not want to have to call the police. One Sunday a few weeks later, Petitioner approached Mr. Beers' fiancée and his mother in WalMart. Petitioner's characterization of this conversation varies, but it is clear that what she said was intended to shock the fiancée and damage Mr. Beers' relationship with fiancée. Petitioner left a message on Mr. Beers' telephone before his mother and fiancée could return home from WalMart. Her message was to the effect, "I just caused you a bunch of problems." Petitioner came to Mr. Beers' office at Respondent's place of business on the following Monday morning and gloated. Mr. Beers angrily ordered her out of his office, but he did not terminate her. Petitioner testified that she believed that Mr. Beers ordered all of Respondent's employees to be tested for drugs on March 19, 2001, in an effort to "catch" her because she had confided to him back on November 25, 2000, that she had smoked "pot" (marijuana) in order to relieve her distress over their deteriorating relationship. At first, Petitioner claimed that she was too frightened to show up for the test. Later, she claimed to have been "escorted" to the drug testing center by two other employees. The greater weight of the credible evidence is that company policy was to do drug testing of every employee when that employee was hired and then drug test selected employees at random intervals, but that the policy had been only loosely followed. Of the employees who testified on the subject, only Mr. Schinderle recalled being drug-tested upon his date of hire in 1993. Ms. Goodnight and others had never been tested. It appears that Bill Padgett, Respondent's head of security, had previously done random drug testing in a very random manner, so all employees who had not previously been tested for drugs, including Ms. Goodnight, Petitioner, and the other female employee in the accounting department, were tested on March 19, 2001. Petitioner rode, as a matter of convenience, in the same car to the drug-testing site with the other two females employed in the accounting department. Petitioner was not singled out at that time. In fact, all employees, even Mr. Padgett and Mr. Beers, were tested. Petitioner passed the drug test and was not laid off in March 2001. Petitioner kept a log of personal notes and summarized them into a diary. This item, which may have been edited and copied over several times, reflects that Petitioner connected every life event, however small, to Mr. Beers. According to Petitioner's notes from March 20, 2001, Petitioner was "an emotional wreck," and she thought that Mr. Beers wanted to "get rid of" her and was "finished with me now." In her accounting post, she had seen a $5,000.00 check Mr. Beers had written on "Monday" and speculated whether or not it was for an engagement ring. Mr. Beers and his fiancée had become formally engaged in February 2001. (See Finding of Fact 17.) Although Petitioner testified that on March 21, 2001, Mr. Beers arranged for her to get additional company medical and/or dental benefits so as to make good a promise to her in return for her sexual favors, several of Respondent's employees testified more credibly that Petitioner was given the same health and other benefits as all other employees in her "Hourly B" class, throughout her employment with Respondent. Moreover, the greater weight of the credible evidence is that all of Respondent's employees were offered an opportunity to sign-up for additional health benefits and that Petitioner had the same opportunity for this benefit as every other employee did, and that she had, in fact, received the benefits for which she signed-up. At the beginning of the second quarter of the year 2001, in approximately April or May, Respondent made the decision that each department would have to cut staff and overhead expenses due to deteriorating business conditions and the cancellation of a lot of expected work. Mr. Beers gave each department head, including Mr. Schinderle, the sole discretion to make the decision as to who would be laid-off, based upon the position the department head believed would be most easily and efficiently eliminated. Mr. Schinderle was department head for the accounting department. He made the decision to lay-off Petitioner effective 6/1/2001. Mr. Schinderle did not receive any input or guidelines from Mr. Beers except to lay-off the one employee he could best do without. Mr. Beers had no discussions with Mr. Schinderle regarding the decision to lay-off Petitioner. Mr. Schinderle testified that he felt Petitioner's position could be the most easily eliminated because the Assistant Comptroller, Deborah Goodnight, was able to perform the functions of her own position and the functions of Petitioner's position. In fact, Ms. Goodnight was capable of doing the work of either Petitioner or the other female employee, but she was not consulted by Mr. Schinderle. On or about June 1, 2001, Petitioner and three other employees were laid-off from their positions with Respondent. Each of the other employees was from a different department and the decision to lay-off each of them had been made by different department heads than Mr. Schinderle. Mr. Schinderle listed Petitioner as eligible for re- hire. Petitioner never called back to Respondent in any attempt to be re-hired after her lay-off. After Petitioner was laid-off, there remained only three (not four) employees in Respondent's accounting department. The accounting department was able to effectively and efficiently function with the reduced three-person staff and did not acquire additional staff for approximately four years, until May 2005.
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 dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 22nd day of March, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 22nd day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John Vernon Head, Esquire John Vernon Head, P.A. 138 East Central Avenue Howey-in-the-Hills, Florida 34737 Stephen W. Johnson, Esquire Stephanie G. McCullough, Esquire 1000 W. Main Street Leesburg, Florida 34748
