The Issue Whether Petitioner failed to timely file her Petition for Relief following the Florida Commission on Human Relations' No Cause Determination? Whether Petitioner failed to timely file a charge of discrimination with the Florida Commission on Human Relations with respect to her claim of harassment? Whether Respondent promptly and thoroughly investigated Petitioner's claim of sexual harassment? Whether Respondent took measures reasonably calculated to end and prevent any alleged sexual harassment? Whether Petitioner suffered from a disability, and, if so, what was the nature of her disability. Whether Respondent provided Petitioner with a reasonable accommodation for her alleged disability? Whether Respondent discriminated against Petitioner on the basis of her sex and/or disability? Whether Respondent retaliated against Petitioner for complaining of sexual harassment?
Findings Of Fact Petitioner filed her Charge of Discrimination against Respondent on August 29, 2002. FCHR issued a No Cause Determination and Notice of Determination: No Cause on May 12, 2003. Petitioner filed her Petition for Relief on June 20, 2003. This was 39 days after the No Cause Determination was issued. Petitioner failed to show good cause for the delay in filing. Petitioner worked as an apprentice operator at Respondent's Stanton Energy Center ("Energy Center"), during the relevant time period, under the supervision of Wade Gillingham ("Gillingham"), manager of Operations for the Energy Center. Respondent is an employer under the FCRA. On or about July 5, 2001, Petitioner expressed some concern to Gillingham about a co-worker, Tim Westerman ("Westerman"), potentially hurting himself or others. More specifically, Petitioner told Gillingham that she was concerned Westerman was going to hurt himself or her. Upon learning of Petitioner's concerns, Gillingham notified Respondent's Human Resources Department, and he scheduled a follow-up meeting with Petitioner on Monday, July 9, 2001. Lou Calatayud ("Calatayud") from Human Resources also attended this interview. During these initial meetings, Petitioner did not complain of any inappropriate touching or sexual contact between herself and Westerman. Following her meeting with Calatayud and Gillingham, German Romero, director of Human Resources, held a second interview with Petitioner to discuss her concerns about Westerman. Thereafter, Respondent conducted a thorough investigation into Petitioner's allegations. During the course of the investigation, Petitioner was interviewed twice and Westerman was interviewed twice. Both Westerman and Petitioner admitted to voluntarily participating in several telephone calls with each other, with some lasting as long as two hours. Petitioner did not appear upset or concerned after these calls. Human Resources also interviewed Terry Cox and Tom Dzoba, both watch engineers to whom Petitioner claimed she reported complaints regarding Westerman. Neither Cox nor Dzoba was Petitioner's direct supervisor. Petitioner told Cox that she had issues with another employee. However, she refused to provide Cox with the other employee's name and insisted on handling the matter on her own, despite Cox's asking her for the name of the person. Dzoba has no knowledge of Petitioner ever complaining about any problems with another employee in the workplace. The first person to whom Petitioner reported Westerman's name was her supervisor, Gillingham, who immediately reported Petitioner's complaints to Human Resources. Westerman was not Hanson's supervisor. Westerman never expressed any romantic interest in Petitioner; however, Petitioner had expressed interest in meeting Westerman outside the workplace for dinner. Additionally, Petitioner used to write Westerman "cheer-up notes" while at work. In fact, the only touching that Petitioner later referred to were hand or arm rubbing during voluntary personal conversations with, and counseling or consoling of, Westerman. Similarly, the only touching Westerman recalls was possibly rubbing up against Petitioner in the workplace or maybe putting his hand on her shoulder when they were talking. Westerman never kissed or attempted to kiss Petitioner. In addition to the above, no other employees were able to identify any inappropriate contact between Petitioner and Westerman. After completing its investigation in early August 2001, Respondent determined that sexual harassment had not occurred but instructed Westerman, verbally and in writing, not to have any further contact with Petitioner. Prior to Respondent's instruction, sometime between May and July 2001, Petitioner personally asked Westerman to stop calling her, a request he complied with generally. At the same time, Respondent instructed Petitioner to discontinue counseling employees to protect against any future incidents or allegations of sexual harassment. It is the policy and practice of Respondent to treat all employees equally regardless of their gender and/or disability. Respondent developed and distributed to its employees, via an Employee Handbook, an Equal Opportunity Policy and Policy Against Harassment. Following the conclusion of Respondent's investigation into Petitioner's complaints of sexual harassment, on or about August 6, 2001, Petitioner requested a medically-supported leave of absence for 30 days. This leave was granted by Respondent. However, Petitioner later requested to return to work nearly ten days ahead of schedule, on August 27, 2001, submitting a release from her doctor. Because Petitioner was seeking to return to work so far ahead of schedule, Petitioner was evaluated by Respondent's occupational medical director, Jock M. Sneddon, M.D., before she was released to return to work. Petitioner returned to work in the same position and rate of pay as before her leave. Additionally, Petitioner received disability benefit payments covering the entire duration of her leave. More than seven months later, Petitioner called in sick on April 6 through 8, 2002, after sustaining a house fire at her personal residence. Following the use of 16 hours or more of sick time, employees are required to return to work with a doctor's note authorizing their absence. Here, it was determined that Petitioner was not sick during this time, nor was she even evaluated by a physician. Based on similar previous problems, for which she was twice verbally reminded of Respondent's policy regarding sick leave, Petitioner received a disciplinary write-up. In addition to Petitioner's two verbal reminders, on or about January 7, 2002, Gillingham issued a memorandum to all operations employees, including Petitioner, detailing Respondent's sick leave policy. On or about June 7, 2002, Petitioner and a male co-worker, Tom Moran, were written up by Gillingham for neglect of their job duties as the result of an incident that occurred at the Energy Center on May 14, 2002. More specifically, both Petitioner and Moran were deemed responsible for failing to make sufficient rounds to discover a mechanical failure, which led to severe flooding of a sump basement in the coal yard, causing more than $12,000 in damages. Gillingham estimated it would have taken between six to eight hours to fill the 60-foot by 20-foot sump basement with the seven feet of water that was found the following morning. Although Moran was an auxiliary operator, both "operators," including Petitioner, an apprentice operator, have the same responsibilities and were responsible for making the necessary rounds to ensure that a mechanical failure of this nature is promptly discovered and repaired. In accordance with Respondent's policy, employees with active discipline in their files are not eligible for promotions or transfer. The written discipline Petitioner and Moran received for the May 14, 2002, sump incident remained active in their employee files for nine months. During her employment at the Energy Center, Petitioner's performance evaluations remained relatively unchanged, receiving a "meets" or "good" rating on each evaluation. Additionally, Petitioner received all regularly scheduled wage increases, until she topped out at the salary for her position. Petitioner received the same wage increases as similarly-situated male employees. Further, on or about April 2, 2003, Gillingham notified Human Resources that the discipline in her file had expired, and Petitioner was promoted to auxiliary operator, with the commensurate increase in pay. Petitioner started at the same rate of pay as three of the four other male employees placed in the apprentice operator position at that time. The fourth male employee, David Ziegler, started at a higher rate of pay based on his five years of previous experience working for a contractor at the Energy Center. Further, because of the credit Ziegler was given for his previous work experience, he was promoted to auxiliary operator ahead of Petitioner and all of the other apprentice operators who started at the same time. Vasquez was promoted to auxiliary operator on the standard two-year schedule on or about August 12, 2002; however, Petitioner was not eligible for promotion at that time because of the active discipline in her file. Petitioner failed to prove that she suffered from a recognized disability or that Respondent failed to make a reasonable accommodation for her alleged disability. Petitioner failed to prove that Respondent discriminated against her on the basis of her sex. Petitioner failed to prove that Respondent retaliated against her for complaining of the alleged sexual harassment which occurred in the Summer of 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing with prejudice the Petition for Relief in DOAH Case No. 03-2306, FCHR Case No. 22-02718. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ellen Edith Hanson 5355 Rambling Road St. Cloud, Florida 34771 David C. Netzley, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based upon her sex/gender and/or disability. For the reasons more fully explained below, Respondent did not sexually harass Petitioner nor did it discriminate against her on the basis of her alleged disability.
Findings Of Fact Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Respondent operates a chain of fast food restaurants, including several in the Pensacola area. Petitioner, an African-American female, began working for Respondent in April or May 2008. Petitioner was still working for Respondent on December 22, 2009, when she filed her complaint with FCHR. Petitioner was hired to work 10 to 15 hours per week. She worked the late-night shift and worked primarily in the cash register area inside the restaurant where she took customers' orders and delivered them food. Additionally, Petitioner typically cleaned the front of the restaurant. During the late-night shift, the restaurant is typically staffed with just three or four people—one manager and two to three employees. Consequently, everyone is expected to work hard during the entire shift. Further, the late-night shift is when the restaurant undergoes its daily major cleaning, which Petitioner typically performed. Petitioner has a long history of pursuing discrimination or workers' compensation claims against her employers. Petitioner admitted that she had filed discrimination claims against every employer for whom she had worked, except Waffle House. She claims that at other jobs (not at Whataburger) her co-workers had assaulted her, cast Satanic spells on her, intentionally hurt her (e.g., poured hot grease on her and hit her in the face with a pan), and threatened to kidnap her children. She also alleged she had been discriminated against before, such as being called "Kunta Kinte" at two different jobs. Petitioner has not been previously successful in pursuing any of these claims. Petitioner claims to have written to and/or discussed these various claims with the FBI and President Obama. She also claims that she sees events before they occur through dreams and "flashes." She claims to have foreseen the kidnapping of a young local boy and that she has the ability to "block" hurricanes in the Gulf of Mexico from harming Pensacola "where her babies live" and even predict hurricanes. All of Petitioner's prior claims and her boasts of mystical powers undermine her credibility in this case. Sexual Harassment Petitioner claims to have been the victim of sexual harassment. At the hearing, she testified that one of her supervisors, James Cook, touched another supervisor, Shurnita Ruffin, in a sexual way (put his hands in her pants and shirt), on more than one occasion, and allegedly asked Petitioner if she was going to tell his wife what she witnessed. Petitioner claims this occurred because Mr. Cook wanted to somehow prove she was a racist (Mr. Cook is Caucasian, and Ms. Ruffin is African-American), and because Petitioner's son was dating Caroline Dickerson's babysitter. Petitioner claimed this was a racist action on the part of the two supervisors, not sex or gender discrimination. Petitioner further claimed that Mr. Cook encouraged one of Petitioner's co-workers, Jordan Yeager, to talk about his homosexuality at work. Finally, Petitioner alleged that Ms. Ruffin frequently cursed out Mr. Cook, the same individual she allegedly allowed to put his hands on her in a sexual way on multiple occasions in Petitioner's presence. Petitioner did not explain how these alleged actions were related to her sex or gender. Petitioner claimed that Ms. Ruffin treated everyone (except Jordan Yeager) poorly, regardless of the person's sex or gender. Mr. Cook, Ms. Ruffin, and Mr. Yeager testified. Each denied all of the allegations against them, and each denied doing or witnessing anything that could be construed as sexual harassment. The testimony of each of these witnesses was straightforward and credible. Mr. Yeager testified that he was sensitive to talking about his homosexuality since he was the only homosexual employee to his knowledge. Regardless, talking about one's sexuality is not sexual harassment even if it did occur and even if Petitioner were offended by homosexuality. After Petitioner filed her complaint with FCHR, Respondent investigated the allegations by interviewing all of the people with whom Petitioner worked and reviewing video taken in the store at the time of Petitioner's alleged sexual harassment. Respondent has eight different video cameras positioned around the restaurant (except in the bathrooms in which no claims of harassment had been made) and no footage corroborated any of Petitioner's allegations. Further, all of the employees interviewed signed statements that they had witnessed no incidents of sexual harassment. The restaurant is small enough that it is highly unlikely any sexual activity alleged by Petitioner could have occurred outside the view of the cameras. Petitioner's testimony regarding the claims of sexual harassment was not credible, and she failed to prove the existence of a sexually hostile work environment. Further, Petitioner never complained about or reported the alleged sexual harassment to her supervisors or through any of the prescribed channels provided by Respondent for reporting harassment or discrimination. This was despite the fact that she was aware Respondent has a zero tolerance policy towards sexual harassment, provided multiple ways for her to report sexual harassment, and even required that she take a sexual harassment quiz when she was hired. Also, Petitioner was no stranger to the corporate office when she had a complaint or needed information. Since she worked only a block away from the corporate office, she had visited there several times on a variety of issues. Petitioner failed to utilize the well-known procedures put in place by Whataburger for reporting the alleged harassment. Disability Discrimination Petitioner also claims she was the victim of disability discrimination because her hours were reduced from 10 to 15 per week down to only three hours per week because Respondent perceived her as being disabled. Petitioner described in detail an accident in June 2008 when she slipped and fell in the back of the restaurant on some grease or pickle juice that had been spilled on the floor. She completed her shift on the date of the fall, but sought medical attention the next day. Petitioner claimed to have suffered a second accident on the job in June 2009, when she hit her knee on a toilet in the restaurant. Petitioner filed a workers' compensation claim after the first accident, but not the second. Respondent was aware of the first accident, but not the second. Petitioner claimed these incidents were not accidents, but were intentional acts on the part of Respondent's employees. She could not identify the particular employees involved, and she could not testify as to why anyone would have caused these accidents other than her belief that they did not like her. The evidence does not support any of these allegations, especially Petitioner's claims that the accidents were intentionally caused. There was no showing these accidents had anything to do with her sex or gender, sexual harassment, or alleged disability. Petitioner's claim that her hours were reduced from 10 to 15 per week to three per week due to Respondent perceiving her as disabled is not supported by credible evidence. Petitioner acknowledged she was hired to work part-time for 10 to 15 hours a week and could not even provide a timeframe of when her hours were further reduced to only three per week, other than to say this occurred sometime in July 2009. Respondent noted that the reduction in hours occurred during a four-week period in October and November 2009, when Petitioner underwent the first of her two surgeries on both knees. She had surgery on her left knee on November 11, 2009, and on her right knee on February 12, 2010. Petitioner admitted that Ms. Ruffin, one of Respondent's managers, reduced her hours around the time of her first surgery because she was working too slowly, and Petitioner admitted she moved 60-70 percent slower during this period than when she first started working for Respondent. Petitioner further admitted she was in chronic pain every day, that both her knees swelled up constantly, and that her leg would lock constantly. Petitioner also admitted she called Respondent's corporate office and told them she could not stand the pain she was suffering, and that she also had stomach and rectal bleeding. Petitioner did not know whether Ms. Ruffin was aware of this call. Petitioner also admitted that she was often sent home early by Ms. Ruffin once the restaurant stopped serving customers inside (typically around midnight or 1:00 a.m.), and business slowed down. Petitioner admitted Ms. Ruffin did this to reduce the restaurant's labor costs which, in turn, enhanced Ms. Ruffin's bonus. Petitioner testified that Ms. Ruffin never told her she was being sent home early for anything related to her health or alleged disability. Respondent's witnesses testified that Petitioner's hours were reduced only because Petitioner had a habit of calling out of work (before her scheduled shift began) and asking to leave early almost every time she was scheduled to work (generally after she had finished cleaning the front of the restaurant). In each instance, Petitioner initiated her own reduction in work time. Also, in March 2010, Petitioner was warned about calling in advance after a "no call/no show" where she failed to call her supervisor and did not show up for work that night. She used the same excuse that she had used two weeks earlier (that all four of her car's tires had been slashed). This created a hardship for her supervisor who had to work short- handed that night since she was unable to find a last-minute replacement. Such behavior of not calling in advance or calling at the last minute was repeated by Petitioner on other occasions. Respondent considers this a serious offense because the manager is left without sufficient personnel to operate the restaurant at the last minute. Additionally, Petitioner experienced a slow recovery from each surgery and missed long periods of work before she was able to return. When she did return to work, she missed several scheduled shifts due to pain and/or slipping and falling outside of work. Petitioner's reduction in hours caused by these absences was not the result of Respondent perceiving her as being disabled and was not otherwise the result of disability discrimination. Respondent's witnesses were more credible than Petitioner concerning this claim. Petitioner did not prove that she was disabled or that Respondent treated her as though she were disabled. Although Respondent was aware of Petitioner's first accident on the job in June 2008, it was not aware of her alleged second accident in July 2009. Petitioner never filed a workers' compensation claim based upon the alleged second accident. Regardless of such knowledge, Respondent provided legitimate, non-discriminatory reasons for Petitioner's receiving fewer work hours, which Petitioner did not show were mere pretexts for unlawful discrimination. Therefore, any reduction in Petitioner's hours was not the result of Respondent's perceiving her as being disabled and was not otherwise the result of disability discrimination.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 13th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 S. Gordon Hill, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33602 Carolyn Johnson Post Office Box 4671 Pensacola, Florida 32507 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue 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
The Issue Whether Respondent Employer has committed an unlawful employment practice against Petitioner by discrimination against her on the basis of race, sex, handicap, or retaliation, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a Negro female. As of March 12, 2003, she was rated by the Veterans’ Administration (VA) as having a 30 percent disability, due to a knee injury which occurred while she was on active military duty. (Petitioner’s unrefuted testimony and Exhibit P-37.) Petitioner specifically has alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, and that she was denied a reasonable accommodation for her alleged knee “handicap.” Her “disparate treatment” allegation was presented in two respects: (1) that employees outside Petitioner’s protected racial class were not disciplined as harshly as Petitioner; and (2) that because Petitioner had worked for Respondent Employer for more than twelve months’ total, the State of Florida career service rules do not support her being terminated as a “probationary employee” from the position to which she was promoted and in which she had worked for less than twelve months at the time of her termination. Petitioner was first employed by Respondent Employer on November 15, 2002, at St. Lucie Regional Juvenile Detention Center in the position of Juvenile Detention Officer (JDO). After completing her twelve months’ probation in that position, Petitioner attained permanent State of Florida career service status. This meant that Petitioner was considered a permanent State of Florida employee, but it did not mean, as she has asserted, that she did not have to undergo a twelve months’ probationary period in each career service promotional position, if and when she attained one, or that she could never be terminated for cause. (See Conclusions of Law.) On September 10, 2003, at Petitioner's request, she was transferred from St. Lucie Regional Juvenile Detention Center to a vacant JDO position at Alachua Regional Juvenile Detention Center (ARJDC or “the facility”). This transfer permitted her to pursue a higher education at Santa Fe Community College (SFCC) in Gainesville, via her VA benefits, while being employed fulltime. When she transferred, Petitioner prepared a memo to all her supervisors at ARJDC stating that she needed to work the 11:00 p.m. to 7:00 a.m. shift so she could attend college classes in the mornings. However, at no time did the Employer guarantee that Petitioner would always be assigned to that shift. (P-35) At all times material, Petitioner was a single parent, working full time, and taking college classes. As a single parent, she was the sole support of her child. Because she was going to college pursuant to VA guidelines, she had to attend her classes and successfully complete them in order to continue to receive VA tuition and assistance. At all times material, Jill Bessette (Caucasian female) was employed in the position of ARJDC’s superintendent. As such, she was responsible for the overall functioning and operations at ARJDC, and for ensuring the safety and security of that facility’s juveniles and staff. Bessette relied on the facility's two assistant superintendents, Patricia Newman (Caucasian female) and Charles Parkins (Caucasian male), to assist her. Newman and Parkins oversaw daily operations, attended to personnel matters, and provided direct supervision of staff. In so doing, they regularly made written and oral reports to Bessette. On February 13, 2004, as a result of good reports about Petitioner's performance as a JDO at the facility, Bessette promoted Petitioner to the position of Senior Juvenile Detention Officer (SJDO). (P-17). On or about February 23, 2004, Petitioner complained to her superiors about Douglas Singleton (male) evaluating her, because she felt he had not observed her often enough. She was also rated by a female officer, Cohen, and wanted Cohen’s rating retained. This may have been a departmental career service or a union grievance, but it appears to have had no discrimination overtones. (See Findings of Fact 31 and 34.) Assistant Superintendent Parkins, who was Petitioner’s direct line senior supervisor, denied Petitioner’s grievance about her rating as untimely, but Petitioner did not demonstrate any specific negative personnel action resulting directly from Singleton’s evaluation. There is no evidence that this rating reflected that Petitioner was ever tardy or had unexcused absences. (P- 24, 25). After her termination in September 2004, Petitioner wrote the Governor stating that she had complained to Parkins in March 2004, about his attempt to switch her to a shift which would have interfered with her college classes and that Parkins was hostile about her going to college (P-36), but at hearing she presented no credible evidence that such an attempt by Parkins had ever occurred or that she had ever complained to anyone about such an attempt prior to her termination. Additionally, Petitioner was consistently assigned to the 11:00 p.m. to 7:00 a.m. shift she had requested until September 2004. (See Findings of Fact 31-35, 55, and 75, and Conclusion of Law 81.) In late February 2004, Petitioner complained because Newman, the assistant superintendent most concerned with timesheets, had inquired of a middle-level supervisor why Petitioner had been absent on a specific day. The testimony about this incident is so sparse, disjointed, and inconclusive that the undersigned cannot determine whether Petitioner also filed any type of grievance about Newman’s inquiry, but again, Petitioner’s complaint does not seem to have had anything to do with discrimination. (See Findings of Fact 31, 34.) In any case, Newman was apparently satisfied when informed by Cohen that Petitioner had been on pre-approved leave, and Petitioner did not suffer any detrimental personnel action specifically as a result of Newman’s inquiry. (Cf. Findings of Fact 74-75.) During the first week of April 2004, Petitioner tendered a letter of resignation to Bessette, which Bessette reluctantly accepted. Bessette testified that the only reasons Petitioner gave for this resignation were personal ones unrelated to discrimination. Petitioner did not testify otherwise. A short time later, Petitioner reconsidered her decision, and Bessette accepted Petitioner’s rescission of her resignation in such a way that Petitioner suffered no lapse in her career service. (R-5). From April 13, through July 25, 2004, Bessette took extended medical leave. During Bessette's absence, Assistant Superintendent Charles Parkins assumed the role of “Acting Superintendent.” At all times material, Shirley Edmond (Negro female) and Bruce Perry (Negro male) were employed by ARJDC as middle level supervisors. They supervised the JDOs and SJDOs assigned to their shift(s). At ARJDC, there are three shifts around the clock. SJDOs and JDOs at the facility are assigned to work shifts. In order to maintain an appropriate minimum correctional officer- to-juvenile detainee ratio, and in order to ensure the safety and security of staff, juveniles, and the community, SJDOs and JDOs are subject to having their shift assignment rotated or changed. Also in order to prevent the facility from operating below minimum staffing levels, JDOs and SJDOs may be required to “holdover” or continue working into the next shift when asked to do so as a result of on-coming staff members’ tardiness or absence. As a result of minimum staffing level requirements, ARJDC's operating procedures address the issue of tardiness and identify three instances of tardiness in any rolling 90-day period as “excessive.” (R-17). ARJDC’s operating procedures also address absenteeism. The required procedure for “calling in sick” requires employees seeking approved leave to contact the on-duty officer or acting supervisor at least two hours in advance of the employee’s report time, and further requires that thereafter, the employee also speak to the shift supervisor and discuss the employee's return-to-work date. Medical verification may be required by the Employer for absences in excess of three consecutive days. (R-17). Upon her hire, and again in June 2004, Petitioner was made aware of, and was provided with, a copy of the Employer’s policies and procedures with regard to absenteeism and tardiness. (R-3, 19). From May through June or early July 2004, Petitioner, Perry, and Edmond all worked the 11:00 p.m. to 7:00 a.m. shift. During these months, both Perry and Edmond observed that Petitioner frequently arrived late for her shift, that is: more than one minute after 11:00 p.m., which is the grace period allowed by the facility’s policies and procedures. (R-17). On one occasion, Perry spoke to Petitioner about her tardiness. Petitioner attributed her tardiness to problems with her babysitter. At all times material, Petitioner was aware of the Employer’s policy against, and procedures for reporting, discrimination or sexual harassment. These procedures are given in numbered paragraphs, but are not referred to as “steps.” They permit Petitioner to involve the internal EEOC officer and the Employer’s hierarchy outside the facility. (R-4). On June 25, 2004, while he was her shift supervisor, Bruce Perry wrote Petitioner a counseling memo concerning her tardiness on June 1 and 25. She received the memo on July 13, 2004. (P-15). Shirley Edmond testified that July 22, 2004, Petitioner threatened her as set out in greater detail in Findings of Fact 68-72 infra, concerning Bruce Perry’s counseling memo. On or about July 16, 2004, Petitioner filed what was described as a “departmental grievance” against Perry’s counseling memo(s).2/ This grievance could have been brought pursuant to a union collective bargaining agreement or pursuant to Section 110.227(4), Florida Statutes. However, that statute provides a "two-step" grievance procedure only for career service employees who are no longer on probation in their current position, and it excludes consideration of both "discrimination" and "sexual harassment" issues, which are supposed to proceed through superiors and the EEOC officer. Due to her probationary status as SJDO, Petitioner would have been ineligible to pursue the statutory grievance. In any case, her grievance did not raise issues of sexual discrimination or sexual harassment (P-38), nor was it directed to an internal EEOC officer. On or about July 17, 2004, Petitioner sent an e-mail letter outside the facility to the Assistant Superintendent for Detention Services, Perry Turner. Respondent's discrimination and sexual harassment procedures permitted this. However, in the e-mail Petitioner complained in general terms that she was experiencing problems getting facility personnel, particularly Charles Parkins, to follow all the "steps," in appropriate sequence, of established grievance procedures. (P-39). Turner, who oversees all detention facilities and services statewide, and whose office is in Tallahassee, delegated responsibility for investigating Petitioner's complaint to Operations Manager Richard Bedson, who supervises all of the detention branches’ support services. Mr. Bedson had recommended Petitioner for her promotion to SJDO and for a raise in connection therewith, but they did not know each other. (P-17). He was not housed in her facility. He was entirely independent from ARJDC staff. On July 19, 2004, Perry rescinded his counseling memo to Petitioner (P-12), because it had been shown to Parkins that Perry was not on the same shift with Petitioner on June 25, 2004 (P-13), and/or that on June 25, 2004, or the other date cited in Perry’s memo (June 1, 2004), Petitioner had prior permission from a different supervisor to “back down” her hours so as to legitimately arrive late for her shift (P-39). Perry’s testimony herein confirmed that for one of the days cited in his counseling memo, he had relied on someone else’s observation of Petitioner’s tardiness, and that he, himself, had not seen that particular tardy arrival. In any case, a counseling memo is not considered a disciplinary memo, and Perry’s memo stated that fact. (P-15). A counseling memo does not begin the three-tier progressive discipline that could lead to termination of a permanent employee for cause, and Perry’s counseling memo was rescinded, anyway. Petitioner acknowledged that the offending memo was rescinded after she complained about it. Despite the happy outcome for Petitioner of her grievance about Perry’s counseling memo, Petitioner claimed at hearing that everything that happened to her after February 2004, was the result of Parkins’ retaliation against her for filing the first evaluation grievance which Parkins had ruled was untimely (see P-12, 14, and Finding of Fact 10) and/or because Parkins and Perry were retaliating against her for grieving Perry’s alleged sexual harassment of her. At hearing, Petitioner testified that from late May 2004 to June or July 2004, Bruce Perry made suggestive remarks to her about her lips and buttocks; made comments designed to make others infer that Petitioner and Perry were sexually involved; put his hands on her shoulders; and rubbed his privates in her presence. She claimed that she rejected Perry and reported these unsavory and harassing activities to superiors Parkins (male), Singleton (male), Smith (female), and Cohen (female), and that thereafter, Perry created a hostile and retaliatory workplace for her. She also related that Freda Smith, a middle level supervisor, had promised to report Petitioner’s complaint of sexual harassment by Perry to Parkins. None of the foregoing supervisors Petitioner named corroborated that Petitioner had reported any sexual incident with Perry to them. Of the supervisors Petitioner named, only Parkins actually testified, and he denied that either Petitioner or Freda Smith, on Petitioner’s behalf, had made any such report to him. (R-20). Bruce Perry denied in writing, when the issue was first raised after Petitioner’s termination, and in his testimony herein that he had committed any of the acts of which Petitioner accused him. (R-7). Interestingly enough, although Parkins and Perry both denied any knowledge of Petitioner reporting Perry to Parkins, Petitioner personally testified that when she had reported Perry to Parkins, Parkins removed her from the area physically near Perry and later removed Perry from her shift altogether, so as to separate them. Perry confirmed that he only worked with Petitioner "a couple months" until he was removed from her 11:00 p.m. to 7:00 a.m. shift. When, precisely, Perry was removed from that shift is not clear on this record. Petitioner testified that she needed larger pants for her correctional officer’s uniform, to accommodate the knee brace she sometimes needed to wear for her prior military injury, and that Perry had remarked that her pants were all right, in connection with his comments about her buttocks. Perry denied making any suggestive remarks. No other witness noticed a problem with Petitioner’s uniform pants or that Petitioner was in any manner unable to do her job, due to her knee or for any other reason, until she had a shoulder injury on August 4, 2004, as described infra. However, Petitioner testified that Parkins told her to get a doctor’s note stating that she needed the knee brace. Petitioner had admitted in evidence such a note from her doctor dated July 21, 2004, on which she had printed a note to Parkins requesting larger uniform pants and stating she had spoken to Parkins about the larger pants a month before July 21, 2004. This note said nothing about Perry or his alleged sexual comments. (P-11). Petitioner's testimony is not entirely clear as to whether she believed that Parkins refused her request for larger uniform pants, or just ignored it, but since she admitted that she slipped the note under Parkins’ office door when she was told by another supervisor that Parkins would not be in, her delivery system may have failed to get her doctor’s note to Parkins. Parkins testified that he recalled no requests, either oral or written, for bigger uniform pants, but if he had received such a request he would merely have passed it on to the person who was in charge of ordering/issuing property on a regular basis. It is probable the property officer only worked a standard day shift, while Petitioner worked the 11:00 p.m. to 7:00 a.m. shift. On July 25, 2004, Bessette returned and resumed her duties as superintendent of ARJDC. Bessette testified that she knew nothing of any sexual harassment allegations until after Petitioner was terminated in September 2004, and the evidence as a whole shows that Petitioner first approached internal and external EEOC officers about sexual harassment only after she was terminated. (R-7, P-26,36) Moreover, in late July, Petitioner had every opportunity to speak to the Employer’s non-facility personnel to resolve any alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, or problems concerning being denied a reasonable accommodation for her alleged knee “handicap,” but she did not do so. In late July, Operations Manager Richard Bedson telephoned Petitioner at the facility and asked if he could speak to her about the concerns she had expressed in her letter to Assistant Superintendent for Detention Services, Perry Turner. (See Finding of Fact 26.) Petitioner refused to speak to Bedson over the phone about her e-mail to Turner or her concerns, stating she did not know who Bedson was and she was not going to speak to him unless someone else on the phone vouched for him. Bedson then arranged to meet with Petitioner, personally. (P-39). Discrimination investigations, particularly those involving sexual matters, are best begun by a discreet meeting between the investigator and the complainant alone, but Petitioner had not told Mr. Bedson what her problems were, and her memos had referred to “step” grievance procedures which are a union device. The use of the word "step" could also have referenced the Section 110.227(4) procedure which, by its nature, could not deal with "discrimination" or "sexual harassment." (See Finding of Fact 25.) Petitioner also had declined, via e-mail, to come to Bedson's office in another city unless she received per diem travel pay, and had stated that she preferred to meet at ARJDC. (P-39). Therefore, Bedson held a meeting on July 30, 2004, with Petitioner, Bessett, Parkins, and Petitioner's union representative, Mr. Reeves, who is a teacher from outside the facility. Bedson chaired the meeting and asked Petitioner to relate her concerns regarding her treatment at ARJDC. At no time during the July 30, 2004, meeting did Petitioner indicate she was being, or had been, sexually harassed; that she or anyone else was the subject of any type of disparate or preferential treatment; or that she had a knee injury that was not being accommodated. She did not state that she was entitled to preferential treatment by virtue of being a veteran. She did orally accuse Parkins of practicing undefined retaliation against her. However, she refused to discuss anything more and stated she would put her concerns in writing. Bedson informed Petitioner that he would request that an investigator meet with her as quickly as possible so that an investigation could occur. He then concluded the meeting. After this meeting, Bedson telephoned Operations Management Consultant II James Darbin Graham, who is assigned to Respondent Department’s North Region Office. He directed Graham to meet with ARJDC staff and Petitioner to determine what Petitioner’s concerns were and to conduct an investigation as necessary. Bedson recounted to Graham his earlier meeting with Petitioner, her prior e-mail, her general allegation of "retaliation" by Parkins, and her refusal to provide any further explanation. On August 4, 2004, while working the 11:00 p.m. to 7:00 a.m. shift, Petitioner injured her shoulder opening a door. She left the facility for the hospital. After treatment at the hospital, she returned to the facility at approximately 5:00 a.m. with hospital paperwork for facility administrators so that she could obtain workers' compensation benefits, including medical care, disability pay, and leave. On this same morning, Graham arrived, unannounced, at the facility at approximately 6:00 a.m. to meet with Petitioner. He was advised that she had left for the hospital, but then he spotted her in the ARJDC lobby. Petitioner was wearing a hospital gown, and her arm was in a sling. Graham introduced himself to Petitioner and advised that he needed to speak to her. Petitioner refused to speak to him, stating she was on medication and that he would have to make an appointment so that she could have her union representative at the meeting when she was not feeling the effects of the medication. In order to be able to arrange such a meeting, Graham advised Parkins that he needed to speak with Petitioner upon her return to work from medical leave. From August 4, 2004 onward, Parkins did not arrange such a meeting or notify Graham when such a meeting could occur. Graham concluded this was because of Petitioner’s extended absence and subsequent termination, effective September 8, 2004. As a result of her on-the-job shoulder injury, Petitioner was immediately placed on workers’ compensation leave. The parties agree that Petitioner was entitled to all workers’ compensation benefits, including medical care, leave, and pay, from August 4, through August 10, 2004. It is the two periods of August 10, to August 19, 2004, and August 20, to September 8, 2004, that drive this case. Assistant Superintendent Newman maintains and processes paperwork related to workers' compensation for the facility. On August 10, 2004, Petitioner’s medical physician released Petitioner to return to work with the following restrictions and medications: Employee is to avoid all use of affected arm. . . . Avoid lifting, reaching, grasping with right arm only. Physical therapy ordered. Stop percocet and discontinue sling. The following medication(s) has (have) been prescribed: Naproxen . . . Effects include . . . dizziness Metaxalone . . . May cause drowsiness Cyclobenzaprine . . . common side effects include drowsiness, decreased judgment, . . . blurred vision . . . caution should be exercised when driving or operating dangerous equipment Tramadol . . . May cause sedation . . . Use caution when driving or operating dangerous machinery. (Emphasis supplied) (R-2). Petitioner received a copy of the foregoing document, as quoted supra. It is probable that the Employer’s independent workers’ compensation contract carrier, “Covel”, also received a copy, but there is no evidence this detailed document was presented to anyone at ARJDC. However, ARJDC was made aware of its medical restrictions on use of Petitioner’s arm. “Master Control” is the only light duty available at ARJDC. It has always been used for situations such as Petitioner’s, and is the only “accommodation” Respondent has available. Master Control is a desk assignment away from juvenile detainees, which requires only monitoring cameras, answering telephones, and pushing buttons, but which has no potential for strenuous restraint of, or harm from, detainees. Petitioner was advised on August 10, 2004, that the facility could accommodate her doctor's restrictions of modified duty by assigning her to Master Control. However, Petitioner did not report to work for nine more days, or until August 19, 2004.3/ Petitioner also did not obtain authorization for her absence August 10-19, 2004, using the methods required by the Employer’s policies and procedures. (See Findings of Fact 16- 18.) Instead, Petitioner reached Parkins by telephone on August 10, 2005, and told him that her medications were making her too drowsy and dizzy to drive. Parkins took what Petitioner told him at face value. He was concerned about Petitioner’s safety and the Employer’s liability. He told her not to come to work until she could drive or could see her doctor. Petitioner followed up on their conversation by faxing Parkins, that same day, a written explanation that she was on four medications and that three out of the four medications, which she did not name, were causing her symptoms. (P-34). Petitioner’s next doctor’s appointment was not until August 19, 2004, so she did not report to work until after that appointment. Although her physical restrictions diminished over time, from August 4, 2004, until October 20, 2004, Petitioner’s workers’ compensation physician continued to prescribe one or more medications for Petitioner which could have rendered her dizzy or drowsy. (P-10, 32). However, there is no evidence this information was sent to ARJDC, even though it probably was sent to the independent workers’ compensation contract carrier, Covel. Petitioner did not work the full 11:00 p.m. to 7:00 a.m. shift in Master Control on August 20, 2004. Upon her placement in Master Control early, at about 10:30 p.m., on August 19, Petitioner immediately complained of pain in her shoulder and drowsiness from her medications. After she was observed with her head on the table, she was sent home by her supervisor. She had been present on the jobsite about an hour. Petitioner called in on August 21, 2004, at midnight (an hour after she was due to report for her shift), to say she had just awakened, was in a lot of pain, and would not be reporting to work. Petitioner did not follow proper procedures in reporting this absence. (See Findings of Fact 16-18.) Petitioner's regular days off work fell on August 22, and 23, 2004. On August 24, 2004, Petitioner still did not report to work and did not call the facility, as required by Respondent’s policies and procedures. On August 24, 2004, Assistant Superintendent Newman received a call from Julie Bumgardner of Covel, who wanted to be sure that the facility was accommodating Petitioner’s workers’ compensation shoulder injury with an appropriately restricted work assignment. When Newman indicated that Petitioner continued to be absent due to drowsiness associated with her medication, Bumgardner advised Newman that the medications Petitioner was currently prescribed for her workers' compensation injury did not contain narcotics to make her drowsy and Petitioner should have returned to work on August 10, 2004, with the accommodation for her arm as previously stated. Bumgardner faxed Newman either an incomplete copy of the August 10, 2004, physician's order, which did not mention the four drugs which could have been making Petitioner dizzy or drowsy between August 10-19, 2004, but which did say to discontinue percoset, and/or a separate document showing that the narcotic percocet had been discontinued by the physician on August 10, 2004, and which listed the other four drugs, but not their side effects. (R-8). As a result of this incomplete and therefore misleading information, Newman and Bumgardner concurred that any of Petitioner’s absences after August 10, 2004, should be charged against Petitioner’s accrued sick and annual leave and should not be categorized as workers’ compensation leave. Petitioner was credited with working eight hours on August 25 and eight hours on August 26, 2004. On August 26, 2004, Newman wrote a memo to Petitioner advising her that effective Friday, September 10, 2004, Petitioner was being temporarily reassigned to the 7:00 a.m. to 3:00 p.m. shift in Master Control. The memo explained to Petitioner that Newman's purpose in this reassignment was to further accommodate Petitioner by assigning her to Master Control during the day shift when another employee, also assigned to this same station, could assist Petitioner if Petitioner needed assistance. By writing the memo on August 26, and not making the assignment change effective until September 10, Newman intended to give the customary two weeks’ notice so that Petitioner could arrange her personal life to fit the change of shift. When she wrote this memo, Newman should have, but did not, realize that Petitioner was taking morning classes. When she received this memo on August 26, 2004, Petitioner believed that she was entitled to never be reassigned to a shift that did not accommodate her college classes. She refused to sign, acknowledging receipt of the memo. Petitioner wrote the following on the bottom of Newman’s memo: I am confused about this letter because of the last letter I received from D.S. Bessette. I cannot sign this at this time. You must have me confused with SJDO L. Green. She’s the one with the shift ch[ange].(R-10) In her routine review of employee timesheets, Newman had noted that Petitioner had not signed her timesheet covering August 13, 2004, through August 26, 2004, and that Petitioner had claimed “leave without pay: code 60”, signifying that she expected to receive workers’ compensation disability pay and not be docked any sick or annual leave for that period of time. On August 27, 2004, Newman issued a memo to Petitioner's immediate supervisor, Wilcox, requesting that Wilcox address with Petitioner the incorrect coding Petitioner had written into her timesheet covering the dates of August 13, through August 26, 2004. (P-33). Ms. Newman also wrote across Petitioner’s first timesheet (see Finding of Fact 57), in red ink, advising Petitioner: Ms. Francis you need to recode your leave to 52-sick and resubmit w/ signature. According to your doctor’s note you should have assumed work duties on the 10th of August. (R-12) Workers’ compensation pay does not begin until a specified time after the compensable accident. Many employers, including this one, have an elaborate system in place to pay an employee full salary and adjust leave categories of accrued sick and annual leave to make up the difference between the workers’ compensation rate and the regular pay rate, instead of paying the employee just the lesser amount permitted by the workers’ compensation statute. However, neither of those considerations was afoot here. Here, despite Newman’s testimony as to “the first 40 hours of workers’ compensation coverage,” the exhibits clearly reveal that Newman was attempting to get Petitioner to use her accrued sick leave to cover any time she had been absent from work after August 10, 2004. Because of her conversation with, and the incomplete materials supplied by, Bumgardner, Newman believed this was the correct way to code Petitioner’s timesheet. (See Findings of Fact 49-53.) When she received Newman’s August 27, 2004, memo to Wilcox, that same day, Petitioner responded to it by writing a note on the bottom in which she stated that she was not going to use sick leave; that she had permission from Parkins for her August 10-19, absence; that she was on four different “meds”; that her arm became swollen when she did come in on August 19; and again that she would not use sick time for an on-the-job injury that Newman refused to accommodate. Petitioner then finished with I am so sick and tired of the inconsistency and lack of communication among the management team. . . . You all need to stop this please. (P-33) Petitioner’s adamant and belligerent attitude did not sit well with Newman who, based on the information provided by Bumgardner, believed she was just doing her duty. On September 2, 2004, Newman came in at 6:00 a.m. to talk to Petitioner before Petitioner went off her shift at 7:00 a.m. Petitioner insisted on being confrontational with Newman in front of staff, instead of coming to Newman’s office as Newman requested. Petitioner adamantly refused to change the first timesheet or to sign it. (R-14). She stated to Newman that she had relied on Parkins’ oral authorization to be on workers’ compensation leave from August 10, to August 19, 2004. She later submitted a new, typed timesheet, still claiming “Code 60-workers’ comp. disability” for each of her scheduled work days between August 13, and 24. This version she signed. (R- 13). Newman caught up to Petitioner as Petitioner was checking out at the time clock on September 2, 2004; handed her a copy of the August 26, 2004, memo (see Finding of Fact 55); and inquired if Petitioner would be reporting as previously ordered to the 7:00 a.m. to 3:00 p.m. shift on September 10, 2004. Petitioner stated she could not make the change due to her babysitter and previous registration for college classes. She continued to rely on Parkins’ oral authorization for August 10-19, and apparently expected workers’ compensation considerations for her absences after August 19, 2004, as well. (R-14). Newman never received corrected timesheets from Petitioner, despite explaining the situation to someone from Petitioner’s union who telephoned Newman and offered to act as an informal intermediary. Finally, in order to get Petitioner paid on time, either Newman or Parkins filled out a timesheet covering August 13 through August 26, 2004, and signed for her. Petitioner ultimately was charged sick leave from August 10-20, 2004, and was declared absent without authorization for August 21 and 24, when she had not followed the prescribed procedures for an authorized absence. (See Findings of Fact 49 and 51.) This meant that Parkins had retroactively withdrawn his oral authorization for Petitioner to take workers’ compensation leave for August 10 through August 19/20, and that Respondent viewed Petitioner’s absences on August 21 and 24 as unexcused. From the way this case was presented, it is difficult, if not impossible, to pinpoint when Petitioner did, and did not, report for duty after August 26, 2004. For instance, Petitioner insisted that she was not scheduled for duty on September 3, 2004, because that was the date of Hurricane Frances. She also claimed she could not work on September 3, 2004, because that was a day on which lack of accommodation the night before had caused her arm to swell. (See Finding of Fact 68.) Parkins confirmed that he did not schedule any “light duty” officers, of which Petitioner was one, for duty during Hurricane Frances, but he did not know the date of Hurricane Frances. Another witness thought Hurricane Frances had occurred in August 2004. If Hurricane Frances occurred on August 3, 2004, instead of September 3, 2004, then all such testimony is irrelevant because Petitioner's arm was not injured until August 4, 2004. There is documentation and testimony from Newman and Petitioner that Petitioner worked September 2, rolling into September 3, 2004. (See Finding of Fact 68.) Other dates Petitioner worked are equally confused or obscure, but Petitioner claims she worked August 25-28; was off on August 29-30; and contradicts herself that she was, or was not, scheduled to work on August 31, 2004; and was, or was not, scheduled to work on September 3, 2004. (See, infra.) However, both Petitioner and Edmond agree that on September 2, 2004, Edmond assigned Petitioner to a regular duty post. Edmond claims the assignment was a pure mistake on her part. Petitioner complained, via a 6:05 a.m. September 3, 2004, e-mail to Bessette, Newman, and Parkins, that her arm was swollen because of Edmond’s mis-assignment. (R-18). Petitioner’s e-mail also asserted that the Employer was not accommodating her work restrictions from her workers’ compensation doctor and that she was unable to come in to work that night due to her swollen arm. On September 3, 2004, at 11:35 a.m., about five-and-a- half hours after Petitioner’s complaint about Edmond’s assignment of her to regular duty on the 11:00 p.m September 2, to 7:00 a.m., September 3, 2004, shift, Edmond provided Bessette with a written statement, via e-mail, relating that on July 22, 2004, Petitioner threatened to "take her [Edmond] down." Edmond testified that shortly after receiving Perry’s June 25, 2004, counseling memo, Petitioner had called Edmond into a courtyard area at the facility to discuss her tardiness and her belief that management was tracking her tardiness. Respondent had always tracked its employees’ tardiness but had recently added a new method of keeping track. Petitioner referred to management’s tracking of her tardiness as "foolishness." Petitioner told Edmond not to engage in such behavior or Petitioner would “take her down" with the rest of management. Edmond claims to have acknowledged the incident to her immediate supervisor, Wilcox, on the same night it occurred. Wilcox was not called to corroborate Edmond’s testimony, and Edmond did not memorialize the event in writing until September 3, 2004, when she felt her job was being threatened by Petitioner’s September 2, 2004, memo of complaint. (See Finding of Fact 68.) Edmond testified that she also notified Bessette on September 3, 2004, about the July 22, incident because she believed that Petitioner was using codeine on the job. There is insufficient credible evidence to substantiate Edmond's testimony about codeine. It is more likely that Edmond related the story about July 22, 2004, to Bessette in retaliation for Petitioner's complaining that her workers’ compensation injury was not being accommodated by Edmond. The fact that Edmond also kept the July 22, 2004, incident to herself for six weeks renders the truth of her whole testimony suspect. However, that does not mean that Edmond's superiors had reason to disbelieve her September 3, 2004, accusation. Since August 24, 2004, Parkins and Newman, in reliance on Bumgardner, believed that Petitioner was using a narcotic drug (percocet) which her doctor had told her to discontinue on August 10, 2004. They were unaware that some of the other drugs legitimately prescribed by Petitioner’s authorized workers’ compensation physician might have caused the drowsiness and dizziness that had kept Petitioner from reporting for work between August 10 and August 19, 2004, and sporadically thereafter. (See Finding of Fact 53.) After Julie Bumgardner’s mis-information had been received on August 24, 2004, and continuing onward, Superintendent Bessette received reports from Newman, Parkins, and Edmond about Petitioner’s tardiness problems. It is not clear what instances of tardiness besides those occurring after August 10, 2004, were actually reported to Bessette. It is probable that both Newman and Parkins had an overall impression that Petitioner had frequently been tardy over the whole period of her employment at ARJDC, and it is possible, but not proven, that the rescinded Perry counseling memo (see Findings of Fact 23-27) was remembered or utilized. However, tardiness was only part of Bessette’s considerations. Bessette was also apprised of Petitioner's incorrectly coded timesheets and adamant attitude that she would not use sick leave to cover time off. Petitioner’s belligerency toward Newman and her attitude that everyone was “out to get her” aggravated the situation. Bessette considered Petitioner's refusal of Newman’s direct order to correct her timesheets to be insubordination. Parkins and Newman believed, however erroneously, that Petitioner was taking the narcotic percocet, contrary to her doctor’s instructions. Parkins may also have believed and resented that his oral authorization to Petitioner for leave August 10-19, had been obtained by fraud. The report to Bessette of a threat against Edmond was the last straw. Upon the mounting objections to Petitioner’s job performance, and based on a consensus of Newman, Parkins, and herself, Bessette determined that discipline was appropriate and requested authorization from her superiors to terminate Petitioner, which they granted. Petitioner was terminated by a September 8, 2004, letter, effective that date, stating that her termination was because of . . . your failure to satisfactorily complete your probationary period . . . . (P-9) Petitioner proved that ARJDC SJDO Genevieve Hazelip (Caucasian female), Respondent’s employee since 2000, was disciplined in the position of SJDO on one occasion in January 2005, after Petitioner was terminated. This was an oral reprimand for “a conversation with racial undertones, regardless of intention". (R-15). The oral reprimand of Hazelip was only stage one of the Employer’s three-stage progressive disciplinary system, which could lead to termination of a permanent employee at the third step. If Hazelip was on probation in her SJDO position, the Employer did not have to go through the three steps to terminate her, but it was not proven that Hazelip was on probation when she received the oral reprimand. Petitioner also proved that Hazelip was disciplined on two other occasions but was unable to establish whether these disciplinary actions occurred while Hazelip was a JDO or an SJDO or what level of discipline was imposed either time. At hearing, Petitioner claimed that Caucasian officers at ARJDC regularly got weekends and other coveted days off and Negro officers did not. She submitted nothing to substantiate this allegation, but admitted that there were more Negro officers than Caucasian officers and that she had never complained about the shift assignments because she was not dissatisfied with her own days off. It also may be reasonably inferred that Petitioner was not privy to any requests by other officers, Caucasian or Negro, for what shifts or days they wanted to work.
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 Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of September, 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 1st day of September, 2006.
Findings Of Fact Mother & Daughter Cleaning Service, Inc. (Mother & Daughter) is a Florida corporation. Frank Brown, age 65, is the Vice President, Secretary and Treasurer of the corporation, and his wife, Betty Brown, is the corporation's president. The corporation provides house cleaning services to its customers. In addition to Mr. and Mrs. Brown, who serve as the cleaning crew leaders, the corporation has employed numerous other laborers, mostly women, over the past five years and employs five or more employees on a regular basis. The Petitioner was hired to perform cleaning services for Mother & Daughter clients as part of a two or three person cleaning crew on March 13, 1989. The Petitioner, Lisa Glennon, age 26, was initially interviewed for this position in the Brown home by Mrs. Brown and was offered employment. However, the offer was withdrawn when the Petitioner revealed that she did not own her own car. Then, after some discussion between Mr. and Mrs. Brown, the Petitioner was hired in spite of this circumstance. Initially, the Petitioner was trained and supervised by Mrs. Brown as part of her crew, but after about a month she was transferred to the crew led by Mr. Brown (Brown). Evelyn Engle was the other regular member of this crew, although there were a few occasions when Engle did not come to work. There was also a period of about a week when Lori Kent Brady filled in for Engle. Petitioner worked as a part of Brown's crew until June 16, 1989, when she was fired. Mother & Daughter employees would usually report to work at the Brown home. Brown's crew members were transported to various job sites, including private residences, in a van owned and driven by Brown. The crew would take a lunch break, usually at a fast food establishment such as Burger King, and would then proceed to the next job site, although not always directly. The routes to many of Mother & Daughter clients took the crew within the vicinity of the beach or causeway. On many occasions over the period of Petitioner's employment, Brown, while transporting the work crew in the van, would stare at and remark upon the physical appearance of women he would see walking in the beach area. These remarks concerned a woman's breasts or "tits"--that she was a "well-built" or "well-stacked" woman, her rear end, or figure in a T-back swimsuit. These remarks were sometimes accompanied by lip licking or growling sounds. Petitioner informed Brown that this behavior was "rude." Petitioner was offended by these remarks. In addition to drives down the beach enroute to a job site, Brown, frequently between jobs and normally after the lunch break, drove his crew to the beach or causeway to park and pass the time before the next job. During these "waiting times," Brown would comment on female passersby as well. Previous Mother & Daughter employee Joanne Goodale found these parking times disconcerting and described Brown's routes to other job sites, apart from these "parking" incidents, slightly out of the way, and the amount of time spent driving on the beach abnormal for a job circumstance. Brown frequently told off-color jokes in the presence of Petitioner and other employees. Brown constantly commented on Petitioner's appearance and body, mostly her "lovely" breasts, and he admonished Petitioner not to fuss with or adjust her clothing because he found it "distracting"; that on one occasion he suggested she take off her bra (she was complaining about sunburn pain to Engle at the time); that she and Engle take off their shirts while working (they had complained a resident's home was hot and asked about the air conditioning at the time); and that he once recounted to her that he and another unidentified woman had worked without shirts in a residence. On one occasion, Brown encouraged Petitioner to appear in a swimsuit for him. The crew had completed work early and, in reply to a question from Brown, Petitioner said she would go to the beach. Brown suggested that he drive her to her house so she could change into her swimsuit, then he would drive her to her car at his home. Petitioner declined, but Brown pursued the idea, remarking "Oh, you would really want to ruin an old man's day" by not permitting him to see her in her swimsuit. Once on a Monday, Brown told Petitioner he saw her car that weekend at the beach and considered stopping "to give her a hard time." This remark frightened Petitioner, and she protested to him. Brown recounted to Petitioner and Engle an obscene phone call his wife and daughter received at home wherein the caller inquired whether Mrs. Brown or her daughter "spit or swallow [ed]." This was offensive to both Petitioner and Engle. Brown discussed with Petitioner and Engle on more than one occasion his dissatisfaction with his sex life with his wife. In connection with these complaints, Brown stated his desire to find a girlfriend for whom he would provide in exchange for sex "with no strings attached." Petitioner objected to these discussions. On several occasions, Brown displayed the centerfolds of "Playboy" magazines to these women. On one occasion, Brown displayed a "men's" magazine in a residence the three were cleaning, made "mouth noises," and remarked on the models "lips." The women understood this remark to refer to the model's genitalia, which the model was touching with her hand. Brown on several occasions "brushed up against" his female workers that were not unintentional incidents caused by the circumstances of cleaning. Shortly after she started on his crew, Brown swatted Petitioner's rearend in the kitchen of a residence. On the same day, Brown brushed against her hip while loading the van, and Petitioner protested saying "that's enough." Brown replied "I see I'm not going to get very far with you" and told the Petitioner to loosen up and relax. The incidents, remarks and behavior of a sexual nature were sufficiently persistent to constitute a "hostile workplace." These were not isolated incidents described by the Petitioner or her witnesses, but an almost constant stream of discourse on the part of Brown. Petitioner testified, that she was offended by this behavior on the part of Brown, and was disturbed by it to the point that she feared going to work, feared that Brown would approach her during non-working hours and experienced nightmares as a result of his conduct. Brown protested that he did not intend to offend the Petitioner. The Petitioner testified that Brown's behavior and advances were unwelcome to Petitioner, and she communicated her disgust to Brown on many occasions. Petitioner did not casually use foul language at work, but did so when she became angry. On one or two occasions, she did say "fuck you" or some variant thereof to Brown. The Petitioner did not dress in a revealing manner, but normally wore calf length pants, two blouses and always a brassiere to work. Lori Brady's testimony that the Petitioner visited her home dressed in a revealing manner without a brassiere and expressed interest in dating Brady's brother is not relevant. This incident did not occur on the job or in the presence of Brown so as to solicit or incite any sexually explicit behavior on his part. Toward the end of Petitioner's employment with Mother & Daughter, Brown complained to her that she and Engle were treating him "coldly" and that, while previously Brown had been highly complimentary concerning her job performance, he became critical of it. On June 16, 1989, Brown criticized Petitioner's vacuuming. Petitioner questioned his criticism, and Brown instructed her to go to the van. Once all were in the van, an argument ensued, and the Petitioner may have threatened or offered to resign at this point. To which Brown replied, "If you want your job, be here Monday." The Petitioner later received a phone message that she was fired because of her "attitude." After she was fired from her job at Mother & Daughter on June 16, 1989, Petitioner secured part-time evening employment at "Excaliber," five days a week from 5:30 p.m. to 8:30 p.m. at a wage of $4.00 an hour, on approximately June 30, 1989. On August 17, 1989, Petitioner secured additional employment at Pinecrest Place at a wage of $4.25 per hour, working Monday through Friday from 8:00 a.m. to 4:30 p.m. She received one raise of $0.25 after three months and another raise of $0.25 after one year. Petitioner is presently employed at both jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which in favor of Petitioner's Charge of Discrimination, and it is FURTHER RECOMMENDED Petitioner be awarded her actual damages in the total amount of $1,001. DONE AND ENTERED this 10th day of December, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 10th day of December, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Accepted: paragraphs I, subparagraphs 1,2 Rejected as irrelevant: paragraphs I, subparagraphs 3,4,5 (in part) Rejected, as conclusion of law: paragraphs II and III (substantially), IV and V Proposed Findings of Fact Submitted by Respondent: Accepted: paragraphs 2,3,7,8 (in part), 17 (in part) Rejected as irrelevant: paragraph 14 Rejected as against the greater weight of the evidence: paragraphs 1,9,10,11,12,13,16,19 Rejected, as a conclusion of law: paragraphs 4,5,6,15,18 COPIES FURNISHED: Ronald M. McElrath Manager City of Clearwater Post Office Box 34618-4748 Sally Ruby Clearwater Community Relations Board Post Office Box 4748 Clearwater, FL 34618 Patricia Fields Anderson, Esquire 233 Third Street North St. Petersburg, FL 33701 J. David Haynes, Esquire Sugar Creek Professional Center 655 Ulmerton Road, Building 11 Largo, FL 34641
The Issue Whether petitioner suffered sexual harassment for which respondent is answerable, or whether, on account of her sex, respondent discriminated against her by paying her unequal wages, or whether, in terminating her employment, respondent retaliated against her on account of statutorily protected activity?
Findings Of Fact In April, of 1982, the year after her 19-year marriage to a Mr. Powell, whose surname she originally kept, came to an end, petitioner Gloria Patricia Hord, as she has been known since her remarriage in August of 1984, began work for respondent Bell Aerospace Textron, which has since become the Textron Marine Systems Division of Textron, Inc. (Textron). A defense contractor that builds landing craft air cushion vehicles and trains Navy personnel to operate them, Textron employs perhaps 130 persons in Panama City alone. Textron has a written policy against sexual harassment by or of its employees. As Textron's director of logistics at its Panama City facility, George Gust Alepakos, told the petitioner she was hired on April 3, 1982. Robert L. Ormsby and Albert Eugene "Bud" Small, the supervisor of inventory control who, as her immediate supervisor, shared an office with her when she began, had already interviewed her. Bell hired her as a clerk, general class III in labor grade N-6. The duties of general class III clerks are: Under general supervision, performs a variety of clerical work, where there is individual responsibility for the accuracy and completeness of important records and where decisions within the limits of policies or rules are required. Performs duties such as or similar to the following: supervises and works with a small group of clerks; sets up and maintains record systems of a widely varying nature, including secret or confidential material or information; prepares and issues reports as required; contacts other personnel as necessary in maintaining accurate records; reads reports, correspondence, publications, etc., and abstracts therefrom information pertaining to a particular subject; may perform miscellaneous duties relate dot office work, such as filing, operating various machines, etc. (sic). Respondent's Exhibit No. 23. According to Bell's job description, "demonstrated supervisory ability", is a desirable qualification for general class III clerks. In addition to processing receipts and keeping inventory logs, Patty Powell, as her co-workers then called her, typed and did other secretarial chores for Textron. She worked in a trailer which housed other offices and other workers, including Carol Bjorgan, Robert L. Ormsby, Monica Mitchell, Mike Pate, Mike Smith, Betty Brandon, and George Alepakos, to whom Mr. Small reported. Mr. Alepakos was in the adjoining office. Witnesses described Mr. Alepakos as personable, fun loving, happy go lucky, warm, friendly, outgoing, talkative, loud, sometimes grouchy, displaying a temper at times without being a screamer, dedicated, conscientious, a hard worker and a firm manager. He looked at the hearing to be in his sixties. The time Ms. Powell told him he reminded her of her grandfather, he said she had hurt his feelings. One day as Ms. Powell, then 36 years old, was typing, Mr. Alepakos stood behind her and placed his hands on her shoulders, watching her finish a memorandum. Mr. Alepakos invited Ms. Powell to lunch on several occasions. He regularly took employees in his group to lunch, both male and female, individually and in groups. Conversations at lunch were "business-related" and "very professional" at first. The third or fourth time they ate lunch together, however, Mr. Alepakos professed his love for Ms. Powell. Thereafter, when Mr. Small left the office, Mr. Alepakos would stop in. Within a week of declaring himself at lunch, he said, "I really mean it." He told her she would grow to love him, would learn to, and began leaving notes for her, typically like the one that said, "I love you," signed "George ." She "tried to laugh it off," questioning his sincerity. He was married, and she had a boyfriend. Beginning in the summer of 1982, he asked her almost daily for lunch. He telephoned to inquire, "Have I told you today that I love you?" Sometimes she went to lunch with him during this period, but more often she declined. He promised to behave if she accepted his invitations for lunch, but, in Ms. Powell's view, he welshed on these promises. She had mixed feelings about George Alepakos. She discussed with Carol Bjorgan the possibility of a relationship with him. By this time, her boyfriend Chip McDill had left her in the lurch. It would be nice to have someone older to take care of her, she mused aloud; and she felt she would be better off materially. Never once did she complain to Carol Bjorgan about Mr. Alepakos' romantic interest in her. She left him notes. One note, signed "Patty" and written on notepaper depicting two smiling bees among azalea blossoms, read, "Have a wonderful vacation, then hurry back." Respondent's Exhibit No. 2. One night she and Carol were drinking during "happy hour." Saying she wanted to talk to George, she telephoned his home, but hung up when his wife answered. She sometimes seemed to boast about Mr. Alepakos' taking her to lunch, asking, "Guess who I'm going to lunch with?" At Peddlers Alley one night, Mlles. Hord and Bjorgan met Mr. Alepakos for drinks. When they arrived, Ms. Hord playfully pretended to sit in Mr. Alepakos' lap, and said to Ms. Bjorgan, "We can handle it from here." In December of 1982, both Mr. Alepakos and Ms. Powell attended a party at a bar or restaurant. Mr. Alepakos "didn't think much" of her going out with the 23-year old man who escorted her to the party, danced with her, kissed her while they were on the dance floor, and, later in the evening, wrestled with her in the back seat of an automobile parked outside the establishment. He felt that "it looked bad for the company." The next morning, he called her into his office, told her she had "fallen off [her] pedestal," and that somebody had said she had behaved like a slut. Over the Christmas holidays she was in the hospital, and afterwards visited her mother in Atlanta. Mr. Alepakos called her there at the number she had given him, to ask about her health and to learn when she was coming back to work. On her return she talked things over with Mr. Small, her immediate supervisor, although she never told him about Mr. Alepakos' touching her. He advised her to decline the luncheon invitations and avoid Mr. Alepakos as much as possible. He spoke to Mr. Ormsby about the matter, at her request. In deference to Ms. Powell, who asked that nobody say anything to Mr. Alepakos, Mr. Small spoke to Mr. Ormsby "off the record." At some point, Mr. Alepakos called on Ms. Powell at the apartment she had recently moved into at Panama City Beach. She had invited him. When he arrived he found her with her daughter and stayed only about 20 minutes. Eventually Patty Powell went herself to Mr. Ormsby, and Mr. Ormsby took the matter up with Clarence L. Forrest, then the vice-president in charge of Textron's Panama City operations. Messrs. Ormsby and Forrest decided to transfer Ms. Powell to a general secretarial and word processing assignment in "the training trailer." The transfer was "lateral" in the sense that neither Ms. Powell's official job description nor her labor grade changed. In her new situation, she was involved in the production of training manuals. Bell hired two other word processing clerks to assist in this effort, Diane Ansell and April Dawn Day. Ms. Powell had recommended both Ms. Ansell and Ms. Day. She helped train them when they began. Even after they had learned the ropes, she gave them work to do which she proofread afterwards. If she was out, Ms. Ansell would assume these duties. Ms. Powell wrote out evaluations for Ms. Ansell and Ms. Day, although she never signed them. She did once sign an overtime authorization form, but Mr. Forrest sent it back for Mr. Higgins' signature and resubmission. She assumed her new duties in February of 1983, but invitations to lunch and expressions of affection continued after the transfer. One afternoon, just after Ms. Powell left the office, Mr. Alepakos said to Diane Ansell, "I love that girl," referring to Ms. Powell. After she told Mr. Ormsby that Mr. Alepakos would not leave her be, Mr. Forrest instructed Mr. Alepakos to cease and desist from any activity involving Ms. Powell unrelated to professional requirements, and directed him to communicate with her, if at all, through third parties. During the ensuing eight or nine months, Mr. Alepakos avoided Ms. Powell entirely. He "went the other way around when he saw her coming." In the fall of 1983, however, they were both at an office party at the Long Glass. She grabbed his shirt and led him into another room, where she asked him why he had been avoiding her. According to a friend and co-worker, petitioner was not "an outward flirt," except when she drank. Encouraged by the evening's events, Mr. Alepakos resumed his attentions. He telephoned several times a day, unless he was angry, and they began lunching together again. At various times, she told him she was at the point of reconciliation with her ex-husband, that she was seeing a boyfriend, and that she was gay. But she accepted a good many of his luncheon invitations, which was enough to inspire him to several proposals of marriage. In November of 1983, Ms. Powell came to work early one morning and made her way in the still dark trailer to the word processing room. Suddenly Mr. Alepakos, whom she had not seen nor expected to be there, embraced her and tried to kiss her. When the lights came on, he said, "I'm sorry", and left. During this period, Ms. Powell worked under the immediate supervision of Frank Higgins, who left civilian employment with the Navy and began with Textron in August of 1983. In early December of that year, Ms. Powell spoke to Mr. Higgins about Mr. Alepakos. After a second conversation on the subject, on February 9, 1984, Mr. Higgins stated, in a "Memo For the Record": FOR BACKGROUND, PATTY IS AN EXTREMELY QUIET, SHY PERSON WITH A RATHER "FRAGILE" QUALITY. SHE IS A DEDICATED PROFESSIONAL IN HER APPROACH TO HER JOB. SHE HAS NEVER APPEARED TO PROJECT (AVERT OR OTHERWISE) HER SEXUALITY AT WORK, DRESSES CONSERVATIVELY - AN IDEAL FEMALE WORKER IN TERMS OF NOT BEING INVOLVED TO ANY EXTENT WITH HER MALE CO- WORKERS OTHER THEN PROFESSIONALLY. SHE HAS NOT AND PROFESSES NO[T] TO WANT TO DATE ANYONE FROM WORK. GEORGE IS APPARENTLY "LEANING" ON HER AT WORK TO THE POINT SHE'S BECOMING EMOTIONALLY FRAZZLED OVER IT. HE PROFESSES TO BE IN LOVE AND "WANTS HER." GEORGE IS INSANELY JEALOUS OF HER BEING SURROUNDED BY ALL THESE MEN AND TOLD HER THAT DAVE STULTS, BOB NISSLEY AND MYSELF ARE OR MAY WANT TO BE ROMANTICALLY INVOLVED. HE CALLS HER SEVERAL TIMES SOME DAYS, SOMETIMES ASKING HER TO COME TO HIS OFFICE WHERE "COMMENTS ARE MADE" TO HER. SHE IS AFRAID NOT TO GO OVER TO HIS OFFICE - APPARENTLY FEELS GEORGE IS A POWER BROKER AND IF SHE GETS HIM MAD, HE'LL TAKE IT OUT ON TRAINING BY NOT SUPPORTING OUR NEEDS. PATTY SAYS SHE HAS TRIED EVERY CONCEIVABLE APPROACH TO TELL GEORGE SHE IS NOT INTERESTED IN HIM AND HE'S ANNOYING HER & SHE WANTS IT STOPPED. YET HE REFUSES TO LEAVE HER ALONE. I TOLD HER THAT SHE NEEDS TO THREATEN HIM WITH HARASSMENT CHARGES & BE WILLING TO FOLLOW UP ON THEM TO THE BITTER END - IF GEO. KNEW SHE WAS SERIOUS AND HIS JOB WAS IN DANGER, I HOPE HE WOULD BE PRUDENT ENOUGH TO BACK AWAY. PATTY SEEMS RELUCTANT TO PRESS CHARGES FOR FEAR THAT SHE WILL END UP BEING FIRED AND PERCEIVED AS THE CAUSE OF THE PROBLEM. SHE FEELS CASEY WILL PROTECT GEORGE AND WOULD CONSIDER GEO. MORE IMPORTANT TO BELL THAN PATTY. IN PREVIOUS DISCUSSIONS WITH CASEY DATING BACK TO DECEMBER, I TOO SENSED THAT EITHER CASEY WASN'T BE[ING] OBJECTIVE OR FAIR IN HIS ASSESSMENT OF PATTY OR THAT POSSIBLY GEORGE HAD BEEN FEEDING CASEY LIES AND INNUENDO ABOUT PATTY'S POTENTIAL INVOLVEMENT WITH PERSONNEL IN TRAINING. THE APPARENT STRATEGY IS TO CAST DOUBTS ABOUT PATTY'S CHARACTER SUCH THAT IF HIS SITUATION EVER BOILED TO THE SURFACE HE COULD BLAME IT ON HER TO SAVE HIS JOB. I BELIEVE THERE IS ENOUGH INFO AVAILABLE TO HAVE GEO. REPRIMANDED OR FIRED OVER THIS. THERE ARE SEVERAL PEOPLE WHO HAVE SEEN OR HEARD GEO. MAKE APPROACHES TO HER WHO I'M SURE WOULD COME FORWARD TO SUPPORT PATTY'S POSITION. SINCE THE DISCUSSION WAS OFF THE RECORD I AGREED NOT TO APPROACH CASEY YET. I OFFERED TO SPEAK WITH GEO. BUT IF HE PERCEIVES ME AS A COMPETITOR FOR PATTY, HE OBVIOUSLY WOULD MISCONSTRUE MY INTENTIONS. I DO INTEND TO SPEAK TO LENNY MORGAN "OFF THE RECORD" NEXT WEEK IN NEW ORLEANS TO GAIN SOME ADDITIONAL INSIGHT IN HANDLING THIS ISSUE. Petitioner's Exhibit No. 1. In a second "Memo For The Record," Mr. Higgins reported discussing the situation with Mr. Morgan, and summarized the latter's advice. * * * LENNY'S BOTTOM LINE WAS AS I SUSPECTED - DON'T LEAVE IT SIMMERING TAKE FIRM ACTION. BRING IT TO CASEY'S ATTENTION. LENNY INDICATED HE WOULD BE GLAD TO COME OVER AND BECOME DIRECTLY INVOLVED IN SOLVING THIS. * * * Petitioner's Exhibit No. 2. Although Mr. Higgins never showed these memoranda to "Casey" Forrest, who only learned of them after the present proceedings began, he did mention the situation to Mr. Forrest, who indicated that he wondered whether there was a "problem on both sides," but agreed to speak to Mr. Alepakos. By the time Mr. Higgins left Panama City, in July of 1984, he thought the situation had been resolved. About this time, Ms. Powell told Mr. Alepakos she planned to remarry. He responded that he would be there, if it did not work out. He said he still loved her, and he did not stop asking her out, although, after she became Mrs. Hord, she consistently declined. He continued to declare his love. Mrs. Hord again complained, this time to B. L. Nissley, Textron's director of training documentation, on or about December 15, 1985. Her complaint notwithstanding, she sent Mr. Alepakos a poinsettia for Christmas. At some point, she left a note on his desk, saying "Missing you, P.H." By a memorandum dated January 29, 1985, Mr. Nissley asked Mr. Forrest for a formal investigation "to assure that this problem be resolved once and for all." Respondent's Exhibit No. 6. On January 31, 1985, Mr. Forrest interviewed Mrs. Hord in Mr. Ormsby's presence. She reported the frequent invitations to lunch and a suggestion by Mr. Alepakos that they take a vacation together, but said nothing about his touching her. Messrs. Forrest and Ormsby also interviewed Mr. Alepakos. They decided it might be well for a disinterested third party to investigate, and asked Textron's Mr. Morgan to come over from New Orleans for the purpose. Mr. Morgan interviewed Mrs. Hord for two and a half hours on February 10 or 11, 1985. In answer to his questions, Mrs. Hord said that Mr. Alepakos had not asked her for sexual favors, and had not behaved vulgarly, lewdly or indecently. Nor did she advert to the early morning incident in the trailer, which Mr. Alepakos admitted at hearing, while denying any attempt to kiss her. When Mr. Morgan asked her if Mr. Alepakos had ever touched her, or tried to kiss her or to force himself on her, she answered no. Mr. Morgan asked Mrs. Hord to name others who could support her claim of harassment. She gave him only one name, Ms. Ansell's. Mr. Morgan also interviewed George Alepakos at length, and asked him to name others who could support his assertions. Mr. Alepakos gave him some five names. After interviewing these people and Ms. Ansell, Mr. Morgan returned to New Orleans and stated his conclusions in a memorandum dated February 15, 1985. Mr. Forrest wrote Mr. Alepakos a memorandum advising him that his "conduct in the matter lacked professionalism and good judgement." Petitioner's Exhibit No. 6. He was "warned to confine ... communications and relationships with Mrs. G. Hord to a professional/business environment." Id. This February 25, 1985, memorandum raised "the possibility of termination of [Alepakos'] employment," id. in the event "the cited harassments reoccur[ed]." Id. But the phrase "cited harassments" was a reference to the February 15, 1985, memorandum, Respondent's Exhibit No. 6, in which Mr. Morgan stated: Since the evidence indicates that the relationship was two sided, I find it difficult to describe the activity of Mr. Alepakos as one of harassment. Respondent's Exhibit No. 6, p. 2. Mr. Forrest did not warn or reprimand Mrs. Hord because he felt a supervisor or manager had a different responsibility in matters of this kind than an employee under supervision. At no time, did Mr. Alepakos tell her off color stories, show her pornographic photographs, explicitly solicit sexual favors, or make obscene gestures to or from Mrs. Hord. It fell to Messrs. Ormsby and Nissley to relay the results of Mr. Morgan's investigation to Mrs. Hord. The three of them gathered in Mr. Nissley's office, and he furnished her a copy to read. She had gotten part way through when she exclaimed, "That's a lie. I never sent him flowers. I never left notes on his desk." She threw down the report, and left the office, despite Mr. Nissley's telling her to stay. She dismissed the February 15, 1985, memorandum as a "bunch of bullshit." Mr. Nissley spoke to her afterwards and told her that he would not tolerate vulgar outbursts in the future. She telephoned Mr. Morgan and complained to him about the result of the investigation. She told him she did not think the report was fair or that it reflected what had happened. She became upset and characterized the report as "bullshit." To this he replied, "Wait a minute. I'll answer any question you want to ask." But she hung up the telephone. On January 30, 1985, Mrs. Hord had asked to take a leave of absence. Her request approved, she began thirty days' leave soon after she learned the results of Mr. Morgan's investigation. Upon her return, Mr. Nissley told her about the results of her annual evaluation, and informed her she had been given a raise of $.20 per hour. The $.20 raise took effect March 16, 1985. With the raise, Mrs. Hord was paid $7.90 per hour, a dollar an hour more than Diane "Dee" Ansell was paid. And Ms. Ansell was paid more than April Dawn Day, the third word processing clerk who helped produce training materials for Navy personnel. Mrs. Hord requested a meeting with Mr. Forrest to discuss the raise, which brought her salary to the highest authorized for her position; it was the same amount as the raise the other two word processing clerks in the training program received. But, since she was paid more than they were, the raise represented a smaller percentage of increase, and she objected. On the morning of March 27, 1985, when Mrs. Hord met with Mr. Forrest, Messrs. Ormsby and Nissley were also present. She told them Bell could keep the raise. Mr. Forrest began to explain the mechanics of Bell's merit raise system, when Mrs. Hord interrupted, "It's a bunch of bullshit. You can do anything you want." As she started to leave, Mr. Forrest told her to stay, but she refused. At one point, she called her bosses "jackasses." According to Mr. Forrest's secretary, who was outside, she "had a wild look" as she slammed the door on her way out. Before they dispersed, Mr. Forrest and the others decided to terminate her employment, unless Mr. Morgan advised against it. Mr. Forrest thought her language "unbecoming a lady." He certainly would not have expected a woman to use such language, and it did not affect him in the same way as it would have, if a man had used the same language. On the other hand, he would not have expected any of Bell's Panama City employees to use language of this kind in such a setting. Mr. Forrest testified under oath that Mrs. Hord was not fired because he found her language the more offensive on account of her femininity. Apprised of the situation, Mr. Morgan consulted a New York lawyer, then told management in Panama City he had no objection to firing Mrs. Hord. Mr. Ormsby then caused a memorandum to be addressed to Mrs. Hord, notifying her that her employment was "terminated as of this date (27 March 1985), for gross disrespect, incertituded (sic), premeditated and continued disregard for all levels of Management ... so as to challenge the management of this company and to incite disrespect of other employees ...." Respondent's Exhibit No. 10.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations dismiss Gloria Hord's petition for relief. DONE AND ENTERED this 22nd day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1987. APPENDIX Petitioner's proposed findings of fact Nos. 1, 5, 6, 7, 8, 15, 17, 18, 19, 20, 23, 24, 25, 26, 29, 30, 32, 33, 36, 37, 38, 39 and 40 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, the evidence showed that she worked as an acting supervisor for Columbia Research but not, as far as the hearing officer's notes reflect, for CSC. With respect to petitioner's proposed finding of fact No. 3, the evidence showed that Mr. Small interviewed her first. Mr. Alepakos, as his supervisor, could presumably have overruled Mr. Small's choice even if Mr. Small made the "basic decision" to hire. Petitioner's proposed finding of fact No. 4 has been adopted, in substance, except that the evidence did not establish that he placed his hands on her shoulders more than once. With respect to petitioner's proposed findings of fact Nos. 9 and 10, the evidence did not reveal any sexual advances at this point, aside from declarations of love, which were not entirely unwelcome. Except for the last sentence, petitioner's proposed finding of fact No. 11 has been adopted, in substance, insofar as material. With respect to the final sentence of No. 11 and the word "Again" in No. 13, it was not clear from the evidence that she went to Mr. Ormsby before Christmas. With respect to petitioner's proposed finding of fact No. 12, Mrs. Hord did not always go "to great lengths to avoid contact with Mr. Alepakos during this time period." She not infrequently accepted his invitations to lunch. Petitioner's proposed finding of fact No. 14 has been rejected as against the weight of the evidence. Petitioner's proposed finding of fact No. 16 has been adopted, in substance, insofar as material, except that Mr. Alepakos was not put on any formal probation. With respect to petitioner's proposed finding of fact Nos. 21 and 22, the evidence showed that he resumed his attentions because of her advances. With respect to petitioner's proposed finding of fact No. 27, the evidence showed that he called, but not that he called frequently. With respect to petitioner's proposed finding of fact No. 28, he did not come by uninvited. With respect to petitioner's proposed finding of fact No. 31, he said she needed to see a doctor but not, in so many words, that the marriage would fail. With respect to petitioner's proposed finding of fact No. 34, nobody placed limits on Mr. Morgan's investigation. Petitioner's proposed finding of fact No. 35 has been rejected as contrary to the evidence. She was not told she would be reprimanded for making good faith complaints. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 29, 31, 32, 33, 34, 35, 36, 37, the first two sentences of No. 38, Nos. 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 60, 61, 62, 65, 66, 70 and 72 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, she lived at Panama City Beach at one point. Respondent's proposed findings of fact Nos. 9 and 10 are immaterial or subordinate. Respondent's proposed finding of fact No. 11 is rejected. With respect to respondent's proposed finding of fact No. 12, Ms. Bjorgan's testimony was that she was not sure Mrs. Hord wanted to see him that night. Respondent's proposed finding of fact No. 14 has been accepted, in substance, insofar as material, except for Small's suggested advice to change her manner of dress. With respect to respondent's proposed finding of fact No. 25, Mrs. Hord was ambivalent about Mr. Alepakos before as after the incident. Respondent's proposed finding of fact No. 27 is rejected. Respondent's proposed finding of fact No. 28 blows a single incident out of proportion. Respondent's proposed finding of fact No. 30 is rejected. The final sentence of respondent's proposed finding of fact No. 38 is rejected, as is No. 39 to the extent it proceeds on the assumption there was any hiatus. Respondent's proposed finding of fact No. 44 has been adopted, in substance, except that the evidence did not establish that the poinsettia was flowering. With respect to respondent's proposed finding of fact No. 57, the epithet was "jackasses." With respect to respondent's proposed findings of fact Nos. 59 and 64, Alepakos had no input, but the fact of her complaints was considered and inspired the call to Morgan. Respondent's proposed finding of fact No. 63 is immaterial, except that Alepakos' attentions did not cause great mental stress. With respect to respondent's proposed finding of fact No. 67, his overtures were romantic. With respect to respondent's proposed finding of fact No. 68, he did propose marriage. Respondent's proposed finding of fact No. 69 has been adopted, in substance, insofar as material, except for the final clause of the final sentence which is rejected. Respondent's proposed finding of fact No. 71 is immaterial or subordinate. COPIES FURNISHED: Alvin L. Peters, Esquire 36 Oak Avenue Panama City, Florida 32401 William B. deMeza, Jr., Esquire Holland and Knight Post Office Box 241 Bradenton, Florida 33506 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent discriminated against Petitioner in its employment practices contrary to Chapter 760, Florida Statutes.
Findings Of Fact Respondent produces drawn and extruded aluminum products. Petitioner was hired as a saw operator in the Drawn Tube Department in 1997. Her supervisor was Sherry Hontz. Petitioner was promoted to Quality Auditor Technician in a different department in August of 1998. Her supervisor was Nick Newinski. On December 14, 1998, Petitioner complained to Roger Penn, the Plant Manager, about sexual harassment on the job. Penn told Petitioner to take her complaint to Joe Roberts, the Human Resources Manager. At Roberts' request, Petitioner provided him with a handwritten complaint. Petitioner complained that two co- workers had called her derogatory names, "Boom Boom" and "Big Tits," and had started rumors of alleged sexual relationships she was having with co-workers. She also complained that her former supervisor, Sherry Hontz, had been unfair to her after Petitioner dated a former boyfriend of Hontz. Petitioner stated that she was humiliated by the name-calling and rumors. Roberts investigated the complaint, and interviewed nine employees, in addition to Petitioner. All those with whom Roberts spoke had been identified by Petitioner in her written complaint. Based upon his investigation, four employees, Don Carver, Sherry Hontz, Frank Small, and Carolyn Whitecloud, received written reprimands on December 21, 1998, for either the use of offensive names, gossiping, or failing to stop the conduct. The letter to Whitecloud, the operations manager for drawn tubing, specifically cautioned her as the manager to ensure that no retaliation, direct or indirect, was taken against Petitioner. Petitioner felt that Roberts' investigation was over- broad and touched on her personal life more than was necessary; however, there was no evidence of this beyond her allegations. Roberts retained, in accordance with his standard practice, Petitioner's complaint and the notes of his investigation in a file separate from Petitioner's personnel file. In what may have been retaliation, two female co- workers complained to Roberts that Petitioner had rubbed her breasts against a male employee. Roberts interviewed the male employee, who denied the allegation, and Roberts took no further action. In 2000, Troy Turlington, a male, complained to Roberts that Petitioner had made a sexual comment to him, but was adamant that he did not want any action taken. Roberts made a confidential record of the complaint. There was no evidence that Roberts investigated the allegation or took any action against Petitioner. Following the official reprimands from Respondent, no one made sexual comments in Petitioner's presence, although there were "whisperings" and other indications of co-worker displeasure with Petitioner's complaint and the outcome. Petitioner stated that she did not have as much opportunity to earn overtime following the reprimands; however, this was not demonstrated. Petitioner did not complain again to management of being subjected to name-calling or of retaliation. As a quality control technician, Petitioner occasionally placed holds on material that she determined did not meet specifications. This was part of her assigned duties. However, this frequently upset the production personnel, who were frequently disrespectful and made snide remarks about her competence. Her supervisor, Newinski, reviewed her work on one occasion and instructed her to pass the material. Petitioner disagreed with Newinski, and refused to remove the hold she had placed on the parts over her own signature. Newinski and Moreno, a higher-level manager, discussed her actions, which they deemed insubordination. Petitioner felt that she was being placed in an unfair position and was not supported in her determination by management. There was no evidence this was retaliation related to her prior complaint or was otherwise discriminatory. Newinski and Moreno counseled Petitioner on another occasion for spending time socializing with the other employees when she was supposed to be working. Petitioner did not agree with this characterization of her actions. Again, this was not shown to be discriminatory. In early March 2000, Petitioner declined to discuss with Newinski an incident involving another employee engaging in lifting heavy materials by himself, which Petitioner viewed as a potentially dangerous situation. The employee's direct supervisor, Sherry Hontz, arrived at about that time, and Petitioner let her handle the matter without raising the issue with Hontz. She testified that Newinski's inquiry was vague and she did not feel inclined to mention matters unless he could be more specific about the incident. Newinski and Moreno sought Roberts' involvement to force Petitioner to discuss the incident. Petitioner refused to go to Roberts' office, and was suspended from work. Petitioner presented testimony that indicated that she had spoken with the head of the company, Al Styring, who had indicated that she should take up issues involving her employment to David Black, the vice president of Human Resources, at a level above Roberts. Although Roberts testified that he did not know about this, Petitioner's contention was not rebutted. Petitioner complained that following her complaint of sexual harassment she was not considered for promotions. Respondent offered evidence that Petitioner was considered for promotions; however, persons with greater experience were promoted to these positions. This was not shown to be discriminatory. On March 27, 2000, Petitioner slipped in a bathroom while at work and sustained soft tissue injuries. Petitioner received treatment from various health care providers during the course of her recovery, to include, Dr. Green, Dr. Noran, and Dr. Pham. Eight days after the injury, on April 4, 2000, Petitioner's treating physician released her to return to work on light duty with no bending and no lifting greater than fifteen pounds. Respondent returned her to light duty work within these limitations; however, she suffered severe pain from leaning over and could not do the work. The medications that she was prescribed made her groggy and lethargic, and dizzy. Although Petitioner wanted to return to work and Respondent wanted to bring her back to work, Petitioner could not perform the duties available and needed more time to heal. On May 23, 2000, Petitioner's physician again released her to return to work with the specific restriction of no overhead lifting and no lifting over ten pounds. Petitioner was unable to lean over and measure the materials required. She complained to Newinski, who assigned her to completing paper work. Again, after one day at work, Petitioner was unable to continue. Respondent presented evidence that it eliminated her job on July 13, 2000 after she had been on medical leave for over twelve weeks. This, however, conflicts with its records that show Petitioner was not terminated until August of 2001. Neither of these actions was communicated to Petitioner. It can only be concluded that Petitioner's employment status remained unchanged, although her job slot had been eliminated. On November 13, 2000, Dr. Noran released Petitioner to return to work with restrictions based upon Petitioner reaching maximum medical improvement. Her restrictions at that time limited overhead work and limited cervical flexion. On November 13, 2000, Petitioner met with Wayne LaPierre, the safety and environmental manager, to discuss her limitations. She indicated that she was still having trouble bending over and working. LaPierre felt that the doctor's restriction of "limited cervical flexion" were not in line with her complaints of pain while working bending over. He requested the workmens' compensation insurer, Fireman's Fund, to obtain a clarification from Petitioner's treating physician. Fireman's Fund advised LaPierre that it had tried unsuccessfully on many occasions to obtain a clarification from Dr. Noran. No effort was made with Fireman's Fund to have Petitioner assessed by an occupational therapist or otherwise intervene to establish the practical limits of her condition. Respondent's efforts centered on having Petitioner obtain this information from the same physician(s) with whom Fireman's Fund had been unsuccessful. This continued until August of 2001. On August 13, 2001, Petitioner dismissed her workmens' compensation action, and on August 27, 2001, Respondent officially terminated Petitioner without having resolved her job limitations, although it did not communicate this to Petitioner.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the FCHR enter its order dismissing Petitioner's Amended Petition for Relief. DONE AND ENTERED this 26th day of April, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2004. COPIES FURNISHED: Sharon L. Harris 3606 Fort Peyton Circle St. Augustine, Florida 32086 Alexandra K. Hedrick, Esquire Hedrick, Dewberry, Regan & Durant, P.A. 50 North Laura Street, Suite 1600 Jacksonville, Florida 32202 Ralph Humphries, Esquire 2700-C University Boulevard, West Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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
