The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a nursing assistant at the community healthcare facility known as Jackson Hospital in Marianna, Florida, at all times relevant to these proceedings. Petitioner obtained his designation as a Certified Nursing Assistant (CNA) subsequent to his employment by Respondent. Petitioner entered into a conversation with a female co-worker and CNA at Jackson Hospital on or about June 12, 2003. In the course of the conversation, he made an unwelcome sexual request of the co-worker. Petitioner was not on duty at the time and had returned to the hospital for other reasons. Subsequently, on June 12, 2003, the female co-worker filed a complaint with Respondent's human resource office at the hospital alleging unwelcome requests for sexual favors by Petitioner, inclusive of a request that the co-worker engage in sexual relations with Petitioner. In the course of his employment with Respondent, Petitioner was made aware of the strict guidelines and "zero tolerance" policy of Respondent toward sexual harassment. Respondent's policy expressly prohibits sexual advances and requests for sexual favors by employees. Discipline for a violation of this policy ranges from reprimand to discharge from employment of the offending employee. Petitioner has received a copy of the policy previously and he knew that violation of that policy could result in dismissal of an erring employee. Violations of this policy resulted in dismissal of a non- minority employee in the past. Corroboration of Petitioner’s policy violation resulted from interviews with other employees in the course of investigation by the hospital director of human resources. Further, in the course of being interviewed by the director, Petitioner admitted he had propositioned his co-worker for sexual favors. As a result of this policy violation, Respondent terminated Petitioner’s employment on June 16, 2003. At final hearing, Petitioner admitted the violation of Respondent's policy, but contended that termination of employment had not been effected for white employees for similar offenses in the past. This allegation was specifically rebutted through testimony of Respondent's hospital human resources director that a white male employee had been previously discharged for the same offense. Accordingly, allegations of Petitioner of dissimilar treatment of employees on a racial basis for violation of Respondent's policy are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ORDERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2005. COPIES FURNISHED: James M. Bowles 4193 Evelyn Street Marianna, Florida 32446 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Petitioner committed an unlawful employment practice by discriminating against Petitioner based on her sex in violation of Section 760.10(1)(a), Florida Statutes (2008), and by retaliating against her contrary to Section 760.10(7), Florida Statutes (2008).
Findings Of Fact Respondent hired Petitioner as Finance Director in September 2005. Petitioner took the position during a very challenging time because the budget was immediately due, an audit was six months past due, and allegations of embezzlement had been lodged against the former finance director. Petitioner successfully managed these challenges. Petitioner reported directly to the City Manager. The City Manager reported to the City Commissioners. The City Manager directed the day-to-day supervision and management of Petitioner and other department heads. Bill Veach was the City Manager when Respondent hired Petitioner. Mr. Veach gave Petitioner excellent performance evaluations. Additionally, Randy Bush, City Commissioner from 2002 to 2006, and Bob Mish, City Commissioner from 2004 to 2006, commended Petitioner for her work. At the time of the hearing, Ron Vath had been a City Commissioner for eight years. Mr. Vath frequently went to the City Hall to pick up his mail. He often asked Petitioner to compile information or answer questions related to finance matters, especially during budget time. Initially, Mr. Vath was satisfied with Petitioner's work performance. In addition to seeking financial information from Petitioner, Mr. Vath made inappropriate sexual comments to Petitioner. For instance, Mr. Vath would look at Petitioner and say "yum yum." He commented on Petitioner's clothes as being sexy and told her that she "had very nice looking legs." On one occasion, Mr. Vath and Petitioner were standing near the copy machine. Mr. Vath stated in a very low tone, "I don't know what's been going on with my mind lately, it could be the new medication I'm on, but I've been having very erotic dreams lately and you've been in some of them." Sometime in June or July 2006, Mr. Vath was in or near Petitioner's office cubicle discussing some figures. When Mr. Vath became very quiet, Petitioner inquired if he was okay. Mr. Vath then leaned across Petitioner's desk, looked her straight in the eye, and said, "I'm okay, but I have a very big hard on right now." Petitioner pushed her chair away from her desk and told Mr. Vath, "You need to go home and take that up with your wife." After Mr. Vath's inappropriate comment, Petitioner saw James Ramer, Respondent's Water Plant Superintendent. Petitioner told Mr. Ramer that Mr. Vath had made a pass at her. Roger Free was Respondent's Chief of Police until September 2007. Petitioner told Chief Free about Mr. Vath's "hard on" comment. Chief Free advised Petitioner to follow Respondent's procedures and talk to Mr. Veach. A couple of days later, Petitioner verbally reported Mr. Vath's "hard on" comment to Mr. Veach. Mr. Veach suggested that Petitioner file a complaint. Petitioner told Mr. Veach that she did not want to file a written complaint because it might cause her trouble. Mr. Veach honored her request and did not make a written record of the complaint or perform any type of investigation. Bernard Murphy became Interim City Manager in September 2006. When he took the position, Petitioner was introduced to him as "someone people liked and could do good work." In November 2006, Petitioner told Mr. Murphy about Mr. Vath's "hard on" comment. Once again Petitioner decided that she did not want to make a formal complaint followed by an investigation. Mr. Murphy did not make a written record of the allegations, but he told Petitioner to let him know if it happened again. Petitioner requested that Mr. Murphy keep her concern about Mr. Vath's comment confidential. Mr. Murphy honored that request until he learned that Petitioner was telling other city employees and city commissioners. Mr. Murphy then questioned Mr. Vath, who denied making the inappropriate comment. Mr. Vath's attitude toward Petitioner immediately changed. He continued to question Petitioner about her work and to complain to Mr. Murphy about her job performance. However, Petitioner did not experience anymore specific instances of sexually inappropriate comments from Mr. Vath. At all times relevant here, Elizabeth Kania was Mr. Murphy's assistant/human resource director. Months after the incident occurred, Petitioner told Ms. Kania, in an informal conversation, about Mr. Vath's "hard on" comment. Petitioner told Ms. Kania that Petitioner would not report it unless it happened again. Petitioner complained on a regular basis to Ms. Kania about Mr. Vath's questions and requests for additional financial information that added to Petitioner's workload. Elizabeth Mathis was Respondent's utility services manager. Petitioner supervised Ms. Mathis whose workspace was approximately three feet from Petitioner's cubicle. At some point in time, Petitioner told Ms. Mathis about Mr. Vath's sexually inappropriate comment. Kathleen Doyle served as an accountant under Petitioner's supervision. Petitioner complained to Ms. Doyle about one sexually inappropriate comment by Mr. Vath. Ms. Doyle also observed that Petitioner took offense to Mr. Vath's questions. Mr. Murphy, Petitioner, and other members of Petitioner's staff often told off-color jokes to each other. They occasionally used vulgar language and made profane statements in the work place. As a participant in this type of inappropriate office behavior, Petitioner was in no position to complain. Occasionally, Mr. Murphy made specific inappropriate comments that Petitioner never complained of until she resigned. For example, he referred to his former assistant as having big tits. He also stated that his dermatologist was sexy and that a woman in a bathing suit outside his window was attractive. After returning from a humanitarian mission to India, Mr. Murphy stated that Indian women were sensual. These comments occurred over a period of many months. Initially, Petitioner and Mr. Murphy were on a first name basis. However, as time went on, Mr. Murphy began to have justifiable concerns about Petitioner's work performance. At times, Mr. Murphy would become angry and raise his voice at Petitioner. On another occasion, Mr. Murphy inappropriately used his finger to "flip a bird" at Petitioner as he walked off after a disagreement about Petitioner's work. However, there is no persuasive evidence that Mr. Murphy's inappropriate conduct was in retaliation for Petitioner's allegations against Mr. Vath. Mr. Murphy's only formal disciplinary action against Petitioner concerned an attendance issue. He gave Petitioner a written reprimand on April 8, 2008, because she misrepresented the reason for taking sick leave. Petitioner admits that she was not absent on April 7, 2008 due to illness. Instead, Petitioner was in Savannah, Georgia, interviewing for the position that she presently holds. The greater weight of the evidence refutes Petitioner's claim that she was constructively discharged. Petitioner first reported her allegation of sexually offensive behavior against Mr. Murphy in her resignation letter dated April 22, 2008. Specifically, Petitioner claimed that Mr. Murphy spoke about women as being "sensual" and that he made comments about bodily characteristics of women. Petitioner complained about Mr. Murphy's management style of verbal abuse as being belittling, demeaning, and offending. City Commissioner Jane Mealy investigated the complaints contained in Petitioner's resignation letter. Ms. Mealy was unable to substantiate the allegations of sexually inappropriate and harassing behavior. Petitioner had been looking for another job for over one and one-half years because of her low tolerance to criticism. Petitioner resigned her employment with Respondent only after she received an offer of employment from her current employer, Chatham Area Transit Authority. At all relevant times, Petitioner was aware of Respondent's sexual harassment policy. The policy defines sexual harassment as "[u]nwelcome sexual advances of whatever nature, requests for sexual favors or other verbal or physical conduct of a sexual nature." See Section 2-200, Personnel Code of City of Flagler Beach (Personnel Code). Section 2-202 of the Personnel Code states as follows: The city shares a common belief that each employee should be able to work in an environment free of discrimination, and any form of harassment, based on race, color, religion, age, sex, pregnancy, national origin, handicap or marital status. To help assure that none of our employees feel that they are being subjected to harassment and in order to create a comfortable work environment, the city prohibits any offensive physical written or spoken conduct regarding any of these items, including conduct of a sexual nature. This includes: Unwelcome or unwanted advances, including sexual advances. Unwelcome requests or demands for favors, including sexual favors. Verbal or visual abuse or kidding that is oriented toward a prohibited form of harassment, including that which is sexually oriented and considered unwelcome. Any type of sexually oriented conduct or other prohibited form of harassment that would unreasonably interfere with work performance. Creating a work environment that is intimidating, hostile, abusive or offensive because of unwelcome or unwanted conversation, suggestions, requests, demands, physical contact or attentions, whether sexually oriented or other related to a prohibited form of harassment. If an employee believes that he or she is being subjected to any of these forms of harassment, or believes that he or she is being discriminated against because other employees are receiving favored treatment in exchange for sexual favors, he or she must bring this to the attention of appropriate persons in management. The very nature of harassment makes it virtually impossible to detect unless the person being harassed registers his or her discontent with the city's representative. Consequently, in order for the city to deal with the problem, the employee must report such offensive conduct or situation to the city manager. A record of the complaint and the findings will become a part of the file and will be maintained separately from the employee's personnel file. It is understood that any person electing to utilize this complaint resolution procedure will be treated courteously, the problem handled swiftly and confidentially, and the registering of a complaint will in no way be used against the employee, nor will it have an adverse impact on the individual's employment status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 22nd day of May, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2009. COPIES FURNISHED: Michael H. Bowling, Esquire Bell, Roper & Kohlmyer, P.A. 2707 East Jefferson Street Orlando, Florida 32803 Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Respondent operates the Best Western Admiral’s Inn and Conference Center in Winter Haven. Petitioner worked as a waitress in the hotel’s first floor restaurant from March 8, 2005, through March 18, 2006. Petitioner testified that she was sexually harassed “for months” by Marcus Owens, a cook who worked with her in the restaurant. According to Petitioner, Mr. Owens made vulgar and sexually-explicit comments to her on a number of occasions while they were working together. Petitioner could not recall precisely when the harassment started, but she estimated that it started approximately two weeks after Mr. Owens started working at the restaurant. Mr. Owens started working in the restaurant on July 28, 2005, which means that the harassment would have started in mid- August 2005. Petitioner did not complain about the harassment until November 9, 2005, when she reported it to her supervisor, Cory Meeks. This was the first notice that Respondent had about the alleged harassment. Petitioner’s testimony that she complained to the hotel’s general manager, Jeffrey Vandiver, about the harassment several weeks prior to her complaint to Mr. Meeks was not persuasive. Petitioner and Mr. Meeks met with the hotel’s human resources manager, Lin Whitaker, on the same day that the complaint was made, November 9, 2005. Ms. Whitaker told Petitioner that she needed to put her complaint in writing for the hotel to take formal action. Petitioner refused to do so because she was scared of retribution by Mr. Owens, even though Mr. Meeks and Ms. Whittaker assured her that she would be protected from Mr. Owens. Petitioner asked Mr. Meeks and Ms. Whitaker to address the situation with Mr. Owens without using her name, which they did. Mr. Owens denied sexually harassing anyone when confronted by Mr. Meeks and Ms. Whitaker. On December 2, 2005, Petitioner again complained to Mr. Meeks about Mr. Owens. She told Mr. Meeks that the harassment had not stopped and that it had gotten worse through even more vulgar comments. Petitioner again did not want a formal investigation into the allegations, but Ms. Whitaker told her that an investigation was required by company policy since this was the second complaint. Mr. Owens was immediately suspended without pay pending the completion of the investigation. The investigation was conducted by Mr. Vandiver, Mr. Meeks, and Ms. Whitaker on December 7, 2005. They first met with Petitioner to get her side of the story. Then, they met separately with Mr. Owens to get his side of the story. Finally, they interviewed all of the employees who worked with Petitioner and Mr. Owens. This was the first time that Petitioner went into detail about what Mr. Owens had said and done. She stated that, among other things, Mr. Owens asked her whether she had “ever had a black man” and whether her boyfriend “is able to get it up or does he require Viagra.” She also stated that there were no witnesses to the harassment because Mr. Owens was "discreet" about making the comments to her when no one else was around. Mr. Owens again denied sexually harassing anyone. He acknowledged asking Petitioner whether she had ever dated a black man, but he stated that the question was in response to Petitioner asking him whether he had ever dated a white woman. (Mr. Owens is black, and Petitioner is white.) The other employees who were interviewed as part of the investigation stated that they had not witnessed any sexual harassment or overheard any sexually explicit conversations in the restaurant. Mr. Vandiver, Mr. Meeks, and Ms. Owens concluded based upon their investigation that “there is not enough evidence of sexual harassment to terminate Marcus Owens.” They decided to let Mr. Owens continue working at the hotel, provided that he agreed to be moved to the hotel’s second floor restaurant and that he agreed to attend a sexual harassment training program. On December 8, 2005, Mr. Meeks and Ms. Whitaker conveyed the results of their investigation and their proposed solution to Petitioner. She was “fine” with the decision to move Mr. Owens to the second floor restaurant where she would not have contact with him. On that same day, Mr. Meeks and Ms. Whitaker conveyed their proposed solution to Mr. Owens. He too was “fine” with the decision, and he agreed that he would not go near Petitioner. Mr. Owens came back to work the following day, on December 9, 2005. On December 14, 2005, Mr. Owens was involved in an altercation with Stephen Zulinski, a dishwasher at the hotel and a close friend of Petitioner’s. The altercation occurred at the hotel during working hours. Mr. Zulinski testified that the incident started when Mr. Owens made vulgar and sexually explicit comments and gestures about Mr. Zulinski’s relationship with Petitioner. Mr. Zulinski was offended and angered by the comments, and he cursed and yelled at Mr. Owens. Mr. Zulinski denied pushing Mr. Owens (as reflected on Mr. Zulinski’s Notice of Termination), but he admitted to putting his finger on Mr. Owens’ shoulder during the altercation. Mr. Owens and Mr. Zulinski were immediately fired as a result of the altercation. Petitioner continued to work as a waitress at the hotel’s first floor restaurant after Mr. Owens was fired. Petitioner received awards from Respondent for having the most positive customer comment cards for the months of October and November 2005, even though according to her testimony she was being sexually harassed by Mr. Owens during those months. She testified that her problems with Mr. Owens affected her job performance only to a “very small degree.” Petitioner had no major problems with her job performance prior to December 2005, notwithstanding the sexual harassment by Mr. Owens that had been occurring “for months” according to Petitioner’s testimony. Petitioner was “written up” on a number of occasions between December 2005 and February 2006 because of problems with her job performance. The problems included Petitioner being rude to the on-duty manager in front of hotel guests; taking too many breaks and not having the restaurant ready for service when her shift started; failing to check the messages left for room service orders; and generating a guest complaint to the hotel’s corporate headquarters. Petitioner was fired after an incident on March 11, 2006, when she left the restaurant unattended on several occasions and the manager-on-duty received complaints from several hotel guests about the quality of service that they received from Petitioner that night. Petitioner ended up being sent home from work that night because, according to her supervisor, “she was in a crying state,” unable to work, and running off the restaurant’s business. Petitioner’s employment with Respondent was formally terminated on March 18, 2006. The stated reason for the termination was “unsatisfactory work performance” and “too many customer complaints.” None of the supervisors who wrote up Petitioner were aware of her sexual harassment complaints against Mr. Owens. Petitioner claimed that the allegations of customer complaints and poor job performance detailed in the write-ups were “ludicrous,” “insane,” “almost a complete fabrication,” and “a joke.” The evidence does not support Petitioner’s claims. Petitioner admitted to having “severe” bi-polar disorder, and she acknowledged at the hearing and to her supervisor that she was having trouble with her medications over the period that she was having problems with her job performance. For example, the comment written by Petitioner on the January 27, 2006, write-up stated that she was “at a loss” to explain her job performance and that she “hope[d] to have [her] mental stability restored to what everyone else but [her] seems normalcy.” Petitioner worked 25 to 30 hours per week while employed by Respondent. She was paid $5.15 per hour, plus tips, and she testified that her biweekly take-home pay was between $200 and $250. Petitioner applied for unemployment compensation after she was fired. Respondent did not dispute the claim, and Petitioner was awarded unemployment compensation of $106 per week, which she received for a period of six months ending in September 2006. Petitioner has not worked since she was fired by Respondent in March 2006. She has not even attempted to find another job since that time. Petitioner does not believe that she is capable of working because of her bi-polar disorder. She applied for Social Security disability benefits based upon that condition, but her application was denied. Petitioner’s appeal of the denial is pending. Petitioner testified that one of the reasons that she has not looked for another job is her concern that doing so would undermine her efforts to obtain Social Security disability benefits. Respondent has a general “non-harassment” policy, which prohibits “harassment of one employee by another employee . . . for any reason.” Respondent also has a specific sexual harassment policy, which states that “sexual harassment of any kind will not be tolerated.” The policy defines sexual harassment to include verbal sexual conduct that “has the purpose or effect of interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The general non-harassment policy and the specific sexual harassment policy require the employee to immediately report the harassment to his or her supervisor or a member of the management staff. The Standards of Conduct and the Work Rules adopted by Respondent authorize immediate dismissal of an employee who is disrespectful or discourteous to guests of the hotel. The Standards of Conduct also authorize discipline ranging from a written reprimand to dismissal for an employee’s “[f]ailure to perform work or job assignments satisfactorily and efficiently.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald T. Ryce, Esquire 908 Coquina Lane Vero Beach, Florida 32963 Nora E. Bartolone 119 Alachua Drive Southeast Winter Haven, Florida 33884
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of: . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November 2000. COPIES FURNISHED: Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. John L. Ruiz, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32304 Brent P. Abner, Esquire Suite F 4741 Atlantic Boulevard Jacksonville, Florida 32207 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344 Martha F. Dekle, Esquire 806 G Street Post Office Box 1644 Jacksonville, Florida 32207
The Issue The issue is whether Respondent, Rural Metro of North Florida, Inc., violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was hired by Respondent on October 11, 1999, as an Emergency Medical Technician Basic, until July 2001 when he was reclassified with Respondent as an Emergency Medical Technician Paramedic, until his termination from employment with Respondent on April 16, 2003. In July 2001, Petitioner told his then manager, Dominic Persichini, that he no longer wanted to work with his partner, Marlene Sanders, and he requested a transfer. Petitioner gave as his reason for the transfer that Ms. Sanders was interested in him in an inappropriate way which disrupted his family life. He never actually heard Ms. Sanders make any inappropriate sexual remarks directed at him. Ms. Sanders accused Petitioner of allowing his wife to interfere with their working relationship and to involving herself in Ms. Sanders' personal life, which made her uncomfortable working with Petitioner. On March 27, 2002, Stephen Glatstein, Respondent's new General Manager, wrote a letter to Petitioner in which he acknowledged that problems had occurred between Petitioner and Ms. Sanders, that the two of them would be separated and reassigned to new shifts, and that Petitioner was being reassigned to the B-shift rotation (1800-0600 hours), which conflicted with his family duties. Petitioner received a good evaluation and a pay raise dated February 15, 2003, in which his supervisor, Ryan Jenkins, stated that "Michael's abilities meet or exceed industry standards. Michael keeps current by completing CEU's and taking refresher classes. There is one new Corrective Action Notice in his file since last year involving a post move. The incident was on 08-07-02 and to my knowledge there have not been any further problems since." Further, the evaluation reads that "Michael shows a great attitude and appears to really enjoy his job. This makes him very easy to work with. Michael's good personality and working knowledge of E.M.S. is a benefit to the customers that he serves. It is clear that we should be proud to have Michael as part of our team." Petitioner received letters of commendation from his supervisors and letters of thanks from patients and their families he had served. In April 2003, Natashia Duke, a new employee with Respondent, went to the General Manager, Mr. Chalmers, and accused Petitioner of having made statements of a sexual nature to her and of touching her inappropriately. Ms. Duke provided a written statement to Mr. Chalmers who forwarded the information to the Division General Manager, Chris Rucker. Mr. Rucker advised Mr. Chalmers to place Petitioner on paid administrative leave pending the outcome of an investigation concerning Ms. Duke's complaint. Mr. Chalmers followed this instruction and placed Petitioner on leave. Mr. Rucker traveled to Pensacola to meet with Mr. Chalmers and Ms. Duke. At this meeting, Ms. Duke reaffirmed what she had written in the complaint against Petitioner and told Mr. Rucker and Mr. Chalmers about another employee she believed had been sexually harassed by Petitioner, Kristy Bradberry. The next day, Mr. Rucker and Mr. Chalmers interviewed Ms. Bradberry who informed them that she had been sexually harassed by Petitioner. She provided a written statement which described the alleged harassment in detail. Ms. Bradberry told the interviewers of another person she believed had suffered sexual harassment by Petitioner, Tina Dunsford (Tina Richardson at the time of her complaint). Mr. Rucker and Mr. Chalmers next interviewed Ms. Dunsford who confirmed that Petitioner had sexually harassed her as well by making sexual comments and propositions to her, and by touching her inappropriately. After Ms. Dunsford's interview, Ryan Jenkins, another of Respondent's employees, reported that Ms. Dunsford had complained to him of sexual harassment by Petitioner a few months earlier. Mr. Jenkins had failed to take any action on the previous complaint. After interviewing the three complainants, Ms. Duke, Ms. Bradberry, and Ms. Dunsford, Mr. Rucker and Mr. Chalmers met with Petitioner. At that meeting, Petitioner denied all of the allegations made by the three female co-workers and gave no explanation for what they alleged had happened. Mr. Rucker believed the statements given by the three female co-workers who complained of sexual harassment by Petitioner were credible. Mr. Rucker made the decision with Mr. Chalmers to terminate Petitioner's employment. Respondent had no prior history of problems with any of the three female co-workers who complained of sexual harassment by Petitioner. Petitioner believes the sexual harassment charges were trumped up against him so that Respondent could fire him, since he was beyond the company probationary period and therefore could be terminated only for a business purpose pursuant to the company employee handbook. No evidence was produced at hearing to support a violation of company policy by Respondent in Petitioner's termination. At the time of hearing, Petitioner was employed with the Escambia County E.M.S.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim for relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael J. Welch 2060 Burjonik Lane Navarre, Florida 32566-2118 John B. Trawick, Esquire Shell, Fleming, Davis & Menge 226 Palafox Place Post Office Box 1831 Pensacola, Florida 32591-1831 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Does the Department of Corrections' Sexual Harassment Policy, as contained in the Pamphlet "Sexual Harassment, Your Rights and Responsibilities", in a one-page document entitled "Department of Corrections Sexual Harassment Policy", and Chapter 7 of the Department's Personnel Procedures Manual, constitute umpromulgated rules, pursuant to Section 120.535 F.S.? Are existing Department of Corrections Rules 33-4.001(4)(a), 33-4.002(4), and 33-4.003(22) and (24), F.A.C. invalid exercises of delegated legislative authority due to vagueness, pursuant to Section 120.56 F.S.?
Findings Of Fact At all times material, Petitioner has been a career-service employee working as a Parole Officer I for DOC. He has earned a master's degree in criminology. At all times material, DOC has had in effect a one-page document entitled "Department of Corrections Sexual Harassment Policy" (P-5), a Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities" (P-3), and a Personnel Procedures Manual. Chapter 7 of the Personnel Procedures Manual is entitled "Sexual Harassment Complaints" (P-6). DOC has not adopted these documents as rules, and Petitioner here challenges them as unpromulgated rules. On February 22, 1996, Petitioner received written notice that he would be suspended without pay for ten days as a result of his violation of DOC Rules 33-4.001(4)(a), 33-4.002(4) and 33- 4.003(23)(25), F.A.C., (since renumbered) and the DOC's Policy on Sexual Harassment. The letter did not rely on Chapter 7 of the agency's Personnel Procedures Manual or its Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities". Petitioner appealed this action to PERC, which subsequently entered a recommended order upholding DOC's disciplinary action. Language from PERC's recommended order, which is pertinent to this instant rule challenge is: Florida Administrative Code Rule 33-4.001(4)(a) states, in pertinent part, that 'No . . . employee shall knowingly . . . commit any act or engage in any conduct which would violate any state statute, rule, directive or policy statement.' Florida Administrative Code Rule 33-4.002(4) states, in pertinent part, that 'Each employee . . . shall perform his duties fairly and impartially and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public.' Florida Administrative Code Rule 33-4,.003(23) states that a first offense of conduct unbecoming a public employee is punishable by a written reprimand, up to a thirty day suspension or dismissal. Florida Administrative Code Rule 33-4.003(25) states that a first offense of willful violation of rules, regulations, directives or policy statements is punishable by a written reprimand, up to a thirty day suspension or dismissal. The DOC pamphlet entitled 'Florida Department of Corrections Sexual Harassment: Your Rights and Responsibilities,' provides, in pertinent part, as follows: Sexual Harassment requires two elements: The alleged conduct must be of a sexual nature, must be unwelcome and unwanted. Sexual harassment may be any of, but not limited to, the following: * * * continued suggestions regarding invi- tations to social events outside the work place, after being told such suggestions are unwelcome; * * * prolonged staring or leering to [sic] a person; * * * 32. State of Florida, Department of Corrections, Personnel Procedures Manual, Chapter 7, Sexual Harassment, provides, in pertinent part, as follows: * * * O. Sexual Harassment - Sexual Harassment is defined as unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature from or involving an employee's supervisors, peers, subordinates or any other persons in contact with an employee or applicant during the course of the conduct of the employee's or applicant's business when: Submission to such conduct is either explicitly or implicitly a term or condition of employment; or Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or Such conduct has the purpose or effect of interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. 33. The DOC Sexual Harassment Policy provides, in pertinent part, as follows: Sexual harassment may result from unwelcome sexual advances or a hostile environment created by conduct offensive to the victim such as suggestive or lewd comments, dirty jokes, offensive pictures or physical touching. Accordingly, all employees are being placed on notice that any employee found guilty of having engaged in sexual harassment will be severely disciplined, up to and including dismissal. * * * The charge of conduct unbecoming a public employee is a general charge that is subsumed if the Agency has a more specific charge that fully describes the alleged misconduct. Ford v. Department of Health and Rehabilitative Services, 9 FCSR Para. 148 (1993); Mathis v. Department of Corrections, 6 FCSR Para. 122 (1991). In this case, I conclude that the charge of unbecoming conduct is subsumed within the charge of sexual harassment and should be dismissed. PERC's recommended order also applied the foregoing provisions. At the date of formal hearing in the instant rule challenge, PERC had issued no final order. Before this instant Division of Administrative Hearings final order could be entered, PERC had extended the time for the parties to file exceptions to its hearing officer's recommended order, and ultimately, on August 13, 1996, PERC adopted its hearing officer's recommended order, thereby rendering Petitioner subject to future disciplinary action at the second occurrence level under Rule 33-4.003, F.A.C. The final order of PERC is now under appeal by Petitioner. These facts are officially recognized, sua sponte. Petitioner received copies of the Pamphlet, the Sexual Harassment Policy, and a copy of Chapter 33-4, F.A.C., on July 16, 1993, when he began employment with the agency. He did not receive a copy of Chapter 7 of the Personnel Manual and was unaware of it until his PERC proceeding. DOC imposes disciplinary action against its employees for conduct which constitutes sexual harassment. Petitioner received periodic training in agency seminars on the agency's Sexual Harassment Policy, including annual film presentations. He did not receive similar training regarding "conduct unbecoming a public employee", which is a term utilized in Section 110.227(1), F.S., and for which an employee may be disciplined. Section 110.227(1), F.S., also permits discipline of employees for "willful violation of the provisions of law or agency rules". Rule 33-4.001(4)(a), F.A.C., provides, in pertinent part: Responsibility for Conduct of Employees, Inmates and Others. No Administrator, Superintendent, Officer-In-Charge, Supervisor, or other employee shall knowingly permit any subordinate, inmate or other person to, nor shall he, commit any act or engage in any conduct which would violate any statute, rule, directive or policy statement . . . . Petitioner claims that Rule 33-4.001(4)(a), F.A.C., is vague as applied to him because he is not an administrator, superintendent, officer-in-charge, or a supervisor. According to Petitioner, this rule in only applicable to those who supervise subordinates. Rule 33-4.002(4), F.A.C., provides in pertinent part: (4) Each employee shall keep himself physically fit, mentally alert, personally neat and clean and shall perform his duties fairly and impartially, and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public . . . . Rule 33-4.003, F.A.C., is entitled "Range of Disciplinary Actions" and lists a number of violations. Item (22) is "Conduct Unbecoming a Public Employee"; Item (24) is "Willful Violation of Rules, Regulations, Directives, or Policy Statements". The range of disciplinary penalties is increased at the second occurrence level under the rule. The agency Policy Statement, Pamphlet and Chapter 7 of the agency Personnel Manual state that sexual harassment is conduct unbecoming a public employee and contain definitions of sexual harassment, including hostile work place sexual harassment. The first sentence of the Pamphlet states that sexual harassment is a form of sex discrimination under Title VII of the 1964 Civil Rights Act and is conduct unbecoming a public employee, as provided in Sections 110.105, 110.227 and 110.233, F.S., and Chapter 33-4, F.A.C. (Rules of the Department). The first page of the Pamphlet states EEOC guidelines defining sexual harassment, as recognized by the agency: Unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature when: Submission to such conduct is made either explicitly or implicitly a term or condition of a person's employment, or Submission to, or rejection of, such conduct by [sic] decisions affecting an individual, or Such conduct has the purpose or effect of substantially interfering with a person's work [sic] hostile or offensive working environment. The Pamphlet goes on to advise that sexual harassment requires two elements: conduct of a sexual nature/that is unwelcome and unwanted. It lists examples of harassing behavior, advises of the need to report such behavior, and explains the agency's internal complaint procedure and the procedure's protections against retaliation. It gives references for legal remedies outside the agency. Chapter 7 of the Personnel Procedures Manual states basically the same information as the Pamphlet, lists the same legal authorities and details the internal complaint procedure. It specifically provides, If there is a determination that there is cause to believe sexual harassment occurred, disciplinary action shall be taken in accordance with Chapter 33-4 Department of Corrections Rules. Chapter 7 was first effective on January 25, 1989 and last amended on March 5, 1993. It derives its authority from Title VII of the 1964 Civil Rights Act, Sections 110.105, 110.227, and 110.233, F.S., and Chapter 33-4, F.A.C. Both the agency Pamphlet and Chapter 7 of the Manual state that sexual harassment is conduct unbecoming an employee. Petitioner's position with regard to whether or not the Pamphlet and Chapter 7 of the Manual constitute unpromulgated rules appears to center on his belief that without them, employees are not on notice as to exactly what behavior constitutes sexual harassment, that they contain a subtext of what types of sexual harassment, i.e. hostile work environment, will be disciplined, or that they alone reveal that sexual harassment constitutes "conduct unbecoming". Petitioner testified that he understood blatant sexual harassment, such as unconsented physical contact, to be conduct unbecoming a public employee, but he did not have a clear understanding about the "gray areas", such as complimenting co- workers, socializing outside work, or what acts constituted hostile work place sexual harassment. However, Petitioner testified that he was on notice that the agency had an Anti-Sexual Harassment Policy and that at all times material, he knew that if he committed sexual harassment, he would be subject to discipline, up to and including termination. Petitioner admitted that if any employee engaged in actual sexual harassment against another employee, the offending employee would not command the respect of fellow employees, as described in Rule 33-4.002(4), F.A.C. He also was on notice through Rule 33-4.003, F.A.C., that he could be disciplined for "conduct unbecoming" or "willful violations of law or policy statements". He is charged at law with knowledge of Section 110.227(1) requiring discipline for "conduct unbecoming" or "willful violation" and Chapter 760 F.S., which implements Title VII of the 1964 Civil Rights Act. The agency routinely disciplines its employees for sexual harassment and has a long history of application of its Anti-Sexual Harassment Policy. Petitioner did not submit any evidence as to how Chapter 7 of the agency's Personnel Procedures Manual, the Pamphlet, or the one- page Policy Statement had any affect on him, beyond the discipline described, supra. Furthermore, there was no evidence presented to show that the agency's Sexual Harassment Policy, the Pamphlet, or Chapter 7 of the Personnel Procedures Manual have any affect on any person not employed by Respondent. There was no evidence that any of the provisions in these documents were self-executing.
Findings Of Fact Petitioner is a white female. Petitioner worked as a salesperson at Respondent’s Melbourne store from April 2006 to September 2006. Petitioner’s primary job duty was selling appliances to retail customers. She also performed ancillary duties, such as tagging merchandise, cleaning and organizing the showroom floor, scheduling deliveries, and making follow-up calls to customers. Petitioner was not paid a salary. Her income was solely commission-based. She earned a total of $11,826.14 while working for Respondent, which equates to an average weekly gross pay of $537.55. Petitioner had several managers during the term of her employment. She did not have a problem with any of her managers, except for Jeffrey Rock. Mr. Rock is a black male, and by all accounts, he was a difficult manager to work for. He was “strict”; he often yelled at the salespersons to “get in the box”2 and “answer the phones”; and, unlike several of the prior managers at the Melbourne store, Mr. Rock held the salespersons accountable for doing their job. Petitioner testified that Mr. Rock "constantly" made sexual comments in the store, including comments about the size of his penis and his sexual prowess; comments about sex acts that he wanted to perform on a female employee in Respondent’s accounting office, Ms. Miho; “stallion” noises directed at Ms. Miho; and a question to Petitioner about the type of underwear that she was wearing. Petitioner’s testimony regarding the sexual comments and noises made by Mr. Rock was corroborated by Neina Blizzard, who worked with Petitioner as a salesperson for Respondent and who has also filed a sexual harassment claim against Respondent. Mr. Rock denied making any sexually inappropriate comments or noises in the store. His testimony was corroborated by Guy Ruscillo and Carissa Howard, who worked as salespersons with Petitioner and Ms. Blizzard and who are still employed by Respondent. Petitioner and Ms. Blizzard testified that Mr. Rock gave favorable treatment to Ms. Howard and two other female salespersons with whom he had sexual relationships and/or who found his sexual comments funny. Mr. Rock denied giving favorable treatment to any salesperson, except for one time when he gave a “house ticket”3 to Ms. Howard because she took herself off the sales floor for six hours one day to help him get organized during his first week as manager at the Melbourne store. Ms. Howard is white. The record does not reflect the race of the other two female salespersons -- Rebecca and Shanna -- who Petitioner and Ms. Blizzard testified received favorable treatment by Mr. Rock, and the anecdotal evidence of the favorable treatment that they allegedly received was not persuasive. Petitioner did not have any complaints regarding her schedule. Indeed, she testified that Mr. Rock changed her schedule at one point during her employment to give her more favorable hours. Petitioner’s testimony about other salespersons having sexual relationships with Mr. Rock and/or receiving favorable treatment from Mr. Rock was based solely upon speculation and rumor. Indeed, Rebecca, one of the salespersons with whom Mr. Rock allegedly had a sexual relationship, was “let go” by Mr. Rock because of the problems with her job performance observed by Petitioner and Ms. Blizzard. Petitioner’s last day of work was Saturday, September 30, 2006. On that day, Petitioner came into the store with Ms. Blizzard at approximately 8:00 a.m. because, according to Petitioner, another manager had changed her schedule for that day from the closing shift to the opening shift. Mr. Rock confronted Petitioner when she arrived, asking her why she came in at 8:00 a.m. since he had put her on the schedule for the closing shift. An argument ensued and Petitioner went into the warehouse in the back of the store to compose herself. When Petitioner returned to the showroom several minutes later, Mr. Rock was engaged in an argument with Ms. Blizzard. During the argument, Ms. Blizzard demanded a transfer to another store, which Mr. Rock agreed to give her. Then, as a “parting shot,” Ms. Blizzard told Mr. Rock that he was a “racist” who was “prejudiced against white women.” Ms. Blizzard testified that Mr. Rock told her that she was fired immediately after she called him a racist. Petitioner testified that after Mr. Rock fired Ms. Blizzard, he asked her whether she wanted to be fired too. Petitioner testified that even though she did not respond, Mr. Rock told her that “you are fired too.” Then, according to Ms. Blizzard and Petitioner, Mr. Rock escorted them both out of the store. Mr. Rock denies telling Ms. Blizzard or Petitioner that they were fired. He testified that they both walked out of the store on their own accord after the argument. Mr. Rock’s version of the events was corroborated by Mr. Ruscillo, who witnessed the argument. Mr. Ruscillo testified that he heard a lot of yelling, but that he did not hear Mr. Rock tell Ms. Blizzard or Petitioner at any point that they were fired. Petitioner and Ms. Blizzard met with an attorney the Monday after the incident. The following day, Petitioner gave Ms. Blizzard a letter to deliver on her behalf to Respondent’s human resources (HR) Department. The letter, which Petitioner testified that she wrote on the day that she was fired by Mr. Rock, stated that Petitioner “was sexually harassed and discriminated against based on being a white female by my manager, Jeff Rock”; that Petitioner “previously reported numerous incidents of this discrimination and sexual harassment to upper management”; and that she was fired “as a result of this discrimination and the refusal to put up with Mr. Rock’s sexual advancement.” This letter was the first notice that Respondent had of Petitioner’s claims of sexual harassment or discrimination by Mr. Rock. Petitioner considers herself to be a very good salesperson, but Mr. Rock described her as an “average” salesperson. Mr. Rock’s characterization of Petitioner’s job performance is corroborated by Petitioner’s acknowledgement that her sales figures were lower than those of at least Mr. Ruscillo, Ms. Blizzard, and Ms. Howard. Petitioner complained to another manager, Al Sierra, about Mr. Rock’s management style at some point in mid-September 2006. She did not complain to Mr. Sierra or anyone else in Respondent’s upper management about the sexual comments allegedly made by Mr. Rock. Indeed, as noted above, the first time that Petitioner complained about the sexual comments allegedly made by Mr. Rock was in a letter that she provided to Respondent’s HR Department several days after she was fired and after she met with a lawyer. Petitioner testified that she did not complain about the sexual harassment by Mr. Rock because he threatened to fire any salesperson who complained to upper management about the way that he ran the store and because she did not know who to complain to because she never received an employee handbook. There is no evidence that Mr. Rock fired any salesperson for complaining about how he ran the store, and he denied making any such threats. He did, however, acknowledge that he told the salespersons that they were all replaceable. Mr. Rock’s testimony was corroborated by Mr. Ruscillo and Ms. Howard, who were at the sales meetings where Petitioner and Ms. Blizzard claim that the threats were made. The training that Petitioner received when she started with Respondent was supposed to include a discussion of Respondent’s policies and procedures, including its policy against sexual harassment. The trainer, Kit Royal, testified that he remembered Petitioner attending the week-long training program and that the program did include a discussion of the sexual harassment policy and other policies and procedures. Petitioner, however, testified that no policies and procedures were discussed during the training program. Petitioner was supposed to have received and signed for an employee handbook during the training program. No signed acknowledgement form could be located for Petitioner, which is consistent with her testimony that she never received the handbook. The fact that Petitioner did not receive the employee handbook does not mean that the training program did not include discussion of Respondent’s sexual harassment policies. Indeed, Petitioner’s testimony that the training program did not include any discussion regarding salary and benefit policies (as Mr. Royal testified that it did) and that she was never told what she would be paid by Respondent despite having given up another job to take the job with Respondent calls into question her testimony that the sexual harassment policy was not discussed at the training program. Petitioner was aware that Respondent had an HR Department because she met with a woman in the HR Department named Helen on several occasions regarding an issue that she had with her health insurance. She did not complain to Helen about the alleged sexual harassment by Mr. Rock, but she did tell Helen at some point that Mr. Rock “was being an ass” and “riding her,” which she testified were references to Mr. Rock’s management style not the alleged sexual harassment. Petitioner collected employment compensation of $272 per week after she left employment with Respondent. Petitioner testified that she looked for jobs in furniture sales and car sales while she was collecting unemployment, but that she was unable to find another job for approximately three months because of the slow economy at the time. She provided no documentation of those job-search efforts at the final hearing. Petitioner is currently employed by Art’s Shuttle. She has held that job for approximately nine months. Petitioner drives a van that takes cruise ship passengers to and from the airport. The record does not reflect how many hours per week Petitioner works at Art’s Shuttle, but she testified that she works seven days a week and earns approximately $500 per week. No written documentation of Petitioner’s current income was provided at the final hearing. Respondent has a “zero tolerance” policy against sexual harassment according to its president, Sam Pak. He credibly testified that had he been aware of the allegations of sexual harassment by Mr. Rock that he would have conducted an investigation and, if warranted, done something to fix the problem. The policy, which is contained in the employee handbook, states that Respondent “will not, under any circumstances, condone or tolerate conduct that may constitute sexual harassment on the part of its management, supervisors, or non-management personnel.” The policy defines sexual harassment to include “[c]reating an intimidating, hostile, or offensive working environment or atmosphere by . . . [v]erbal actions, including . . . using vulgar, kidding, or demeaning language . . . .” Mr. Pak agreed that the allegations against Mr. Rock, if true, would violate Respondent’s sexual harassment policy. The employee handbook includes a “grievance procedure” for reporting problems, including claims of sexual harassment. The first step is to bring the problem to the attention of the store manager, but the handbook states that the employee is “encouraged and invited to discuss the problem in confidence directly with Human Resources” if the problem involves the manager. Additionally, the handbook states in bold, underlined type that “[a]nyone who feels that he or she . . . is the victim of sexual or other harassment, must immediately report . . . . all incidents of harassment in writing to your manager or the store manager, or if either person is the subject of the complaint, to the president.” Mr. Pak had an office at the Melbourne store. He testified that he had an “open door policy” whereby employees could bring complaints directly to him. The only complaint that Mr. Pak ever received about Mr. Rock was from another salesperson, Rod Sherman, who complained that Mr. Rock was a “tough manager.” Mr. Pak did nothing in response to the complaint and simply told Mr. Sherman that different managers have different management styles.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 26th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2007.
The Issue Whether the Respondent intentionally committed an unlawful employment practice against the Petitioner on the basis on her national origin/Hispanic (Puerto Rican) or gender/female (sexual harassment). Whether Petitioner, a member of a protected class, was removed from her position with the Respondent in retaliation for her filing of a sexual harassment complaint with the Florida Commission on Human Relations on March 12, 1992.
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. Respondent, Martin-Marietta Electronics Information and Missiles Group, is a foreign corporation licensed to do business in Florida which employs more than fifteen employees. Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner, Margarita Coll, is a female, hispanic, citizen of the United States who resides in the State of Florida. Petitioner is a member of a protected class. Petitioner was an employee of Hi-Tec Associates, Inc., during all relevant periods, and was a de facto employee of Respondent for approximately four and one-half years. Petitioner was employed at Respondent company through a temporary agency called Associated Temporary Services and placed with the Respondent on January 5, 1987 as a receptionist/secretary in Martin-Marietta's Fleet Administration Department off Sand Lake Road, Orlando, Florida. Her responsibilities included record keeping, filing and helping Respondent's employees with company vehicles. Petitioner reported to the Respondent's Fleet Manager, Linda Reilly. Her day to day work assignments and supervision were received exclusively from the Fleet Manager. Petitioner worked in her position at the pleasure of the Respondent. She was assigned a "buyer" at Martin- Marietta who worked with the requesting department to fashion a position to meet the department's needs. The work was bidded out and awarded to the temporary employment agency who best met Respondent's criteria, on an annual basis. Over time, Petitioner assumed additional job responsibilities and in June, 1988 received a commendation for exceptional performance from Respondent's supervisors. In an effort to reward her efforts, Reilly successfully upgraded her position, first to Administrative Assistant and then to Fleet Analyst. When she was reclassified as a Fleet Analyst, the contract for her position was awarded to Hi-Tec Associates, Inc., since Associated Temporary Services did not provide technical employees under their contract with Respondent. Petitioner always worked at Martin-Marietta as a temporary employee and was never employed as a regular employee of the company. As such, she had no company benefits; she was classified as a contract laborer and her services were purchased by purchase order. Petitioner completed no company employment application, was not subject to Martin-Marietta performance appraisals and had no Martin-Marietta employment records or personnel file, other than her contract labor time slips. Petitioner received her pay from Hi-Tec. In June, 1990, Marilyn Quinonez was placed in the Fleet Administration Department as a Fleet Administrative Assistant by a temporary employment agency. Friction quickly developed between Petitioner and Quinonez. Petitioner believed that Quinonez was hired to assist her and became upset when she would not follow Petitioner's supervision or directions. Quinonez understood that she was to report to the Fleet Manager, and objected to the way Petitioner treated her. On November 15, 1990, Reilly was laid off by Respondent as part of a reduction in force and was replaced by Joseph LaPak. LaPak observed the bickering between Petitioner and Quinonez and that it continued to escalate over time. In December, 1990, the temporary positions in the department were reevaluated and the contract requirements for both positions were rewritten. The titles of both Petitioner and Quinonez were changed to that of Fleet Administrative Assistant. Any language in the contract which called for Petitioner to direct the clerical duties of the department were eliminated. In the fall of 1991, Quinonez met with LaPak and Wally DuBose to clarify her reporting responsibilities. It was confirmed that Quinonez and Petitioner were to report to the Fleet Manager, and that Petitioner did not have supervisory authority over Quinonez. Nevertheless, disputes between Petitioner and Quinonez continued. Attempts by management to resolve the problems were unsuccessful. On February 17, 1992, during the normal lunch hour, an altercation occurred between Petitioner and Quinonez. When Quinonez returned from lunch, she found Petitioner at her computer terminal. Quinonez asked for it back. Petitioner refused and an argument ensued. The two women became so angry and loud that a neighboring supervisor had to come over and separate them. Wally DuBose sent both Petitioner and Quinonez home for the day. Petitioner's immediate supervisor, LaPak was not in the office at the time. DuBose then discussed the matter with his supervisor, Paul Smilgen, and it was decided that Petitioner would be removed from the contract for her failure to work with fellow employees and management, and for general insubordination. LaPak was not involved in the decision to remove Petitioner. The decision was communicated to Hi-Tec. They, in turn, notified Petitioner that same evening that she was being replaced on the contract and not return to the Fleet Administration Department. Hi-Tec offered to attempt to place Petitioner elsewhere at Martin-Marietta but Petitioner refused because the openings available at the time paid less that the Fleet Administrative Assistant position. When LaPak first became the Fleet Manager in November of 1990, Petitioner and Quinonez worked in a very small work space. While Petitioner was training LaPak and working on the computer, LaPak's body was frequently close to Petitioner's and she felt pinned in a corner by him. After the initial working relationship was established and LaPak came into Petitioner's work area, he would touch her on her arms or shoulder in order to get her attention. In December, 1990, Petitioner complained to DuBose about LaPak touching her and making her uncomfortable. Both Petitioner and DuBose talked to LaPak about the fact that Petitioner did not want LaPak to touch her. LaPak honored that request and did not touch her again. He made every reasonable effort to get her attention when he needed to talk to her without touching her. In October, 1991, Petitioner complained to the Martin-Marietta EEO office that LaPak was sexually harassing her by inappropriate touching. Respondent then conducted an immediate investigation into the allegations and attempted to resolve the matter through internal mediation. Petitioner's testimony and other witnesses' testimony concerning sexual comments, innuendoes or propositions and inappropriate touching allegedly made by LaPak that occurred between December, 1990 and October, 1991 were inconsistent and are not credible. Petitioner presented no relevant or material evidence to show that Petitioner was the victim of national origin discrimination. Respondent's articulated reason for its decision to remove Petitioner from her contract labor position was not based on gender discrimination or national origin discrimination, nor was it pretextual. Petitioner failed to prove that her termination of employment at the Respondent's company was in retaliation for her complaints of sexual harassment or national origin discrimination.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued in which the Charge of Discrimination is DENIED and the Petition for Relief is DISMISSED. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: Paragraphs 1, 2, 3, 4, 5(in part), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 13, 14(except as to date of hire), 15(in part), 16(in part), 18(except as to the date of the counseling session), 19(except as to the date of the counseling session), 20, 21(in part). Rejected as against the greater weight of evidence: paragraphs 5(in part: Petitioner was first a contract employee with Associated Temporary Services), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 15(in part), 16(in part), 17. Rejected as immaterial, irrelevant or subsumed: paragraphs 11, 12, 21(in part). Respondent's Proposed Findings of Fact: Accepted in substance: paragraphs 1, 2, 3, 4(in part), 5, 6(in part), 7, 11(in part), 12, 13, 14(in part). Rejected as argument or a conclusion of law: paragraphs: 9, 10, 15, 16, 17. Rejected as irrelevant, immaterial or subsumed: paragraphs 4(in part), 8, 11(in part), 14(in part). Rejected as against the greater weight of evidence: paragraph 6(in part). COPIES FURNISHED: Kay L. Wolf, Esquire John M. Finnigan, Esquire GARWOOD, MCKENNA & MCKENNA, P.A. 815 North Garland Avenue Orlando, Florida 32801 James Sweeting, III, Esquire 2111 East Michigan Street Suite 100 Orlando, Florida 32806 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Lincare, Inc., is liable to Petitioner, Sharon Ford, for subjecting her to a hostile work environment based on sexual harassment.
Findings Of Fact The Parties and Complaint Allegations Lincare is a Tampa-based company that focuses on home- healthcare services. It has an annual revenue of over $3 billion and is a wholly-owned subsidiary of a company based in Germany. Ms. Ford, a married woman with children, is an accountant and an attorney. Lincare first hired her as its acquisition counsel in 2001 and promoted her to director of acquisitions in 2002. She held that position for almost 15 years before she left the company on January 27, 2017. Mr. Tripp, a married man with children, served as an Arabic linguist in the Army before obtaining his law degree. Lincare hired Mr. Tripp to replace Ms. Ford as its acquisition counsel in 2002 and promoted him to general counsel in 2013. He still holds that position. On January 19, 2018, almost a year after leaving Lincare, Ms. Ford filed a Complaint with the Commission alleging a hostile work environment. She alleged that Mr. Tripp, over a 15-month period from December 2015 through March 2017, subjected her to severe and pervasive sexual harassment. On July 13, 2018, the Commission issued its notice of determination of no reasonable cause and mailed it to Ms. Ford. The notice advised her that she “may request an administrative hearing . . . by filing a Petition for Relief within 35 days of the date the determination was signed by the Executive Director.” Ms. Ford received the notice in the mail on July 16, 2018. On August 16, 2018, 34 days after the Commission issued its notice, Ms. Ford requested an administrative hearing by mailing her Petition to the Commission via U.S. mail. The Commission received the Petition on August 20, 2018. On the same day, the Commission generated its transmittal letter. But, instead of transmitting the Petition to DOAH, the Commission advised Ms. Ford that the Petition appeared to be untimely because it was received three days beyond the 35-day deadline under section 760.11(7), Florida Statutes. After Ms. Ford responded that she timely requested a hearing by post-marking her Petition before the 35-day deadline, the Commission transmitted the case to DOAH on September 21, 2018. The transmittal letter, dated August 20, 2018, did not dismiss the Petition as untimely but rather requested assignment of a judge to “conduct all necessary proceedings required under the law.” Lincare’s Structure and Policies Between 2015 and 2017 Lincare had three officers: chief executive officer (“CEO”), chief financial officer (“CFO”), and chief operating officer (“COO”). The corporate chart had the CEO at the top and the CFO and COO, who reported to the CEO, immediately thereunder. The second tier of the chart listed six department heads, none of whom were corporate officers: corporate compliance officer, head of business innovation, head of human resources, head of public relations & communications, general counsel, and director of acquisitions. These managers were equal on the hierarchy chart and all reported directly to the CEO. As director of acquisitions, Ms. Ford brought in the deals, negotiated the business side, and quarterbacked them to closing. She helped move the deals along by ensuring that Lincare personnel communicated and accomplished their required tasks. She provided business advice to the legal department and worked closely with the acquisition attorney (on smaller deals) and the general counsel (on larger deals). Ms. Ford received a salary and an objective bonus tied to the deals that closed.2/ As the general counsel, Mr. Tripp oversaw legal affairs and supervised five lawyers in the legal department, but had no control over any other department. As to the deals, Mr. Tripp handled the legal aspects, such as contracts, due diligence, and compliance, provided legal advice, and assessed risks. The CEO, COO, and CFO had sole authority to decide whether a deal closed. Mr. Tripp received a salary and a discretionary bonus tied to the company’s financial success in a given year. Although Ms. Ford and Mr. Tripp gave each other advice, they were equals on the corporate chart. Mr. Tripp had no authority over Ms. Ford and lacked the power to hire, discipline, promote, transfer, fire, or control her compensation. They were coworkers who both answered directly to the CEO. The head of human resources (“head of HR”) ran the HR department and its roughly 15 to 18 employees. Directly under the Head of HR was the employee relations director, Ms. Adams. Among other things, the HR department oversaw the employee handbook and investigated reports of discrimination and harassment. The handbook included a detailed anti-harassment policy forbidding sexual harassment by any employee at work or at work-related events outside the office. Harassment was defined to include unwelcome sexual advances, requests for conduct of a sexual nature, and other unwelcome behavior that was personally offensive and interfered with work effectiveness done in person or through electronic means. The policy prohibited any employee from making employment decisions based on the submission to or rejection of sexual advances, and noted in bold that any violation would subject an employee to discipline up to an immediate discharge. The handbook contained a detailed reporting procedure for employees who believed, had concerns, or suspected they or anyone else may have been harassed. The policy required them “to immediately notify” a named individual based on their location, which included the employee relations director or the HR Manager for employees in the corporate office. The handbook required employees to follow the procedure and noted that the failure to do so could adversely affect their rights to pursue a claim. Lincare took harassment allegations seriously. Once an allegation was reported, the employee relations director or HR managers investigated; the legal department was not involved unless a particular legal question arose. They obtained as much information as possible from the victim, spoke to potential witnesses, reviewed available documents, and interviewed the accused. If the investigation uncovered no corroborating evidence and the accused denied any wrongdoing, a report would be added to the accused’s personnel file; upon a second allegation, the accused would be terminated. If a supervisor retaliated against an employee for reporting harassment, that supervisor would be terminated. Lincare disseminated the handbook and updated versions to employees and required them to sign a form acknowledging that they received the handbook and would abide by its policies. Ms. Ford signed such forms each time she received a revised handbook, including in 2015——the version in effect until she left Lincare in January 2017. She knew about the harassment policy, the reporting requirement, and the fact that her failure to so report could adversely affect her rights. Friends and Coworkers for Over 15 Years Ms. Ford and Mr. Tripp worked closely together at Lincare for 15 years and they became good friends in the process. When Lincare hired Mr. Tripp as acquisition counsel in 2002, he worked closely with Ms. Ford on hundreds of deals. They were in constant, daily contact to strategize, handle diligence and compliance issues, advise each other on the tasks they both had to complete, and ensure the deals closed. They also had a close friendship. They regularly went to lunch alone and with others, as often as three days per week, attended social events with mutual friends, and spoke on the phone and texted about business and personal matters. They had much in common as married parents with kids around the same age and they enjoyed each other’s company. When Mr. Tripp became general counsel in 2013, Ms. Ford initially worked closely with the new acquisition counsel. In late 2014, however, she and Mr. Tripp resumed working closely together when Lincare began negotiating larger transactions. Project Maverick was the largest acquisition of Ms. Ford’s career and it closed in March 2016. Project Falcon was the largest divestiture of her career and it closed in August 2016. These two deals, and others, required Ms. Ford and Mr. Tripp to work even more closely together from 2015 until she left the company in January 2017. They often met multiple times per day. Ms. Ford sought Mr. Tripp’s assistance on the legal side and he sought her assistance on the business side. As before, she remained the quarterback shepherding the deal forward. Their friendship continued during this period. They invited each other to lunch regularly, alone and with coworkers. They attended social events with friends, including holiday dinners in 2015 and 2016. On out-of-town work trips, they rented cars together and sometimes spent time alone, such as for meals. They continued to text and speak on the phone about business and personal matters. They talked about their families, children, and other personal matters much like longtime friends do. They checked in on each other when personal crises occurred. And, when Ms. Ford began tense negotiations with the CEO about her compensation, which ultimately led her to leave Lincare, she relied on Mr. Tripp as a sounding board and for moral support. Even after Ms. Ford left the company in January 2017, she maintained contact with him. They had lunch alone at least once. For months, they continued to text each other, even about personal matters such as when she texted him after he had been in a car accident. However, their communication largely ceased once Ms. Ford filed a lawsuit against Lincare over her compensation. Ms. Ford’s Testimony Accusing Mr. Tripp of Sexual Harassment The first incident occurred on December 11, 2015. In that 10 to 20 minute conversation in her office, Mr. Tripp professed strong feelings for her and that he desired a confidential, sexual relationship with her. She rejected him and said they were just friends. She immediately called her husband and spoke to him all the way home. She felt humiliated, embarrassed, and angry. She did not attend a football game that weekend with other coworkers to avoid Mr. Tripp and kept her communications with him to e-mail for the next week. The second incident occurred in her office later in December 2015. While discussing another affair that may be happening at work, Mr. Tripp said he could not report the other employee because he wanted to do the same thing with Ms. Ford, notwithstanding the professional and personal risks. She again rejected him. For the next few weeks, Ms. Ford tried to avoid him as much as possible, but she had to face him because the deals began to lag. She said he continued to make comments here and there, but she offered no specific details. The third incident occurred in January 2016, after a conference call in Mr. Tripp’s office. He said he knew Ms. Ford was avoiding him, but he could not function. He told her he was willing to leave his wife, but she again rejected him. Over the next few months, the comments and innuendo pretty much ceased so Ms. Ford decided to go back to being friends to ensure that the Maverick and Falcon deals closed. However, a fourth incident occurred in the parking lot after a late conference call in June 2016. Mr. Tripp professed that his feelings were stronger now and that he was waiting for Ms. Ford to change her mind. She said her feelings had not changed and he said he understood. For the remainder of 2016, Ms. Ford testified generally that Mr. Tripp continued to make comments about his inability to function and that he got more obsessive as the year progressed. But she offered little detail about the comments or where and when they occurred, except that she had to be around Mr. Tripp’s wife several times and she and Mr. Tripp agreed it was uncomfortable. The fifth incident occurred in October 2016 when Mr. Tripp told her he was learning Hebrew to “connect” with her in her native language. He tried to communicate with her in Hebrew in person and via text, despite her telling him to stop because it made her very uncomfortable. As a result, she again started to avoid him at the office, though he texted her to see if she was alright and admitted to acting like a high school student. In January 2017, Mr. Tripp continued with innuendo, spoke in Hebrew, and told Ms. Ford that he might move closer to her. She believed he was obsessed, which made her nervous about his stability and her safety. But she offered no specific dates on which these events occurred. Mr. Tripp came to Ms. Ford’s office twice that month after she had heated meetings with the CEO, including on her last day at the company, January 27, 2017. He cried because he could not imagine how he would go on if she left, as she was the only reason he came to work every day. That evening, he told her on the phone that he now knows what a divorce feels like. Mr. Tripp continued to harass her following her departure, including taking his family to the same ski resort in March 2017. She testified that she stayed in her room to avoid him and never initiated contact with him while there, though text messages admitted into evidence confirm she texted him several times, about a security breach and generally about his vacation. In January 2018, a year after she left the company during a mediation of her lawsuit against Lincare, Ms. Ford for the first time accused Mr. Tripp of sexual harassment. She had not reported the allegations pursuant to Lincare’s policy, though she knew it required her to do so. She never informed other coworkers either. In fact, the only person she said she told was her husband, though he did not testify at the hearing. Ms. Ford testified that she did not report the allegations because she had a contentious relationship with the CEO during this period and she believed the CEO would terminate her. She also was concerned that Mr. Tripp was unstable and could decide to kill the deals to ensure she missed out on her bonuses. Lastly, she thought reporting would be futile due to Lincare’s culture of harassment, including by one of the two individuals to whom she was directed to report, the head of HR. Mr. Tripp’s Testimony Denying the Alleged Sexual Harassment Mr. Tripp said that he never harassed Ms. Ford. Indeed, no one has ever accused him of harassment. He said he never expressed romantic feelings for her, suggested having a sexual relationship with her, or did anything to scare her. Ms. Ford’s allegations against him came as a shock. He believed they had been good friends for over 15 years and she never indicated otherwise. They enjoyed each other’s company, had children around the same age, and spoke often about business and personal things, like friends often do. Even during the period of alleged harassment, he noticed no changes in her behavior. They continued to invite each other to lunch regularly, often eating together alone, and continued to discuss deeply personal matters about their families. They texted each other often and attended holiday dinners with friends. She chose to sit next to him at a work event at a hotel in the fall of 2016. The same could be said for business trips during this period. On a March 2016 trip to New York, Ms. Ford left a group dinner early with him because he was sick, they worked out the next day, and had breakfast. On an August 2016 trip to Nashville to celebrate the closing of the Maverick deal, they rented a car together and went to dinner alone after Ms. Ford invited him. On a trip to New York in August/September 2016, Ms. Ford stayed with Mr. Tripp to retrieve his briefcase from the office and went to the airport together after the rest of the team left. Mr. Tripp admitted to learning some Hebrew, but because he liked languages (he was an Arabic linguist in the Army), not to become romantically connected to Ms. Ford. He practiced with her because she was the only person he knew who spoke Hebrew, just as he did with other coworkers who spoke another language. She never said it made her uncomfortable. Mr. Tripp also admitted that his wife suggested moving closer to Plant High School because it had a beneficial program for their son. The idea had nothing to do with Ms. Ford, who did not live nearby, and they decided not to move in any event. Even on her final days at Lincare, they had usual interactions. Mr. Tripp admitted calling Ms. Ford the evening of her last day (but said he had not come down to her office earlier) to express concern for his friend and sadness that they would no longer be working together. He did not recall commenting about a divorce, but if he had, it only related to her being a friend. For a few months after she left Lincare, Mr. Tripp believed their relationship had not changed. They continued to text each other and had lunch alone at least once. Though he took a ski trip to the same resort in March 2017, his wife chose the resort and Ms. Ford reached out to him several times during that trip to see how he was doing. Ms. Ford also texted him after he had a car accident in March/April 2017. It was not until several months after Ms. Ford left Lincare and filed her lawsuit against the company that he noticed a change in her attitude. At one point, he invited her to lunch with a mutual friend, but she did not respond and he later learned they had lunch without him. Ms. Ford also told him on the phone that he was going to hate her someday, though he had no idea then what that meant. After a hurricane in August/September 2017, he reached out to make sure she was safe; she thanked him and wished his family well too. That was their last communication before the sexual harassment allegations were made. Credibility Findings as to the Conflicting Testimony After hearing the conflicting testimony from Ms. Ford and Mr. Tripp and observing their demeanor, the undersigned found it exceedingly difficult initially to determine who is telling the truth and who is quite an effective storyteller. Ms. Ford’s conviction in her accusations against Mr. Tripp was equal to his conviction in his denials. But, when considering all of the record evidence and testimony, the scales of credibility tip in Mr. Tripp’s favor for several reasons. For one, Ms. Ford cultivated a professional and personal relationship with Mr. Tripp throughout the alleged harassment period and continued to do so even after she left Lincare. Although she said she maintained contact because they had to work together and she wanted him as an ally, she also accused him of stalker-like, obsessive, humiliating, and unstable behavior. Her efforts to maintain a friendship with him, even after leaving Lincare, are at odds with someone who feels humiliated and fears for their safety. Ms. Ford’s testimony also veered from the affidavit she filed with the Commission. She testified that he generally made comments between November 2016 and January 2017, yet her affidavit offered more specifics as to the comments allegedly made. Her testimony about him moving to her neighborhood was entirely omitted from her affidavit. Her testimony about his efforts to sometimes communicate with her in Hebrew was at odds with the affidavit’s claim that he did so “continuously.” And, her testimony about the comments he made on her last day at Lincare differed as to substance and degree from her affidavit. Further, Ms. Ford’s testimony was directly refuted by other evidence. She testified that she did not affirmatively communicate with him about anything personal in March 2017, but text messages confirm that she checked in with him several times during the trip about his vacation and engaged in more friendly conversation than initially admitted. Ms. Ford’s reasons for waiting until a year after she left Lincare to report the accusations also call her credibility into doubt. Though she testified that she feared Mr. Tripp would kill two large deals and her bonuses therefrom, those deals closed in March and August 2016, and yet she never reported the allegedly ongoing harassment before she left Lincare at the end of January 2017. It also cannot be ignored that she waited until January 2018 to report the accusations and did so during the mediation of her compensation lawsuit against the company. Lastly, though not fatal to her claim, Ms. Ford’s failure to present any corroborating evidence cannot be ignored. She testified that she lost weight, suffered hair loss, and could not sleep, and said that it was the worst year of her life. Yet, the record is devoid of evidence that any other friends or coworkers noticed such changes, that she missed work or social events, or that she suffered at work in any way. She said he sent her inappropriate text messages, but provided no proof of them. She apparently kept a journal about work issues, but did not document the harassing incidents. And, though she said she immediately told her husband in December 2015, she chose not to present his testimony even though he was the only person who could corroborate her accusations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Sharon Ford, failed to timely file her Complaint and, regardless, that Ms. Ford failed to establish that Respondent, Lincare, Inc., committed an unlawful employment practice against her, both of which warrant dismissal of her Petition for Relief. DONE AND ENTERED this 17th day of May, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2019.
The Issue The issue in this case is whether Respondent engaged in an unlawfully discriminatory employment practice against Petitioner on the basis of sex, in violation of the Florida Civil Rights Act of 1992 ("FCRA"), section 760.10, Florida Statutes; and, if so, the remedy to which Petitioner is entitled.
Findings Of Fact The Parties Petitioner, Ileene C. McDonald, is a female, and, thus, is a member of a class protected under the FCRA. At the time of the alleged discriminatory conduct that gave rise to this proceeding, Petitioner was employed by Kelly Services ("Kelly") as a temporary employee and was assigned to work at Respondent's facility located in Riviera Beach, Florida. Respondent is a limited liability company registered to do business in Florida. It owns and operates a beverage bottling facility in Riviera Beach, Florida. It is owned by PepsiCo, Inc. ("PepsiCo"). Respondent is an "employer," as that term is defined in section 760.02(7).4/ Evidence Adduced at Hearing As noted above, Petitioner was employed by Kelly as a temporary worker. Pursuant to a national contract between Respondent and Kelly, Petitioner began working at Respondent's facility as a temporary worker in early to mid-May 2016.5/ She was assigned to work in a warehouse, sorting and preparing cardboard sheets for use and reuse in Respondent's processes. Her work hours were from 7:00 a.m. to 4:00 p.m., Monday through Friday. Petitioner credibly testified that as soon as she started working at Respondent's facility, she was constantly subjected to verbal and physical harassment of a sexual nature from one of Respondent's hourly-paid employees, Brandon Owens. The credible evidence establishes that on an essentially daily basis, Owens made suggestive and overt comments of a sexual nature to Petitioner. These included remarks about her "nice small frame" and, among other things, suggestions that they "spend time together" and engage in acts involving "whipped cream, strawberries, and chocolate sauce." Additionally, on one occasion, Owens grabbed Petitioner's arm and told her "you need a real man." These actions by Owens made Petitioner uncomfortable, nervous, and frightened for her personal safety. Petitioner credibly testified that she repeatedly verbally rebuffed Owens' advances and that on the occasion when he grabbed her arm, she hit him and told him if he didn't leave her alone, she was going to hurt him. Petitioner testified, credibly, that some of Respondent's workers observed Owens talking to Petitioner on numerous occasions. Petitioner identified these workers as "Eugene Johnson" and "Willie Tate." She testified, credibly, that she told Johnson and Tate about being harassed and bothered by Owens. She testified that they told her to contact "Reggie," and that she had tried to do so, but was unable to reach him. The evidence does not establish how many times Petitioner attempted to reach him. Although Petitioner thought Johnson was a supervisor at Respondent's facility, the evidence establishes that neither Johnson nor Tate was in a supervisory or management position at Respondent's facility. As such, neither was under any employment-imposed duty to report Owens' conduct to Respondent's management. The evidence establishes that the "Reggie" whom Petitioner had attempted to contact was Reggie Tribble, a warehouse supervisor for Respondent's first shift at its Riviera Beach facility. Tribble was Petitioner's direct supervisor. However, the credible evidence establishes that Petitioner did not contact Tribble, and that he did not observe, was not informed of, and did not otherwise know about Owens' conduct toward Petitioner. Petitioner testified that another employee, Robert Gary Walker, frequently saw Owens near her at work. She testified: He [Walker] noticed that he was constantly over by me. And he asked, 'is he bothering you,' and he was looking at me and he turned his head. I started shaking my head 'yes' and he left. And a little while after that, Gary came back and he said —— 'Gary tried to get me in trouble, but Reggie didn't do anything.' I don't know what was said after they went over that way, but that's what Brandon told me when he came back. I don't know if it was true or not, but that's what Brandon told me.[6/] Petitioner testified that based on this discussion with Walker, she thought he would report Owens' behavior to the appropriate authority at Respondent's facility. The evidence establishes that Walker was a supervisor on Petitioner's shift.7/ Petitioner also credibly testified that while she worked at Respondent's facility, other male workers who drove forklift trucks often would come around to where she was working to talk to her, and that some had asked for her telephone number and had asked her out on dates. She credibly testified that she consistently rebuffed their advances. On or about the morning of June 17, 2016, as Petitioner arrived at work, Owens drove a semi-trailer truck in front of her, cutting her off as she approached the warehouse in which she worked. This badly frightened her. Petitioner credibly testified that as a result of Owens' action in cutting her off by driving a truck in front of her, she was afraid for her personal safety, and that as result, she left Respondent's facility and did not return. Petitioner's last day of work at Respondent's facility was June 17, 2016. On June 20, 2016, Petitioner reported Owens' behavior to Christie Finnerty, her supervisor at Kelly. This was the first time Petitioner had reported Owens' conduct to Kelly. She also testified that she "may" have verbally reported to Finnerty at that time that a man on a forklift truck came over to talk to her while she was working at Respondent's facility. Finnerty completed a Harassment Complainant Interview ("Harassment Form") memorializing Petitioner's statements regarding the alleged harassment. Attached to the form were four handwritten pages prepared by Petitioner, describing Owens' conduct toward her. Petitioner signed the form and handwritten pages. On cross-examination, Petitioner acknowledged that she did not report Owens' behavior or that of Respondent's other male employees who had talked to her, asked her out, or asked for her phone number, to Respondent's management. The competent, credible evidence establishes that on one occasion, in response to a question from Walker, she confirmed that Owens was "bothering" her. However, there is no evidence showing that Petitioner specifically told Walker that Owens had made physical and verbal advances of a sexual nature toward her, and there is no evidence showing that Walker was otherwise aware of the sexual nature of Owens' conduct toward Petitioner. Petitioner testified that the incident in which Owens drove a truck in front of her "rattled her nerves a little bit," affected her sleep and appetite, and bothered her "a lot," but that she can "get over it."8/ On June 21, 2016, Finnerty contacted Respondent's production supervisor, Norman Medina, by electronic mail ("e-mail") to inform Respondent of Petitioner's harassment complaint that was filed with Kelly on June 20, 2016. Attached to the e-mail were the Harassment Form and a video depicting an individual identified as Brandon Owens. Medina immediately notified Respondent's Riviera Beach plant director, Armando Velez, of Petitioner's harassment complaint. By e-mail sent on June 21, 2016, Velez notified Jacer Collins, Respondent's senior human resources manager for the south and southwest Florida markets, of Petitioner's complaint. Collins was at Respondent's Miami location when she was informed of Petitioner's complaint. On June 22, 2016, Finnerty forwarded to Collins and Velez a copy of the video showing Brandon Owens talking to Petitioner. Also attached to the e-mail was a photograph that appeared to be a still shot of Owens taken from the video. The video, taken by Petitioner and depicting her vantage point, shows Owens approaching Petitioner in the warehouse where she was working. Owens and Petitioner are the only individuals that appeared in the video. Owens followed Petitioner and stood in close proximity to her as the video was recorded. Parts of the conversation between Petitioner and Owens are unintelligible due to the background noise of the vacuum Petitioner was using. However, Petitioner can be heard telling Owens "I can't stand you," Owens asking why, and Petitioner responding "you know why" and admonishing Owens for grabbing her. Owens responded that he was just playing with Petitioner, apologized, and said he would not come over to talk to her anymore. The evidence does not definitively establish the date on which the video was taken. PepsiCo has adopted a global equal employment opportunity policy that applies to, and is enforced by, Respondent in the operation of its Riviera Beach facility. Among other things, this policy prohibits discrimination on the basis of sex. Additionally, PepsiCo has adopted a global anti- harassment policy, also applicable to and enforced by Respondent, that prohibits any type of harassment or discrimination based on race, color, religion, sex, sexual orientation, gender identity, age, national origin, disability, veteran status or any other category protected by law. The policy states in pertinent part: Sexual Harassment According to PepsiCo policy, sexual harassment is any verbal, visual or physical conduct of a sexual nature that is unwanted and that a reasonable person, on account of his or her gender, would find offensive. * * * Sexual harassment includes unwelcome sexual advances; requests for sexual favors; and other verbal or physical contact of a sexual nature when: * * * Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Sexual harassment can occur in many different forms. It can be physical, verbal, visual or in a written form. Examples of sexual harassment include but are not limited to: unnecessary and unwelcome touching; unwelcome sexual flirtation; direct or subtle pressure for sexual activity; coercion to date or unwelcome demands for dates; unwelcome or offensive sexual jokes, innuendo, lewd language or obscenities; explicit or degrading remarks about another person or his/her appearance or body; e-mails, posters, graffiti, calendars or other sexually suggestive pictures or objects displayed in the work place; demands for sexual favors accompanied by implied or overt threats concerning pay or other aspects of employment; the taking of or refusal to take any personnel action based on an employee's submission to or refusal to submit to sexual overtures or behavior. * * * Reporting Procedure If you are being subjected to conduct that you believe violates this policy, you should: Step 1: Tell or notify the offending person that such conduct is not welcome and to stop. Step 2: In addition to Step 1, immediately report the incident or your complaints to your supervisor. However, if you believe it would be inappropriate to discuss the matter with your supervisor or you are uncomfortable discussing the matter with your supervisor, report the matter to your Human Resources Representative. You may also contact the PepsiCo Speak Up Line. In the U.S., call 1-866-729-4888 . . . . You may file a complaint via the Speak Up Webline by visiting https://speakup.eawebline.com[.] Step 3: If additional incidents occur, you should immediately report them to the above individuals. Any reported incident will be investigated by the Company. Complaints and actions taken to resolve complaints of harassment or discrimination will be handled as confidentially as possible. Retaliation against an employee who makes a claim of harassment or discrimination is prohibited. Violation of this policy, including retaliation against a person who brings a claim and/or who participates in an investigation pursuant to this policy, may result in discipline up to and including termination on the first offense. Further, any manager/supervisor who receives a complaint of harassment, discrimination or retaliation and fails to notify Human Resources will also be subject to disciplinary action, up to and including termination of employment. As soon as Respondent was informed of Petitioner's complaint, it initiated an investigation of the matter. Specifically, on June 23, 2016, Collins interviewed employees, including Johnson and Owens, at the Riviera Beach facility. Owens was not scheduled to work on June 21 or 22, so June 23 was his first day available to be interviewed. Owens denied having spoken to Petitioner and denied all of her allegations regarding his conduct toward her. Respondent suspended Owens from his employment on June 23, 2016. Owens was escorted from Respondent's facility that day and not allowed to return pending completion of the investigation into Petitioners' complaint. Respondent's investigation confirmed that Owens had engaged in the conduct that Petitioner had alleged. Specifically, the video that Petitioner provided, as well Owens' inconsistent answers to questions Collins asked him based on the information provided by Petitioner in the Harassment Form, established that Owens had engaged in the sexually harassing conduct that Petitioner had alleged in the Harassment Form. This conduct violated Respondent's Global Anti-Harassment Policy. On July 12, 2016, Respondent terminated Owens' employment.9/ As part of its investigation into Petitioner's complaint, Respondent also attempted to identify the forklift drivers, including a "Hispanic male" driver to which Petitioner had referred in the handwritten pages attached to the Harassment Form. However, due to the non-specific description provided in the Harassment Form, Respondent was unable to identify the forklift drivers, including the "Hispanic male" driver, who Petitioner claimed made unwelcome advances toward her.10/ It is undisputed that while she was employed at Respondent's Riviera Beach facility, Petitioner did not report to Respondent's management or to her supervisors that forklift drivers had engaged in unwelcome advances toward her. Additionally, in the handwritten pages attached to the Harassment Form, Petitioner acknowledged that the "Hispanic male" forklift driver had approached her only once and that at the time, she "didn't think it was something to report." The credible evidence establishes that once Respondent concluded its investigation, verified Petitioner's allegations regarding Owens' conduct, and terminated Owens, Respondent contacted Finnerty at Kelly Services to let her know that Petitioner was welcome to return to her temporary position at Respondent's facility. Petitioner declined to do so. Findings of Ultimate Fact As discussed in greater detail below, the credible, persuasive evidence establishes that while she was employed at Respondent's Riviera Beach facility, Petitioner suffered severe, pervasive harassment as a result of Owens' frequent verbal and physical advances of a sexual nature toward her. However, the competent, persuasive evidence does not establish that Respondent received, during Petitioner's employment at Respondent's facility, either constructive or actual notice of the sexual nature of Owens' conduct toward Petitioner. The evidence shows that Petitioner indicated, by nodding her head in response to a question from Walker, that Owens was "bothering" her. However, there is no competent, credible evidence in the record showing that Petitioner specifically informed Walker of the sexual nature of Owens' conduct toward her, or that Walker otherwise had knowledge of such conduct. Thus, at most, the evidence shows only that Walker was informed that Owens was "bothering" Petitioner. Further, there is no competent evidence establishing that any other supervisors or managers of Respondent's Riviera Beach facility were aware, or should have been aware, of the sexual nature of Owens' conduct toward Petitioner. The evidence shows that Respondent only received notice of Owens' sexual conduct toward Petitioner when she complained to Kelly after she had left her employment with Respondent, and Kelly then forwarded that complaint to Respondent. The credible, persuasive evidence further establishes that as soon as Respondent received notice of Owens' conduct, it immediately initiated an investigation and interviewed persons identified by Petitioner as witnesses, including Johnson and Owens. As a result of Respondent's investigation, Owens was suspended from employment on the day he was interviewed, and was terminated from employment once Respondent completed its investigation——approximately 21 days after Respondent received notice of Owens' harassing behavior toward Petitioner. Additionally, the evidence shows that Respondent diligently attempted to identify and investigate the forklift drivers who were mentioned in the Harassment Form and accompanying pages, but due to the non-specific description provided therein, were unable to do so.11/ Finally, the credible, persuasive evidence establishes that once Owens was discharged, Respondent contacted Kelly to let them know that Owens was no longer employed at the Riviera Beach facility, and that Petitioner was welcome to return to her previous position. Notwithstanding that Owens no longer worked there, Petitioner refused to return.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 17th day of November, 2017, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2017.
