The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes, (2010), by discriminating against Petitioner on the basis of sex through the creation of a hostile work environment or through constructive discharge, and if so, what remedy should be ordered.
Findings Of Fact Respondent Department of Corrections (Department) is an agency of the State of Florida responsible for the custody of inmates in state prisons. It operates the Reception and Medical Center in Union County, Florida, to process newly committed inmates into the state prison system and provide primary medical care to inmates. The Department employs over 15 employees. The Department has a policy, Procedure #208.052, which instructs all employees regarding the proper filing and processing of discrimination complaints. The Department has a Sexual Harassment Rule, Procedure or Policy, COER-1, which instructs all employees regarding their responsibility in reporting and filing discrimination complaints. The Department has a policy, Procedure #602.008, which instructs all employees on how to take appropriate action to report inappropriate inmate behavior. Ms. Stephanie Neff,1/ Petitioner in this case, is a woman who first began working for the Department as a Certified Nursing Assistant in March of 2008. On July 15, 2008, she submitted a letter of resignation because she was planning to leave her husband and return to South Florida due to marital problems. However, she and her husband sought marriage counseling and on July 24, 2008, she rescinded her resignation. She stayed on for over a year until she resigned in August of 2009. She was subsequently re-employed on March 19, 2010, as a clerk specialist for the period of employment at issue here, until she again quit her job on or about July 1, 2010. When Ms. Neff began her employment on March 19, 2010, she received an anti-discrimination information sheet, referencing the Department's Sexual Harassment Brochure, COER-1, and advising that complaints could be filed with the Senior Personnel Manager of Employee Relations at the appropriate service center or with the Supervisor of the Employee Relations and Program Section of the Bureau of Personnel, which she signed. When Ms. Neff began her employment on March 19, 2010, she also received and signed an Equal Opportunity and Anti- Harassment Statement advising that complaints could be filed with the Senior Personnel Manager of Employee Relations at the appropriate service center or with the assistant chief of the Employee Relations and Program Section of the Bureau of Personnel in Central Office, and advising her that complaints could also be filed with the Florida Commission on Human Relations or the Equal Employment Opportunity Commission. When Ms. Neff began her employment on March 19, 2010, she received Department policies which detailed her responsibilities regarding sexual harassment in the workplace and signed a receipt for those policies. Through Ms. Neff's receipt of the Sexual Harassment Brochure, COER-1, she became aware of her reporting responsibilities in relation to acts of sexual harassment in the workplace. When Ms. Neff commenced her employment on March 19, 2010, she received Department policies which detailed her responsibilities regarding Non-Security Staff Instructions for Reporting Inappropriate Inmate Behavior and signed a receipt for those policies. As an employee of the Respondent, Ms. Neff had access to the Department's forms, rules, and procedures through the Department's computer system. Ms. Judith Nader was Ms. Neff's supervisor and next in her chain of command. Ms. Nader, retired from the Department at the time of the hearing, worked for the Department for over 18 years. When Ms. Nader commenced her employment with the Department she received Department policies detailing her responsibilities regarding sexual harassment in the workplace and signed a receipt for those policies. No responsibility is placed on supervisors to report harassment, but "management" is given such a responsibility. Ms. Nader received Department policies which detailed her responsibilities regarding Non-Security Staff Instructions for Reporting Inappropriate Inmate Behavior and signed a receipt for those policies. As an employee of the Department, Ms. Nader had access to the Department's forms, rules, and procedures through the Department's computer system. Ms. Shea Dicks was Ms. Nader's supervisor and next in her chain of command. Ms. Dicks received Department policies which detailed her responsibilities regarding Non-Security Staff Instructions for Reporting Inappropriate Inmate Behavior and signed a receipt for those policies. As an employee of the Department, Ms. Dicks had access to the Department's forms, rules, and procedures through the Department's computer system. In addition to these formal notifications of Department policies on sexual harassment, employees had meetings at which the topics of sexual harassment and reporting procedures were discussed. The Department's sexual harassment policies have not been adopted by rule, are slightly inconsistent, and are not well understood or followed by the Department's employees. On March 26, 2010, Sgt. Patrick Pierce, a Corrections Officer employed by the Department, made comments to Ms. Neff which she has identified as inappropriate. On that day, about a week after Ms. Neff had begun her employment, she had gone outside with another person to smoke a cigarette. They did not have a lighter, so they went to "J-Dorm" (the infirmary) to borrow a lighter from one of the nurses. None of the nurses had one. As they were leaving, Sgt. Pierce asked them what they were looking for, and they replied that they were looking for a lighter. He did not have one, but got one for them from back in the inmate area. After using the lighter, they returned it and Ms. Neff went back to her office located in the portion of the hospital known as "Two West." Only a couple of minutes after Ms. Neff returned to her desk, the phone rang. She answered the phone, "Two West, Neff." The male voice on the telephone said, "Just who I was looking for." She said, "Who is this? How can I help you?" He replied, "You know who this is." She said, "No I don't. I'm really busy, how can I help you?" He said, "You need to bring that view back out here more often. You livened up the scenery." She said, "What are you talking about?" He said, "You need to bring that view back out here more often and if you'll back that ass up, I'll touch it. But you have to back it up because that's the only way I can touch it without getting in trouble." Ms. Neff replied, "The only person I back my ass up to is my husband. Have a nice day." She then hung up the phone. The comment to Ms. Neff on the telephone was sexual in nature and was inappropriate and unwelcome. Ms. Neff then called the J-Dorm nurses station to see if she could identify the caller. The nurse on duty told Ms. Neff that Sgt. Pierce was the only male on duty at the time. Ms. Neff testified at hearing that she immediately reported this incident to Ms. Nader and asked what she should do about it. She testified that Ms. Nader told her that that depended on how badly she wanted her job, telling her, "If you don't rile security they won't mess with you." Sgt. Pierce made one additional comment to Ms. Neff which she identified as inappropriate. Ms. Neff was sent back to J-Dorm to make some photocopies a couple of weeks later. Sgt. Pierce came in and went to the back desk to make a phone call. After the phone call, he closed the door, propped himself against the front desk and said, "So are you going to back that ass up to me now? I can smack it now. No one can see us, we are all alone." Ms. Neff now felt sure that Sgt. Pierce had made the earlier comments, because they were so similar. Ms. Neff testified that she said, "I forgot something" or offered some other excuse to leave the room, and went to the nurses' station. A nurse that was not busy accompanied Ms. Neff back to the room while she finished the copying. When they returned to the room, Sgt. Pierce left without saying anything. Sgt. Pierce's comments to Ms. Neff in the J-Dorm were sexual in nature and were inappropriate and unwelcome. Ms. Neff told Ms. Nader about the incident and asked Ms. Nader what she should do. Ms. Nader again advised Ms. Neff that if she wanted to keep her job, she should keep her mouth shut. She said, "Don't jack with security and they won't jack with you." Ms. Nader said she just would not send Ms. Neff back to J-Dorm anymore. Ms. Neff was the only source of income for her family; she needed her paycheck and decided not to report the incident. Ms. Nader did not report the incident to her superiors either. Ms. Nader's testimony at hearing was somewhat confused. She believed there was only one incident involving Ms. Neff and Sgt. Pierce, rather than two. She testified that at the time Ms. Neff told her about Sgt. Pierce's comment, she did not think that it constituted sexual harassment. She said that Ms. Neff did not seem that upset and that it appeared that Ms. Neff had appropriately handled the situation. Ms. Nader testified that she told Ms. Neff not to say anything because she was trying to protect Ms. Neff. She admitted advising Ms. Neff not to make an accusation against a Security Officer under the circumstances and further testified: Q: Is there an understanding at the DOC that you're not supposed to mess with security? A: There is in my book. There is – the way I look at it, if you don't mess with security . . . now, that's my understanding. Whether or not everybody else understands that, I don't know. But that is the way that I look at it. I can't tell you what other people think or don't think, but I would never mess with them. But, you know, I can't speak for the whole place. Ms. Nader went on to testify that had Ms. Neff stated that she had been sexually harassed, that then, whether Ms. Nader thought it was sexual harassment or not, "we would have sat down and pulled out the policies and procedures" and figured out what to do next. Ms. Neff was never physically touched by Sgt. Pierce and never witnessed him physically touch anyone else. Ms. Neff's total interaction with Sgt. Pierce involved two incidents: one on the telephone and one while she was making copies in J-Dorm. Petitioner was subjected to unwelcome sexual harassment. Petitioner was the object of harassment because of her gender. A couple of weeks later Ms. Tammy Jo Laney, a temporary Health Support Aide at the Reception and Medical Center, called Ms. Neff from the parking lot. Ms. Laney told Ms. Neff that she did not want to go to work because she was scheduled to work in J-Dorm and the security officer that worked there was making comments to her that made her feel very uncomfortable. Ms. Neff advised Ms. Laney to go to work and say nothing. Ms. Neff told her it would not do any good to say anything, because they would just tell her that if she wanted to keep her job, she should keep her mouth shut. Ms. Laney did not follow Ms. Neff's advice. On April 23, 2010, Ms. Laney made a complaint of sexual harassment against Sgt. Pierce. The complaint was made to Ms. Dicks. Ms. Laney explained to Ms. Dicks that she wanted to talk about sexual harassment and then began to cry. Ms. Dicks immediately left the office and returned with a Health Services Administrator and Lieutenant Driggers to continue the meeting. Ms. Laney advised Ms. Dicks that Sgt. Pierce had told her she had pretty eyes and that that had made her uncomfortable. Ms. Laney told Ms. Dicks that a couple of days earlier when she had told Sgt. Pierce that she was going to the doctor, Sgt. Pierce had replied, "You are too sexy to be going to the doctor." Ms. Laney named numerous other women who had told Ms. Laney that Sgt. Pierce had made inappropriate sexual remarks or innuendos to them. Ms. Dicks called Ms. Emmelhainz, the Senior Personnel Manager, and put her on the phone with Ms. Laney, and then left the room so that Ms. Laney could have some privacy when talking with Ms. Emmelhainz. Ms. Laney then went to the Personnel Office to file a complaint with Ms. Emmelhainz. When Ms. Emmelhainz receives a sexual harassment complaint, she sends it to the Central Office Employee Relations Section, which turns it over to the Inspector General's Office for an investigation. The report then goes to the Warden. If discipline is warranted, the Warden then coordinates with Ms. Emmelhainz in the Personnel Office and with the legal office. Between April 23 and April 26, 2010, the Department moved Sgt. Pierce from the RMC Main Unit to the RMC West Unit. Following Sgt. Pierce's move from the Main Unit to the West Unit, Ms. Neff did not have to work with or see him again while working for the Department. After Sgt. Pierce had been moved to the West Unit, Ms. Nader again assigned Ms. Neff some clerking duties at J-Dorm in the evenings. On Monday, April 27, 2010, Ms. Neff was sent to J-Dorm to work. While she was there, Nurse Kristina Imler, LPN, told her about a conversation that Nurse Imler had had with a paraplegic inmate, Ernest Horton. As relayed by Nurse Imler, inmate Horton had asked Nurse Imler who Ms. Neff was. When Nurse Imler said, "That's Neff," inmate Horton replied, "Oh, my boy Pierce told me that she was the one who had turned him in." Nurse Imler further relayed to Ms. Neff that everyone was talking about her. There was some discrepancy between Ms. Neff's hand- written incident report of April 30, 2010, the audio recording she made on June 14, 2010, and her later testimony at hearing on June 1, 2012, as to exactly what she was told by Nurse Imler. Her two accounts from 2010 are more consistent with Nurse Imler's hearing testimony and with Nurse Imler's 2010 written statement. Ms. Neff's earlier accounts have been credited over Ms. Neff's testimony at hearing. Ms. Neff was concerned that inmate Horton believed she was the person who had reported Sgt. Pierce's conduct. She considered inmate Horton's remark as threatening, and advised Ms. Nader what she had been told. Ms. Neff testified that Ms. Nader told her that she would report it to Ms. Dicks. Ms. Nader did not recall talking with Ms. Neff about inmate Horton, but did remember telling someone that Ms. Neff did not have anything to do with turning in Sgt. Pierce, that it was somebody else, and that Horton "had his story wrong." Ms. Neff has never spoken directly to inmate Horton nor heard him make any reference to Sgt. Pierce. When Ms. Neff heard the statements allegedly made about her by inmate Horton she did not complete a Disciplinary Report. Meanwhile, after her meeting with Ms. Laney, Ms. Dicks had begun to contact the women that Ms. Laney had named who were also Ms. Dick's subordinates to ask them if they had also been subjected to inappropriate sexual comments from Sgt. Pierce. She contacted Ms. Neff and asked to talk with her. On April 28, 2010, Ms. Neff met with Ms. Dicks in her office and Ms. Neff told her about the telephone incident, the copier incident, and the more recent remark attributed to inmate Horton. Ms. Dicks told Ms. Neff that the advice Ms. Nader had earlier given her to stay silent to keep her job was not acceptable. Ms. Dicks told Ms. Neff to complete an Incident Report but to return it to Ms. Dicks rather than send it up the security chain. Ms. Dicks also advised Ms. Neff to call Ms. Emmelhainz because in addition to the comment from inmate Horton there was possible sexual harassment. Ms. Dicks did not advise Ms. Neff to fill out an actual Complaint for sexual harassment. When Ms. Nader next came on shift, Ms. Dicks talked to her about Ms. Nader's response when Ms. Neff had reported Sgt. Pierce's comments. Ms. Nader admitted telling Ms. Neff to just forget it and do her job. Ms. Dicks told Ms. Nader that Ms. Nader could not do that and told her that even if Ms. Neff did not want to come forward, that Ms. Nader, as her supervisor, had a duty to report such incidents. It was Ms. Dick's understanding that before inmate Horton became a paraplegic, he had been very violent. Ms. Dicks went to Nurse Imler and asked her to file an incident report regarding her conversation with inmate Horton. Ms. Dicks also talked with Major Willie Smith about the incident involving inmate Horton, and Major Smith told her that he would handle it. On or about April 29, 2010, Ms. Imler completed an incident report concerning statements made by inmate Horton. On or about April 29, 2010, an investigation was initiated into allegations that Sgt. Pierce sexually harassed the Department's employees, identified as Case No. 10-2-5291. Prior to April 29, 2010, and the initiation of the investigation into allegations that Sgt. Pierce sexually harassed the Department's employees, Ms. Neff did not do any of the following in accordance with Department Procedure 208.052: File a complaint of discrimination by contacting the Assistant Chief of Employee Relations and Programs Section in the Bureau of Personnel; File a complaint of discrimination by contacting the Florida Commission on Human Relations; File a complaint of discrimination by contacting the Equal Employment Opportunity Commission; File a complaint of discrimination through the Department's internal formal procedure; File a complaint of discrimination through the Department's internal informal procedure. On April 30, 2010, Ms. Neff filed an Incident Report alleging Sgt. Pierce sexually harassed her. Ms. Neff completed her Incident Report and brought it directly to Ms. Dicks, as she had been instructed. Ms. Dicks immediately delivered the Incident Report directly to the Warden's office. Warden Riedl did not sign off on the Incident Report at the bottom as he customarily does. Warden Riedl testified that he believed the Incident Report had been dropped off at his office, but that due to its confidential nature it had then been immediately faxed to Personnel and the Inspector General's office. Warden Riedl identified a FAX number printed on the top of the incident report as the FAX number from his office. Under Department Policies, as testified to by Warden Riedl, sexual harassment should not be reported using an incident report filed through chain of command channels, but rather should be filed as a discrimination Complaint with an "intake officer" through Personnel, and sent from there to the Inspector General to conduct an investigation. Ms. Neff testified that subsequently she overheard Corrections Officers talking about her. They would say things such as, "Oh, that's Neff. You have to watch out for her." She testified that officers would not go into stairwells with her or get into the elevator with her. She testified that she was being treated as if she were the one who had done something wrong. She testified that these comments upset her. She noted that she depended on Corrections Officers for security and that she was worried that they might not protect her if she needed their help. Petitioner stated that she did not want to go to work, that a job that she had once enjoyed became a job she hated. It became "just a way to earn a paycheck." On May 6, 2010, Ms. Dicks sent a memo requesting discipline of Ms. Laney for having 17 unscheduled callouts, 3 tardies, and for leaving early on 3 occasions from February through April. Ms. Dicks testified that she submitted documentation on each of the unscheduled call-outs along with her request for discipline. This information was supplied by Ms. Nader and others on the shift. Ms. Emmelhainz received the recommendation for discipline against Ms. Laney. Ms. Emmelhainz testified that the attached documentation had been made by various individuals at the time of the unscheduled call out or early departure, but had been forwarded to Ms. Dicks at later dates. All were signed by Ms. Dicks on dates after the complaint of sexual harassment had been filed. Ms. Emmelhainz testified that it was not unusual for a supervisor to accumulate notes and memos and send them up only when they were seeking discipline. Ms. Emmelhainz testified that 17 incidents over a 90 day period was "a lot." At the time she received the request for discipline on Ms. Laney, she remembered that Ms. Laney had filed a sexual harassment claim earlier. Ms. Emmelhainz remembered discussing with corrections officials whether or not Ms. Laney should be disciplined in light of the recent complaint: And I said if we would normally discipline the person, we should not let the sexual harassment complaint interfere with it. We're not going to treat anybody any different, but if we would – anybody else, if we would treat them and do discipline, then we need to do discipline on her. The sexual harassment complaints should not interfere with that. Ms. Emmelhainz testified that termination was appropriate for a temporary OPS employee with attendance problems such as those reflected in the documentation on Ms. Laney. On May 27, 2010, Ms. Laney received a Letter of Termination of her employment from the Florida Department of Corrections signed by Warden Riedl. In the Inspector General's Report of the investigation, it is recorded that Ms. Neff stated she "knows why Nurse Laney got fired but it was convenient that it happened like it did." Ms. Laney testified that she did not have 17 unexcused absences. She stated there were two occasions when she called in to say she was sick and could not come to work. Ms. Laney testified that she believed she was fired because she filed a Complaint about sexual harassment. On or about June 8, 2010, Inspector Marrell Sercy of the Inspector General's Office initiated his investigation into Ms. Laney's complaint of sexual harassment. He interviewed Ms. Laney on June 9, Ms. Dicks on June 10, Nurse Johns and Nurse Holmes on June 11, Ms. Neff and Nurse Imler on June 14th, Ms. McKee and Officer Prevatt on June 15, Sgt. Pierce on June 18, Warden Riedl on June 29, Officer Owens on July 19, and Nurse O'Neal and Sgt. Pierce again on July 21, 2010. Meanwhile, on July 6, 2010, Ms. Nader left a message for Ms. Neff on her cell phone because on July 1, 2010, Ms. Neff had left work early on a family emergency and had not been back since. Ms. Neff called back about 5:00 pm to say that due to her family situation and for her personal safety it was necessary for her to leave the state and that she would not be coming back to work. Ms. Neff said that she was sorry it had to be that way but that it was necessary. Ms. Nader then transferred the call to Ms. Dicks. Ms. Nader documented this phone conversation on a form DC2-610. Ms. Neff told Ms. Dicks that she had talked with a staff person on July 2, 2010, and told them she would not be in to work that day. She went on to say that due to a personal matter she was going to move out of state and that she was resigning from her job. Ms. Dicks documented this phone conversation on a form DC2-610. The investigation into Ms. Laney's complaint of sexual harassment was completed on or about July 22, 2010. As was usual in complaints of employment discrimination, no recommendation was made, but records of the interviews and information were compiled. Based upon information contained in the Inspector General's Office investigation into Ms. Laney's allegations of sexual harassment, Inspector Stacy Fish of the Inspector General's Office opened an investigation into whether or not Ms. Nader failed to report allegations of sexual harassment that had been made to her. Inspector Fish listened to the interview of Ms. Neff, but was unable to interview her again because she had resigned and no one had any information on how to contact her. On October 22, 2010, Inspector Fish interviewed Ms. Nader, who stated that she did not remember Ms. Neff ever reporting to Ms. Nader that she had been sexually harassed by Sgt. Pierce. Almost four months after Ms. Neff quit her job, and while Sgt. Pierce was still working in the West Unit, there was another incident involving Sgt. Pierce. On October 29, 2010, Sgt. Gillian Scott, a female Corrections Officer, filed a Department of Corrections Discrimination Complaint, form DC2-881, accusing Sgt. Pierce of sexual harassment. Sgt. Scott alleged that Sgt. Pierce had exposed himself to her and crudely asked her to perform sexual acts. On October 29, 2010, through letter signed by Warden Riedl, Sgt. Pierce was placed on administrative leave "pending investigation of charges which could result in your dismissal." Another Inspector General investigation, Case No. 10- 2-10464, was commenced against Sgt. Pierce based upon Sgt. Scott's allegations. Sgt. Pierce was issued a Permanent Status Career Service Extraordinary Dismissal Letter dated February 2, 2011. The Extraordinary Dismissal Letter to Sgt. Pierce stated that the investigation into complaint #10-2-5291 filed by Ms. Laney had determined that Sgt. Pierce made unwanted sexual comments and sexual innuendos to Tammy Laney, Stephanie Neff, Charity Johns, Elizabeth Holmes, Kristina Imler, and Barbara McKee. It further stated that investigation into complaint #10- 2-10464, filed by Sgt. Scott, had determined that Sgt. Pierce had exposed himself and crudely solicited Gillian Scott to masturbate him and engage in oral sex with him. The Extraordinary Dismissal Letter was signed by Warden Riedl. Ms. Neff filed a complaint with the Florida Commission on Human Relations on June 16, 2011. The complaint was in letter form, signed by the complainant and verified, and was sufficiently precise to identify the parties and to describe generally the action or practice complained of. The FCHR Charge Form was signed by Ms. Neff on July 26, 2011. The Commission issued a Determination of No Cause on January 13, 2012, and Ms. Neff filed her Petition for Relief alleging an unlawful employment practice on February 8, 2012. On February 10, 2012, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge. The hearing was held on June 1, 2012. In her testimony at hearing, Ms. Neff attempted to connect her references to "family situation" and "personal matter" that she gave as the reasons for her resignation in July 2010, to her subsequent complaint of sexual harassment. She stated, I no longer trusted the people I was supposed to trust to protect me. It was causing problems at home. The hang-up phone calls. The stress. The yelling at my kids because they were five minutes late walking from the bus stop. My husband told me it was either quit my job with the Department or our marriage was going to end. I quit my job with the Department. However, Ms. Neff's explanation at hearing that she had actually been referring to the sexual harassment at work when she explained why she was leaving was not credible, and Ms. Neff did not demonstrate that she resigned because work conditions were intolerable. The comments of Correctional Officers made in Ms. Neff's presence that "we need to watch out for her" or words to that effect were hurtful, but were not directly threatening. Under all of the circumstances, an objective person would not conclude that the Corrections Officers making them would not protect her if an inmate attempted to hurt her in some way. There was no evidence that any Corrections Officer other than Sgt. Pierce ever sexually harassed Ms. Neff or any other person at the reception and Medical Center. It is not reasonable to assume they were all guilty of such conduct and were therefore afraid of Ms. Neff also turning them in. An objective person would instead conclude that being unaware of the true facts about Sgt. Pierce's behavior, security personnel were concerned that they not be wrongly accused by Ms. Neff. Ms. Neff's belief that these security personnel were unhappy that Ms. Neff (as they erroneously thought) had turned in Sgt. Pierce for sexual harassment was reasonable under the circumstances; her further conclusion that they would therefore want her to be hurt and so would not do their duty to protect her against physical injury from an inmate was not warranted. At hearing Ms. Neff testified that she did not leave work early before the end of her shift on July 1, 2010. She testified that she did not leave for a family emergency. Ms. Neff testified that she left the State and went to Alabama with her daughter but without her husband. She stated, "He stayed in Florida and took care of our stepson and his pregnant girlfriend. She could not leave the state due to prenatal care. I had just met my biological father a year and a half before. My daughter and I went to vacation with him for the summer so I could get to know him." Petitioner is a member of a protected class. Sgt. Pierce's statements, the remark by inmate Horton, and the comments by Corrections Officers were constituent parts of one broader working environment. The sexual harassment Of Ms. Neff was not so severe or pervasive that it altered the interpersonal climate of the workplace or created an objectively abusive and hostile atmosphere. The facts do not support the conclusion that the Department of Corrections discriminated against Ms. Neff on the basis of sex.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaints. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 30th day of November, 2012
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
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 The issue is whether Respondent engaged in an unlawful employment practice in violation of Section 760.10, Florida Statutes (2009),1 by discriminating against Petitioner based on her gender and by allowing her to be sexually harassed.
Findings Of Fact Respondent is a for-profit Florida corporation owned by Robert J. Morrisseau, Sr. Even though he was Respondent's president, Mr. Morrisseau, Sr., was not usually involved in the company's day-to-day operations. Robert J. Morrisseau, Jr., is Respondent's vice- president. Mr. Morrisseau, Jr., was primarily responsible for the company's operation. He also served as crew supervisor. Most of Respondent's work, which involved installing carpeting and tile in commercial facilities, was performed in locations that required the work crew to travel. Respondent's crew often had to stay in motels. Respondent contracted with an employee leasing company to handle Respondent's payroll and workers' compensation administration. All employees filled out an application provided by the employee leasing company, but Respondent made all hiring and firing decisions. Respondent did not give its employees information regarding Respondent's human resource policies and procedures. Employees were not told what to do when they believed someone in the company was discriminating against them. Petitioner is a female who dated Mr. Morrisseau, Jr., in the fall of 2008. While they were dating, Mr. Morrisseau, Jr., told Petitioner he would give her a job and teach her to lay tile. Petitioner and Mr. Morrisseau, Jr., stopped dating in December 2008. However, Mr. Morrisseau, Jr., made good on his promise to Petitioner, hiring her as a laborer on January 26, 2009. In January 2009, Mr. Morrisseau, Jr., wanted to reestablish a personal relationship with Petitioner. Mr. Morrisseau, Jr., hoped giving Petitioner a job would facilitate that goal. Petitioner was thankful for the job, but she did not want to date Mr. Morrisseau, Jr., again. At all times material here, Mr. Morrisseau, Jr., was Petitioner's supervisor. He also employed and supervised Petitioner's sister and her boyfriend and Petitioner's daughter and her boyfriend. Off and on in January 2009 through March 2009, Mr. Morrisseau, Jr., supervised a crew laying carpet and tile in Spanish Fort, Alabama. Petitioner and Petitioner's daughter and sister and their boyfriends were also part of the crew on at least two trips to Alabama. Mr. Morrisseau, Jr., rented three motel rooms for the Alabama job. He took one room with one bed. The other two rooms had two beds. On one occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep in the room with him or with her sister and the sister's boyfriend or the other male employees. On another occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep with her daughter and her daughter's boyfriend or the other male employees. On both occasions, Petitioner chose to sleep on the extra bed in a room with one of the couples. Mr. Morrisseau, Jr., never threatened Petitioner, directly or indirectly, with consequences if she did not choose to stay in his room. There is no evidence that Petitioner felt Mr. Morrisseau, Jr., was giving her a quid pro quo choice. Petitioner's job responsibilities included driving company vehicles, preparing floors for tile, and learning to lay tile. She was not expected to carry 40-foot rolls of carpet or to carry heavy loads of tile up three flights of stairs. However, Petitioner was willing to help any way she could. One time in Alabama, Petitioner and her daughter were on their knees, preparing a floor for tile. Mr. Morrisseau, Jr., took pictures of the women from the back and made a comment about the daughter's backside, stating it was as big as a man's. Respondent also had a job in Daytona Beach, Florida. Petitioner was part of the crew that worked in Daytona Beach, along with Mr. Morrisseau, Jr., and several male employees during the weeks of February 27, 2009, and March 2, 2009. Once again, Mr. Morrisseau, Jr., rented three motel rooms. He gave Petitioner the option of staying in the room with him or with the other men. Mr. Morrisseau, Jr., did not think anything of asking Petitioner if she wanted to stay in the room with him because he and Petitioner had stayed in the same hotel room previously on other occasions. During the weeks of February 27, 2009, and March 2, 2009, Petitioner elected to stay in the room with her co-workers rather than in the room with Mr. Morrisseau, Jr. There is no evidence that Petitioner believed Mr. Morrisseau, Jr., was giving her a quid pro quo choice. On one trip to Daytona Beach, Florida, Mr. Morrisseau, Jr., and another male employee bought cocaine and brought it back to the motel. Petitioner does not deny that she used some of the cocaine that night. The next morning, the crew, including Petitioner, went back to work at 7:30 a.m. On March 11, 2009, Respondent fired Petitioner. During the hearing, Mr. Morrisseau, Jr., testified that he did not fire Petitioner because she used drugs in Daytona Beach. This testimony is contrary to a statement made by Mr. Morrisseau, Sr., in an e-mail dated December 7, 2009. During the hearing, Mr. Morrisseau, Jr., testified that Petitioner was not fired because she was a woman and inadequate to perform the work. However, Petitioner and other employees heard Mr. Morrisseau, Sr., and Mr. Morrisseau, Jr., state that Petitioner and her daughter, as females, were inadequate for the job and/or that women did not need to work out of town. According to Mr. Morrisseau, Jr., he fired Petitioner because, after returning from Daytona Beach, Petitioner's work was not satisfactory. He claims that she failed to report for work because she was using illegal drugs with her boyfriend. He also claims that Petitioner was fighting with other employees, referring to an alleged altercation between Petitioner and her daughter. Mr. Morrisseau, Jr., admitted during the hearing that he had no first-hand knowledge that Petitioner continued to use drugs after returning from Daytona Beach. He did not see Petitioner fighting with other employees. Mr. Morrisseau, Sr., testified at hearing that he had no issue with Petitioner's work the one weekend he went to the Alabama job. According to Mr. Morrisseau, Sr., Petitioner "worked her little tail off" that weekend. The reason Mr. Morrisseau, Jr., gave for terminating Petitioner's employment is not credible. The most persuasive evidence indicates that Mr. Morrisseau, Jr., terminated Petitioner's employment because she was a woman and, in his opinion, inadequate to do the job. Respondent also fired Petitioner's daughter on March 11, 2009. However, Respondent rehired the daughter on March 20, 2009. The daughter worked for Respondent until the company went out of business in June 2009. The jobs in Alabama and Florida were not done properly. Mr. Morrisseau, Sr., had to bring in another company to redo and complete at least five jobs. Mr. Morrisseau, Sr., closed down the business and let all employees go in June 2009. Petitioner was unemployed from March 11, 2009, through January 1, 2010. She is entitled to lost wages for that period of time. However, Petitioner failed to present any evidence regarding the amount of lost wages during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order, directing Respondent to cease violating Section 760.10, Florida Statutes. DONE AND ENTERED this 16th day of June, 2010, 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 16th day of June, 2010.
The Issue Whether Respondent, Carrabba's Italian Grill, Inc., subjected Petitioners, Jasen Baker and Bernard Southwell, to a hostile work environment and retaliation in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Respondent operates a chain of casual Italian restaurants. Respondent has adopted a policy against discrimination and harassment. In addition to prohibiting harassment, the policy instructs employees whom to contact if they experience harassment. The policy is contained in an employee handbook that is distributed to all employees during the initial orientation process. During orientation, Respondent's manager reviews the employee handbook with the new employee, including the policy on sexual harassment. During the orientation process, Respondent also requires employees to view a video that explains that Respondent will not tolerate harassment. The video familiarizes the employees with the company's expectations regarding the reporting of harassment in the workplace. During the orientation process, the employees are required to sign an acknowledgment on the exterior of their employee folders indicating that they have received and read the policy against harassment. The critical sections of the policy are reprinted on the folders immediately above the signature lines. All of Respondent's restaurants are required to display a poster known as the "Carrabbamico Info" poster in the kitchen area. This poster reprints the harassment policy and provides employees with a list of names to call if they feel that they have been harassed. Respondent has implemented reasonable precautions to prevent harassment from occurring in its restaurants. In the Central Florida market, Respondent's restaurants are overseen by a joint venture partner named Dick Meyer. Meyer is responsible for hiring and firing the managers of the restaurants that he oversees. In March 2000, Lawton DePriest became the managing partner at Respondent's Palm Bay location. DePriest reported to Meyer. DePriest remained in that capacity until September 2003, when he became the managing partner of Respondent's restaurant located in Formosa Gardens. It was DePriest's management style to frequently yell at employees in order to motivate them. It is also possible that he had favorites on the staff of the Palm Bay restaurant. Baker was hired by Respondent's Palm Bay restaurant in January 2002. At the time that Baker began working for Respondent, he attended an orientation session conducted by DePriest. It was DePriest's practice during orientation to discuss harassment issues and instruct employees to come to him directly if they experience any problems with sexual harassment. If for some reason an employee is not comfortable with him, DePriest would encourage the employee to contact any other person listed on the poster. Baker was given a copy of Respondent's handbook, which contains the company's policy against harassment. On that same date, January 19, 2002, Baker signed his employee folder on the blank line under the harassment policy indicating that he had read and received the policy. Whether he reviewed the employee handbook further after that date is irrelevant. Baker "vividly remembers" that during his orientation, he watched the videotape that included instructions on what he should do if he felt harassed. However, during the hearing, Baker denied ever seeing the Carrabbamico Info poster. However, Baker admitted on cross-examination that during his deposition, he had acknowledged seeing the Carrabbamico Info poster posted in the store. During the deposition, Baker specifically remembered that there were business cards with contact information for Meyer and Cheri Ashe attached to the bottom of the poster. Despite Baker's attempt to deny seeing the poster, his earlier answers in deposition were more credible in view of his specific recollection of the attached business cards and the lack of any persuasive explanation for the discrepancy. After completing his orientation, Baker initially worked as a dishwasher. Later, he was shown how to do food preparation work. Before coming to work for Respondent, Baker had previously worked for a restaurant by the name of Golden Corral. During the time that he worked with Golden Corral, he became acquainted with a co-worker named Bernard Southwell. In the summer of 2002, Petitioners discussed the possibility of Southwell coming to work for Respondent. Baker spoke favorably of the restaurant and recommended that Southwell submit an application. At the time, Baker had worked for Respondent for six or seven months. Baker did not express to Southwell that he had observed or experienced any problems with unwelcome harassment. Southwell submitted an application and was hired by Respondent's Palm Bay restaurant in August 2002 as a dishwasher. At the time he began employment with Respondent, Southwell was living with a friend of his named Joe Corbett. At the time, Baker was living in a one-bedroom apartment with his girlfriend. Several weeks later, Baker's girlfriend decided to move out. According to Petitioners, she suggested to Southwell that he move into Baker's apartment to replace her. Around October 2002, Southwell moved out of the Corbett residence and moved in with Baker. A third employee named Chris Germana also moved into the residence around the same time. Because the apartment only had one bedroom, Germana slept on the couch. Petitioners slept in the bedroom. When employees at the restaurant learned of these arrangements, speculation began about whether the two men were homosexual. According to Petitioners, sometime after Southwell started to room with Baker, co-workers at the restaurant started referring to Petitioners by nicknames. The co-workers referred to Baker as "powder," "crack pipe," and "crack head." Baker knew that "powder" was a reference to a character from the movie "Powder" and that the name had nothing to do with his sexuality. The co-workers also referred to Petitioners as "butt buddies." Southwell testified that a male co-worker, Christopher Bouley, told him, "I know you guys are lovers." Bouley, Arnold Samuel and DePriest all used these nicknames on occasion to refer to both Petitioners, according to Baker. After several months, Southwell eventually went to DePriest and complained about the "powder," "crack pipe," and "butt buddies" nicknames. Southwell told DePriest that the nicknames were funny at first, but that they started getting old. DePriest then told Samuel and Bouley to stop using the nicknames. Thereafter, the use of the nicknames stopped. Southwell claimed that Bouley would gyrate his hips behind other employees as they were bending down. However, Petitioners both admitted that Bouley would do these hip motions to both male and female employees. During the hearing, Petitioners claimed that Bouley subjected them to unwelcome touching. Baker claimed that Bouley had touched his buttocks once. However, Baker acknowledged that when his deposition was taken prior to the final hearing, he did not mention that Bouley touched his buttocks. In fact, when asked during his deposition whether he had been sexually harassed, Baker testified that he had not and that he had only been verbally harassed. Furthermore, Baker made no mention of any physical touching in the Affidavit that he submitted to FCHR at the time he filed his charge of discrimination. Southwell never saw Bouley touch or grab Baker's buttocks. And despite their close relationship, Baker never told Southwell that Bouley had grabbed his buttocks. Accordingly, Baker's allegation that he was touched inappropriately by Bouley or any other of Respondent's employees is not credible. Southwell claimed that Bouley had touched his buttocks on two or three occasions and touched his nipples twice. Southwell also claimed that Bouley had touched his penis on one occasion. According to Southwell, he was bending down to pick up sauté pans when Bouley, who was supposedly standing behind him, reached between Southwell's legs from behind and clutched Southwell's genital area through his trousers. This incident supposedly occurred during the restaurant's hours of operation while customers were in the restaurant. The alleged grabbing supposedly took place in front of a stove that sat in full view of customers seated at the restaurant's bar. Bouley flatly denied ever touching Southwell's genitals or private area. In the Affidavit that Southwell submitted to FCHR at the time he filed his charge of discrimination, Southwell made no mention of Bouley touching Southwell's penis. At the time that he submitted this Affidavit, Southwell was represented by counsel. Southwell did not offer any convincing reason for the omission of any description of his genitals being grabbed. Accordingly, Southwell's allegation that Bouley touched Southwell's genitals is not credible. Although Petitioners testified that they spoke to DePriest on several occasions, they admit that they never spoke to any of the other individuals listed on the harassment poster to complain about sexual harassment. DePriest testified that the only complaint he ever received had to do with the nicknames and that he took prompt action to resolve this problem. Annually, Respondent submits an employee experience survey to its employees that is completed anonymously and forwarded to an outside company for analysis. After the survey is completed, employees participate in a small group feedback session to discuss the results of the survey. On March 11, 2003, DePriest held the feedback session for his store, which was attended by Petitioners. During the session, Southwell commented about the situation with the nicknames. He indicated that the situation was resolved when it was brought to DePriest's attention. This was the sole extent to which either employee complained of unwelcome behavior. Respondent was not on notice of any problems with regard to touching or more serious inappropriate behavior. On March 12, 2003, Petitioners' last day of work, Southwell approached DePriest to complain about scheduling for a special event at the convention center. Southwell stated that he and Baker had signed up to participate in this event. Southwell was scheduled for the event, but Baker was not. DePriest explained that he needed Baker to float, because there were not enough people scheduled to work at the restaurant that night. DePriest later talked to Baker, who indicated that he was not disappointed that he was not participating in the event. That conversation, however, was the last time that DePriest saw Baker. DePriest learned that Petitioners had left before the end of their shift, when the plates in the restaurant were getting low and the sauté pans were getting stacked up. DePriest asked about the whereabouts of Petitioners and learned that they were seen riding their bicycles away from the restaurant. DePriest could not contact them because they did not have a telephone. DePriest eventually terminated their employment for voluntarily walking off the job.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that: Dismisses the Petition for Relief filed by Petitioner, Jasen Baker, in DOAH Case No. 05-0623, FCHR No. 23-03891; and Dismisses the Petition for Relief filed by Petitioner, Bernard Southwell, DOAH Case No. 05-0632, FCHR No. 23-03892. DONE AND ENTERED this 10th day of November, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jason M. Gordon, Esquire Gordon & Cornell 103 North Atlantic Avenue Cocoa Beach, Florida 32931 Kevin D. Johnson, Esquire Thompson, Sizemore & Gonzalez, P.A. 501 East Kennedy Boulevard, Suite 1400 Tampa, Florida 33602 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was subjected to race and gender discrimination, sexual harassment/hostile work environment, and retaliation, as alleged in her Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, a 36-year-old Caucasian female, was employed by Respondent as a sales associate. She first worked for Respondent at its Sebastian, Florida, store where she started in June 2006. She voluntarily resigned from the Sebastian store in October 2006 and was hired by Respondent's Merritt Island, Florida, store one week later. Respondent owns and operates an appliance retail store in Central Florida. Respondent employs more than 15 people. At some time during Petitioner's employment, John Barnaba, an operations manager who rotated among several stores, said things to her that she found "unacceptable." For example, "You would look good on my Harley," "You look like a biker chick," and "You must be anorexic." He also clapped his hands behind her and said, "hurry, hurry, hurry." She reported Mr. Barnaba's conduct to Phil Roundy, her manager and manager of the Merritt Island store, who said "That's just the way he is," or words to that effect. She was unaware of any other action undertaken by Mr. Roundy regarding her complaint. In January 2007, Petitioner began a voluntary sexual relationship with Mr. Roundy, which involved at some point, Petitioner and Mr. Roundy living together. This relationship lasted until April 29, 2007, when the parties separated. She and Mr. Roundy "got back together in May, about a week after her termination." Mr. Roundy did not sexually harass Petitioner based on the voluntary nature of their relationship, nor did he sexually harass Petitioner between April 29 and May 18, 2007. After Petitioner and Mr. Roundy separated, he started treating her "differently." She reports that he became critical of her and would not assist her. Respondent has published an "information resource for common questions and concerns" titled, "Associate Handbook" that addresses sexual harassment and presents a grievance procedure for employees who believe they have been subjected to unfair treatment. It contemplates reporting the unfair treatment to (1) "your immediate manager"; (2) the store manager; or (3) "[s]hould the problem, however, be of a nature which you do not feel free to discuss with your manager, you are encouraged to discuss the problem in confidence directly with Human Resources." Petitioner requested a transfer to another store on May 1, 2007. She requested the transfer before Mr. Roundy started treating her "differently." She called Human Resources on May 9 and 15, 2007; it is unclear as to whether she called to check on the requested transfer or to report the alleged sexual harassment. She did not timely pursue any recourse suggested in the Associate Handbook. On May 9, 2007, Mr. Barnaba, the operations manager mentioned above, authored an email that characterized several of Petitioner's activities of that work day as "completely unprofessional and insubordinate." The following day, Mr. Roundy emailed his supervisor that Petitioner had gone through his private, business-related emails and discovered Mr. Barnaba's May 9, 2007, email. He also related several incidents that he thought unprofessional and that reflected bad customer service. He advised that Petitioner accused Barnaba and himself of conspiring to try to terminate her. Petitioner was scheduled to work on May 16 and 17, 2007, but did not report to work. She was scheduled to work on May 18, 2007; as a result, Kevin Draco, a risk manager for Respondent, went to the Merritt Island store to interview her. When Petitioner did not appear, management made the decision to terminate Petitioner for "absenteeism."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maurice Arcadier, Esquire 2815 West New Haven Avenue, Suite 303 Melbourne, Florida 32904 Christopher J. Coleman, Esquire Schillinger & Coleman, P.A. 1311 Bedford Drive, Suite 1 Melbourne, Florida 32940
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent, specifically sex discrimination in the form of sexual harassment due to Petitioner's gender in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a Caucasian female, from sometime in December of 2003 until termination of her employment on June 21, 2004. Petitioner worked in Respondent’s warehouse facility from December, 2003 until sometime in February, 2004, when she was transferred to one of Respondent’s retail stores, the Ocala store, where she worked until she was transferred back to the warehouse at the end of May or beginning of June, 2004. Petitioner conceded at hearing that she was terminated after she argued with her supervisor and called her a bitch. Petitioner does not believe that she was terminated on the basis of her sex. During the course of her employment, Petitioner alleges that Respondent’s president, Barry Lay, made inappropriate comments to her of a sexual nature and touched her in an inappropriate way twice. All alleged sexually inappropriate conduct occurred from December of 2003 through February of 2004, during the period of time Petitioner worked in Respondent's warehouse facility. Petitioner testified that Barry Lay engaged in the following inappropriate conduct: At the end of her initial employment interview when she was hired, and out of the presence of other witnesses, Barry Lay allegedly said to her, “If we were to fuck that’s nobody’s business but ours.” In her charge of discrimination, Petitioner alleged that this statement was “said in front of witnesses.” Due to Petitioner's inconsistencies in testifying, her demeanor while testifying and Barry Lay's candid testimony of denial with regard to making such statements to Petitioner at any time, Petitioner's allegation is not credited. Petitioner testified that, right before Christmas of 2003, Barry Lay told her, "if I would let him eat me out just one time I wouldn't think about any other man." (T. 23). Petitioner testified that other witnesses, including her mother, were sitting nearby at a processing table when this comment was made. No witnesses corroborated Petitioner's testimony on this allegation and, coupled with Barry Lay's denial testimony, Petitioner's allegation is not credited. Petitioner testified that Barry Lay grabbed her face and tried to kiss her about the same time as he allegedly made the comment discussed above. Again, Petitioner alleges that witnesses were present, but all witnesses testifying in the matter, including Barry Lay, denied that such an incident occurred. Petitioner's testimony on this point is not credited. Petitioner also testified that Barry Lay grabbed her hips and tried to pull her from behind when she was bent over at a refrigerator. The allegation was denied by Lay and no corroborating testimony was presented. Petitioner's allegation is not credited. On one occasion, Barry Lay overheard conversation between Petitioner and her mother regarding their breast size and that they could form the “little titty committee.” Lay commented to the duo that both of them could be president of the committee. Barry Lay never attempted to initiate a romantic relationship with Petitioner and never threatened her with job transfer or termination if she failed to provide sexual favors. On one occasion during the course of Petitioner's employment, when employees were discussing a rumor that Barry Lay was having an affair with several people at one time, he overheard the discussion, became irritated, and addressed the employees as a group saying, “It doesn’t matter if I’m fucking you, you, you, or you, it’s none of your business.” Petitioner was transferred to the Ocala Store during the course of her employment to assist her in getting her children to day care on time. Additionally, the store hours were more suitable to her schedule at the time. Petitioner made sexual remarks, participated in discussions of a sexual nature, or participated in sexual horseplay in the workplace during the course of her employment with Respondent. Petitioner was heard and observed to smack or slap Barry Lay’s bottom and say, “I want a piece of that.” Barry Lay did not do anything to provoke Petitioner’s conduct, but responded by saying, “if you did, you’d never go back to your boyfriend.” While at work Petitioner discussed having oral sex with her boyfriend and the length and frequency of those encounters. During Petitioner's assignment to the Ocala store, she developed problems with absenteeism from the job. She quit calling in when she unable to work and demonstrated a poor attitude when she was at work. As a consequence, Petitioner was transferred back to Respondent's warehouse, where any absenteeism by the Petitioner would result in less of a hardship to operations. The transfer occurred at the end of May or beginning of June, 2004. After Petitioner was transferred back to the warehouse, she continued to exhibit a poor attitude and unacceptable conduct while at work. In June of 2004, just before she was terminated, Petitioner screamed at her supervisor that she was not going to perform a requested task due to medical restrictions. The supervisor informed Petitioner that she was not being asked to perform the task by herself, but simply to assist. Petitioner began using abusive language to the supervisor, calling her a “bitch.” Petitioner was asked to leave, but replied that she would not unless and until the supervisor “fucking” fired her. Petitioner pushed the supervisor and call her a “fucking whore” and “bitch.” Eventually, after using further epithets, Petitioner left the premises. Barry Lay did not witness the argument between Petitioner and the supervisor, but when he was later informed he instructed the supervisor to tell Petitioner that her employment was being terminated. The decision to terminate Petitioner’s employment was communicated to her the next day. Petitioner's stated response to the supervisor, before walking away, was “get fucked.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 4th day of October 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2005. COPIES FURNISHED: Kenneth M. Hesser, Esquire Seven East Silver Springs Boulevard Suite 300 Ocala, Florida 34470 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod Pope and Weaver, P.A. Post Office Box 550770 Jacksonville, Florida 32255-0770 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Mother & Daughter Cleaning Service, Inc. (Mother & Daughter) is a Florida corporation. Frank Brown, age 65, is the Vice President, Secretary and Treasurer of the corporation, and his wife, Betty Brown, is the corporation's president. The corporation provides house cleaning services to its customers. In addition to Mr. and Mrs. Brown, who serve as the cleaning crew leaders, the corporation has employed numerous other laborers, mostly women, over the past five years and employs five or more employees on a regular basis. The Petitioner was hired to perform cleaning services for Mother & Daughter clients as part of a two or three person cleaning crew on March 13, 1989. The Petitioner, Lisa Glennon, age 26, was initially interviewed for this position in the Brown home by Mrs. Brown and was offered employment. However, the offer was withdrawn when the Petitioner revealed that she did not own her own car. Then, after some discussion between Mr. and Mrs. Brown, the Petitioner was hired in spite of this circumstance. Initially, the Petitioner was trained and supervised by Mrs. Brown as part of her crew, but after about a month she was transferred to the crew led by Mr. Brown (Brown). Evelyn Engle was the other regular member of this crew, although there were a few occasions when Engle did not come to work. There was also a period of about a week when Lori Kent Brady filled in for Engle. Petitioner worked as a part of Brown's crew until June 16, 1989, when she was fired. Mother & Daughter employees would usually report to work at the Brown home. Brown's crew members were transported to various job sites, including private residences, in a van owned and driven by Brown. The crew would take a lunch break, usually at a fast food establishment such as Burger King, and would then proceed to the next job site, although not always directly. The routes to many of Mother & Daughter clients took the crew within the vicinity of the beach or causeway. On many occasions over the period of Petitioner's employment, Brown, while transporting the work crew in the van, would stare at and remark upon the physical appearance of women he would see walking in the beach area. These remarks concerned a woman's breasts or "tits"--that she was a "well-built" or "well-stacked" woman, her rear end, or figure in a T-back swimsuit. These remarks were sometimes accompanied by lip licking or growling sounds. Petitioner informed Brown that this behavior was "rude." Petitioner was offended by these remarks. In addition to drives down the beach enroute to a job site, Brown, frequently between jobs and normally after the lunch break, drove his crew to the beach or causeway to park and pass the time before the next job. During these "waiting times," Brown would comment on female passersby as well. Previous Mother & Daughter employee Joanne Goodale found these parking times disconcerting and described Brown's routes to other job sites, apart from these "parking" incidents, slightly out of the way, and the amount of time spent driving on the beach abnormal for a job circumstance. Brown frequently told off-color jokes in the presence of Petitioner and other employees. Brown constantly commented on Petitioner's appearance and body, mostly her "lovely" breasts, and he admonished Petitioner not to fuss with or adjust her clothing because he found it "distracting"; that on one occasion he suggested she take off her bra (she was complaining about sunburn pain to Engle at the time); that she and Engle take off their shirts while working (they had complained a resident's home was hot and asked about the air conditioning at the time); and that he once recounted to her that he and another unidentified woman had worked without shirts in a residence. On one occasion, Brown encouraged Petitioner to appear in a swimsuit for him. The crew had completed work early and, in reply to a question from Brown, Petitioner said she would go to the beach. Brown suggested that he drive her to her house so she could change into her swimsuit, then he would drive her to her car at his home. Petitioner declined, but Brown pursued the idea, remarking "Oh, you would really want to ruin an old man's day" by not permitting him to see her in her swimsuit. Once on a Monday, Brown told Petitioner he saw her car that weekend at the beach and considered stopping "to give her a hard time." This remark frightened Petitioner, and she protested to him. Brown recounted to Petitioner and Engle an obscene phone call his wife and daughter received at home wherein the caller inquired whether Mrs. Brown or her daughter "spit or swallow [ed]." This was offensive to both Petitioner and Engle. Brown discussed with Petitioner and Engle on more than one occasion his dissatisfaction with his sex life with his wife. In connection with these complaints, Brown stated his desire to find a girlfriend for whom he would provide in exchange for sex "with no strings attached." Petitioner objected to these discussions. On several occasions, Brown displayed the centerfolds of "Playboy" magazines to these women. On one occasion, Brown displayed a "men's" magazine in a residence the three were cleaning, made "mouth noises," and remarked on the models "lips." The women understood this remark to refer to the model's genitalia, which the model was touching with her hand. Brown on several occasions "brushed up against" his female workers that were not unintentional incidents caused by the circumstances of cleaning. Shortly after she started on his crew, Brown swatted Petitioner's rearend in the kitchen of a residence. On the same day, Brown brushed against her hip while loading the van, and Petitioner protested saying "that's enough." Brown replied "I see I'm not going to get very far with you" and told the Petitioner to loosen up and relax. The incidents, remarks and behavior of a sexual nature were sufficiently persistent to constitute a "hostile workplace." These were not isolated incidents described by the Petitioner or her witnesses, but an almost constant stream of discourse on the part of Brown. Petitioner testified, that she was offended by this behavior on the part of Brown, and was disturbed by it to the point that she feared going to work, feared that Brown would approach her during non-working hours and experienced nightmares as a result of his conduct. Brown protested that he did not intend to offend the Petitioner. The Petitioner testified that Brown's behavior and advances were unwelcome to Petitioner, and she communicated her disgust to Brown on many occasions. Petitioner did not casually use foul language at work, but did so when she became angry. On one or two occasions, she did say "fuck you" or some variant thereof to Brown. The Petitioner did not dress in a revealing manner, but normally wore calf length pants, two blouses and always a brassiere to work. Lori Brady's testimony that the Petitioner visited her home dressed in a revealing manner without a brassiere and expressed interest in dating Brady's brother is not relevant. This incident did not occur on the job or in the presence of Brown so as to solicit or incite any sexually explicit behavior on his part. Toward the end of Petitioner's employment with Mother & Daughter, Brown complained to her that she and Engle were treating him "coldly" and that, while previously Brown had been highly complimentary concerning her job performance, he became critical of it. On June 16, 1989, Brown criticized Petitioner's vacuuming. Petitioner questioned his criticism, and Brown instructed her to go to the van. Once all were in the van, an argument ensued, and the Petitioner may have threatened or offered to resign at this point. To which Brown replied, "If you want your job, be here Monday." The Petitioner later received a phone message that she was fired because of her "attitude." After she was fired from her job at Mother & Daughter on June 16, 1989, Petitioner secured part-time evening employment at "Excaliber," five days a week from 5:30 p.m. to 8:30 p.m. at a wage of $4.00 an hour, on approximately June 30, 1989. On August 17, 1989, Petitioner secured additional employment at Pinecrest Place at a wage of $4.25 per hour, working Monday through Friday from 8:00 a.m. to 4:30 p.m. She received one raise of $0.25 after three months and another raise of $0.25 after one year. Petitioner is presently employed at both jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which in favor of Petitioner's Charge of Discrimination, and it is FURTHER RECOMMENDED Petitioner be awarded her actual damages in the total amount of $1,001. DONE AND ENTERED this 10th day of December, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Accepted: paragraphs I, subparagraphs 1,2 Rejected as irrelevant: paragraphs I, subparagraphs 3,4,5 (in part) Rejected, as conclusion of law: paragraphs II and III (substantially), IV and V Proposed Findings of Fact Submitted by Respondent: Accepted: paragraphs 2,3,7,8 (in part), 17 (in part) Rejected as irrelevant: paragraph 14 Rejected as against the greater weight of the evidence: paragraphs 1,9,10,11,12,13,16,19 Rejected, as a conclusion of law: paragraphs 4,5,6,15,18 COPIES FURNISHED: Ronald M. McElrath Manager City of Clearwater Post Office Box 34618-4748 Sally Ruby Clearwater Community Relations Board Post Office Box 4748 Clearwater, FL 34618 Patricia Fields Anderson, Esquire 233 Third Street North St. Petersburg, FL 33701 J. David Haynes, Esquire Sugar Creek Professional Center 655 Ulmerton Road, Building 11 Largo, FL 34641
The Issue The issue in this case is whether the Respondent committed an unlawful employment practice and, if so, determination of the relief to which the Petitioner is entitled.
Findings Of Fact The Petitioner, Allison M. Huth, is an adult female person. At all times material to this proceeding the Petitioner has been a resident of the State of Florida. The Respondent, National Admark Corporation, is an advertising agency and publishing company. At all times material to this proceeding, the Respondent was doing business from offices located in Fort Lauderdale, Florida. On the morning of June 12, 1998, a Mr. William Rufrano, who was at that time a boyfriend of the Petitioner, took the Petitioner with him to the Fort Lauderdale offices of the Respondent. At that time, Mr. Rufrano had some type of arrangement with the Respondent pursuant to which he worked in the field making sales calls in an effort to sell the Respondent's products.1 The Petitioner's reason for going with her boyfriend to the Respondent's offices on June 12, 1998, was to find out more about the company in order to decide whether she wanted to work for the company. Upon arriving at the Respondent's offices on June 12, 1998, Mr. Rufrano introduced the Petitioner to his "boss" and to several of the other people who worked in the Respondent's offices. Shortly thereafter, Mr. Rufrano left the Respondent's offices and spent most of the rest of the day meeting prospective customers and making sales presentations outside of the Respondent's offices. The Petitioner remained at the Respondent's offices for most of the day. The Petitioner spent the day making calls to prospective customers. She attempted to have each of the prospective customers make an appointment for a salesperson to visit and make a sales presentation for the Respondent's products.2 The Petitioner never signed any paper work with the Respondent regarding any business relationship between herself and the Respondent. Specifically, she did not sign or submit an application for employment with the Respondent, she did not sign or enter into an employment contract with the Respondent, and she did not sign or enter into an independent contractor agreement with the Respondent. The Petitioner did not have an understanding with the Respondent as to what her hours of work would be or as to how many hours she would work each day, each week, or each month. The Petitioner did not have an understanding with the Respondent as to what her compensation would be for making telephone calls.3 In sum: The Petitioner and the Respondent never entered into any agreement by means of which the Petitioner became either an employee or an independent contractor of the Respondent. During the course of her day at the Respondent's offices, the Petitioner had occasion to seek assistance from Mr. Anthony Tundo, who was the Respondent's Sales Manager, and was the person the Petitioner had been told to contact if she had any questions. Following the Petitioner's request for assistance, Mr. Tundo engaged in a number of inappropriate, unwanted, and ungentlemanly acts that caused the Petitioner to become very upset and uncomfortable. The worst of Mr. Tundo's acts that day are described as follows in the Petitioner's Exhibit 8, a letter signed by the Petitioner and her boyfriend a few days after the events on June 12, 1998: Mr. Tundo began stroking Allison's [Petitioner's] head very softly and used the excuse that he was trying to pick something out of her hair. Mr. Tundo trapped Allison against the coffee counter in the hallway. He then pressed himself, including his erection [,] against her body which was against the counter. He then proceeded to kiss her on her forehead and cheeks. When Allison was in Mr. Tundo's office, he told her to take a look at something he was doing. Not wanting to go behind the desk, Allison leaned over the front of the desk to look. As she did so, Mr. Tundo stared directly down Allison's blouse and commented[,] "what a nice pair of tits you have." Allison quickly stood up, and proceeded to walk around behind Mr. Tundo's desk figuring he couldn't look down her blouse. As she was leaning on his desk watching what he was doing, he began to stroke her fingers and hands. He then told her to turn around. Allison did so thinking there was a flaw or something wrong with her outfit. He then grabbed her firmly by the backs of her arms and positioned her[,] which made her feel extremely uncomfortable. After doing so, he uttered the word[,] "there." He then told Allison[,] "You have very, very nice legs," and "You have a very beautiful ass[,]" and proceeded to pat Allison on her rear end. When Allison was sitting on the couch in Mr. Tundo's office, she got up to go to the ladies' room. Mr. Tundo told her to sit back down. Presuming Mr. Tundo wanted to tell her some more things related to business, she sat back down. Mr. Tundo told her to "do that again." When Allison questioned what he meant, Mr. Tundo told her that he wanted her to uncross her legs (like she would have to do in order to stand up) again so he could see what it looks like inside her legs and up her skirt. Mr. Tundo was also moving his hands in an outward motion as he was telling her these things. After Allison left Mr. Tundo's office, he continued to follow her around the office building. As he was following her, he continually told her that she has "such a sexy walk," and "such a nice ass." He followed her into the conference room next to the coffee maker. He then proceeded to rub her shoulders, moaning softly and breathing heavy as he did so. He then told her that she seemed "tense." There is no competent substantial evidence that Mr. Tundo had ever previously engaged in conduct such as that to which he subjected the Petitioner. There is no competent substantial evidence that Mr. Tundo had ever previously engaged in any type of conduct that would create a sexually hostile or abusive work environment. There is no competent substantial evidence that the Respondent's management had ever been advised that Mr. Tundo had previously engaged in any conduct that would create a sexually hostile or abusive work environment. There is no competent substantial evidence that the Respondent's management had ever received any prior complaints that Mr. Tundo had engaged in conduct such as that to which he subjected the Petitioner, or that he had engaged in any other type of conduct that would create a sexually hostile or abusive work environment.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order in this case dismissing the Petition for Relief and denying all relief sought by the Petitioner. DONE AND ORDERED this 30th day of May, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 30th day of May, 2001.
Findings Of Fact On or about March 8, 1988, Petitioner filed a charge of discrimination based upon sexual harassment with the City of Clearwater, Office of Community Relations, involving Respondent. Petitioner had been employed at Respondent from approximately April, 1987 until she resigned in November, 1987. This case was duly noticed for hearing on August 24, 1988, by Notice of Hearing dated June 6, 1988. Petitioner received this Notice of Hearing, and did appear at the hearing. Petitioner testified, under oath, at the hearing that she did not want to pursue her claim of sexual harassment, and would offer no evidence in support of her claim. In fact, she did not offer any evidence in support of her claim.
Recommendation Based upon the foregoing, it is recommended that Petitioner's claim of discrimination based upon sexual harassment against Respondent be DISMISSED. DONE AND ENTERED this 6th day of September, 1988 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1988. COPIES FURNISHED: Elizabeth Moore 1411 Illinois Avenue Palm Harbor, Florida 34663 Scott McGregor, Owner Heavenly Bodies II 3323 U.S. 19 North Clearwater, Florida 34619 Ronald M. McElrath Office of Community Relations Post Office Box 4748 Clearwater, Florida 34618 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618
