The Issue The issue in this case is whether the St. Johns River Water Management District (SJRWMD) should dismiss Petitioner, George Robinson (Robinson), from employment or otherwise discipline him on charges of violating SJRWMD policies on sexual harassment, inappropriate and sexual behavior, conduct unbecoming an employee, and abuse of position.
Findings Of Fact According to all indications in SJRWMD's personnel records, and according to all the evidence, George Robinson was an exemplary SJRWMD employee for 14 years, at least up to the incidents giving rise to this proceeding. Not only do the personnel records and evidence reflect that Robinson competently and skillfully performed the work required of him throughout his employment, they also reflect that he gave SJRWMD no cause to discipline him for any reason whatsoever, at least up to the incidents giving rise to this proceeding. During this time, Robinson was a valuable and valued SJRWMD employee, rising to pay grade 26 as SJRWMD's Quality Assurance Officer making between $47,000 and $48,000 a year. But in early 2001, SJRWMD took action to terminate Robinson's employment on charges of violating SJRWMD policies on sexual harassment, inappropriate and sexual behavior, conduct unbecoming an employee, and abuse of position. SJRWMD Action to Terminate Robinson's Employment In autumn of 2001, a female SJRWMD employee named Jackie Winkleman began to express complaints about Robinson, who officially became her supervisor on or about October 8, 2001. (Prior to that time, Winkleman worked along with Robinson in the use of proprietary water quality data quality assurance system software called Hydron; the parties dispute whether Robinson should be considered the equivalent of Winkleman's supervisor prior to October 8, 2001. See Findings 45-46, infra.) Initially, Winkleman complained essentially that Robinson was taking credit for Hydron work actually performed by Winkleman, doing Hydron work Winkleman should have been doing, taking important Hydron work away from Winkleman, and relegating Winkleman to less important Hydron work. See Findings 62-63, infra. But by the end of November 2001, Winkleman began to make initially vague and later more explicit allegations essentially: that Robinson made unwelcome and offensive sexual advances during a business trip she and Robinson made to San Diego, California, for a Hydron user group conference in September 2001; that she rebuffed his advances; and that he was retaliating against her by creating a hostile work environment. Eventually, starting on or about December 21, 2001, SJRWMD placed Robinson on paid administrative leave and began an investigation of the allegations. In all, 12 SJRWMD employees were interviewed during the investigation, including Winkleman and Robinson. On December 28, 2001, SJRWMD investigators interviewed Winkleman for the first time. (In all, Winkleman was interviewed on five separate occasions. She also was given a subsequent opportunity to review and revise the interview statements produced by SJRWMD investigators. See Finding 18, infra.) During the first interview, Winkleman alleged: "It happened when we were in San Diego, CA (in September 2001). George told me that he 'wanted more from me than work.'" She meant he wanted a sexual relationship, too. Asked if that was the first occurrence, Winkleman answered: "He had said things before - once or twice - but I did not pay much attention to it at the time. I thought that I made it clear that I was not interested. It was in San Diego when it really all happened." She said in San Diego in 2001 Robinson "said things like that I was pretty, and he liked my personality. He mentioned . . . that he thought we could really get along well together. He said that he would take care of me - I could go back to school, but I would have to quit my job. He said that we could see how it (the relationship) would work while we were out there (San Diego)." She said: "I was in shock. I did not really say anything. I just went up to my room and stayed there for the rest of the week." Asked if Robinson ever touched her, she said he "tried to hug me." She said she "pulled away from him." Asked if Robinson had ever touched her before, she said: "I do not think so." She alleged essentially that Robinson then retaliated against her by creating a hostile work environment. Robinson was interviewed on short notice on January 3, 2002; time for the interview was short because Robinson had prior commitments, but Robinson briefly answered questions and denied Winkleman's allegations, saying his relationship with Winkleman started during the prior year's Hydron conference trip to San Diego in September 2000 and was consensual. SJRWMD investigators confronted Winkleman with Robinson's version of the facts on January 3, 2002, and re- interviewed her. This time, she stated (among other things) that Robinson also "kind of came on to me" after dinner and drinks in San Diego in 2000; she said that after they returned to the hotel and went into her room to watch television, he "just basically said he wanted to have sex with me." She said she told him: "I did not think that was a good idea, and he kept trying to persuade me." Asked if they had sex, she answered: "I do not remember." Even after being told by the interviewer, "It is important for you to remember!", Winkleman could only offer: "There was some touching." Winkleman also said that she did not remember if she was drunk at the time or how long Robinson stayed with her that night but that she did not think he stayed the night with her. The next day, Robinson returned to complete his interview. At this time, he answered questions more completely and gave the investigators extensive additional information that was at odds with Winkleman's allegations and statement in many important respects. Essentially, Robinson described in detail how he and Winkleman engaged in consensual activity of a sexual nature during the prior year's Hydron conference trip to San Diego in September 2000. He described in detail how they hugged, "French-kissed," undressed, and slept together in her bed (although they did not have sexual intercourse because he was unable to perform). He also told them that, in addition to a normal, positive, cordial, and productive work relationship throughout the rest of 2000 and during 2001, he and Winkleman also had a personal relationship that did not include any sexual activities beyond some hand- holding and friendly touching during that time period and that in San Diego in September 2001 he essentially asked Winkleman by words and actions if she was interested in resuming activity of a sexual nature, as they had done the year before. Robinson stated that Winkleman indicated to him that she was not interested and that he respected her wishes and never asked again. Robinson denied retaliating against Winkleman in any way or otherwise altering his work or personal relationship with her. SJRWMD investigators again re-interviewed Winkleman on January 9, 2002, concerning various statements made during the investigation to that point in time. On January 14, 2002, SJRWMD's Assistant Executive Director, John Wehle, sent Robinson a letter notifying him that SJRWMD was considering dismissing him effective January 31, 2002, for violating SJRWMD policies on sexual harassment, inappropriate and sexual behavior, conduct unbecoming an employee, and abuse of position. The letter focused on the 2001 San Diego trip and indicated that SJRWMD essentially believed Winkleman's allegations. In September 2001, you and the female employee traveled to California to attend a job-related conference and training program. Prior to this trip, you informed this employee that you had been told that you were to become her supervisor in the near future. You also told her that you would be in a position to get her promoted. Also prior to the trip, you used your authority as a supervisor to make reservations at a hotel other than the one recommended by District travel staff, reserving a "suite" that had one bed in an open, exposed loft with no door and another bed in a downstairs area below, effectively placing you and the female employee in the same room. After arriving in California, you told the female employee that the week in California would be useful in seeing how you and she would get along, meaning at a more intimate level. However, according to statements made by both of you, you made sexual advances toward her but she repeatedly rebuffed your advances. The female employee told the investigators that from the latter part of the California trip forward, your behavior and attitude toward her began to change from being friendly and nice toward her and giving her credit for her work and ideas to being "nasty" to her and taking credit for her work. She also stated that during the California trip you embarrassed her in front of the trainer with whom she regularly worked by correcting her in front of him and telling her how to run reports. She informed the investigators that your behavior toward her became so unbearable and interfered with her work to the extent that twice she reported the problem to the Assistant Division Director, who stated that he told you to "lighten up" on the female employee. She also stated that you told her that since she did not seem to be happy doing what she was doing that she should apply for a different job, to which she replied that it was not the job she was unhappy with. She reported that she felt you were trying to make her miserable so that she would leave. Although you contend that the sexually related activities and advances were consensual, the evidence gathered during the investigation makes it clear that your advances were unwelcome and offensive, and that following her rejection of your advances, your behavior toward and treatment of her interfered with her job duties and subjected her to an intimidating, hostile and offensive work environment. SJRWMD also indicated its view that Robinson's statements corroborated Winkleman to the extent of admitting Robinson "made sexual advances toward her but she repeatedly rebuffed your advances." Saying that SJRWMD had "no desire to take action that is unwarranted or based on false or incomplete information," Wehle's letter offered Robinson a "pre- determination conference" on January 30, 2002, which was accepted. SJRWMD investigators again re-interviewed Winkleman on January 22, 2002. Much of the interview involved discussions about the ongoing investigations that had been taking place at work. But it also covered inconsistencies between Robinson's version of the two San Diego trips and Winkleman's statements about them to date. Asked whether the two had intercourse in San Diego in September 2000, Winkleman answered: "I cannot remember. The last thing I can remember is him being pushy. I don't know why I can't remember - that's really scary." Asked if that could have been because she was drinking, she said she "didn't drink that much - only about 4 drinks." (She later revised her statement to add, "but I guess it could be possible." See Finding 18, infra.) It should be noted that the investigative report prepared on January 29, 2002, merged Winkleman's first interviews with part of her second interview. This gave the misimpression that Winkleman told the investigators about the 2000 San Diego trip during the first interview. At the pre-determination conference on January 30, 2002, Robinson again presented his version of the relationship between him and Winkleman. His presentation was consistent with his prior statements. As part of this presentation, Robinson pointed out that, contrary to what SJRWMD's letter said, he never conceded that Winkleman "repeatedly rebuffed [his] advances." By letter dated February 4, 2002, Wehle notified Robinson that, notwithstanding Robinson's pre-determination conference presentation, Robinson was being dismissed effective February 1, 2002. Wehle stated: "After careful consideration, I can find no support for your contention that the sexually related activities in which you engaged with a female employee in your division were mutually consensual or that the sexual advances you made were considered other than unwanted and offensive. I believe sufficient evidence exists to support the contention that your actions violated District policy as outlined in the investigative report and the letter sent to you dated January 14, 2002." Robinson requested an administrative hearing to challenge his dismissal. The evidence was not clear as to how long Robinson was unemployed after being dismissed. At the time of the final hearing, he was employed by the Florida Department of Transportation making approximately $21,100 a year. Pertinent SJRWMD Policies SJRWMD Policy 82-01 states in pertinent part: SCOPE AND PURPOSE The St. Johns River Water Management District will not tolerate sexually offensive or sexually inappropriate behavior (referred to collectively as sexually inappropriate behavior) or sexual harassment of any nature from either District employees (co-workers, supervisors, or directors), Governing Board members, or other individuals not employed by the District but who interact with the District. This policy explains what constitutes sexually inappropriate behavior and sexual harassment, provides reporting procedures, and outlines the responsibilities of staff and supervisors. STATEMENT OF POLICY The District is committed to providing a work environment free of sexually inappropriate behavior and sexual harassment. The District strongly opposes sexually inappropriate behavior and sexual harassment in any form. Sexual harassment also violates Title VII of The Civil Rights Act of 1964, as well as state and local law. DEFINITIONS Sexually inappropriate behavior Sexually inappropriate behavior is conduct or communication of a sexual nature unrelated to the District's normal business operations and purpose. Additionally, sexually inappropriate behavior includes acts of aggression based on gender even if not sexual in nature. Sexually inappropriate behavior is unwelcome or offensive. Examples of sexually inappropriate behavior include: Sexual advances, flirtations, or propositions; Demands or requests for sexual relations or interaction; Verbal abuse, teasing, or joking of a sexual nature; Comments about an individuals sexual interests or sexual activities; Displays of sexually suggestive objects, pictures, posters, or reading materials; Leering, whistling, or gestures of a sexual nature; Physical contact such as pinching, grabbing, patting, rubbing, or brushing unnecessarily against another persons body; Physical aggression, intimidation, hostility, or threats, even if not sexual in nature or content, made because an individual is male or female; or Sexual acts or sexual assault. Sexual harassment is sexually inappropriate behavior that managers or supervisors know of but fail to act to prohibit or prevent as required by this policy. Sexually inappropriate behavior rises to the level of sexual harassment when An individual is forced to submit to sexually inappropriate behavior as an express or implied term or condition of employment; An individuals acceptance or rejection of sexually inappropriate behavior is used as a basis for an employment decision affecting the individual; or The sexually inappropriate behavior interferes unreasonably with an individuals work performance or creates an intimidating, hostile, or offensive work environment. REPORTING SEXUALLY INAPPROPRIATE BEHAVIOR AND SEXUAL HARASSMENT When an employee is a victim of, witness of, or receives information regarding sexually inappropriate behavior or sexual harassment, the employee (victim, witness, or recipient of information) must report the incident to his/her supervisor, the Human Relations Consultant, the Director of the Office of Human Resources (HR Director), or the Human Resources Manager (HR Manager). In the event the supervisor is the harasser or displays sexually inappropriate behavior, an employee must report the incident to the Human Relations Consultant, the HR Director or the HR Manager. SUPERVISORS ROLE IN ENFORCING THIS POLICY Supervisors shall work to create a workplace free of sexually inappropriate behavior or sexual harassment. Supervisors shall notify the Human Relations Consultant, the HR Director or the HR Manager upon observing or otherwise receiving notification of suspected incidents of sexually inappropriate behavior or sexual harassment, regardless of whether the offender is a non-employed person, another employee, or a District supervisor or director. The supervisor shall notify the Human Relations Consultant or the Office of Human Resources without delay. The Human Relations Consultant shall conduct an appropriate investigation and advise supervisors of any necessary action. Supervisors shall not discuss any information, reports, or investigations of sexually inappropriate behavior or sexual harassment except as necessary to report the matter to the Human Relations Consultant, the HR Director or the HR Manager and to participate in any investigation or remedial action as directed by the Human Relations Consultant. INVESTIGATING AND RESPONDING TO COMPLAINTS The District shall take appropriate remedial action, based upon the facts, including investigating all reports of sexually inappropriate behavior or sexual harassment. For the protection of each employee, the investigation will be handled as discreetly as possible. Employees shall discuss the incident only with persons involved in the investigation process in order to maintain confidentiality and to protect each individual from false rumors. Reports of sexually inappropriate behavior or sexual harassment will be investigated by considering all facts and circumstances. Discipline may include corrective and preventive measures, up to and including termination (see Policy #80- 10 Disciplinary Action). The District reserves the right not to investigate anonymous claims or complaints in the interest of protecting the rights of all employees and reducing the likelihood of false rumors or accusations. Documents created as a result of a report of sexually inappropriate behavior or sexual harassment are subject to public records disclosure in limited circumstances, as provided in Chapter 119, Florida Statutes. The documents will be stored in a secure location and will be available only upon requests that comply with the Public Records Act. Certain statutory exemptions may prevent disclosure. Employees shall contact the Office of General Counsel prior to disclosure. The District's goal is to comply with applicable federal and state law relating to his policy; any provisions of this policy that conflict with federal or state law shall not apply. EMPLOYEE AWARENESS TRAINING All District employees are required to attend a comprehensive training session about sexually inappropriate behavior and sexual harassment. SJRWMD Policy 80-10 states in pertinent part: Purpose The purpose of this policy is to establish standards of conduct and to provide a mechanism for taking appropriate, timely and consistent corrective action when violations of policy, procedure or law occur. This chapter shall apply to all employees of the St. Johns River Water Management District. General All employees of the St. Johns River Water Management District are expected to familiarize themselves with this policy and to perform assigned duties safely and efficiently, displaying an awareness of our responsibilities as employees of a public agency. Circumstances surrounding alleged violations shall be thoroughly investigated by the supervisor or other assigned District official, in consultation with Human Resources, before a disciplinary action is taken against an employee. The Office of Human Resources shall consult with the Office of General Counsel on all proposed disciplinary actions. Disciplinary action, when necessary, shall be given in a constructive manner in an effort to prevent a reoccurrence of the circumstances which resulted in the need for disciplinary action. This policy suggests a range of disciplinary actions for various infractions. However, there is no requirement that the District adhere to the guidelines of any progression of disciplinary action should the severity of the infraction or other circumstances warrant a more or less severe action. Violations shall be considered cumulative, that is, when considering the appropriate level of disciplinary action for an infraction, all previous disciplinary actions, whether for the same or a different violation, shall be considered. Senior management employees, student employees, OPS employees, temporary employees and employees who have not completed six continuous months satisfactory service wit the District during the current period of employment may be dismissed at any time, with or without cause, and without the necessity of a pre- determination conference. Any such dismissal shall be taken by the Executive Director, Assistant Executive Director or acting Executive Director under the same terms as in paragraph II.H. * * * Disciplinary Actions The following disciplinary actions may be taken by the District against an employee for violating District policy. Oral reprimand Written reprimand Suspension Dismissal Oral reprimand 1. An oral reprimand is the least severe form of disciplinary action and consists of a discussion of the infraction between the supervisor and the employee with documentation of the disciplinary action, on the District's reprimand form, being placed in the employee's personnel file. The documentation of the oral reprimand shall include the date of the reprimand, the policy violated and a statement that further violations may result in more severe disciplinary action, up to and including dismissal. Written reprimand 1. A written reprimand shall consist of a narrative, prepared on the District's reprimand form, detailing the specific violation, the circumstances of the violation, including dates, and a statement that further violations may result in more severe disciplinary action, up to and including dismissal. Suspensions and dismissals * * * 6. If the decision following the pre- determination conference is to proceed with a suspension or dismissal, the District shall issue a letter of final agency action within 5 working days of the conference. Such letter shall state the final action, the effective date, and shall inform the employee of any right to request an administrative hearing pursuant to chapter 120, Florida Statutes, including the requirement that such request must be in writing and submitted by mail or hand delivery and received by the District Clerk within twenty-one (21) days of notification. * * * Conduct Standards A. The following actions and activities are examples of misconduct for which District employees shall be subject to disciplinary action. The list is not inclusive and the District is not precluded from taking disciplinary action for the other conduct by employees which demonstrates a disregard for the interests of the District or violates the public trust. Conduct Unbecoming a District Employee- -Any action or conduct by an employee which impedes the District's efforts, brings discredit on the District, impairs the operation or efficiency of the District or any employee, impairs the employee's ability to perform his/her job, or results in the reluctance or refusal of other agencies to work with that employee or the District. Abuse of Position--The use of an employee's position, authority or employment with the District for personal gain or influence or to avoid the consequences of unlawful acts. * * * Falsification of Records--The failure to provide truthful information for a record or report, either oral or written, regarding the performance of work duties, attendance, injury, illness, benefits, job qualifications or other work related matters. Lying or Failure to Provide Truthful Information or Requested Information or Failure to Cooperate During an Internal Investigation--Oral or written statements that are deliberately inaccurate, incorrect or misleading but which do not constitute falsification of records. This includes lying or failure to cooperate during an internal investigation. * * * Sexually Offensive or Inappropriate Behavior and Sexual Harassment--An employee may not engage in sexually offensive or inappropriate behavior which is conduct or communication of a sexual nature unrelated to the District's normal business operations and purpose. Sexually inappropriate behavior is unwelcome or offensive. Additionally, sexually inappropriate behavior includes act of aggression based on gender, even if not sexual in nature. Such behavior includes, but is not limited to, sexual advances, flirtations or propositions; demands or requests for sexual relations or interaction; verbal abuse, teasing, or joking of a sexual nature; comments about an individuals sexual interests or activities; displays of sexually suggestive objects, pictures, posters or reading materials; leering, whistling or gestures of a sexual nature; physical contact such as pinching, grabbing, patting, rubbing or brushing unnecessarily against another person's body; physical aggression, intimidation, hostility or threats, even if not sexual in nature or content, made because an individual is male or female; or sexual acts or sexual assault. Sexually offensive or inappropriate behavior may constitute sexual harassment when: (1) An individual is forced to submit to sexually offensive behavior as an express or implied condition of employment; (2) An individual's acceptance or rejection of sexually offensive behavior is used as a basis for an employment decision affecting the individual; or (3) The sexually inappropriate behavior unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. Conviction of a Misdemeanor or Felony- -The conviction for or pleading nolo contendre or no contest to a misdemeanor or felony which impairs the employee's effectiveness in the performance of assigned duties. * * * Guidelines for Disciplinary Action A. Although the intent of the District that these guidelines be used when determining the appropriate level of discipline for a specific offense, the taking of more or less severe action than would be indicated by these guidelines is within the discretion of the Executive Director, Assistant Executive Director, or acting Executive Director should the circumstances surrounding the specific infraction warrant such action. In determining the appropriate disciplinary action for an infraction, the District shall consider the specific infraction, the consequences of the infraction, the circumstances surrounding the infraction, previous disciplinary actions the employee has received for related and unrelated violations, the time between the violations, and the overall work record of the employee. OFFENSE 1st Violation 2nd Violation 3rd Violation 1. Conduct Unbecoming Written reprimand to dismissal Suspension to dismissal Dismissal 2. Abuse of Position Written reprimand to dismissal Suspension to dismissal Dismissal * * * * * * * * * * * * 10. Falsification of Records Written reprimand to dismissal Suspension to dismissal Dismissal 11. Lying; Failure to Provide Truthful Information; Failing to Cooperate with Investigation Written reprimand to suspension Suspension to dismissal Dismissal * * * * * * * * * * * * 24. Sexually Offensive or Inappropriate Behavior; Sexual Harassment Written reprimand to dismissal Suspension to dismissal Dismissal 25. Conviction of First Degree Misdemeanor Or Felony Written reprimand to dismissal Suspension to dismissal Dismissal Conflicts in Testimony As indicated, Winkleman initially complained about work conditions, not unwelcome sexual advances. When she complained about sexual advances, she initially said everything occurred in September 2001. When confronted with Robinson's statement of what occurred, Winkleman admitted something happened during the September 2000 trip but denied remembering much about what happened. On March 5, 2002, Winkleman revised all five of her statements. In part, she explained that when she made her first statement on December 28, 2001, she "wanted to say as little as possible, but later realized that it would be best for me to just say it all." But the addition to her statement on January 22, 2002, continued to maintain that she could not remember whether she and Robinson had intercourse in San Diego in September 2000. It does not appear that Winkleman "said it all" until after Robinson was already dismissed from his employment. In "saying it all," Winkleman said she actually remembered the details all along and had lied to the investigators when she said she did not remember. Wehle did not know about these lies when he made his decision to dismiss Robinson. When Winkleman finally "said it all," Winkleman's story differed in several respects from the one Robinson told from the beginning. San Diego 2000 Winkleman agreed that she went to San Diego early in September 2000 to visit a relative, returned her personal rental car on Wednesday (when Robinson was scheduled to arrive in San Diego), took the rental car company's shuttle bus to the airport, and surprised Robinson by meeting him when his plane arrived. They took a hotel shuttle bus to the Bahia Resort, where they had rooms reserved and where the Hydron conference was scheduled. She said they checked in and went to their separate rooms, agreeing to meet later to walk to the beach. Robinson said they arrived at the hotel before check- in time, checked their bags in the lobby, changed into bathing suits, and walked to the beach. She said they lay on the beach on towels four to six feet apart; he said the towels were 5-6 inches apart. They talked for several hours about work and eventually personal topics, including their respective marital difficulties. Robinson said they went in the water, swam, and played around splashing each other; she said they did not go swimming or splash around. Robinson said the bathing suit Winkleman was wearing at the beach revealed a belly-button ring. He denied being able to see a tattoo on her lower abdomen at the time, as it was covered by her bathing suit. She testified that the bathing suit she was wearing was small enough to reveal the tattoo. Robinson said that after the time spent at the beach, they returned to the lobby, got their bags, and checked in to their rooms; according to her, they went directly back to their rooms, having already checked-in. It was agreed that they met for dinner that night and after dinner returned to their separate rooms for the night. The next day (Thursday) they attended the Hydron conference. That evening, HYDSYS (the company that developed, sells, and services Hydron) hosted a dinner party for conference participants. On that much, they agreed. But in other important respects, Winkleman's ultimate version of events that evening differed starkly from Robinson's. Winkleman said the group had dinner at the restaurant at the Bahia Resort. She said she had several beers but that Robinson drank significantly more. She said he walked her back to her room at around 9 or 10 p.m. and asked if she wanted to watch television for a while. She said she agreed. She said after sitting on separate beds in her room for a few minutes, he told her he was attracted to her and wanted to have sex with her. She said he then stood up and approached her and tried to hug her. She said she got up and told him, "no," that she did not want that to happen, that they were both married, and that they worked together. She said he began to give excuses, such as: nobody has to know; he would still respect her in the morning; it would be just sex, nothing more; and she did not have to worry about getting pregnant since he had had a vasectomy. She said he proceeded to try to kiss her and began pulling at her shirt and pants. She said she pushed him away and retreated to the bathroom and that he left the room while she was in the bathroom. Winkleman testified that she was shocked and upset by the incident, that she had thought he was a decent guy and had looked up to him prior to the trip, that she did not find him attractive, and that she was not interested in him in any physical or sexual way. She said she talked to him only as necessary at the conference on Friday, chalked his behavior the night before up to drunkenness, ignored it, and never brought it up again. She testified that nothing else happened between them during the trip. Robinson testified that the HYDSYS dinner on Thursday evening actually took place at a Mexican restaurant in the gaslight section of the city. He said they both drank several beers with dinner. He said that, after returning from dinner, he and Winkleman walked together along the shoreline of the bay and entered a cabana to sit down. While characterizing it as "geeky," he said he prefaced his next move by saying essentially that he understood the ramifications of SJRWMD's policies on sexual behavior and wanted to make sure she understood that he would stop if she gave any indication that she was offended by anything he did. After that, he said they "French-kissed" in the cabana. (SJRWMD attempted to impeach Robinson with deposition testimony that Winkleman "participated" in the kissing, but the prior testimony is not inconsistent, and Robinson explained that he considered these to be two ways of saying the same thing.) According to Robinson, she then said, "not here, let's go back to my room." Winkleman specifically denied the entire cabana scene, going so far as to deny that there were any cabanas at the Bahia Resort. SJRWMD attempted to impeach Robinson with testimony of one of SJRWMD's investigators that someone at the Bahia Resort told her in response to telephone inquiry that there were no cabanas at the Resort. When Robinson was able to produce an Internet web page dated June 12, 2002, indicating that cabana rentals are available, SJRWMD attempted to impeach Robinson with his concession that they did not pay the cabana rental fee mentioned on the web page. Robinson's logical response was that the cabanas did not charge rent at night. Indeed, the web page indicated that hours of operation ended at 5 p.m. on Thursdays in September. Robinson testified that, once back in Winkleman's room that evening, he turned on the television, lay down with her on her bed, and began flirtatious actions like brushing her hair with his fingers and saying her eyes were pretty. Eventually, they cooperated in removing her shirt and bra, he removed his shirt, and he fondled her breasts. When he started to remove her pants, she stopped him, saying "not tonight." He stopped at that point but continued to lay with her in the bed. At some point, he suggested they remove their outer pants and sleep in their underpants to be more comfortable, and they spent the night sleeping together in her bed in that state of undress. When the alarm they had set went off, he returned to his room to get ready for the conference, and they met at the conference. Robinson testified that things between them at the conference the next day (Friday) were "normal, but they weren't quite normal." After the meetings, they joined a group of conference attendees for a waterfront cruise in the bay aboard the paddleboat, "Bahia Belle." After the cruise, they declined to join a group of conference attendees having dinner at the Bahia Café and instead had a drink and appetizers at the Resort's Tangiers Bar. (Robinson was able to produce a Tangiers Bar receipt to corroborate that part of his story.) Later, some conference attendees joined them at the bar for a rollicking sing-along led at the bar piano by HYDSYS principal and former traveling musician, Peter Heweston. Everyone had several drinks, but neither he nor Winkleman got drunk. At 11 p.m. or midnight, they returned to Winkleman's room because she had to telephone her husband about picking her up at the airport in Jacksonville the next day. Sitting on one bed, Robinson overheard Winkleman on the other bed. Her conversation became heated when her husband refused to pick her up at the airport. After she hung up the phone, Robinson moved over to her bed, and they began to flirt again. He said he asked to see her tattoo. He said she proceeded to take off her pants and underpants to show him the tattoo. Robinson attempted to bolster his testimony about the tattoo by describing it as a "small, little Mr. Toad- looking frog face." Apparently in response to her testimony that the tattoo was a frog, perhaps it was not just a frog face, he stated that the frog depiction he saw was cartoon- like and that, if it had a body, the head was out-of- proportion to the body. She did not dispute his description, but SJRWMD has taken the position that he actually saw the tattoo when they were on the beach the first day. SJRWMD also attacked Robinson's credibility by questioning how he knew to ask to see the tattoo if he was unable to see the tattoo the previous day at the beach and did not know about it at that point. But Robinson testified at one point that Winkleman mentioned a tattoo at the beach on Wednesday afternoon but that he did not know specifically what or where it was at the time. SJRWMD pointed out the clear inconsistency between this testimony and other testimony about conversation Robinson had with Winkleman while flirting on the bed on the second evening (Thursday night) when she told him about a pierced tongue, and he said, "I bet you have a tattoo, too." Even if his memory of his inability to see the tattoo at the beach the previous day or the details and timing of his conversations with Winkleman about the tattoo were incorrect, the errors, while significant, still would have been relatively minor compared with Winkleman's telling SJRWMD investigators repeatedly that she could not remember whether she and Robinson had intercourse in San Diego in 2000. Robinson testified that, after showing him the tattoo, Winkleman lay back invitingly on the bed, and he took off his pants, lay over on her, and attempted intercourse. However, he said he was unable to get aroused and was unable to succeed in having intercourse. He said he rolled over and said "damn, or something like that"; she "let out a--kind of a giggle or something"; she then got up and went into the bathroom; he moved to the other bed; she came out of the bathroom and climbed into bed with him; and they slept together with no pants on until the alarm went off the next morning. Both agreed that they sat next to each other on the flight back to Florida on Saturday, as planned; Winkleman made no attempt to change the pre-assigned seats. Winkleman never reported the incident, as required by Section IV of SJRWMD Policy 82-01 if it violated the policy. She said she thought it would be better not to report the incident. Between San Diego Trips Winkleman maintained that she was uncomfortable with Robinson and tried to avoid him as much as possible at first upon their return from San Diego in September 2000. She said she tried to talk to him only as necessary and only about work. Robinson denied detecting any such change in his work and personal relationship with Winkleman after the San Diego trip in September 2000; and none of the several fellow employees who testified noticed any change. According to Robinson, he and Winkleman enjoyed an excellent and close work and personal relationship between the two trips. Robinson testified that they frequently spent break time together at work and ate lunch together. There were tables outside the building where they worked which were used by them for breaks and lunch. Sometimes they went to a local restaurant for lunch. Robinson testified that, shortly after returning from San Diego in September 2000, they took a work break together and, after again making a "geeky" statement about not wanting to offend her or make her uncomfortable, he brought up what had happened between them in San Diego. He said Winkleman laughed at the suggestion that he was making her uncomfortable and participated fully in the discussion. Essentially, they discussed whether that kind of relationship could continue in Palatka. Robinson said similar conversations were repeated several (5-6) times over the course of the next year, 4-5 of these away from work, and 2-3 of those at the Kay Larkin Airport. Robinson said he always prefaced these conversations with the "geeky" statement, and she always assured him by words or laughing that she was not offended. Robinson said they never reached a definite, final answer to the question; her response was neither positive nor negative but more in the middle, like "I don't know, maybe." Robinson testified that, in their many personal conversations that year, they often discussed their respective marital difficulties. (Winkleman and her husband were separated from approximately October 2000 through September 2001; and Robinson separated from his wife for a period of time during the course of the year.) Robinson also testified that Winkleman often discussed financial problems during the course of the year. Once Winkleman complained to Robinson that a credit card company was telling her she owed several thousand dollars on an account she never opened. Robinson also recalled a time when Winkleman came to his office crying because her bank was going to close her account if she did not pay at least $50. Robinson loaned her the money. Another time, Robinson listened when Winkleman came into his office crying because her husband had backed out of signing a dissolution of marriage agreement. Another time, when Winkleman needed new tires but did not have enough money Robinson loaned her $30. When Winkleman complained to Robinson that she had no money to celebrate her birthday, Robinson bought her a bottle of Crown Royal, which he knew was her favorite whiskey, and gave her $50 as a birthday present. To keep everyone at work from knowing, Robinson arranged for Winkleman to leave her car door open so he could put the presents in her car in the work parking lot. At Christmas, Robinson gave Winkleman a polar fleece jacket, which Winkleman had said she needed. Winkleman thanked him for the gift, saying "you shouldn't have since I didn't get you anything." Later, she told him she enjoyed wearing it while horseback riding in cold weather. Robinson also helped Winkleman in other ways during the course of the year at her request. Once he went to her house to fix an electric fence. Another time he installed a television antenna for her. No sexual encounter occurred either time; on one of those occasions, Winkleman's husband was on the premises. Once when Winkleman was having to rent out a room of her house after her husband moved out to help make ends meet, and Robinson was considering moving out of his marital home, he suggested they talk about the possibility of his moving in with her. They agreed to meet after work at the Kay Larkin Airport, where they talked for 30-60 minutes while sitting in the car in the parking lot. During one lengthy conversation at the airport, Robinson remembered touching Winkleman on the leg and arm, but there was no kissing or other sexual contact. Robinson testified that they also talked on the telephone once or twice during the spring of 2001 about the possibility of getting together again as they did in San Diego in September 2000. At some point during the year, they exchanged personal cell phone numbers. Winkleman denied the extent of the personal relationship between her and Robinson during the year between the two San Diego trips. She denied any conversations about a sexual encounter in San Diego in 2000 or any discussion about a resumption of that kind of relationship. She admitted to discussing their respective marital difficulties but said hers at least were not secret. She admitted to meeting Robinson at Kay Larkin Airport on one occasion but said they met there so that McDermott would not hear them discuss the prospect of Robinson becoming Winkleman's supervisor. (Robinson readily admitted to discussing with Winkleman the prospect of Robinson becoming her supervisor but said that was not the purpose of any of the meetings at the Kay Larkin Airport. He pointed out that they could have had the discussion almost anywhere and been out of McDermott's hearing.) She denied taking frequent work breaks or frequently having lunch with him, saying it happened only a couple of times. She denied any conversation about Robinson possibly moving in with her, saying only that he would pay more than she was charging her new roommate, implying only that she was not charging enough. She implied that Robinson foisted the Christmas present on her, saying she tried to return it and only took it when he insisted. She also downplayed the financial assistance given by Robinson during the year, saying she quickly repaid the loans, but admitted to coming into his office crying and relating personal problems to him. She admitted to exchanging personal cell phone numbers but said it was only to get directions to a training site from him. Notwithstanding her denials, Winkleman conceded that she was happy with her job and conditions of her employment prior to September 2001, including the year after the September 2000 San Diego trip. According to Winkleman herself, Robinson did nothing to hamper or impair her ability to work or to affect her job other than in a positive way after the September 2000 trip and leading up to September 2001. Indeed, her only job complaint prior to the 2001 trip concerned Glenda McDermott, her data management supervisor at that time, not Robinson. As mentioned, Winkleman and Robinson discussed the prospect of Robinson becoming Winkleman's supervisor. Such a discussion would have taken place during the summer of 2001, prior to the San Diego trip in September. Larry Fayard, the Division Director of SJRWMD's Division of Hydrologic Services, first broached the subject to Robinson in approximately June 2001. By sometime in August 2001, Fayard advised Robinson that the change was going to take place. Although Robinson maintained that the change still was not certain, it did appear at that time that he officially would become Winkleman's supervisor starting October 1, 2001. The change in supervision was thought to be logical in light of the increased percentage of Hydron work being done by Winkleman at the time (75-80%, up from 50-60% Hydron work) and McDermott's lack of knowledge about Hydron. It also was agreed by all concerned, including Winkleman, that the change would benefit Winkleman by putting Robinson in a better position to give her proper credit for the quality of her Hydron work; all concerned thought Winkleman would have a better chance for advancement once Robinson became her supervisor. SJRWMD attempted to impeach Robinson's testimony on events between the two San Diego trips through use of allegations in his Petition that he and Winkleman were "romantically involved" between the trips and that they engaged in a mutually consensual physical relationship on and off for approximately a year. Robinson explained that he was surprised when confronted with those allegations during his deposition; during the deposition he explained that they were written by his attorney and, as indicated by the previous findings, were in error and a mischaracterization of his actual personal relationship with Winkleman. Robinson testified that, as the time for the September 2001 San Diego trip approached, he again wanted to know if Winkleman shared his interest in using the trip as an opportunity to resume the kind of relationship they had during the 2000 trip--i.e., an intimate, physical relationship. He testified that, as before, he prefaced his suggestion by telling her that, if it offended or made her feel uncomfortable, to just tell him, and he would drop the subject. He testified that she neither asked him to drop it nor enthusiastically embraced his suggestion. According to him, she again answered something like, "I don't know, maybe." Contrary to the possible implications of Wehle's letters, SJRWMD's travel office knew of and approved the suite arrangement for the trip to San Diego in 2001. The purpose of the suite was to serve as a location for a training session for Robinson and Winkleman to be conducted by Heweston the week after the Hydron conference. Winkleman also confirmed that she, too, was aware of the suite arrangement prior to the 2001 trip and that it was fine with her. San Diego 2001 As was clear from the evidence, no one was aware that one bedroom in the suite was a loft until Winkleman and Robinson checked in. At that point, there was some discussion about who would take the loft, and it was decided that Winkleman would. The loft set-up was not a factor since Robinson never entered the loft during the entire 2001 trip; once or twice later in the trip, he came to the top of the stairway entrance to her loft area to tell her he was going out. Winkleman's testimony as to what occurred on the first night of the 2001 San Diego trip was fairly consistent with her initial statement. See Finding 3, supra. She added that Robinson also tried to kiss her. Robinson, on the other hand, always has maintained a much different and more detailed version of what happened during the 2001 trip. According to Robinson, after checking into the hotel, they went to check out the beach, which was unseasonably cool, and then went to get some groceries, pooling their money. Returning to their suite, they turned on the television and talked. At one point, he gave her a playful piggy-back ride and dumped her on his bed. He joined her laying on the bed, and they continued talking and laughing together. He testified to playing with her belly ring for quite some time while they were on the bed. At some point while they were on the bed, Robinson moved his hand up towards Winkleman's breast (outside of her shirt), at which time Winkleman blocked the progression of his hand. Robinson immediately stopped and took that as a signal that Winkleman was not interested in him playing with her breast, as had taken place consensually during the September 2000 trip. Robinson testified that he thought to himself, "maybe it wasn't the right night." He indicated that after this, they continued to talk and have a good time, and the mood did not change. In fact, he testified that he continued talking and playing with her belly-button ring from time to time for another half hour and went to sleep at approximately 2 a.m., he in the bedroom and she in the loft room. SJRWMD attacked the credibility of Robinson's testimony concerning the first evening in San Diego in 2001 on three grounds. First, SJRWMD pointed to Winkleman's testimony that she did not have a belly ring on the second San Diego trip, only the first one. Second, SJRWMD argued that Robinson was inconsistent as to the length of time he played with Winkleman's belly-button ring, first saying half an hour, and later saying an hour to an hour and a half. But it appears that his first time estimate related to the time after he attempted to move his hand to her breasts while the second estimate was not so limited. Third, SJRWMD argued that Robinson's testimony was inconsistent with the position that his relationship with Winkleman ended at that time. But he later explained that he chose not to pursue the relationship and was happy in retrospect that nothing else happened on the first night. Finally, SJRWMD questioned Robinson's time estimate that they stayed up until 2 a.m. (5 a.m. Eastern Standard Time) the first night, saying they would have been too tired. But the testimony was not clear whether Robinson meant local time or Eastern Standard Time. Robinson never again suggested or attempted sexual or intimate contact with Winkleman after the first night of the 2001 San Diego trip. Winkleman's only complaint about Robinson's conduct during the rest of the trip was that he was "rude" and "smart-alecky" and took credit for her work during the training session after the conference. Notwithstanding her initial interview statement that she "went up to my room and stayed there for the rest of the week," Winkleman admitted upon further questioning to traveling to Tijuana, Mexico, for sightseeing with Robinson on the Saturday and going to see a movie with Robinson on the Sunday of the weekend between the conference and the training session with Heweston. Robinson, on the other hand, described the rest of the trip in detail. He said they attended the first day of the conference the next day (Thursday), and everything seemed normal to him. That evening, HYDSYS hosted a dinner for conference attendees at an Italian restaurant. Robinson said they drove together and sat almost directly across from each other at a large table of conference attendees. After dinner, they drove together to a microbrewery, where each drank 5-6 beers along with other conference attendees, and a good time was had by all. They drove back to the hotel together, and went to sleep in their separate rooms. The next day (Friday) they attended the second day of the conference. Robinson was somewhat stressed because he was scheduled to make a presentation Winkleman had helped him with. As the conference was drawing to a close, HYDSYS almost forgot about Robinson's presentation. When he was recognized, he delivered the presentation, acknowledging Winkleman. It seemed to Robinson that the presentation was well-received. Winkleman never expressed any displeasure for his not giving her credit for the reason that he did name her and give her credit. That night, they ate in; Robinson had pizza, and Winkleman cooked something they had bought at the grocery store. After eating, Robinson felt sick and went to bed early. Although they had talked about either going deep-sea fishing or going to Tijuana on Saturday, Robinson still was not feeling well the next morning and was not inclined to do either. Later in the morning, Winkleman asked him if he wanted to go to Tijuana with her; he was feeling better and agreed to go. Everything seemed normal to Robinson, and he enjoyed the day. That evening, they either ate in again or went to a deli to eat. On Sunday, Winkleman felt sick, and she stayed in her room most of the day. Robinson thought about going deep-sea fishing himself but decided not to. Sunday evening, Robinson climbed the ladder to the loft to tell Winkleman he was going out and asked if she wanted him to get anything for her. She asked for Popsicles and chicken soup, which he got for her. Training with Heweston started the next day, Monday. Winkleman said she was feeling better but not completely well. Training went fine, as far as Robinson was concerned. He does not think he embarrassed her or treated her rudely in any way. (There was no evidence as to whether Heweston perceived any such behavior.) Training was disrupted by 9/11 on Tuesday, which put a damper on the rest of the week. The only light- hearted time spent the rest of the trip was when they decided to go to a movie either Wednesday or Thursday night. Robinson testified that they walked together to the movie theater, and Winkleman chose "American Pie II." He said they went into the theater, sat together, laughed out loud, and enjoyed it thoroughly. Except for the shadow cast by 9/11, the rest of training week went well, as far as Robinson could tell. After considering driving the rental car home due to 9/11 concerns and delays, they ultimately decided to fly. Training Friday lasted only half a day. Friday afternoon, they went to a bookstore to get reading material because they had heard there would be long flight delays and layovers. They walked to the mall bookstore together and shopped their separate interests once inside. There was indeed a long (4-hour) layover in Atlanta on Saturday. Otherwise, the flight was normal. Robinson does not think he was "rude" or "smart-alecky." To the contrary, he remembered carrying Winkleman's bags for her and buying her refreshments at the Atlanta Airport. When confronted with the Tijuana trip, Winkleman admitted to it but said she chose to go with him to a public place as an alternative to having to be alone with him in the suite. She also denied sitting next to him on the tram, implying that they went their separate ways in Tijuana. He said that they did sit together whenever seats were available. In an attempt to corroborate his version of the Tijuana excursion, he produced two photographs she took of him. She responded that she was not enjoying herself, that he was acting "rude" and being "smart-alecky," and that she refused to have her picture taken with him. As to the movie outing, Winkleman denied that they went to the movie together, insisting that they coincidentally saw each other in line at the same movie without any prior arrangement and coincidentally were going to see the same movie. She also testified that they did not sit together. The testimony of Danita Humbert supported Robinson's version. According to Humbert, Winkleman told her that Winkleman and Robinson had gone to a movie "together" in California during the September 2001 trip. Winkleman testified that the bookstore trip occurred on the first day of the 2001 trip. In an attempt to buttress his version of the bookstore trip, Robinson suggested that there was no reason to visit a bookstore on the first day. SJRWMD ridiculed the suggestion, pointing out that it was just as logical to go to a bookstore on the first day as on the last day. On this point, SJRWMD is correct; the question turns exclusively on the relative credibility of Winkleman and Robinson. Robinson agreed with Winkleman's testimony that no other flirtatious activity occurred during the trip after the first night. As the trip progressed, it seemed Robinson lost interest in having another affair with Winkleman and went back to life without it. As it happened, Robinson was thankful that nothing else happened during the trip. In retrospect, and in light of his reconciliation with his wife after his return from San Diego, he was especially thankful. After San Diego 2001 There also is serious conflict in the evidence as to what transpired after Robinson and Winkleman returned from San Diego in 2001. However, as to those facts, more evidence is available to aid in resolution of the conflicts. Winkleman testified that after their return to Palatka, Robinson continued to act "rude" and "nasty" towards her and began to take action against her best interests-- specifically, by not giving her credit for Hydron work she did, and by taking personal credit for Hydron work, by taking the higher-level Hydron work away from her. She testified essentially that Robinson's actions created a stressful, hostile work environment. While SJRWMD did not directly claim quid pro quo sexual harassment, the only reason for Robinson to suddenly take actions such as those alleged after the trip to San Diego in 2001, under SJRWMD's theory of the case, would have been in retaliation for Winkleman's refusal to "perform" sexually for Robinson during the trip to San Diego in 2001. Notwithstanding Winkleman's claims, there was no objective evidence that Robinson treated her badly at work, failed to give Winkleman credit for Hydron work she did, took personal credit for Hydron work she did, or took the higher- level Hydron work away from her. To the contrary, the greater weight of the objective evidence was that Robinson continued to treat Winkleman very well, praised Winkleman for doing good work, gave her good performance evaluations, took personal credit only for work he actually did, and began the process of transferring more higher-level Hydron responsibilities to her. One actual change in the work relationship between Robinson and Winkleman after the San Diego trip occurred when Robinson officially became Winkleman's supervisor in early October 2001. The official change was supposed to have taken place on the first of the month, but some evidence suggested that the official change was not implemented until the eighth. Winkleman had a history of not accepting McDermott's supervision well and getting angry at McDermott because of it. It is possible she began to perceive rudeness or "nasty" treatment by Robinson as a result of this appropriate change in their work relationship. Instead of seeing this type of change in their work relationship as appropriate, Winkleman may have come to view it as retaliation for her spurning him in San Diego. Actually, there was not even any objective evidence that Winkleman perceived bad treatment by Robinson until well after their return from San Diego--indeed, not until approximately November 2001. It seems from the evidence that Winkleman's claims against Robinson may have been triggered when she took off from work October 20-28, 2001, during a time when Robinson was under pressure to resolve problems SJRWMD was having with the interface of Hydron with other SJRWMD computer systems. Because Winkleman was gone, Robinson had to communicate directly with Heweston and others at HYDSYS in an attempt to resolve the problems. When Winkleman returned to work, Robinson continued to deal directly with HYDSYS in an attempt to resolve the problems (almost always copying Winkleman with emails to keep her informed). Winkleman seems to have misinterpreted these events as an attempt by Robinson to demean her and remove her responsibilities as Hydron administrator. She became more and more hostile and aggressive in defending what she seemed to view as her "turf"- -although objectively it does not appear that Robinson actually was out-of-line or doing anything to undermine Winkleman. Unless explained by appropriate changes due to Robinson's new role as supervisor, or by Robinson stepping in to resolve the Hydron interface problems in Winkleman's absence and carrying his work through to completion after her return, it is not clear from the evidence why Winkleman would think Robinson was demeaning and undermining her. Winkleman applied for outdoor work at SJRWMD as an invasive plant technician on November 12, 2001. Although there was evidence that Winkleman might have liked outdoor work and had applied for outdoor work at SJRWMD in the past, it does appear that this application was motivated by dissatisfaction with Robinson. As Winkleman herself wrote in a diary she started on November 15, 2001, she also confronted Robinson on November 12, 2001, with the question "who is the Hydron administrator?" and "who is supposed to communicate with HYDSYS?" Robinson answered, "you are." Winkleman took the next two days off. She wrote in her diary that she discovered on her return that Robinson again emailed HYDSYS about a problem Winkleman thought she already had resolved. She viewed this as going behind her back and trying to make it look as though she was "not keeping up with" her work. As Winkleman also wrote in her diary, she approached Melanie Collins of SJRWMD's personnel office on November 16, 2001, "to discuss the issue of 'why haven't I been getting interviews for outdoor jobs?'" It is not clear whether she was referring only to the application she had filed four days earlier. She then wrote: Part of the problem is that I have also applied for indoor jobs even though they were higher paygrades. . . . Also, she [Collins] asked why I was so concerned about this now? Is there a problem where I am at now, etc.? I explained that there is somewhat of a problem, but I've always wanted to work outdoors. I am very interested in the position of Inv. Plant Tech. I do also have a problem where I am at. New supervisor, no job description, no performance evaluation. No increase in pay, but a lot more work. 3 Supervisor taking credit for things I've done. 4. I'm Hydron admin - but supervisor is doing HYDRON things "behind my back." I look stupid when I don’t know all the things that are going on with Hydron when I am the administrator. She said she could work on one problem or the other. I asked her to look more into the Invasive Plant Tech position. But she also let me know that if I did not get the position I was applying for - she could look into the other. It is clear from the evidence that Winkleman did not tell Collins that Robinson had made unwelcome sexual advances or that he was creating a hostile work environment in retaliation against her. Winkleman has alleged that she told the Assistant Director of the Division of Hydrologic Services, Alex Hinely, during a meeting on or about November 16, 2001, that Robinson had made unwelcome sexual advances towards her. Hinely was investigated along with Robinson and eventually was fired for not taking appropriate action in response to information allegedly imparted by Winkleman during this meeting. (Hinely did not request an administrative hearing to challenge his dismissal.) But Hinely has denied being told anything about unwelcome sexual advances at this meeting. He testified that Winkleman told him during the meeting that a mutually initiated event had occurred months earlier, but that it did not result in sexual activity. In her words, "nothing happened." She added that the event was mutual, had occurred away from SJRWMD after working hours, and that the other party was a co-worker, not a supervisor or manager. At the time, Hinely did not think she was referring to Robinson, who was her supervisor at the time; instead, he thought she might have been referring to another employee, perhaps Mike Babbitt because Hinely had observed friction between Winkleman and Babbitt. In any event, Winkleman told Hinely that no other incidents had occurred and that she simply was experiencing personal regrets that were affecting her working relationship with the other employee. Hinely reported that Winkleman seemed truthful and did not want him to report what she had told him. Hinely suggested she see Melanie Collins about it, but Winkleman refused his suggestion at the time. Winkleman testified that Hinely discouraged her from confiding with Collins, saying that Collins would not keep a confidence. This was one of SJRWMD's grounds for dismissing Hinely. There even was a suggestion that Hinely was conspiring with Robinson to keep a lid on Winkleman's allegations. More likely, Hinely was responding to Winkleman's expressed reluctance to "go public" with the incident at that time and was merely advising her that it could become public if she went to Collins about it, due to the nature of Collins' position at SJRWMD, which probably was true. The wording of Hinely's interview statement about his first meeting with Winkleman differed somewhat from his testimony at final hearing. However, the essence of his testimony was not substantially inconsistent with his interview statement. (Unlike Winkleman and others, but like Robinson, Hinely did not get an opportunity to review and revise his interview statement because he was placed on administrative leave shortly after the interview.) Hinely testified that, at his own initiative, he met with Winkleman again to ask how things were going. He said she told him that the incident had occurred months earlier, nothing had happened since, that she was getting over it, and that it was no longer affecting her work. His interview statement did not mention this meeting. Hinely testified that he then became aware of unusual tension between Winkleman and Robinson, whereas up to that point they always seemed to have an excellent rapport. At some point, Robinson copied Hinely with some tense email from Winkleman to Robinson. This probably is when Hinely suggested that Robinson "back off" Winkleman a little. SJRWMD argued that Hinely's advice to Robinson was evidence of a hostile work environment. More likely, Hinely was mindful that Robinson tended to micromanage, and Winkleman had problems with that management style under her prior supervisor, McDermott. Hinely then approached Winkleman again. In testimony, Hinely called this his third meeting with Winkleman on the subject. His interview statement called it the second meeting. Whether the second or third meeting, it apparently took place around Thanksgiving, which was on November 22, 2001. This time, Hinely asked whether the incident she had previously talked about involved Robinson. According to Hinely, Winkleman answered, "yes." Hinely said he specifically asked her if Robinson was antagonizing her or harassing her in any way, and she answered, "no." According to Winkleman's diary, she met with Robinson on November 19, 2001, to discuss the "Hydron problem" again. According to her, Robinson again denied taking credit for her work and again tried to explain that he was taking care of problems in her absence. She argued the point, mentioning an audit test she set up, repeating allegations that he took credit during the Hydron training in San Diego, and mentioning "HMD stuff (various things)." Robinson allowed that he might have omitted to copy Winkleman on a few emails and promised to try to remember in the future. Winkleman also complained about being reminded by Robinson as to what work needed to be done on a weekly basis. She asserted that she gets her work done without being reminded. Of considerable interest, Winkleman also mentioned to Robinson during their meeting on November 19, 2001, that it was not just her who had noticed the change in his behavior towards his co-workers. Winkleman ended the diary entry of November 19, 2001, by recording that Robinson said maybe she should apply for an outdoor job, such as Data Collection, since she seemed "obviously unhappy" with the position she was in. Winkleman responded that it was not the position, it was the way she was being treated. Winkleman failed to include in her diary entry for November 19, 2001, that she and Robinson discussed another major complaint she had about him. Apparently, Winkleman heard from someone in the office that Robinson was going to a conference in Australia the following year. She mistakenly assumed it was a Hydron conference and thought it was more appropriate for her to attend, as Hydron administrator. She took offense to being left out and thought it was another example of Robinson demeaning and undermining her. However, when she confronted Robinson, he explained that it was not a Hydron conference. Instead, he explained, Hydron was impressed with a presentation he had made at the Hydron conference in San Diego in September and asked him to repeat the presentation at a meeting of the Australian Hydrographers Association. Winkleman testified that she was satisfied with Robinson's explanation, but it appears to have continued to poison Winkleman's perception of Robinson. According to her testimony, she believed she was instrumental in preparing Robinson's presentation for the Hydron conference in San Diego in September. In fact, while Robinson gave credit to Winkleman during his San Diego presentation for helping him prepare the presentation, he explained in testimony that Winkleman's actual contribution was limited to putting the substantive material he had prepared in a "Power Point" format, which Robinson later modified to make it less showy and more informative. Nowhere in any of Winkleman's diary entries, which continued through December 19, 2001, did she mention or even allude to sexual conduct by Robinson, whether or not unwelcome or offensive. The apparent purpose of the diary was to record both what she perceived as Robinson's slights and also her defense against any possible criticism of her work. Winkleman and SJRWMD attempted to explain the absence of allegations of sexual misconduct by saying Winkleman knew the diary entries on her SJRWMD computer were public records, and she did not want them accessible to the public. Winkleman wrote a letter to Robinson on November 27, 2001, and delivered it to him. It summarized work problems she perceived having with Robinson and for the first possible documentation of alleged improper sexual conduct on his part. In the letter, Winkleman vaguely accused Robinson of turning against her when he did not get what he wanted from her. Robinson testified that he assumed Winkleman was referring to her recent job performance and lack of cooperation with him, not her rejection of him during the trip to San Diego in 2001. Robinson attempted to address some of Winkleman's specific concerns and to reassure her that he was not trying to demean her or her work, undermine her, or make her job environment unpleasant. Robinson's response did not indicate that he understood the letter as a threat to accuse him of sexual misconduct. Winkleman and SJRWMD have suggested that Robinson, Hinely, and perhaps others conspired to seek to reclassify her position at a higher pay grade in return for her not raising any allegations about sexual harassment. But the clear evidence was that the process of reclassifying Winkleman's position was begun well before Winkleman even hinted at sexual harassment. According to Hal Wilkening, Director of SJRWMD's Department of Resource Management, Larry Fayard approached Wilkening to initiate the process in late summer--well before the September San Diego trip. It appears that the reclassification process paralleled the process of transferring Winkleman to a position under Robinson's supervision. Fayard testified that the reason for the reclassification was to improve the chances of keeping Winkleman as an employee. Winkleman did not begin to make explicit accusations of sexual misconduct against Robinson until December 2001. This occurred during a discussion with Hal Wilkening, Director of SJRWMD's Department of Resource Management, on or about December 19, 2001. Wilkening approached Winkleman at that time to discuss why she was applying for an outdoor job while her supervisors were taking action to reclassify her position to a higher pay grade. He also wanted to correct some misinformation he learned had been given to her that her application for outdoor work was derailing the position reclassification. During this conversation, he asked her if she was applying for outdoor work because she did not like her current job. At that point, she told him she liked the job fine but that she no longer wanted to work for Robinson because he had made unwelcome sexual advances against her. He required her to report this to Melanie Collins immediately. Collins made arrangements to begin interviewing Winkleman and other witnesses immediately after the Christmas holiday. Summary of Evidence and Findings To a large extent, the findings in this case depend on the credibility of Winkleman and Robinson; and it is not easy to decide whom to believe. One thing clear from the evidence is that Robinson's version of the facts has been consistent from the start even though they may not have been in his interest, did not reflect well on his character and judgment, and undoubtedly were not well-received by his wife, with whom he had begun to reconcile after the 2001 San Diego trip. In contrast, Winkleman's credibility is suspect since she clearly told SJRWMD investigators untruths and half- truths. Many other factors also are relevant to the question of whom to believe, Robinson or Winkleman. The possibility of a consensual extramarital sexual relationship clearly cannot be ruled out; during the course of this proceeding, Winkleman was required to admit having such a relationship with a man other than Robinson during the time of her separation from her husband from around Christmas of 2000 until October 2001. (Notwithstanding SJRWMD's argument, this did not necessarily prove that Winkleman was not attracted to Robinson.) In addition, Winkleman has consulted with mental health specialists, including a psychologist, because of confusion at work which she attributed to her marriage. Winkleman also admitted to suffering from stress and panic problems for which she received treatment, including Celexa and Prozac medications for anxiety and mental health conditions. Winkleman also has a history of not accepting Glenda McDermott's supervision well and of getting angry at McDermott. She admits to having a bad temper, and there was evidence that Winkleman can be vengeful when she is angry and that she can be untruthful about her acts of revenge. For these as well as other reasons, including the demeanor of the witnesses and how their testimony squared with other evidence in the case, it is found that SJRWMD did not prove Winkleman's ultimate version of the events of San Diego 2000 and 2001, and the time in between, to the extent it conflicts with Robinson's version, by a preponderance of the evidence. Finally, as found, Winkleman's possible perception of a hostile work environment and retaliation was contrary to the greater weight of the objective evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order: granting the Petition for Formal Administrative Hearing; and reinstating George Robinson with back pay, less pay earned in his employment with the Florida Department of Transportation and unemployment compensation, if any. DONE AND ENTERED this 9th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON 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 9th day of October, 2002. COPIES FURNISHED: Robert L. McLeod, II, Esquire McLeod & Canan, P.A. 43 Cincinnati Avenue St. Augustine, Florida 32084-3244 John W. Williams, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Kirby Green, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue Whether Petitioner is entitled to service credit in the Florida Retirement System (FRS) from June 1, 1995, through August 2001.
Findings Of Fact At all times material, Petitioner has been a school psychologist, certified by the Florida Department of Education. From June 1995 through August 2001, Petitioner performed duties as a psychologist under "purchase of services agreements" with SBAC to perform special needs assessments for gifted children. These formal contracts were executed between Petitioner and SBAC in and for each successive school year during that period. Although there was the expectation that a new contract would be negotiated/signed each year, there was no guarantee to that effect. The annual contracts for June 1995 through August 2001, between SBAC and Petitioner provided that Petitioner was to assume all risks, and that he was a "consultant." They further provided that he was to be paid at a rate of $150.00 for each assessment he completed. Either party to the contract could terminate it on 30 days' notice. In pertinent part, the annual contracts described Petitioner as an independent consultant and not an employee in the following terms: * * * The CONSULTANT is an Independent Consultant and will perform all services at the Consultant's risk, assuming full responsibility for completion of the services stipulated below: Psychoeducational evaluations of students referred for determination of eligibility to the Gifted Program as shall be requested by the Board through its Director of Exceptional Student Education or Lead School Psychologist. All psychoeducational evaluations shall be completed within 30 days of having been received by the CONSULTANT. All reports and billing for services rendered by the CONSULTANT shall be submitted in a timely manner. All reports are to be submitted in triplicate. * * * CONSULTANT also acknowledges that in rendering the services provided herein, the CONSULTANT will be acting as an Independent Consultant, and not as an employee of the School Board of Alachua County. (Emphasis added.) The contracts contained no specific provision for reimbursement of Petitioner's expenses. However, a calculated amount for travel expenses was built into the fee of $150.00 per child. SBAC did not consider Petitioner an "employee" during the period of his annual contracts, because he was not filling a regularly established position. Accordingly, SBAC did not report to FRS any retirement information/contributions on the amounts it paid Petitioner during this period. Likewise, during the specified period, Petitioner received no paid leave or other employee benefits from SBAC. Also, SBAC did not provide unemployment compensation coverage or workers' compensation coverage for Petitioner during the specified period. While under contract as an independent consultant, Petitioner did not report his time to SBAC via a timesheet or otherwise. Rather, he was paid for each completed assessment under the terms of his respective contracts. He was only required to file his test results within five business days of the date he assessed a student. Between 1995 and 2001, SBAC reported Petitioner's pay for federal income tax purposes by Form 1099, rather than by Form W-2. A 1099 form is traditionally used for occasional employees and for independent contractors. W-2 forms are used for regular employees. Petitioner reported his income from SBAC as "other income," i.e. self-employment income. In a similar vein, SBAC withheld no taxes, Social Security, or Medicare deductions for Petitioner during this period. SBAC made no matching contributions for Social Security or Medicare. During the specified period, Petitioner was hired solely for special needs assessments. The time frame for testing by SBAC was established by law. Other than special needs assessments, Petitioner had no duties for SBAC, but he was assigned cases by SBAC as necessary to meet its caseload and time frame. Petitioner was only called upon when SBAC's school psychologists, who filled regularly established positions, were not available or could not timely meet the demand for assessments in a school year of 10 months' duration. Petitioner was required to hold a professional license as a psychologist to perform his SBAC contracts, and he was expected to perform his services for SBAC within the standards of his profession. His contracts provided for him to render personal services, and he could not hire an assistant or subcontract out his duties to another psychologist. SBAC could not instruct Petitioner how to do his job as a professional psychologist or what decision or recommendation to reach on any child. However, SBAC told him which text to use, and he was initially trained by another school psychologist on the testing instrument required by SBAC. Petitioner also received initial training from SBAC on how to report his assessments, and SBAC provided him with test kits and word processing assistance for each child assessment. SBAC set the format for his reports and provided him with a template therefor. Petitioner was not regularly provided office space by SBAC. However, he was allotted a room on each school's premises for each test, as he traveled from school to school within the county, and he had to do his testing on a day the specified child was in school and that school was open. Each test had to be completed within 30 days of its assignment, per his contracts. Petitioner was free to schedule one or more of his assessments on the dates most efficient for him, provided he met his deadlines. Petitioner's efforts for SBAC during this period might be described as "frequently recurring, but not regular." Petitioner never worked for SBAC more than four consecutive months during the entire time period at issue. During that period, he was on his own for defending his test results. Petitioner was required to carry his own professional liability insurance during the time in question, whereas then and now, SBAC "covered" their employees' liability insurance. Between 1995 and 2001, Petitioner was free to offer his professional services to other clients besides SBAC, but he chose not to do so. There was no profit or loss involved for SBAC or Petitioner in Petitioner's 1995-2001 service. Petitioner had to invest none of his personal funds to do his assessments. In September 2001, Petitioner was hired by SBAC in a half-time, regularly established position with all benefits, including sick leave, personal leave, and FRS membership. Upon that event, his duties were altered to include rendering any psychological assistance required by any SBAC school in which he was working. He is now reimbursed for travel by submitting request forms. He has continued to meet that job description and has filled that regularly established position to date. SBAC requested, and in 2002, received a letter-opinion from the Internal Revenue Service (IRS) interpreting various federal statutes and regulations. That IRS letter-opinion concluded that during the period in question, the Petitioner was an "employee" of SBAC; that various federal forms might require filing or amending by SBAC; and that SBAC and Petitioner might need to pay yet-to-be determined amounts. That IRS opinion is based on facts submitted by SBAC and not necessarily in evidence; is based on federal laws which are not determinative of the Florida retirement issue before this forum, and was not necessarily final. Accordingly, it is not binding in the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for membership and service credit in the FRS from June 1, 1995, through August 2001. DONE AND ENTERED this 10th day of February, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2005. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Leonard D. Jackson 2731-B Northwest 104th Court Gainesville, Florida 32606-7174 Alberto Dominguez, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER 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 30th day of April, 1992.
The Issue Did Respondent engage in unlawful employment practices directed to Petitioner, as defined in Section 760.10(1), Florida Statutes? In particular, did Respondent knowingly maintain a sexually-hostile and abusive environment for its female servers which unreasonably interfered with their work, exposing the female employees to disadvantageous working conditions to which male employees were not exposed? Was the work place for female servers permeated with discriminatory ridicule and insults? Did Respondent maintain an intimidating environment which caused Petitioner's constructive discharge? Is Petitioner entitled to take up her former duties as a server at Respondent's restaurant? Has Petitioner sustained damages, including loss of back and future pay and related benefits?
Findings Of Fact Respondent owns four (4) restaurants. Two are located in Tallahassee, Florida. One is located in Mary Esther, Florida; and one is located in Pensacola, Florida. The Tallahassee restaurants are located on North Monroe Street and Apalachee Parkway. It is the Apalachee Parkway restaurant that is the subject of this case. At times relevant to the inquiry, the Parkway restaurant operated with an average staff of 16-18 servers, who are mostly female, and 9-10 cooks, who are males. The Parkway restaurant had a high volume of business during the period under inquiry. At peak volume, the employees felt under pressure and were not especially respectful of fellow employees. Petitioner was employed at the Parkway restaurant from February 12 through May 15, 1993. Petitioner is approximately 30 years old. Petitioner is a female, whose stature is one of average height and weight. Petitioner was hired by a manager at the Parkway restaurant. That manager was Erin Stowell. Respondent empowered Mr. Stowell to hire and fire employees at the Parkway restaurant and to impose the necessary controls to conduct business at the restaurant. Mr. Stowell had the supervisory authority to conduct the everyday business at the Parkway restaurant in the capacity of supervisor of servers and cooks. At times relevant to the inquiry, Petitioner worked the day shift. Mr. Stowell was her manager. On that shift, most servers were female. In Petitioner's latter tenure, there was one male server working the day shift. At times relevant, a manual detailing appropriate employee conduct was in place. Among the expectations for employees was that the employees not engage in profane and vulgar language. Moreover, employees were expected to engage in moral and proper behavior. Petitioner was given the employee manual. In the restaurant operation, servers were expected to fill out customer food order tickets that accurately described the food orders. This accuracy was vital to the restaurant's financial operation. All food items served were to be charged for. The cooks had a corresponding responsibility to make certain that the tickets were accurate and that they not prepare food that was not described on the food order ticket. These arrangements led to conflicts between the servers and the cooks concerning food preparation and its timely delivery to the customer. Christopher Titze is the son of Michael Titze. Michael Titze owns Respondent. Beth Titze is Michael Titze's wife and mother of Christopher Titze. Christopher Titze worked at the Parkway restaurant at times relevant to the inquiry. He served as a host who greeted customers. In the event that problems occurred between servers and cooks that affected service to the customer, Christopher Titze would mediate disputes between servers and customers. In addition, if there were other problems between cooks and servers, the server would seek Christopher Titze's intervention or the cook might seek Christopher Titze's intervention as mediator. This mediation function took place once or twice a day at most. Specifically, cooks would ask for assistance if the servers were not charging for food and when servers did not properly space the time for delivering food order tickets to the cooks. Servers would complain when cooks were not getting the food prepared fast enough. Christopher Titze observed that Petitioner often did not wear the proper uniform for a server. She wore shoes that were other than required and did not wear pantyhose as required. As host, Christopher Titze was expected to inform Petitioner that she was not wearing the appropriate uniform. He did inform her. These reminders were given to Petitioner on 15-20 occasions. Christopher Titze did not have the authority to discipline Petitioner for noncompliance with the uniform requirements. Christopher Titze would occasionally remind other servers that they were not in proper uniform from time to time. By contrast, Petitioner was chronically out of uniform. Christopher Titze was working at the restaurant on the Petitioner's last day of employment. He overheard Petitioner yelling. He observed that several customers in the lobby area to the restaurant were looking at him during the outburst. Christopher Titze felt embarrassment and went running to the area where Petitioner was located. When he arrived at that area, Petitioner and a cook named O.C. Mack were there. Mr. Mack was a 250-pound man. Christopher Titze observed that Petitioner was "carrying on". Mr. Mack appeared upset and seemed not to be paying attention to Petitioner. Petitioner was getting more upset with Mr. Mack and was yelling and screaming and cursing at him. At that time, the manager, Mr. Stowell was not in attendance in the area where Petitioner and Mr. Mack were engaged. In particular, Christopher Titze heard Petitioner say to Mr. Mack: "This is fucking bullshit and I don't have to put up with this shit from you or anyone else". Christopher Titze tried to ascertain what had caused the outburst. It took a couple of minutes for Petitioner to calm down and quit yelling. During this time, Mr. Mack was cooking. Mr. Mack explained that Petitioner had not charged a customer for hollandaise sauce. Petitioner told Christopher Titze that the problem had to do with hollandaise sauce for a customer. Christopher Titze told Mr. Mack that he needed the hollandaise sauce right now. Mr. Mack told Christopher Titze that he was not going to get it. Christopher Titze then went up front and asked Mr. Stowell to go back and take care of the problem. Before Christopher Titze went up front to get Mr. Stowell, Mr. Mack told Christopher Titze that he was not going to give the hollandaise sauce to him until it was charged for on the ticket. When Christopher Titze found Mr. Stowell he told Mr. Stowell that Petitioner and Mr. Mack were having an argument and that he could not straighten it out and that Mr. Stowell needed to go back there. Christopher Titze made sure that a server other than Petitioner delivered the hollandaise sauce to the customer. Later, Christopher Titze observed Petitioner yelling and screaming and saw her take her purse and comment "this is unfair" and that "she was leaving." The May 15, 1993 incident was the only occasion upon which Petitioner complained to Christopher Titze about Mr. Mack's conduct. Other servers had complained to Christopher Titze about Mr. Mack's conduct. They told Christopher Titze that Mr. Mack was hard to work with and that he was very particular on tickets, making sure that customers were charged for food. The servers reported to Christopher Titze that Mr. Mack was concerned about food costs and that Mr. Mack skimped on some things. The other servers reported that Mr. Mack was rude about the way he went about doing his job and adhering to rules in the restaurant. Christopher Titze observed that Mr. Mack was loud when operating under stress. Mr. Mack especially did not like it when tickets were not properly written, and he complained about it. Christopher Titze observed that Mr. Mack would use the word "shit" and similar language when he was under stress. He would direct his remarks to servers: "You need to write this shit right". Christopher Titze heard the kitchen staff call the servers "bitches" on one or two occasions. Christopher Titze has no recollection of doing anything in response to the remarks by the kitchen staff directed to the servers. Christopher Titze never observed nor heard servers complain that the cooks were not getting out their orders quickly as a means of being spiteful to the servers. Christopher Titze never observed the kitchen staff holding or manipulating their genitals in the presence of servers. Lori Helms was a server who worked on the shift with Christopher Titze. She reported to Christopher Titze that a cook named Wendell Holmes had been requested to prepare an employee meal for her, to which Mr. Holmes stated: "I'll make you a cum sandwich." When the incident was reported to Christopher Titze, he told Mr. Stowell. Mr. Stowell sent Mr. Holmes home that day. Mr. Holmes was subsequently fired, having never been allowed to come back and work at the restaurant beyond the day he was sent home. By Christopher Titze's observation Ms. Helms was made to cry by Mr. Holmes' conduct. Christopher Titze has no recollection of the conduct of Mr. Mack causing Ms. Helms to cry or observing her to cry on any occasion other than the incident with Mr. Holmes. Terri Dixon was a server at the Parkway restaurant from November 2, 1992 until April 1993, when she was fired by Mr. Stowell. Ms. Dixon observed that Mr. Mack was rude and that he would use vulgar language. She observed that Mr. Mack would raise his fist at you and that his conduct seemed threatening. Mr. Mack referred to Ms. Dixon as "you little white girl", "you little bitch", and "you little honkey girl". Cooks would refer to Ms. Dixon as "whitey" "honkey" and "you white bitch". This made her feel intimidated. Which cooks other than Mr. Mack made these remarks was not proven. Ms. Dixon complained to a cook named Jason about an order that she believed was not being prepared in a timely manner. Apparently, her customers were complaining about the timeliness. Jason responded to her by saying, "shut up, you white bitch" and "I will stomp your white ass into the ground". Ms. Dixon observed other cooks shaking spatulas at her. Ms. Dixon explained that when she thought that the cooks had had ample time to prepare the food she complained to the cooks. The response by the cooks was to the effect, "I will give you your food when I get well and ready to." Ms. Dixon had the experience that when service of the food was delayed, customers did not want to tip her. A food preparation employee made a number of attempts at asking Ms. Dixon to go out with him. She considered his actions to be harassment. This same person also offered her drugs. Ms. Dixon complained to Mr. Stowell about that conduct by the male employee. After her complaint, the situation did not improve. What action, if any, that Mr. Stowell took to address her complaint is not clear. Ms. Dixon did not indicate that she reported back to management to inform management that she was continuing to be approached by the food preparation employee. Ms. Dixon observed the incident between Ms. Helms and Mr. Holmes. She saw Mr. Holmes grab his genitals and say "well how about I give you a cum sandwich." Ms. Helms worked at the Parkway restaurant from around January or February, 1993, until sometime in May 1993. She quit her job as a server at about the same time that Petitioner last worked at the restaurant. Ms. Helms describes what she considered to be rude conduct by Mr. Mack. These comments were directed to Ms. Helms pertaining to the manner in which she hung or presented the customer food order tickets to the cook. He made remarks calling her "stupid", "that drugs had eaten her brain" that "she was crazy" and would refer to her as "bitch". Mr. Mack yelled at her and she was afraid of him. These circumstances usually occurred when the restaurant was busy. Otherwise, Mr. Mack was nice to Ms. Helms when she first came to work in the morning. At busy times Mr. Mack would complain to Ms. Helms that she was not writing her tickets right and would grab them off the wheel where they were placed. To Ms. Helms, it seemed as if Mr. Mack would be under pressure and would take it out on her. In the exchanges where Mr. Mack would use the terms "bitch, stupid and crazy" directed to Ms. Helms, the food that she was responsible to serve would be sitting at the service window and available to be served. On these occasions Ms. Helms would direct argument back to Mr. Mack. She would then go back to the bathroom area to collect herself sufficiently to serve the food. Under these circumstances the food service would be delayed. At times when Ms. Helms complained about the delays in serving food to the customers when the restaurant was especially busy, responses from the cooks would be "hold on a damn second, baby, I can't do everything at once." At times these remarks were made in a manner which Ms. Helms believed to be screaming. The cooks would also say, "I'm going to do it and you are the one who messed it up in the first place and this wouldn't never have happened in the first place if you would have written the damn ticket wrong." Ms. Helms observed cooks dancing around and grabbing their crotches. She did not indicate complaining about these observations to management. While working at the restaurant Ms. Helms would cry often. In this respect Ms. Helms acknowledges that she is a very sensitive person and that when she was yelled at, this made her cry. This conduct hurt her feelings. In instances when she would cry Ms. Helms would go to Mr. Stowell and he would console her by telling her to stop crying and go about her business and that it would be okay and that Ms. Helms should not allow the conduct by the other employees to get to her. Ms. Helms describes the incident with Mr. Holmes in which she asked Mr. Holmes to make a sandwich for her and he replied, "baby I'll make you a cum sandwich". She responded by telling Mr. Holmes not to talk to her that way. The incident was one of the reasons that led her to quit her position at the Parkway restaurant. As described before, Ms. Helms reported the incident to Mr. Stowell. Soon after the incident with Mr. Holmes, Ms. Helms quit her job. As Ms. Helms observed, Mr. Stowell was present when cooks would use words such as "bitch", "fuck", "shit", "damn" and "ass", in Ms. Helms' presence. She considered these remarks to be directed to her. With the exception of the word "bitch", it is not clear that the use of profane language was directed to Ms. Helms as opposed to merely being stated in her presence. On Petitioner's last day, Ms. Helms, although she was not in the immediate vicinity of the incident, overheard part of the exchange between the Petitioner and Mr. Mack. She heard both Mr. Mack and the Petitioner yelling back and forth about the hollandaise sauce. Ms. Helms then observed the Petitioner go to the back of the restaurant to smoke a cigarette and that the Petitioner was crying. Ms. Helms took the customer the hollandaise sauce. Ms. Helms was told not to wear socks as part of the attire for servers because the servers were expected to wear pantyhose. Nonetheless, she wore socks again after being told not to do so. Ms. Helms observed that cooks wore their clothes loosely and that they would hang down to the extent where she could see their underwear and could see Mr. Mack's "butt crack". She did not indicate that she complained about these observations to management. Ms. Helms also had problems with a female server Kim Tuten whom Ms. Helms described as making her feel unwelcome and treating her in a rude manner. One time Ms. Tuten told Ms. Helms "I'll kill you." Ms. Tuten called Ms. Helms "stupid." Ms. Helms said that she "hates Ms. Tuten." Ms. Helms observed Ms. Tuten using profane language. Ms. Tuten used the words "fuck, damn, shit and ass". Ms. Tuten also called Ms. Helms "a bitch". Linda McCord began work at the Parkway restaurant in 1992, working on the night shift. She quit her position as a server at the restaurant because of a conflict with her school schedule. She came back to work at the restaurant and quit a second time because of Beth Titze's actions in "dressing down" Ms. McCord. Although Mr. Mack worked on a different shift than Ms. McCord, the shifts overlapped to some extent this allowed her to watch Mr. Mack perform as a cook. She observed Mr. Mack to be intimidating. She saw him early in the morning on weekends. When Mr. Mack first arrived he acted as if nothing was right and "would just raise hell at everybody, whether you were a server, a dishwasher, you know whatever." Ms. McCord observed Mr. Mack and his son Governor Mack, another cook, use the words "fuck, fuck you and mother fucker", sometimes directed to her but a lot of times in conversation between the cooks or with a dishwasher or with other servers. Ms. McCord observed the cooks on Mr. Mack's shift, to include Mr. Mack, "brag about their physical anatomy and what they do and how they do and that they would talk sexually about women." The words that were used in the discussions between the cooks about sexual matters made Ms. McCord feel uncomfortable and offended. Ms. McCord complained to Mr. Stowell about the profane language by the cooks. His response to the complaints was "I'll see about it". She made similar complaints to the night manager who said he would talk to the day manager who was Mr. Stowell. It is not clear whether Ms. McCord received a satisfactory response to her complaint. Donna Land was a server at the Parkway restaurant. She is and has been the Petitioner's roommate since 1989. Her employment at the Parkway restaurant lasted a few days. She quit her job at the restaurant shortly after Petitioner's last day as a server. Ms. Land observed that Mr. Mack was "fussy" on the day that Petitioner was last employed at the restaurant. Ms. Land was standing near the window where the food is delivered when she saw Petitioner approach that area. Petitioner asked Mr. Mack to do her a favor and get the Petitioner some hollandaise sauce. At that time Ms. land observed that Mr. Mack was real busy. The ticket holder was full and Mr. Mack said "I've got to have a ticket in order to do that." To which Petitioner responded that Mr. Stowell was coming with the ticket. Shortly thereafter Mr. Stowell came into the conversation. After Stowell showed up Mr. Mack started yelling and cursing Petitioner and shaking his spatula in her direction. Mr. Mack said "I'm not going to get you this, god damn this." Mr. Mack called Petitioner a "fucking white bitch" and told the Petitioner to "drop dead" and that he was "going to kill her." At this juncture Petitioner started to cry. Mr. Stowell then slid a bowl across and told Mr. Mack to give Mr. Stowell some hollandaise sauce. Mr. Mack slid the bowl back and said "you go to hell, I'm not giving you it either." Mr. Mack then said "get that fucking white bitch out of my face before I stomp her to the ground." As Ms. Land recalls, Mr. Stowell then told Petitioner to go home. Petitioner replied "I can't believe you are letting him talk to me like this." Mr. Stowell told Petitioner again to "go". Petitioner stepped away and remarked to the effect that, "I'm not going anywhere" and asked Mr. Stowell if he was firing her. Mr. Stowell then responded by telling the Petitioner that she was fired. It appears that Mr. Stowell was trying to remove Petitioner from a threatening situation, not intending to fire her until Petitioner refused to leave. Petitioner walked out of the restaurant at that time. Ms. Land was upset by these events. Mr. Stowell told Ms. Land that the Petitioner would be all right and that he would give her a call later. In the conversation between the Petitioner and Mr. Mack that was overheard by Ms. Land, Petitioner remarked that while the customer had been served hollandaise sauce that it was not enough and the man wanted more as a side order. The extra hollandaise sauce had not been put on the ticket as required by restaurant policy. Ms. Land overheard the kitchen staff using the words "fucking, pussy and bitch." Ms. Land perceived that the words were directed at her and she felt a little embarrassed. Ms. Land observed the kitchen staff put their hands in their pants, which they wore very low, meaning placing their hands in their groin area. Ms. Land is not sure whether the manager, Mr. Stowell, observed this conduct and she did not make a complaint about the conduct. Ms. Land observed cooks in the kitchen yell at Ms. Helms and that Ms. Helms cried a lot. Ms. Land worked with a male server named Joe. She never observed the cooks give Joe "a hard time." Angela Brumblaugh worked at the Parkway restaurant from September 1992 into August 1994 as a hostess, server and closing manager. She also lived with Michael and Beth Titze for four months. Christopher Titze was her friend during the time Ms. Brumblaugh worked at the restaurant. During the time that Ms. Brumblaugh worked at the restaurant she overheard curse words and profanity from cooks, servers, bus-boys and dishwashers. Those words that she heard were "damn, shit, and fuck." Among others, she heard Petitioner use those words. The context in which she heard those words used was related to a general griping about something that was not going right while working at the restaurant. By example, food orders that did not come out fast enough or someone getting in the way of employees' movements or a customer that was too demanding. The context was one in which the situation was stressful due to the time constraints for preparing and delivering food orders. Ms. Brumblaugh observed that Mr. Mack was a stickler about marking things that were to be charged for on the tickets. If they were not marked, and other cooks were not enforcing the policy about requiring the tickets to be marked so that items could be charged for, he would "get on" those other cooks. Ms. Brumblaugh never heard cooks refer to Petitioner as "fucking white bitch." Ms. Brumblaugh never observed what she considered to be a sexual problem involving employment discrimination. Ms. Brumblaugh observed Petitioner's overall disposition as being happy and excited one minute and "pissed off and bitching and yelling" the next minute. Ms. Brumblaugh overheard Petitioner yelling about food being late coming out the window and in the course of these remarks Petitioner was profane. Petitioner never mentioned to Ms. Brumblaugh that she considered that employment discrimination was being directed to the Petitioner based upon Petitioner's sex. Ms. Brumblaugh observed kitchen personnel place their hands in their crotch area. She perceived these actions to be to adjust shorts or to scratch. As hostess, Ms. Brumblaugh was expected to remind servers about the correctness of their uniforms. She gave these reminders. If a server was missing a bow tie she would get them another and at times when servers were missing hose there were hose available at the restaurant; if not available, the server was reprimanded and told to wear the hose. Kim Taylor has worked as a server at the Parkway restaurant on and off for a period of ten years. She describes herself as a close friend of Petitioner. Ms. Taylor worked on the day shift with Petitioner. Ms. Taylor would cry when Mr. Mack yelled at her for not writing the tickets properly. She did not complain to management about this problem, but resolved the issue by working in an area separate from Mr. Mack. Ms. Taylor heard kitchen employees refer to servers as "bitch". Ms. Taylor observed that when problems developed between the servers and the cooks the food service was delayed and that influenced the amount of money the servers earned. Ms. Taylor did not observe Mr. Stowell being present when the kitchen employees used profane language, but surmises that Mr. Stowell heard it because it could be heard throughout the restaurant. Furthermore, on those occasions Mr. Stowell would come and tell the kitchen employees to "chill out" or "you need to stop". In Ms. Taylor's view these attempts at correction were unavailing. However, Ms. Taylor does not appear to have reminded management that its attempts at correction were not successful. After Petitioner's last day, Ms. Taylor talked to the Petitioner and following that conversation asked Beth Titze to rehire the Petitioner. Beth Titze worked at the Parkway restaurant between the hours of 8:00 a.m. and 2:00 p.m. on weekdays and from around 8:00 to 8:30 a.m. to 2:30 to 4:00 p.m. on weekends. Although Ms. Titze had no specific recollection as to the exact words of the profanity that were used, she does recall profanity being used by the cooks in her presence. When this occurred she told them to cease. When circumstances would occur between servers or cooks that involved swearing and it was reported to her she would intercede. Usually this profanity was based upon provocations by servers yelling at cooks, but sometimes it involved cooks provoking servers. The circumstances for these exchanges were related to times of stress. When informed of the problems Ms. Titze would go into the area and yell, "watch your mouth", "what's the problem" or "what do you need" or "what is the situation here". Ms. Titze expected Mr. Stowell to make decisions on whether an employee should be dismissed. If an employee was repeatedly late, Ms. Titze would remind Mr. Stowell that he had a problem and leave the decision to Mr. Stowell to dismiss a server if the server continued to be late. Her general experience was that most employees were on time for work. When employees were not in the proper uniform Ms. Titze expected Mr. Stowell to see that they got into proper uniform. Whatever disciplinary action was to be taken for not being in proper uniform was left over to Mr. Stowell. Ms. Titze has never observed a point in time when all servers were out of the proper uniform. Ms. Titze established that the servers' earnings and benefits package was a payment of $2.31 an hour, plus tips and a week's paid vacation for servers who had worked at the restaurant for a year. Ms. Titze observed that Petitioner was often late for work, especially on weekends or occasions when it was important for the Petitioner to be on time. Ms. Titze indicated that Petitioner was habitually late for work. Ms. Titze described the fact that Petitioner was not always in uniform, especially related to the refusal to wear nylons even in the instance where Ms. Titze had bought nylons to provide Petitioner. Another problem that Ms. Titze observed was that the Petitioner did not wear appropriate shoes. Petitioner wore cloth shoes that were a type of canvas tennis shoes which were not acceptable foot wear. When Ms. Titze spoke to Mr. Stowell about Petitioner's problems with being late for work and not being in the proper uniform, a conversation which she had with him on frequent occasions, Mr. Stowell responded that he, "did not have anyone to take her place at that time." As described before, Petitioner sought reemployment from Ms. Titze. On that occasion Petitioner was in uniform, to include the proper foot wear. Petitioner remarked to Ms. Titze that she had the correct shoes and could she please have her job back. Ms. Titze replied that the fact that Petitioner was always late and that she could never depend on her, made Ms. Titze feel that she could not use Petitioner at that point. The decision on reemployment was made by Ms. Titze because she was managing the Parkway restaurant at that time. Ms. Titze has no personal knowledge of any conduct directed to Petitioner that could be considered discrimination on the basis of sex and no conduct of that type was reported to Ms. Titze. Contrary to testimony by other witnesses, Ms. Titze did not say, in jest, that she was going to cut Petitioner's legs with a razor blade, direct profanity at servers or make an obscene gesture at servers with her middle finger. Ms. Titze does admit to swearing under her breath by using the word "damn" in certain circumstances that occur at the restaurant. Ms. Titze has not observed the buttocks of the male cooks while they were working at the restaurant, nor seen those cooks grab their crotches. Ms. Titze, from her observations, believed that the slow downs in service were related to the volume of business and not a deliberate ploy by the cooks. She is correct. Moreover, the delays in service created by arguments between servers and cooks explain why customers did not receive their food as quickly as they would have preferred, not the idea that cooks alone contrived to delay the service. As a consequence the servers' loss of tips for late service cannot be equated to unilateral action by the cooks to interfere with the tips received by servers. Petitioner perceived the relationship with the kitchen employees as being an intense situation, especially when the restaurant was busy. Mr. Mack in particular was seen by the Petitioner as being upset when the restaurant was busy. She observed him shaking his spatula and making gestures with his hands and yelling out slurs at the slower servers and picking out problems on the tickets which Petitioner did not believe to be a "big deal." Petitioner described the conduct by Mr. Mack as "ranting and raving." He would remark that he "was not going to do this damn food for you this way" and "this ain't the way its on the fucking menu." By virtue of complaints which Petitioner made to Mr. Stowell there was a period in which Mr. Mack and the Petitioner "just laid off each other." At times Mr. Mack and other cooks called Petitioner a "bitch" or "fucking bitch". Cooks would also refer to Petitioner as "stupid bitch". Petitioner heard cooks refer to Ms. Dixon as "stupid bitch" and Ms. Helms as a "dumb bitch". When this occurred Petitioner observed that Ms. Dixon and Ms. Helms would often cry. Petitioner observed Mr. Mack tell Ms. Helms that she was "crazy", that "crack" drove her "crazy" and had "eaten her brain." Governor Mack referred to Petitioner on one day as "damn bitch". She replied that he was a kid and should not talk to people that way. Petitioner observed the cooks wearing loose clothing such that you could see part of their shorts with words written on the shorts like "yes" and "no". When the cooks bent over in the kitchen Petitioner could see their "cracks". Petitioner considered the clothing that the cooks wore that allowed her to see their shorts to be sexually offensive. What she meant by that is further described as, she "did not like seeing a man with his pants half hanging down" and that "this was a restaurant setting and they were representing the restaurant and that they were dressed just like on the street" and that it was "vulgar to her." Petitioner observed the cooks place their hands in their crotch area where the genitals are and at the same time observed that the cooks were talking about girls using terms like "that baby" or "I got her". Petitioner felt degraded by the profanity directed to her and the conduct that she observed and the physical conduct that she observed on the part of the kitchen employees. Petitioner made a general complaint to Mr. Stowell about the vulgar language used by the kitchen staff. She mentioned in "walking and talking lightly" to Mr. Stowell that he should tell the cooks "to pull up their pants or something and to tell the cooks to dress a little better." Petitioner describes that she had problems getting her orders from the kitchen when she probably did something to irritate the cook. On a few occasions Petitioner believed that the cooks were deliberately delaying her orders, but acknowledges that those were circumstances in which she did not have her ticket correct, though she believes that it was correct enough to have gotten the order out. When these arguments were engaged in with the cooks concerning the delays, the food would be sitting there ready for serving, and it would not be served while the argument went on between Petitioner and the cook. On these occasions the cooks would say "I ain't gonna cook this shit for you" and would call the Petitioner a "bitch". On her last day Petitioner was told by Mr. Mack that he was the only cook scheduled for his part of the restaurant and words to the effect that he "could not believe" that circumstance and complained that Mr. Stowell can't get things right and that he would be glad when Mr. Stowell was gone. Petitioner remarked to Mr. Mack to the effect "are you having a bad morning", and he replied that he was "sick of this." Throughout the morning Petitioner observed that Mr. Mack was under stress and that he was the only cook working in that area. As Petitioner describes the situation on her last day, she delivered a customer a skillet that had broccoli and hollandaise sauce. The customer did not believe that it had enough hollandaise sauce and asked Petitioner to get more. Petitioner left the food order ticket with the customer and took up other duties. She then passed Mr. Stowell and asked him to get the ticket, because she needed to get the customer some more hollandaise sauce. Mr. Stowell said that he would. Petitioner then went to the kitchen area and asked Mr. Mack if he would give her some hollandaise sauce, "this man needs some". Mr. Mack asked where her ticket was for the extra hollandaise sauce. Petitioner told Mr. Mack that Mr. Stowell was coming with the ticket. Mr. Mack said "I ain't giving you shit". Petitioner made a further request for the hollandaise sauce and repeated that Mr. Stowell was coming with the ticket. During this exchange Mr. Mack told the Petitioner to "drop dead" and called her a "white fucking bitch" and that he was "going to stomp her into the ground." When he make these remarks he was yelling. When Mr. Stowell approached Petitioner and Mr. Mack, the cook continued his remarks by saying he was "going to kill" Petitioner and calling her a "fucking white bitch". Mr. Stowell said "here's your ticket, give me the hollandaise sauce now". Mr. Mack responded "I ain't giving you shit either." Mr. Mack told Mr. Stowell "you get that white fucking bitch out of my face, I'm going to kill her. Get her out of this building, get her out of here. I'm going to kill her or stomp her face into the ground". Under these circumstances, in which Mr. Stowell perceived that the Petitioner was at risk, Mr. Stowell told Petitioner to leave and go home. Petitioner started to leave, then told Mr. Stowell, "you are going to have to fire me if I have to leave this job for the way he just talked to me", referring to Mr. Mack's remarks. Petitioner said to Mr. Stowell "please fire me". Mr. Stowell then responded by saying, "go home, you're fired, Elisa; if that's what you want, you are fired". Petitioner then stated to Mr. Stowell "that's all I wanted to hear." In her testimony Petitioner failed to acknowledge that she had been profane to Mr. Mack. Petitioner felt threatened by Mr. Mack and cried. At hearing Petitioner described her motivation on the last day to be that she was not going to quit the job. She was "not going to be cussed like a dog and then have to walk away" and that "it was better to have been fired." Under that arrangement Petitioner testified "I didn't have to ever come back there". After she left the restaurant on the last day that Petitioner was employed at the Parkway restaurant, she told an acquaintance, Ruby Wilson, who works part-time at the Village Inn restaurant on North Monroe Street, and part- time at Jerry's restaurant at the airport, that Petitioner "quit" her job at the Parkway restaurant. Petitioner further told Ms. Wilson that she "wasn't worried about it and would go back, talk to Beth and get the job back". Petitioner had also told the Unemployment Compensation Commission referee, in her hearing on unemployment compensation, that she was "going to make it final that day, and that day I finalized it." She also told the referee that she would have probably quit anyway if circumstances did not improve at the restaurant. Petitioner acknowledged that she used profanity while working at the restaurant such as "damn it, they are not getting my food out for me" or "damn it, I can't believe I'm being cussed at again" or "I just can't take this shit no more". By contrast Petitioner denies profane exchanges with the cooks. That testimony related to exchanges is not accepted. Petitioner remembers the reason Ms. Titze gave her for not reemploying Petitioner was because the Petitioner did not wear pantyhose. An Unemployment Compensation Commission employee advised Petitioner to go back and try an obtain her job and this led to her conversation with Ms. Titze requesting reemployment. Joseph Halladay has worked as a server with Respondent on and off for seven or eight years, but his employment on the shift with Petitioner was only for a couple of weeks at the end of Petitioner's employment. During times when he worked for the Respondent he did not receive any sexual or profane abuse by any of the cooks. He did not observe what he considered to be sexual harassment directed to any other server from the cooks. Mr. Halladay noticed a difference in conduct by the employees at the restaurant when they were in the rush period. In that setting things were hectic. Mr. Halladay has heard employees yell things like "get out of my way or move". On the last day that Petitioner worked at the restaurant Mr. Halladay observed Petitioner and Mr. Mack yelling back and forth one to the other. He does not recall exactly what was being said. He describes the matter as "quite a bit of bickering going on between both parties." As Mr. Halladay recalls, the exchange between Petitioner and Mr. Mack was real loud. Mr. Halladay did not observe the cooks flaunting their genitals or grabbing their crotches or wearing their pants so low that the cooks buttocks could be seen. He did observe their underwear showing. He made no complaint about the latter observation. Mary Darlene Roy worked ten years with Respondent to include part of the time with Mr. Mack. She left that employment at the beginning of 1994. While employed, Ms. Roy did not detect what she considered to be sexual abuse or harassment by Mr. Mack or other cooks. Ms. Roy did observe that when order tickets were not correctly filled out the cooks would get upset. In particular, when the tickets were not right and the cooks prepared the wrong food and had to redo the food preparation, this would upset them. When Petitioner was late to work Mr. Stowell would ask other servers, to include Ms. Roy to cover Petitioner's work station. On some occasions Mr. Stowell had requested Petitioner to pick up a server named Kitty Roe and bring her to work. This made the Petitioner late. On other occasions Petitioner was late for reasons of her own making. On one occasion Ms. Roy overheard Mr. Stowell correct Petitioner for not having a bow tie on. Ms. Roy heard Petitioner and Mr. Mack arguing "a lot". The arguments had to do with orders not being picked up that were "piling up" and tickets that were not being written right. Mr. Mack yelled at Petitioner about those problems. Ms. Roy recalls that Mr. Mack was a stickler about problems with tickets. In Ms. Roy's experience other cooks would get upset when tickets were not being written properly and orders were not being picked up on time. They were not as verbal about the problems as Mr. Mack would be. Ms. Roy never heard Mr. Mack refer to Petitioner as "a fucking white bitch" or "a white bitch". Mr. Titze established that Mr. Mack had worked for the Respondent for approximately five years in the capacity of lead cook. This meant that Mr. Mack was responsible for training cooks. Mr. Titze described Mr. Mack as being very high strung. When tickets were not correct Mr. Mack would pull them down and make the server correct them. If the tickets were not correct the cooks would prepare the wrong food and this would throw the cycle of work off. Under these circumstances Mr. Mack was observed by Mr. Titze to "fly off the handle". Mr. Titze identified that the employee manual prohibits vulgar language or failure to follow a supervisor's instructions. The managers, according to the manual, are expected to squelch the profane language. Mr. Titze confirmed that Mr. Holmes was fired for the sexual advances that he made to Ms. Helms. Other than the Holmes incident, Mr. Titze was not aware of conduct which might be considered sexual harassment. Prior to the events involving the Petitioner's claims related to discrimination on the basis of sex, neither Mr. Titze nor Ms. Titze had received complaints of employment discrimination against Petitioner or other servers. At the end of May, 1993, Petitioner applied for unemployment compensation. She was granted that compensation in July, 1993. Before applying for unemployment compensation Petitioner tried to gain employment at several restaurants other than Respondent's restaurant. She managed to obtain a job at Banjo's restaurant in Tallahassee, Florida, but only worked there for a period of 20 minutes when she was told that she was being dismissed for reasons that were apparently unrelated to her performance at that restaurant. In lieu of compensation, Petitioner participated in the Training Investment Program which allowed her to receive schooling directed toward a profession. That schooling was at Lively Vocational Technical School in Tallahassee, Florida, to become a barber. The tuition at Lively was paid by another program. The Training Investment Program paid $69.00 per week through May, 1994, when Petitioner concluded her schooling to become a barber. In this arrangement Petitioner was not required to seek employment while in school. Petitioner began employment as a barber or hair stylist beginning June, 1994. Petitioner's gross earnings for the period that she worked at the Parkway restaurant were $3,167.50. The value of the TIP income for the year that Petitioner received that money was $3,588.00. The $3167.50 earned by Petitioner when employed by Respondent was for an 11-week period covered by a diary kept by Petitioner related to her earnings as extrapolated by an employe with the Unemployment Compensations Commission. When annualized to represent the period from the beginning of June 1993 until the end of May, 1994, when Petitioner was unemployed and attending barber's school, the anticipated earnings had Petitioner maintained her position with Respondent would have been $14,971.00. That $14,971.00 is offset by the $3,588.00 which she was paid as a participant in the TIP program. Therefore, the backpay, including tips and wages, for the period that Petitioner was out of work would amount to $11,383.00. The only benefit that Petitioner would be entitled to is a week's earnings for a vacation period amounting to $72.00, representing a work week of 34 hours at $2.13 per hour.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the final order be entered which dismisses Petitioner's claims of discrimination based upon sex. DONE and ENTERED this 24th day of May, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1995. APPENDIX The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: Paragraphs 1 and 2 are not necessary to the resolution of the dispute. Paragraphs 3 through 7 are subordinate to facts found. Paragraph 8 is rejected. Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found with the exception of the latter phrases referring to "mother fuckers" and "fuck you, mother fucker" which phrases are rejected. Paragraphs 15 and 16 are subordinate to facts found. Paragraph 17 is rejected. Paragraph 18 is subordinate to facts found with the exception of the reference to comments about breasts which is rejected. Paragraph 19 is subordinate to facts found. Paragraph 20 is contrary to facts found. Paragraph 21 is accepted in the reference to verbal aggression and is rejected in the reference to physical aggression. Paragraph 22 is subordinate to facts found with the exception of the phrase which says describing their genitals and "you want some of this baby" which is rejected. Paragraph 23 is subordinate to facts found with the exception that the suggestion that the cooks were directing their conduct specifically to the Petitioner is rejected. Paragraphs 24 and 25 are not necessary to the resolution of the dispute. The first sentence to Paragraph 26 is subordinate to facts found. The latter sentence is rejected. The first sentence to Paragraph 27 is rejected. The second sentence is subordinate to facts found. Paragraphs 28 through 30 are subordinate to facts found. The first sentence to Paragraph 31 is contrary to facts found. The second sentence is subordinate to facts found with the exception of the phrase that the attempts to stop the conduct did not do any good which phrase is rejected. The third sentence to Paragraph 31 is subordinate to facts found. Paragraph 32 is subordinate to facts found in its first sentence. The first phrase in the second sentence is subordinate to facts found. The latter phrase is not necessary to the resolution of the dispute. The third sentence is contrary to facts found. The fourth and fifth sentences are rejected in the suggestion that the complaint by the server's father led to the dismissal of the cook. The last sentence in Paragraph 32 is subordinate to facts found with the exception of the suggestion that the complaint was to no avail, which is rejected. Paragraph 33 is subordinate to facts found. Paragraphs 34 and 35 are contrary to facts found in the suggestion that orders were deliberately slowed up resulting in lower tips to the servers. The offensive language that is commented on in Paragraphs 34 and 35 is subordinate to facts found. Paragraphs 36 and 37 are subordinate to facts found. Paragraph 38 is not necessary to the resolution of the dispute. Paragraph 39 is rejected in its suggestion that the Petitioner's nonconformance with uniform requirements were comparable to the experience with other servers in terms of frequency. Paragraph 40 is subordinate to facts found. Paragraph 41 is not necessary to the resolution of the dispute. Paragraph 42 is not necessary to the resolution of the dispute. Paragraph 43 is contrary to facts found in the suggestion that Petitioner was occasionally late, is subordinate to facts found in the remaining phrase. Paragraph 44 is subordinate to facts found. Paragraph 45 is not necessary to the resolution of the dispute. Paragraphs 46 and 47 are not necessary to the resolution of the dispute. Paragraph 48 is subordinate to facts found. Paragraph 49 is not necessary to the resolution of the dispute. Paragraph 50 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of the dispute. Paragraph 51 is subordinate to facts found. Paragraphs 52 through 54 are not necessary to the resolution of the dispute. Paragraphs 55 through 63 are subordinate to facts found. The first sentence to Paragraph 64 is not necessary to the resolution of the dispute. The latter sentence is subordinate to facts found. Paragraphs 65, 66 and 67 in the non-parenthetical references are subordinate to facts found. The parenthetical references are an incomplete discussion of the facts found in the recommended order. Paragraph 68 is subordinate to facts found. Paragraphs 69 and 70 are not necessary to the resolution of the dispute. The first sentence to Paragraph 71 is contrary to facts found. The second and third sentences are subordinate to facts found. Paragraph 72 is contrary to facts found in its suggestion that Petitioner did not use profane language in the confrontation with the cook. Paragraph 73 is contrary to facts found. Paragraph 74 is a conclusion of law. Paragraph 75 is contrary to facts found. Paragraph 76 is not necessary to the resolution of the dispute. Paragraph 77 is not necessary to the resolution of the dispute. The first sentence to Paragraph 78 is not necessary to the resolution of the dispute. The latter sentence to Paragraph 78 is subordinate to facts found. Paragraphs 79 and 80 are not necessary to the resolution of the dispute. Paragraph 81 is contrary to facts found. Paragraphs 82 through 88 are not necessary to the resolution of the dispute. Concerning Paragraphs 89 and 90, whatever Petitioner's intentions prior to the confrontation with the cook, once that confrontation transpired Petitioner opted to be fired rather than be sent home to get away from the threats by the cook or to quit her employment of her on volition. Paragraph 91 is subordinate to facts found. Paragraphs 92 through 95 are rejected. Paragraphs 96 through 99 are subordinate to facts found. Paragraph 100 is not necessary to the resolution of the dispute. Paragraph 101 is subordinate to facts found in the first sentence. The latter sentences in Paragraph 101 are irrelevant. Paragraphs 102 through 104 are acknowledged as attempts at impeachment but are rejected in favor of the facts found in the recommended order. Paragraphs 105 through 114 are subordinate to facts found. Paragraph 115 is not necessary to the resolution of the dispute. Paragraphs 116 and 117 are subordinate to facts found. Paragraphs 118 through 120 are not necessary to the resolution of the dispute. Paragraphs 121 through 124 are subordinate to facts found. Paragraphs 125 through 133 are not necessary to the resolution of the dispute. Paragraph 134 is irrelevant with the exception of the last sentence which is subordinate to facts found. Paragraphs 135 through 145 constitute legal argument. Respondent's Facts: Paragraphs 1 and 2 are subordinate to facts found. The first phrase to Paragraph 3 is accepted to the extent that conditions were stressful and the expectation of timely service to patrons. The remaining language in Paragraph 3 is rejected in that it was not established that the employees were aware of any signs that incrementally addressed the time standards for service. Paragraphs 4 through the first two sentences of Paragraph 8 are subordinate to facts found. The phrase pertaining to Petitioner's former employment is not relevant. The remaining portions of Paragraph 8 are subordinate to facts found. Paragraphs 9 and 10 constitutes legal argument. Paragraphs 11 through 13 are not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found. Paragraph 15 is not necessary to the resolution of the dispute with the exception of the discussion of the basis for Petitioner's departure from the restaurant on May 15, 1993, which is subordinate to facts found. Paragraphs 16 and 17 are not necessary to the resolution of the dispute. Paragraph 18 is not relevant. Paragraph 19 is subordinate to facts found. Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 through 24 are subordinate to facts found. Paragraph 25 is not necessary to the resolution of the dispute. Paragraph 26 and the first sentence to Paragraph 27 are subordinate to facts found. The remaining sentences within Paragraph 27 constitute legal argument. Paragraph 28 is subordinate to facts found. Paragraph 29 is contrary to facts found. Paragraph 30 constitutes a correct portrayal of the process engaged in by the hearing officer; however, it is not necessary to report those activities in the fact finding. COPIES FURNISHED: Patricia A. Renovitch, Esq. P. O. Box 6507 Tallahassee, FL 32314-6507 Stephen Marc Slepin, Esq. 1114 E. Park Ave. Tallahassee, FL 32301 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Rd. Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Rd. Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
