The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a white female. Petitioner worked as a salesperson at Respondent’s Melbourne store from April 2006 to September 2006. Petitioner’s primary job duty was selling appliances to retail customers. She also performed ancillary duties, such as tagging merchandise, cleaning and organizing the showroom floor, scheduling deliveries, and making follow-up calls to customers. Petitioner was not paid a salary. Her income was solely commission-based. She earned a total of $11,826.14 while working for Respondent, which equates to an average weekly gross pay of $537.55. Petitioner had several managers during the term of her employment. She did not have a problem with any of her managers, except for Jeffrey Rock. Mr. Rock is a black male, and by all accounts, he was a difficult manager to work for. He was “strict”; he often yelled at the salespersons to “get in the box”2 and “answer the phones”; and, unlike several of the prior managers at the Melbourne store, Mr. Rock held the salespersons accountable for doing their job. Petitioner testified that Mr. Rock "constantly" made sexual comments in the store, including comments about the size of his penis and his sexual prowess; comments about sex acts that he wanted to perform on a female employee in Respondent’s accounting office, Ms. Miho; “stallion” noises directed at Ms. Miho; and a question to Petitioner about the type of underwear that she was wearing. Petitioner’s testimony regarding the sexual comments and noises made by Mr. Rock was corroborated by Neina Blizzard, who worked with Petitioner as a salesperson for Respondent and who has also filed a sexual harassment claim against Respondent. Mr. Rock denied making any sexually inappropriate comments or noises in the store. His testimony was corroborated by Guy Ruscillo and Carissa Howard, who worked as salespersons with Petitioner and Ms. Blizzard and who are still employed by Respondent. Petitioner and Ms. Blizzard testified that Mr. Rock gave favorable treatment to Ms. Howard and two other female salespersons with whom he had sexual relationships and/or who found his sexual comments funny. Mr. Rock denied giving favorable treatment to any salesperson, except for one time when he gave a “house ticket”3 to Ms. Howard because she took herself off the sales floor for six hours one day to help him get organized during his first week as manager at the Melbourne store. Ms. Howard is white. The record does not reflect the race of the other two female salespersons -- Rebecca and Shanna -- who Petitioner and Ms. Blizzard testified received favorable treatment by Mr. Rock, and the anecdotal evidence of the favorable treatment that they allegedly received was not persuasive. Petitioner did not have any complaints regarding her schedule. Indeed, she testified that Mr. Rock changed her schedule at one point during her employment to give her more favorable hours. Petitioner’s testimony about other salespersons having sexual relationships with Mr. Rock and/or receiving favorable treatment from Mr. Rock was based solely upon speculation and rumor. Indeed, Rebecca, one of the salespersons with whom Mr. Rock allegedly had a sexual relationship, was “let go” by Mr. Rock because of the problems with her job performance observed by Petitioner and Ms. Blizzard. Petitioner’s last day of work was Saturday, September 30, 2006. On that day, Petitioner came into the store with Ms. Blizzard at approximately 8:00 a.m. because, according to Petitioner, another manager had changed her schedule for that day from the closing shift to the opening shift. Mr. Rock confronted Petitioner when she arrived, asking her why she came in at 8:00 a.m. since he had put her on the schedule for the closing shift. An argument ensued and Petitioner went into the warehouse in the back of the store to compose herself. When Petitioner returned to the showroom several minutes later, Mr. Rock was engaged in an argument with Ms. Blizzard. During the argument, Ms. Blizzard demanded a transfer to another store, which Mr. Rock agreed to give her. Then, as a “parting shot,” Ms. Blizzard told Mr. Rock that he was a “racist” who was “prejudiced against white women.” Ms. Blizzard testified that Mr. Rock told her that she was fired immediately after she called him a racist. Petitioner testified that after Mr. Rock fired Ms. Blizzard, he asked her whether she wanted to be fired too. Petitioner testified that even though she did not respond, Mr. Rock told her that “you are fired too.” Then, according to Ms. Blizzard and Petitioner, Mr. Rock escorted them both out of the store. Mr. Rock denies telling Ms. Blizzard or Petitioner that they were fired. He testified that they both walked out of the store on their own accord after the argument. Mr. Rock’s version of the events was corroborated by Mr. Ruscillo, who witnessed the argument. Mr. Ruscillo testified that he heard a lot of yelling, but that he did not hear Mr. Rock tell Ms. Blizzard or Petitioner at any point that they were fired. Petitioner and Ms. Blizzard met with an attorney the Monday after the incident. The following day, Petitioner gave Ms. Blizzard a letter to deliver on her behalf to Respondent’s human resources (HR) Department. The letter, which Petitioner testified that she wrote on the day that she was fired by Mr. Rock, stated that Petitioner “was sexually harassed and discriminated against based on being a white female by my manager, Jeff Rock”; that Petitioner “previously reported numerous incidents of this discrimination and sexual harassment to upper management”; and that she was fired “as a result of this discrimination and the refusal to put up with Mr. Rock’s sexual advancement.” This letter was the first notice that Respondent had of Petitioner’s claims of sexual harassment or discrimination by Mr. Rock. Petitioner considers herself to be a very good salesperson, but Mr. Rock described her as an “average” salesperson. Mr. Rock’s characterization of Petitioner’s job performance is corroborated by Petitioner’s acknowledgement that her sales figures were lower than those of at least Mr. Ruscillo, Ms. Blizzard, and Ms. Howard. Petitioner complained to another manager, Al Sierra, about Mr. Rock’s management style at some point in mid-September 2006. She did not complain to Mr. Sierra or anyone else in Respondent’s upper management about the sexual comments allegedly made by Mr. Rock. Indeed, as noted above, the first time that Petitioner complained about the sexual comments allegedly made by Mr. Rock was in a letter that she provided to Respondent’s HR Department several days after she was fired and after she met with a lawyer. Petitioner testified that she did not complain about the sexual harassment by Mr. Rock because he threatened to fire any salesperson who complained to upper management about the way that he ran the store and because she did not know who to complain to because she never received an employee handbook. There is no evidence that Mr. Rock fired any salesperson for complaining about how he ran the store, and he denied making any such threats. He did, however, acknowledge that he told the salespersons that they were all replaceable. Mr. Rock’s testimony was corroborated by Mr. Ruscillo and Ms. Howard, who were at the sales meetings where Petitioner and Ms. Blizzard claim that the threats were made. The training that Petitioner received when she started with Respondent was supposed to include a discussion of Respondent’s policies and procedures, including its policy against sexual harassment. The trainer, Kit Royal, testified that he remembered Petitioner attending the week-long training program and that the program did include a discussion of the sexual harassment policy and other policies and procedures. Petitioner, however, testified that no policies and procedures were discussed during the training program. Petitioner was supposed to have received and signed for an employee handbook during the training program. No signed acknowledgement form could be located for Petitioner, which is consistent with her testimony that she never received the handbook. The fact that Petitioner did not receive the employee handbook does not mean that the training program did not include discussion of Respondent’s sexual harassment policies. Indeed, Petitioner’s testimony that the training program did not include any discussion regarding salary and benefit policies (as Mr. Royal testified that it did) and that she was never told what she would be paid by Respondent despite having given up another job to take the job with Respondent calls into question her testimony that the sexual harassment policy was not discussed at the training program. Petitioner was aware that Respondent had an HR Department because she met with a woman in the HR Department named Helen on several occasions regarding an issue that she had with her health insurance. She did not complain to Helen about the alleged sexual harassment by Mr. Rock, but she did tell Helen at some point that Mr. Rock “was being an ass” and “riding her,” which she testified were references to Mr. Rock’s management style not the alleged sexual harassment. Petitioner collected employment compensation of $272 per week after she left employment with Respondent. Petitioner testified that she looked for jobs in furniture sales and car sales while she was collecting unemployment, but that she was unable to find another job for approximately three months because of the slow economy at the time. She provided no documentation of those job-search efforts at the final hearing. Petitioner is currently employed by Art’s Shuttle. She has held that job for approximately nine months. Petitioner drives a van that takes cruise ship passengers to and from the airport. The record does not reflect how many hours per week Petitioner works at Art’s Shuttle, but she testified that she works seven days a week and earns approximately $500 per week. No written documentation of Petitioner’s current income was provided at the final hearing. Respondent has a “zero tolerance” policy against sexual harassment according to its president, Sam Pak. He credibly testified that had he been aware of the allegations of sexual harassment by Mr. Rock that he would have conducted an investigation and, if warranted, done something to fix the problem. The policy, which is contained in the employee handbook, states that Respondent “will not, under any circumstances, condone or tolerate conduct that may constitute sexual harassment on the part of its management, supervisors, or non-management personnel.” The policy defines sexual harassment to include “[c]reating an intimidating, hostile, or offensive working environment or atmosphere by . . . [v]erbal actions, including . . . using vulgar, kidding, or demeaning language . . . .” Mr. Pak agreed that the allegations against Mr. Rock, if true, would violate Respondent’s sexual harassment policy. The employee handbook includes a “grievance procedure” for reporting problems, including claims of sexual harassment. The first step is to bring the problem to the attention of the store manager, but the handbook states that the employee is “encouraged and invited to discuss the problem in confidence directly with Human Resources” if the problem involves the manager. Additionally, the handbook states in bold, underlined type that “[a]nyone who feels that he or she . . . is the victim of sexual or other harassment, must immediately report . . . . all incidents of harassment in writing to your manager or the store manager, or if either person is the subject of the complaint, to the president.” Mr. Pak had an office at the Melbourne store. He testified that he had an “open door policy” whereby employees could bring complaints directly to him. The only complaint that Mr. Pak ever received about Mr. Rock was from another salesperson, Rod Sherman, who complained that Mr. Rock was a “tough manager.” Mr. Pak did nothing in response to the complaint and simply told Mr. Sherman that different managers have different management styles.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 26th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2007.
The Issue Whether Miami-Dade County committed the unlawful employment practices alleged in the employment discrimination charges filed by Petitioner and, if so, what relief should she be granted by the Florida Commission on Human Relations (FCHR).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. Among the various departments of County government is the Finance Department. There are approximately 300 employees working in the Finance Department. At all times material to the instant case, Rachel Baum was the Finance Director responsible for overseeing the operations of the Finance Department. The Tax Collector's Office is administratively located within the Finance Department. There are approximately 210 employees assigned to the Tax Collector's Office. The Occupational Licenses section and the Tourist Tax section are operational units within the Tax Collector's Office. At all times material to the instant case, Xiomara Vuelta was the Manager of the Occupational Licenses section, Marie Esquivel was the Assistant Manger of the Occupational Licenses section, and Cristine Mekin was a Tax Records Clerk Supervisor I in the Occupational Licenses section. At all times material to the instant case, Allen Eagle was a supervisor in the Tourist Tax section. Harold Ginsberg was a superior of Mr. Eagle's. At all times material to the instant case, the County had in effect a policy prohibiting sexual harassment in the workplace. The policy was codified in Administrative Order No. 7-28, which read as follows: Statement of Policy: The policy of Dade County is to insure that all employees are able to enjoy a work environment free from all forms of discrimination, including sexual harassment. Employees who have experienced sexual harassment shall have the right to file complaints with the County's Affirmative Action Office and have those complaints properly investigated. Employees who are found guilty of sexually harassing other employees shall be subject to appropriate sanctions, depending on the circumstances. These may range from counseling up to and including termination. Definition: Sexual harassment consists of unsolicited, offensive behavior involving sexual overtures or conduct, either verbal or physical It does not refer to occasional comments of a socially acceptable nature; it refers to behavior that is not welcome, that is personally offensive, that lowers morale, and that, therefore, interferes with the work environment. As explained in the EEOC Guidelines: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute[] sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Implementation: In order to effectively implement the above policy, all County employees must refrain from Threatening or insinuating, either explicitly or implicitly, that an employee's refusal to submit to sexual favors or advances will adversely affect another employee's employment, performance evaluations, wages, promotion, assigned duties, shifts, or any other condition of employment or career development. Creating a sexually harassing environment by such actions as offensive sexual flirtations, advances, propositions, verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words, or such other conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Taking retaliatory action of any kind against any other employee as a result of that person's seeking redress for, or complaining of, sexual harassment under this policy or through other legitimate channels. Exhibiting any other conduct that falls within the above-stated definition of sexual harassment. It shall be the responsibility of each County supervisor to maintain his or her work place free of sexual harassment. This duty includes discussing this policy with all employees and assuring them that they need not endure insulting, degrading, or exploitive sexual treatment, and informing employees of their right to file complaints about such conduct. Complaint Procedure: Employees who believe they have been the subject of sexual harassment have the right to file a complaint with the County's Affirmative Action Office. Employees may, if they desire, also report such incidents of sexual harassment to their supervisor but are under no obligation to do so prior to filing a complaint. All complaints of sexual harassment will be investigated to determine whether the allegations are well- founded. If the investigations confirm the continuation of sexual harassment, the Affirmative Action Office will pursue prompt corrective action, including positive relief for the victim, and appropriate disciplinary action against the offender. Compliance: It shall be the responsibility of the Affirmative Action Office to provide compliance information to managers and supervisors concerning the County's sexual harassment policy, the gravity of such conduct, and the procedures to be employed in conducting sexual harassment investigations. The Affirmative Action Office shall also provide necessary training to managers and supervisors in the area of sexual harassment. This administrative order is hereby submitted to the Board of County Commissioners of Dade County, Florida. Documents describing the contents of Administrative Order No. 7-28 were posted at various County work locations. Petitioner is a black female who was employed by the County from 1984 until July of 2001, when she was terminated. At all times material to the instant case, Petitioner worked as a Tax Records Clerk II in the Finance Department, initially in the Tourist Tax section under the direct supervision of Mr. Eagle5 and then in the Occupational Licenses section under the direct supervision of Ms. Mekin. At no time did Mr. Eagle inappropriately touch Petitioner, discuss with her any matters of sexual nature, make sexual advances towards her, threaten to retaliate against her if she did not provide him with sexual favors, or otherwise, in his dealings with her, engage in conduct violative of the County's policy against sexual harassment. Nonetheless, in or around early 1999, Petitioner (who was aware of the County's anti-sexual harassment policy) falsely accused Mr. Eagle of having subjected her to such harassment. The County's Office of Fair Employment Practices (FEP) thoroughly investigated, in good faith, the allegations made by Petitioner. Petitioner was placed on administrative leave with pay during the investigation. Juan de Ona, an investigator with FEP, conducted the investigation, with the assistance Finance Department personnel who did not work in the Tourist Tax section (Marie Carpenter, the department's then-Personnel Manager, and Arlesa Leverette, the department's Affirmative Action Coordinator). Mr. de Ona interviewed Petitioner, Mr. Eagle, and others who worked with them in the Tourist Tax section and who would have been in a position to corroborate Petitioner's allegations of sexual harassment were the allegations true. Based on his investigation, Mr. de Ona reasonably concluded that Petitioner's allegations were unfounded. On May 27, 1999, Mr. de Ona issued a written report of his investigation, which contained the following "Findings and Recommendations": No evidence was found about any of Ms. Ferguson's allegations pertaining [to] Mr. Eagle's behavior. Testimony provided by all employees in the workplace directly contradicted all allegations made by the complainant. Witnesses all expressed shock, stating that such behavior would be out of character [with] the manner they are supervised by Mr. Eagle. They believe he's a fair, capable supervisor. There is no corroboration at all that sexual harassment took place between Mr. Eagle and Ms. Ferguson or to other incidents of a sexual nature as she alleged. Ms. Ferguson appears to have some serious problems about her perceptions of interpersonal relationships and communications in the workplace. In light of the following I recommend the following: Make it mandatory for Ms. Ferguson to participate in the Employee Support Services (ESS) program. Request through the ESS office, a fitness for duty test if that office supports the approach. If possible, transfer Ms. Ferguson to another work station under a different supervisor. As the head of the County department in which Petitioner worked, Ms. Baum received a copy of Mr. de Ona's report. On or about July 25, 1999, before any formal action had been taken by Ms. Baum in response to Mr. de Ona's report, Petitioner filed EEOC Charge No. 150993522 (which is described above). In accordance with Mr. de Ona's recommendation, Ms. Baum took the reasonable step of transferring Petitioner to the Occupational Licenses section effective on or about August 16, 1999, so that Petitioner would no longer be supervised by Mr. Eagle. This action was not taken to retaliate against Petitioner for having filed EEOC Charge No. 150993522. Ms. Baum had no reason to believe that Petitioner would have any difficulties with the supervisory personnel in the Occupational Licenses section, none of whom had been identified by Petitioner as being in any way involved in the alleged sexual harassment to which Petitioner claimed she had been exposed in the Tourist Tax section. Ms. Baum also followed Mr. de Ona's recommendation that Petitioner be referred to the County's Employee Support Services (ESS) program. She did so with the hope that Petitioner would benefit as a result of her participation in the program. Although she did not know "exactly what [Petitioner's] problem was," Ms. Baum felt that there were "issues there" because Petitioner had made allegations that were not true. In addition, Ms. Baum suspended Petitioner for five days for having made "false statements" about her co-workers in her complaint to the FEP.6 Ms. Baum took this action because "people's reputations were tarnished" by Petitioner's "false statements" and, in Ms. Baum's view, Petitioner "need[ed] to understand that you can't make [such] false statements" without retribution. Ms. Baum advised Petitioner of the referral to ESS and the five-day suspension by letter dated September 7, 1999, which read as follows: This is to advise you that you are being suspended without pay for five days on the following dates: September 13, 14, 15, 16 and 17, 1999. This action is a[] result of your failure to comply with Miami-Dade County Personnel Rule, Chapter VIII, Section 7, to wit: That the employee has been offensive in h[er] conduct toward fellow employees, Wards of the County or the Public. That the employee is antagonistic towards Superiors and fellow employees, criticizing orders, rules and policies and whose conduct interferes with the proper cooperation of employees and impairs the efficien[cy] [of] County Service." Specific charges are detailed in the discipline action report attached hereto. Upon return to work, you must attend sessions as designated by the Employee Support Services (ESS) . The initial appointment will be made for you. You must attend that meeting as well as all subsequent meetings set by ESS. You must also provide and maintain your current address and telephone number on file with your supervisor. It will be your complete responsibility to inform your immediate supervisor of any changes. While you were within your rights to file a discrimination complaint with the Office of Fair Employment Practices, it was unnecessary and irresponsible of you to include falsehoods and personal attacks directed towards your superiors and fellow employees. By doing so, you have demoralized your co-workers and damaged the overall morale of the Tax Collector's Office. This type of behavior exhibited by you is discouraging and cannot be tolerated. You may appeal your suspension to a Hearing Examiner within 14 days from receipt of this letter by requesting an appeal hearing in writing to the Director of the Employee Relations Department at the Stephen P. Clark Center, 111 NW 1st Street, Suite 2110, Miami, FL 33128. Petitioner did not appeal her suspension. When she reported to the Occupational Licenses section, Petitioner was trained by her immediate supervisor, Ms. Mekin. At the beginning, in training Petitioner, Ms. Mekin treated Petitioner no differently than Ms. Mekin would treat any clerical employee new to the section. Petitioner, however, was unable to grasp the basic procedures required to be followed by the section's clerical staff, so Ms. Mekin had to provide Petitioner with additional training beyond that which was standard for a new employee in the section to receive. Despite the extra help she was offered, Petitioner continued to make numerous mistakes of a serious nature. Ms. Mekin monitored Petitioner's work in the same manner and with the same frequency (on a daily basis) that she monitored the work of her other subordinates. Petitioner made far more errors than her co-workers (and, for that matter, any other employee who had ever worked under Ms. Mekin's supervision in the Occupational Licenses section7). Although Petitioner occupied a Tax Records Clerk II position (and was paid accordingly), she was assigned Tax Records Clerk I duties, which she performed at the "public counter" in the office. Petitioner expressed dissatisfaction with her assignment and asked Ms. Mekin to assign her Tax Records Clerk II work.8 Ms. Mekin declined to do so inasmuch as Petitioner lacked the "specialized knowledge" needed to perform such work. As Ms. Mekin explained in her testimony at the final hearing (which the undersigned has credited), "I couldn't get her trained as a [Tax Records Clerk] I, how could I put her in a specialized [Tax Records Clerk] II position?" There being no other assignment Ms. Mekin could reasonably make given Petitioner's limitations, Petitioner remained at the "public counter" performing Tax Records Clerk I duties. In addition to making many mistakes while at the "public counter," Petitioner engaged in disruptive workplace behavior, initiating confrontations with co-workers, as well as visiting members of the public. It reached a point where, due to Petitioner's offensive and abusive conduct, no one in the office wanted to be seated next to her at the "public counter." Also interfering with the efficient operation of the office was Petitioner's poor attendance. She had numerous absences and was frequently late reporting to work. In addition, there were instances when, before the end of the workday, Petitioner would just walk out of the office without permission and letting anyone know where she was going and not return until several days later. On occasion, after being out of the office, Petitioner submitted doctor's notes. None of the notes stated that Petitioner was suffering from any substantially limiting mental impairment, and there is no persuasive evidence to suggest that any supervisory personnel perceived her as having such an impairment and took adverse action against her based upon such a perception. Petitioner was counseled verbally and then in writing by her supervisors in the Occupational Licenses section concerning her shortcomings, but such counseling did not yield any positive results. Ms. Mekin waited well longer than usual to "write-up" Petitioner. She gave Petitioner this "extra leeway" because she knew that Petitioner had "personal problems" and was missing a lot of work. In or around late December of 1999, Petitioner received a written reprimand for "insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County service or to the public" because she had stopped going to the psychiatrist (Dr. Charles Gibbs) to whom she had been referred by ESS.9 The "facts" upon which the written reprimand was based were described therein as follows: In the disciplinary action dated July 27, 1999 your continued employment with Miami- Dade County was contingent upon: "Seek assistance from Employee Support Services and attend sessions as designated by ESS. Failure to attend and participate in them will result in further disciplinary action up to and including dismissal." You have failed to follow the recommendation of the Employee Support Services Section. Further violation of the Disciplinary Action requirements will result in dismissal. Less than a month later, Petitioner received a Record of Counseling, dated January 14, 2000, which read as follows: A. That the employee is incompetent or inefficient in the performance of his/her duty. K. That the employee has hindered the regular operation of the Department or Division because of excessive absenteeism. V. That the employee has been habitually tardy in reporting for duty or has absented himself/herself frequently from duty during regular working hours, or has refused to perform a reasonable amount of emergency work after working hours when directed to do so by h[er] superior officer. Facts: The employee has been given the same training afforded any new employee, however the excessive absenteeism and habitual tardiness are negatively reflecting in the productivity and effectiveness of the employee's performance. The excessive absenteeism of the employee is disruptive to the section, resulting in a diminished effectiveness in the service to the public and reducing the inspectors['] field collections. See attachment II: Attendance and tardiness statistic table. "[A]ttachment II" reflected that, from August 26, 1999, to January 11, 2000, Petitioner had been absent 28.47 of a total of 86 work days and had been tardy 22 times. Petitioner received another Record of Counseling on March 10, 2000. This Record of Counseling read as follows: You have had several performance conferences regarding your numerous mistakes and have received copies of all your errors. I have pointed out ways in which you can improve your efficiency, nevertheless you have failed to improve your performance. In addition to the regular training afforded all new employees, you were re-trained when I observed that you were not improving and were repeating the same mistakes on a daily basis. Your poor performance negatively impacts our section[.] [I]t lowers our productivity and affects customer service. You must correct this situation immediately[.] [F]ailure to improve your performance will result in further disciplinary action. On Friday, May 12, 2000, Petitioner again was given a Record of Counseling. This Record of Counseling read as follows: You have been informed on multiple occasions that you had depleted your annual and sick time. Since you started to work with Occupational License[s] you have been habitually tardy in reporting for duty and have been excessively absent. In addition you have absented yourself frequently from duty during regular working hours. Your excessive and erratic pattern of absenteeism is disruptive to the Section, resulting in a diminished effectiveness in the service to the public. Furthermore, it affects the inspectors['] field productivity who must stay inside to cover your absences. You must correct the situation immediately by being on time everyday and by planning the usage of accrued time in advance. Failure to comply will result in a disciplinary action leading to dismissal. See attachment of attendance and tardiness table. The "attendance and tardiness table" attached to the Record of Counseling reflected that, from August 26, 1999, to Sunday, May 14, 2000, Petitioner had been absent a total of 303.25 hours out of a total of 1264 possible work hours. On June 1, 2000, Petitioner was sent a memorandum regarding her "[f]ailure to follow procedures." It read as follows: On May 25, 2000 you failed to follow the established procedures concerning licenses under legal status. You served a taxpayer at the counter who came to pay license #444002-0 (under sheriff warrant)[.] [T]his license owed $150.00 [to] Occupational License[s] and $70.00 to the Sheriff['s] Department. You ignored the intermediate screen with the message "Do not print application- Do not file maintenance. Check with your Supervisor first." This failure to follow procedures resulted in a loss to the County, since the taxpayer was not directed to pay the $70.00 Sheriff fee. This is to remind you that you must strictly adhere to the established procedures at all times. Further incidents of this nature will result in a Disciplinary Action up to and including dismissal. That same date, June 1, 2000, Ms. Mekin sent to Ms. Vuelta the following memorandum regarding a "[c]ounter [i]ncident": This is to inform you that Jacquelyn Ferguson claims that someone opened a stapled shopping bag full of papers she had inside her desk drawer, while she went to an assignment at the 1st floor. Ms. Ferguson accused co-workers of opening the paper bag and then passed inappropriate remarks to the clerks assigned to the counter. I informed Ms. Ferguson that no one had been at her desk while she was downstairs. Martha Manthorpe and Milagros Valdivia expressed to me how stressed and upset they feel about the false accusations Ms. Ferguson is making. She then approached Marie Esquivel to claim that for the second time someone had gone into her paper bag. Since Ms. Ferguson was assigned to the Occupational License[s] Section, she has antagonized each person that she has ever worked next to her. All clerks and inspectors have complained of her lack of teamwork skills, her constant harassment , false accusations, and uncooperative behavior. As you are aware, I had to train Ms. Ferguson twice because of her numerous mistakes, nevertheless, I had to give her a Record of Counseling for poor performance[.] [T]o this date she has failed to improve. In addition, I had to give her a second Record of Counseling because of her poor attendance. At this point I feel that I have exhausted all that is available to me as a Supervisor to motivate Ms. Ferguson to perform as expected of any County employee. It is extremely frustrating to divert time [to] constantly monitor Ms. Ferguson in order to diffuse incidents with other employees and taxpayers. This situation is causing undue stress and hardship to the other O.L. employees[.] [T]hey feel it is a punishment when I have to assign them to work next to Ms. Ferguson. Please advise on what my next steps [should] be regarding Ms. Ferguson. On June 21, 2000, a co-worker of Petitioner's, Martha Manthorpe, sent a memoranda to Ms. Vuelta complaining about Petitioner. The memorandum read as follows: I am writing to inform you that working with Jackie has caused considerable aggravation to my co-workers and [me]. I have worked in this department for over seven years, and have never had a problem with another employee. From the time that Jackie began working in our department, she has had problems with her co-workers. She never liked being trained or told what to do by a Clerk I, for no apparent reason, other than the fact that [that person's] classification is less than her[']s. Any clerk that has had to work next to her has endured constant negative comments and insinuating remarks. It has also been noted that she has this particular attitude towards her female co-workers only. Ranier Castro has noticed the different attitude & tone she demonstrates toward another co- worker, Milagros Valdivia, in comparison to him. This attitude has gotten to the point that Milagros was very thankful when she was moved from the counter desk to the mail desk. With me, she portrays an attitude that my job is to serve her alone and that I should drop whatever I am doing when she needs anything. If I do not know the answer to her question, she becomes upset that she needs to ask Cristina. If I am checking in inspectors or balancing their money, she will throw her paperwork in front of me, in order to force me to attend to her needs. Today, she became very rude towards me. She was arguing with Milagros regarding some ticket numbers that she claimed were missing and that someone had taken them. After Milagros told me what had happened, I then told Jackie that nobody had taken her numbers. She then turned her head away from me, put her hand up, and told me that she was not talking to me and that I was not to speak to her. She proceeded to repeat this a few more times while there were taxpayers in the lobby. Another problem that we have had with Jackie is that she has an extreme problem with smells either in the office or at the counter area. She will spray room deodorizers several times a day in front of taxpayers that are waiting to be served. In addition, Jackie has been noted to give incomplete information to taxpayers, specifically Hispanic taxpayers, or sending them to incorrect departments to solve their problems. It is very difficult & stressful to work in a[n] office environment with a co-worker that does not work as a team player & can be disrespectful to others. On June 22, 2000, Ms. Vuelta sent Petitioner a memorandum regarding an "[u]nauthorized [a]bsence." It read as follows: On Thursday, June 22, 2000 you left for lunch at 1:05 P.M. and did not return to work.[10] You have walked out of your job on several occasions since you started to work at Occupational License[s]. Once again you failed to inform your Supervisor about your absence[.] [T]his is considered an abandonment of your responsibility at the public counter, therefore creating a Customer Service crisis. On June 27, 2000, Ms. Vuelta, acting on the suggestion of Ms. Mekin, signed a Disciplinary Action Report (June 2000, DAR) recommending the termination of Petitioner's employment. "Attachment I" of the June 2000, DAR set forth the "charge[s]" against Petitioner. It read as follows: That the employee is incompetent or inefficient in the performance of [her] duty. That the employee has been offensive in [her] conduct toward [her] fellow employees, wards of the County or the public. D. That the employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given [her] by a supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonabl[y] be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County Service or to the public. K. That the employee has hindered the regular operation of the department or division because of excessive absenteeism. S. That the employee is antagonistic towards superiors and fellow employees, criticizing orders, rules and policies, and whose conduct interferes with the proper cooperation of employees and impairs the efficiency of the County service. V. That the employee has been habitually tardy in reporting for duty or has absented [herself] frequently from duty during regular hours, or has refused to perform a reasonable amount of emergency work after working hours when directed to do so by [her] superior officer. "Attachment II" of the June 2000, DAR described the "specific actions [of Petitioner and the] statements" made by her, which warranted the termination of her employment: On March 10, 2000 you were given a Record of Counseling because of your poor performance[.] [T]his Record of Counseling had to be given to you because of your lack of response to repeated training sessions where your Supervisor pointed out your errors and outlined expectations. You also had several performance conferences where your Supervisor tried to motivate you to improve your efficiency[.] [A]s of this date you have failed to achieve the expectations of this unit. On several occasions you have been offensive and abusive with your co-workers in front of taxpayers[.] [Y]ou have also been abusive and offensive to the taxpayers in front of your co-workers. On April 14, 2000 you were given a memo in reference to a complaint letter from a taxpayer. Your behavior has created an intimidating and hostile working environment. D. On multiple occasions you have failed to comply with the rules, policies and directives of the section. This situation results in a disruption of the smooth operation of this unit, affecting both our effectiveness and our Customer Service. On December 20, 1999 you were given a Disciplinary Action for failure to follow the recommendations of the Employee Support Services. On June 1st, 2000 a memo had to be given to you for failure to follow procedure that resulted in an economic loss to the County. On May 12, 2000 you were given a Record of Counseling because of your excessive absenteeism. From August 1999 through May 14, 2000 you were absent 303.25 hours, with 209.00 hours of this total being a result of your calling in sick. S. On December 10, 1999 you were antagonistic with a Tax Record[s] Supervisor II from another section. You were advised to stay away from any other section of the Tax Collector and to resolve your differences using the proper channels. Furthermore we had had to rotate all Clerks and Field Inspectors to work next to you at the counter because they have all complained of your lack of teamwork, unreasonable conduct and your poor Customer Service. This situation has created an antagonistic environment interfering with your peers['] work performance. You have been verbally counseled by your immediate Supervisor, by my Assistant and by me on multiple occasions regarding appropriate behavior expected from you. V. During your time at Occupational License[s] you have been habitually tardy and have on several occasions walked out of the office abandoning your duties, without notifying any Supervisor. You were given written counseling on June 26, 2000 for the most recent occurrence. You have been with Occupational License[s] since August, 1999. During this time your inadequate and antagonistic conduct as well as your poor performance have caused an adverse working environment for your peers and your Supervisors, hindering the proper delivery of Customer Service. Petitioner was not served with the June 2000, DAR until a little more than a year after it had first been signed by Ms. Vuelta. Petitioner had stopped coming to work on June 25, 2002 (the same date that Ms. Mekin had recommended Petitioner's termination) and was not heard from until a month or two later when she contacted Geneva Hughes, who had replaced Ms. Carpenter as the Finance Department's Personnel Manager, and told Ms. Hughes that she was "not feeling well." At Ms. Hughes' suggestion, Petitioner applied for a year's leave of absence (retroactive to when she stopped coming to work in June). Ms. Baum granted the leave request because she "felt that [Petitioner] needed the time to get whatever [were] . . . the problems [Petitioner was experiencing] in order, and if [Petitioner] needed that time, then [Ms. Baum wanted to] be accommodating." At no time did Petitioner fill out the necessary paperwork to apply to participate in the sick leave pool, although Ms. Hughes explained to Petitioner what she needed to do to make such application. On or about December 19, 2000, before any formal action had been taken on the termination recommendation contained in the June 2000, DAR, Petitioner filed a second employment discrimination charge with the EEOC against the County, EEOC Charge No. 150A10614 (which is described above). Ms. Vuelta re-signed the June 2000, DAR on June 28, 2001, and the re-signed document was served on Petitioner after she returned to work from her year's leave of absence. Ms. Baum (who was responsible for making the "final decision" on the matter) accepted the recommendation of termination contained in the June 2000, DAR, and by letter dated July 10, 2001, which read as follows, so advised Petitioner: This letter is to advise you that you are terminated from County Employment, effective close of business Friday, July 06, 2001. This action was taken in accordance with Chapter VIII, Section 7, Paragraphs (A), (B), (D), (K), (S), and (V) of Dade County's Personnel Rules, as detailed in the Disciplinary Action Report presented to you on June 28, 2001 (copy attached).11 You may, if you desire, in accordance with Chapter VIII, Section 5, of the Dade County Personnel Rules, appeal this action to a Hearing Examiner by writing to Maria Casellas, Director, Employee Relations Department, 111 Northwest First Street, Suite 2110, Miami, Florida 33128. This appeal must be received within fourteen (14) days of the receipt of this letter. 61. Petitioner was terminated because she was "just not progressing and she was just not functioning" as an employee should. Neither her termination nor the "write-ups" that preceded it were motivated by a desire to retaliate against her for having previously complained that she was the victim of employment discrimination by the County or by any other illicit motive. Petitioner did not "appeal [her termination] to a Hearing Examiner," but the representative of the collective bargaining unit of which she was a member did file a grievance and seek arbitration on Petitioner's behalf. The collective bargaining representative ultimately "withdr[ew] the [grievance] without prejudice," explaining in its letter of withdrawal that it had been unsuccessful in its efforts to contact Petitioner concerning the grievance and, based on Petitioner's "non- respons[iveness]," it had concluded that Petitioner was "not interested in the pursuance of her dismissal arbitration." Thereafter the American Arbitration Association closed the file in the case. In summary, there has been no persuasive showing of any acts of commission or omission by the County adversely affecting Petitioner's compensation or other terms, conditions, or privileges of her employment with the County that were based on any protected status she enjoyed or any protected activity in which she had engaged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order in these consolidated cases finding that the County is not guilty of any of the "unlawful employment practices" alleged by Petitioner in EEOC Charge Nos. 150993522, 150A10614 and 150A13134 and, based upon such finding, dismissing these charges. DONE AND ENTERED this 10th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2003.
The Issue Whether Petitioner was subjected to race and gender discrimination, sexual harassment/hostile work environment, and retaliation, as alleged in her Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, a 36-year-old Caucasian female, was employed by Respondent as a sales associate. She first worked for Respondent at its Sebastian, Florida, store where she started in June 2006. She voluntarily resigned from the Sebastian store in October 2006 and was hired by Respondent's Merritt Island, Florida, store one week later. Respondent owns and operates an appliance retail store in Central Florida. Respondent employs more than 15 people. At some time during Petitioner's employment, John Barnaba, an operations manager who rotated among several stores, said things to her that she found "unacceptable." For example, "You would look good on my Harley," "You look like a biker chick," and "You must be anorexic." He also clapped his hands behind her and said, "hurry, hurry, hurry." She reported Mr. Barnaba's conduct to Phil Roundy, her manager and manager of the Merritt Island store, who said "That's just the way he is," or words to that effect. She was unaware of any other action undertaken by Mr. Roundy regarding her complaint. In January 2007, Petitioner began a voluntary sexual relationship with Mr. Roundy, which involved at some point, Petitioner and Mr. Roundy living together. This relationship lasted until April 29, 2007, when the parties separated. She and Mr. Roundy "got back together in May, about a week after her termination." Mr. Roundy did not sexually harass Petitioner based on the voluntary nature of their relationship, nor did he sexually harass Petitioner between April 29 and May 18, 2007. After Petitioner and Mr. Roundy separated, he started treating her "differently." She reports that he became critical of her and would not assist her. Respondent has published an "information resource for common questions and concerns" titled, "Associate Handbook" that addresses sexual harassment and presents a grievance procedure for employees who believe they have been subjected to unfair treatment. It contemplates reporting the unfair treatment to (1) "your immediate manager"; (2) the store manager; or (3) "[s]hould the problem, however, be of a nature which you do not feel free to discuss with your manager, you are encouraged to discuss the problem in confidence directly with Human Resources." Petitioner requested a transfer to another store on May 1, 2007. She requested the transfer before Mr. Roundy started treating her "differently." She called Human Resources on May 9 and 15, 2007; it is unclear as to whether she called to check on the requested transfer or to report the alleged sexual harassment. She did not timely pursue any recourse suggested in the Associate Handbook. On May 9, 2007, Mr. Barnaba, the operations manager mentioned above, authored an email that characterized several of Petitioner's activities of that work day as "completely unprofessional and insubordinate." The following day, Mr. Roundy emailed his supervisor that Petitioner had gone through his private, business-related emails and discovered Mr. Barnaba's May 9, 2007, email. He also related several incidents that he thought unprofessional and that reflected bad customer service. He advised that Petitioner accused Barnaba and himself of conspiring to try to terminate her. Petitioner was scheduled to work on May 16 and 17, 2007, but did not report to work. She was scheduled to work on May 18, 2007; as a result, Kevin Draco, a risk manager for Respondent, went to the Merritt Island store to interview her. When Petitioner did not appear, management made the decision to terminate Petitioner for "absenteeism."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maurice Arcadier, Esquire 2815 West New Haven Avenue, Suite 303 Melbourne, Florida 32904 Christopher J. Coleman, Esquire Schillinger & Coleman, P.A. 1311 Bedford Drive, Suite 1 Melbourne, Florida 32940
The Issue The issue is whether Respondent discriminated against Petitioner based on her sex and/or in retaliation for complaining about sexual harassment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent's business provides consulting and technical-services management on a contract basis. Specifically, the business involves performing environmental consulting, engineering, remediation/construction, and information technology services to both private and public entities throughout the country. Petitioner began working for Respondent in February 1998 as a receptionist and administrative assistant in Respondent's Jacksonville, Florida, office. Her duties included answering the phones, processing mail, filing, creating, and revising reports. Petitioner's job description also included providing administrative support to the engineers, scientists, project managers, and geologists in the office. Initially, Petitioner worked under the direction of Sam Patterson, Respondent's division director. After Mr. Patterson resigned, Sam Pratt became Respondent's manager and Petitioner's supervisor in the Jacksonville office. On or about March 24, 1998, Respondent evaluated Petitioner's work performance. The evaluation indicates that Petitioner was outstanding in the following expected behavior and performance areas: (a) knowledge; (b) initiative/problem solving; and (c) relations with others. Petitioner received an excellent rating in all other performance areas, including the following: (a) communication/marketing ability; (b) quality of work; (c) dependability; and (d) adaptability/professional development. Respondent paid for Petitioner to attend computer courses. Petitioner completed the following courses on the following dates: (a) April 29, 1998, Beginning Power Point; (b) September 19, 1998, Beginning Excel; (c) January 7, 1999, Beginning Word; (d) March 25, 1999, Intermediate Excel; (e) April 9, 1999, Intermediate Word 97; and (f) April 27, 1999, Advanced Excel. Mr. Pratt evaluated Petitioner's job performance on March 11, 1999. He found that Petitioner met the expected behavior and performance requirements in all areas. Mr. Pratt listed her strengths as follows: (a) has good relationship with clients; (b) works long hours to meet deadlines; (c) has excellent knowledge of company resources and corporate information; and (d) has detailed filing system that allows for tracking data. Mr. Pratt listed her weaknesses as follows: (a) has failed to contact office when unavailable to work due to family illness; (b) lacks computer skills necessary for a project assistant; (c) fails to perform a complete review of her own work; and (d) takes constructive criticism too personally. There were no areas in which Petitioner failed or exceeded her job requirements. In July 1999, Gregg Roof became Respondent's manager and Petitioner's supervisor in the Jacksonville office. Mr. Roof experienced problems with Petitioner's job performance, finding that she had difficulty completing simple tasks, such as copying, without making errors. Merve Dale was a geologist who worked for Respondent. Mr. Dale worked part-time in the field and part-time in Respondent's Jacksonville office. Petitioner found Mr. Dale's behavior offensive on several occasions. In June 1999, Mr. Dale told Petitioner that he could not smell the toxic odor in the warehouse but he could smell her perfume, which made him want to jump her. Petitioner ignored Mr. Dale and did not immediately report this statement to Mr. Roof. Mr. Dale sent Petitioner an e-mail from his home on August 19, 1999. The message stated, "I have sent myself a test message and I thought of you, so here is another test to see if my e-mail works from home. Have a wonderful day." Petitioner responded electronically that she had received the message. Petitioner then called Richard May, Respondent's senior regional manager in the Tallahassee, Florida, office. Petitioner told Mr. May that she was not happy about the content of the e-mail message or the fact that it was sent from Mr. Dale's home at 6:00 a.m. She also informed Mr. May about Mr. Dale's prior comment about smelling her perfume. However, Petitioner did not want Mr. May to take any action against Mr. Dale. She specifically stated that she did not want to file a formal complaint pursuant to Respondent's anti-discrimination or anti-harassment policy. She wanted to deal with the situation herself. Later that same day, Mr. Dale called the office from the field to ask Petitioner to have lunch with him. Petitioner declined the offer, stating that she usually worked through the lunch hour. Petitioner did not report this incident to Mr. Roof or Mr. May immediately. In the afternoon, Mr. Dale asked Petitioner what he was going to get in return for giving her charge numbers for her timecard. Petitioner responded that the question was what he would not get, which was a hard time. When Mr. Dale indicated that it was not a fair exchange, Petitioner replied, "That's the way it is." Mr. Dale then gave Petitioner the information she needed for her timecard. Petitioner did not immediately report this incident to Mr. Roof or Mr. May. On August 20, 1999, Mr. Dale was with Petitioner when another geologist asked her if she was wearing a new outfit because she really looked sharp. Petitioner laughed and responded negatively, stating that she was finally losing weight and able to wear some old clothes. At that point, Mr. Dale stated, "I told her she was really looking hot and she better watch out." Mr. Dale then reached out with a roll of drawings, five feet in length, and slapped Petitioner on her backside. Petitioner immediately told Mr. Dale to behave himself. In a letter to Mr. Dale dated August 24, 1999, Petitioner recounted the above-referenced incidents and demanded an apology. The letter specifically informed Mr. Dale that his actions were unwanted and offensive. Petitioner furnished Mr. Roof with a copy of the letter. Mr. Roof and Petitioner also shared her concerns with Mr. May. Mr. Roof subsequently counseled with Mr. Dale and Petitioner. During the meeting with Mr. Roof on August 25, 2000, Petitioner rejected Mr. Dale's apology. Mr. Roof then proceeded to admonish Mr. Dale, warning him that his behavior towards Petitioner was inappropriate. Petitioner did not request Mr. Roof or Mr. May to take any further action against Mr. Dale even though she knew she could have filed a formal complaint pursuant to Respondent's policies and procedures. On February 18, 2000, Petitioner happened to be alone in the office with Mr. Dale. She was helping him label samples for shipment to a laboratory when Mr. Dale handed Petitioner a doctor's business card. Mr. Dale stated that he found the card on the sidewalk in front of the office entrance and wondered if it might belong to Petitioner. Other than giving Petitioner the business card, Mr. Dale did not say or do anything to Petitioner. Petitioner concedes that it was customary for staff to give found items to her as the office receptionist. However, the business card made Petitioner feel uncomfortable because it listed the name of a gynecologist who specialized in reproductive endocrinology, infertility, pelvic reconstructive surgery, and gynecology. Petitioner kept the business card and faxed a copy of it to Mr. May in Tallahassee. When she called Mr. May, he said he would talk to Mr. Dale. Mr. May was extremely supportive of Petitioner and took her complaints regarding the card seriously. Petitioner requested Mr. May to report the incident to Faye Thompson, Respondent's director of Human Resources. This was the first time that Petitioner had made such a request. During the telephone conversation, Mr. May asked Petitioner if she wanted to transfer to the Tallahassee office so that he could protect her. Mr. May and Petitioner had previously discussed such a transfer because some of her duties were regional in nature. Petitioner responded that she would think about it. In an e-mail dated February 22, 2000, Mr. May asked Petitioner to plan a luncheon for Ms. Thompson and other employees who would attend a project manager's seminar at the Jacksonville office. Petitioner responded that she would be happy to prepare the meal and other refreshments for the seminar. On February 23, 2000, in anticipation of the seminar, Petitioner asked Mr. Roof if he was going to have the warehouse cleaned over the weekend. He responded negatively because the staff had already worked long hours. Petitioner then stated that she would work on the weekend to organize the files and certain areas of the warehouse. Mr. Roof again responded negatively, explaining that he did not want to pay overtime. When Petitioner continued to insist on cleaning the office for the dignitaries, she and Mr. Roof had a verbal exchange in front of other staff. Petitioner followed Mr. Roof into his office. She then asked him what she should do with the extra electronic equipment stored in the cubicles. When Mr. Roof told her to throw it in the dumpster, Petitioner refused and began to question him about the company's policy for disposing of excess equipment. Next, Mr. Roof closed his office door and began to explain that he was tired of having to tell Petitioner things multiple times and that he did not want her to clean the office. Although Mr. Roof inappropriately raised his voice in talking to Petitioner, there is no persuasive evidence that he blocked her exit from the office after Petitioner requested him to move. Mr. Roof lost his temper with Petitioner, but he was not retaliating against her because she accused Mr. Dale of sexual harassment. Instead, Mr. Roof was frustrated because Petitioner would not follow his directions. Before the day was over, Mr. Roof and Petitioner had a civil discussion about the incident. Petitioner was upset about Mr. Roof's behavior. She subsequently expressed her feelings to Mr. May in a telephone call. On February 29, 2000, Ms. Thompson was in the Jacksonville office for the project manager's meeting. After the meeting, Ms. Thompson spoke to Petitioner about her sexual discrimination claim. During the conversation, Petitioner gave Ms. Thompson a copy of the August 24, 1999, letter to Mr. Dale and a copy of the business card. On or about March 1, 2000, Mr. May met with Mr. Roof and Petitioner to complete Petitioner's work evaluation. During the meeting, Mr. May counseled Petitioner and Mr. Roof. Mr. Roof again apologized to Petitioner for his losing his temper on February 23, 2000. The written evaluation indicates that Petitioner did not meet her job requirements in the following areas: (a) decision making; (b) reliability; and (c) quality and quantity of work. According to the evaluation, Petitioner met her job requirements in the following areas: (a) knowledge of job; (b) interpersonal and communication skills; and (c) professional development. The only area that Petitioner exceeded job requirements was in safety. The performance evaluation correctly reflected several areas in which Petitioner had a positive influence in the office. Some examples of her contributions include, but are not limited to, the following: (a) Petitioner successfully coordinated health and safety training for Respondent's offices in Florida; (b) Petitioner was an excellent person to represent Respondent when performing telephone reception duties; (c) Petitioner performed successfully as the regional human resources representative; and (d) Petitioner successfully coordinated partner meetings, including making hotel reservations and arranging for meeting rooms. The evaluation also correctly reflected Petitioner's job performance skills that required improvement. These skills included the following: (a) Petitioner had a poor attitude toward her supervisor as indicated by her failure to follow directions and her failure to understand office hierarchy; Petitioner had difficulty prioritizing her work; Petitioner often seemed overwhelmed by a minimal amount of work resulting in a disorganized desk and poorly maintained files; (d) Petitioner spent too much time in personal telephone conversations; (e) Petitioner rarely made an effort to determine when assigned work was due so that it could be completed in a timely fashion; and (f) Petitioner's word processing and spreadsheet manipulation skills were below standards required for a person in her position. Mr. May wanted all administrative personnel to work more as "project assistants," helping the professionals with the administrative tasks of particular projects. Petitioner assured Mr. Roof and Mr. May that she would make an effort to improve her performance. Soon thereafter, Ms. Thompson called to thank Petitioner for the luncheon and snacks during the project manager's meeting. Ms. Thompson also inquired whether Petitioner had thought more about transferring to the Tallahassee office. Petitioner said she would make the move if the company paid her expenses. Some time after the March 2000 evaluation, Petitioner informed Mr. May that she did not believe she could sufficiently demonstrate her skills to receive the promotion and pay raise she wanted while she worked in the Jacksonville office. Mr. May again offered Petitioner an opportunity for a fresh start in the Tallahassee office working directly for him. However, Mr. May cautioned Petitioner that her work performance had to improve if she were going to accept the offer. Mr. May agreed that Respondent would reimburse Petitioner for her relocation expenses. Petitioner moved to Tallahassee, Florida, and began working in the Tallahassee on or about May 1, 2000. In her new position, Petitioner worked as receptionist and administrative assistant. Once again her duties included providing administrative support to the professionals in the office. At all times material here, Petitioner enjoyed working for Mr. May. She does not attribute any discriminatory or harassing behavior to him. However, immediately after her transfer, Petitioner again demonstrated deficiencies in her job performance. Mr. May had hoped that Petitioner would become a "resource" for him. Instead, the opposite was true despite the additional training provided to Petitioner. Petitioner often went to Mr. May with questions regarding simple tasks that were part of her regular job duties. It did not take Mr. May long to confirm Mr. Pratt's and Mr. Roof's earlier complaints regarding deficiencies in Petitioner's performance. Mr. May began to document his observations about Petitioner's job performance. On May 8, 2000, Petitioner did not get to work until 9:00 a.m. Additionally, another employee had to take the regular FedEx to the kiosk because Petitioner did not get it out on time. On May 9, 2000, Petitioner again failed to get the regular FedEx out on time. This failure was more serious because the package contained checks in the amount of $32,000. On May 10, 2000, Petitioner did not get to work until after 9:00 a.m. Other staff members had to interrupt their work to sign for deliveries. Later that day, Mr. May told Petitioner that she did not have to put cover sheets on all her work. Petitioner then complained that she had to do "regional stuff" all the time. On May 19, 2000, Petitioner did not get the FedEx delivery out on time. The package had several checks in it, as well as an important communication regarding an offer of employment for a new employee. On May 22, 2000, Petitioner was not in the office by 9:15 a.m. In the meantime, Petitioner began to experience interpersonal relationship problems with members of the staff. For example, problems with Karen Harnett, Respondent's systems administrator, began soon after Petitioner made the move. The evidence indicates that Ms. Harnett was a bully who routinely picked on people. Ms. Harnett's attitude caused one employee to quit her job and caused another employee to seek help from Respondent's employee assistance program. However, there is no persuasive evidence that Respondent ever condoned Ms. Harnett's behavior in retaliation for Petitioner's filing of the sexual harassment complaint. In June 2000, Ms. Harnett and two other staff members found it amusing to harass an employee who worked for VALIC, an investment firm located in Respondent's office building. The harassment resulted in a feud over parking spaces in the building's parking lot. Petitioner was aware of Ms. Harnett's inappropriate actions but did not participate in the harassment. Petitioner did not know that it was customary for Respondent's receptionist to accept deliveries for VALIC when its office was closed. One day, Petitioner refused to accept a delivery of a UPS or FedEx package for VALIC. Later, the VALIC employee stormed into Respondent's office demanding to know why Petitioner had refused the delivery. Howard Engle, one of Respondent's project managers, heard the encounter between the VALIC employee and Petitioner. He went to the front of the office to see what was going on. Jimmy Hatcher, the building's owner, later complained to Mr. May about Petitioner's refusal to accept the package. Mr. May was not in the office with the VALIC incident took place. When he returned to the office, he heard several versions about the dispute. He concluded that Petitioner's poor decision-making and reaction to the angry VALIC employee had contributed, at least in part, to undermine Respondent's positive working relationship with Respondent's neighbor. On or about June 14, 2000, Mr. May discussed the VALIC incident with Petitioner. During that conversation, Mr. May also counseled Petitioner regarding her working relationship with other employees. He advised her to pay more attention to details and to improve her technical skills. Mr. May explained to Petitioner that several of the professionals in the office avoided giving her work because they lacked confidence in her work. He encouraged her to work more cooperatively with the professionals in the office. During the conversation on June 14, 2000, Petitioner admitted that she needed to improve her computer skills. She felt that everyone was against her and that Mr. May's only option was to go ahead and fire her. Mr. May later sent Ms. Thompson a summary of his conversation with Petitioner. On June 16, 2000, Mr. Engle sent Mr. May an e-mail complaining about Petitioner's substandard performance. The message stated that Mr. Engle had resorted to doing his own copying because he could not depend on Petitioner. Additionally, she had misplaced an important laboratory report, which would not have been delivered in a timely manner if another employee had not discovered Petitioner's error. Mr. Engle also complained that Petitioner had misfiled and never shown him a time-sensitive letter from the Florida Department of Environmental Protection regarding Respondent's re-certification to perform work in the state. This error could have had a calamitous impact on Respondent's business interests. In a written correspondence dated June 29, 2000, Mr. May gave Petitioner a written warning that she would be terminated if her job performance did not improve. The communication outlined specific job performance areas that required immediate and sustained improvement. As of June 29, 2000, Petitioner had misdirected incoming facsimile transmissions, failed to ensure that outgoing FedEx deliveries met the regular schedule, and sent at least one FedEx delivery to the wrong location. Competent evidence indicates that Petitioner needed to pay more attention to detail. Petitioner failed to proofread final drafts of monthly reports that she prepared. As of June 29, 2000, every such report had errors in them. Petitioner failed to focus on directions for work assignments. She often failed to return the work in the order that it was assigned. Petitioner failed to prioritize her work. She did not give project-related activities priority over day-to-day overhead issues. When Petitioner felt overwhelmed by an assignment, she was unwilling to shift gears to handle a higher priority activity. Petitioner had difficulty working the office schedule. She needed to understand that she could not work a later schedule. She also had to understand that overtime pay would not be authorized except for work directly related to client projects or for important overhead objectives. Petitioner failed to be accountable to the professional staff that depended on her administrative assistance. At times, she was unwilling to accept work assignments from staff members other than Mr. May. At times Petitioner was argumentative with her co-workers and inflexible regarding office procedures and protocols. She needed to moderate her behavior towards her co-workers. Petitioner was paid at Respondent's top pay rate for the second highest administrative support grade. She should have been serving as a resource for staff members that were not expected to have expertise in word processing. However, Petitioner's computer proficiency was at a beginners level at best. At times, Mr. May had to assist Petitioner with computer skills that she should have mastered. After receiving the written warning, Petitioner showed no improvement in her job performance or ability to work with the people in Respondent's Tallahassee office. Therefore, Mr. May terminated Petitioner's employment on July 25, 2000, for substandard work performance. Respondent's decision to fire Petitioner was based solely upon her poor performance record. It was not a result of any complaints she made against Mr. Dale the preceding year when she worked in the Jacksonville office. In making his decision to terminate Petitioner, Mr. May did not receive input from anyone in the Jacksonville office or from any other of Respondent's employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of May, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 23rd day of May, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Sharon Jensen 2692 Spring Lake Road Jacksonville, Florida 32210 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Fort Myers Broadcasting Company (FMBC or Respondent) committed an unlawful employment practice against Jaziah Rivera (Ms. Rivera or Petitioner) on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact FMBC operates in an office building located at 2824 Palm Beach Boulevard, Fort Myers, Florida. For at least 20 years prior to September 2018, FMBC outsourced its cleaning needs. In or around August 2018, a management team at FMBC met to discuss its custodial services. The team included Joseph Schwartzel, Jim Schwartzel, Mark Gilson (Mr. Gilson), and Mr. Mayne. Joseph Schwartzel is the general manager of FMBC, and has served in that role for approximately 25 years. Jim Schwartzel, Mr. Gilson, and Mr. Mayne are all senior managers who report directly to Joseph Schwartzel. After the discussion, the management team decided to terminate FMBC’s contract for outside custodial services and hire an in-house custodian. General Manager Joseph Schwartzel was the final decision maker on this matter. In September 2018, FMBC hired Ms. Rivera as a full-time custodial worker. Ms. Rivera was the first in-house custodian hired by FMBC in its history. Her job duties included generalized cleaning like sweeping, mopping, taking out the trash, dusting, restocking supplies in the bathrooms, and vacuuming. Ms. Rivera reported directly to Mr. Mayne, who served as FMBC’s Chief Engineer. During Ms. Rivera’s entire time at FMBC, Mr. Mayne was her direct supervisor. Ms. Rivera’s weekly scheduled hours were Monday through Friday, 9:00 a.m. to 6:00 p.m. She sometimes altered those hours and worked from 10:00 a.m. to 7:00 p.m. Ms. Rivera testified that she would sometimes work “after hours or on the weekend” if she had to make up missed time. FMBC received complaints from employees that some areas at FMBC were not being stocked/cleaned properly or in a timely fashion. Mr. Mayne spoke to Ms. Rivera about the complaints. Ms. Rivera complained to Mr. Mayne that the amount of cleaning she was required to complete was too much for one person and that she needed assistance. In or around December 2018, FMBC hired an in-house, part-time custodial worker to assist Ms. Rivera with the cleaning duties. The part-time custodian was quickly relieved of her duties, because she proved to be unreliable. In April 2019, Ms. Rivera complained that she was experiencing back pain and was unable to take out the trash. She provided FMBC with a doctor’s note which stated that she was not allowed to lift items that weighed more than 15 pounds. FMBC proposed several accommodations to assist Ms. Rivera in taking out the trash, including providing a rolling bin to push the trash to the dumpster. On several occasions, Mr. Mayne also provided two to three non- custodial employees, from the engineering department, to assist Ms. Rivera with taking out the trash. In April 2019, FMBC hired another part-time employee, Imari Porter (Ms. Porter), to help Ms. Rivera with the cleaning duties. Ms. Porter is Ms. Rivera’s sister. In April 2019, FMBC’s upper management team—Joseph Schwartzel, Jim Schwartzel, Mr. Gilson, and Mr. Mayne—met several times over a two- week period to discuss its custodial needs. The team made the decision to eliminate the full-time and part-time in-house custodian positions and return to outsourcing the custodial services. As the general manager, Joseph Schwartzel was, again, the final decision maker. Joseph Schwartzel testified about the reasoning behind FMBC’s decision to move back to its out-sourced custodial services model. He stated as follows: Well, basically, I think, we discovered that we had made a mistake trying to have an in-house custodial position. We thought it was a good idea to begin with as we could have someone work during the day when most the employees were there and provide cleaning services while people were at the office. And if there were spills or things like that, there would be someone immediately available to try and remedy the situation. So it sounded good. What we didn’t realize is how difficult it would be to cover if someone wasn’t there. If they were out sick, if they were on vacation, things of that nature. In Ms. Rivera’s case, where she had a health issue, all of a sudden we were scrambling, trying to figure out how to get the facility cleaned. And we didn’t have anyone else that could do that on the long- term basis. So it became very problematic. Thus, instead of, you know, having an in-house custodial position, we elected to go back to a third party to do it. On April 22, 2019, FMBC terminated Ms. Porter, less than one month after hiring her. The next day, on April 23, 2019, Mr. Mayne and Karen Seiferth (FMBC’s human resources manager) met with Ms. Rivera. Mr. Mayne terminated Ms. Rivera. FMBC immediately returned to its past arrangement of outsourcing its cleaning needs—on April 23, 2019, the same day Ms. Rivera was terminated, FMBC signed a contract with ABC International Cleaning Service. As of the date of the final hearing, FMBC continued to outsource its cleaning and still contracts with ABC International Cleaning Service. Sexual Harassment Allegations Ms. Rivera testified that Mr. Mayne sexually harassed her during her entire period of employment with FMBC. Ms. Rivera testified that Mr. Mayne subjected her to sexual harassment in the following ways: by staring at Ms. Rivera and looking at her body parts, as if he was “undressing [her] with his eyes”; brushing past her on one occasion, causing his leg to “graze” her buttocks; and making comments about her khaki pants and her buttocks being “big.” Ms. Rivera also testified that Mr. Mayne frequently asked her “to go out for drinks” and that she perceived those invitations as sexual advances. Ms. Rivera testified that she rejected Mr. Mayne’s advances, but did not complain about his behavior to anyone at FMBC. Ms. Rivera alleges that she was terminated for refusing to engage in a sexual relationship with Mr. Mayne. Ms. Rivera claims that after she was fired, Mr. Mayne sent her inappropriate sexual messages, pictures, and a video through social media. It is undisputed that, to the extent this claim is true, it happened well after Ms. Rivera was terminated from FMBC. Ms. Rivera submitted a Technical Assistance Questionnaire (TAQ), dated April 9, 2020, to FCHR, which initiated an investigation into her complaints against FMBC. In the TAQ, Ms. Rivera set out the events that occurred during her time at FMBC that she believed to be discriminatory. The majority of Ms. Rivera’s complaint was based on what appears to be allegations of disability discrimination. The only mention of sexual harassment was at the conclusion of her statement. Therein, she stated: “Now present day Mike Mayne is harrassing me by pursuing me thru social media planforms, sending inappropriate images (private part) to try to get me to engage is some type of sexual relationship & offering support to me.” (errors in original). Ms. Rivera’s allegations that Mr. Mayne was sexually harassing her through social media were described as occurring “now” in the “present day,” which, at that time, would have been nearly a year after she was terminated from FMBC. Ultimate Findings of Fact Ms. Rivera’s testimony that Mr. Mayne sexually harassed her while she worked at FMBC is not credible. Ms. Rivera failed to prove that Mr. Mayne sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated for not acquiescing to quid pro quo sexual harassment. Accordingly, Ms. Rivera failed to meet her burden of proving that FMBC committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Rivera’s Petition for Relief. DONE AND ENTERED this 10th day of May, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Zandro E. Palma, Esquire Zandro E. Palma, P.A. Suite 1500 9100 South Dadeland Boulevard Miami, Florida 33156 Suzanne M. Boy, Esquire Boy Agnew Potanovic, PLLC 4415 Metro Parkway, Suite 110 Fort Myers, Florida 33916-9408 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of: . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November 2000. COPIES FURNISHED: Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. John L. Ruiz, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32304 Brent P. Abner, Esquire Suite F 4741 Atlantic Boulevard Jacksonville, Florida 32207 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344 Martha F. Dekle, Esquire 806 G Street Post Office Box 1644 Jacksonville, Florida 32207
The Issue The issue is whether Respondent, Rural Metro of North Florida, Inc., violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was hired by Respondent on October 11, 1999, as an Emergency Medical Technician Basic, until July 2001 when he was reclassified with Respondent as an Emergency Medical Technician Paramedic, until his termination from employment with Respondent on April 16, 2003. In July 2001, Petitioner told his then manager, Dominic Persichini, that he no longer wanted to work with his partner, Marlene Sanders, and he requested a transfer. Petitioner gave as his reason for the transfer that Ms. Sanders was interested in him in an inappropriate way which disrupted his family life. He never actually heard Ms. Sanders make any inappropriate sexual remarks directed at him. Ms. Sanders accused Petitioner of allowing his wife to interfere with their working relationship and to involving herself in Ms. Sanders' personal life, which made her uncomfortable working with Petitioner. On March 27, 2002, Stephen Glatstein, Respondent's new General Manager, wrote a letter to Petitioner in which he acknowledged that problems had occurred between Petitioner and Ms. Sanders, that the two of them would be separated and reassigned to new shifts, and that Petitioner was being reassigned to the B-shift rotation (1800-0600 hours), which conflicted with his family duties. Petitioner received a good evaluation and a pay raise dated February 15, 2003, in which his supervisor, Ryan Jenkins, stated that "Michael's abilities meet or exceed industry standards. Michael keeps current by completing CEU's and taking refresher classes. There is one new Corrective Action Notice in his file since last year involving a post move. The incident was on 08-07-02 and to my knowledge there have not been any further problems since." Further, the evaluation reads that "Michael shows a great attitude and appears to really enjoy his job. This makes him very easy to work with. Michael's good personality and working knowledge of E.M.S. is a benefit to the customers that he serves. It is clear that we should be proud to have Michael as part of our team." Petitioner received letters of commendation from his supervisors and letters of thanks from patients and their families he had served. In April 2003, Natashia Duke, a new employee with Respondent, went to the General Manager, Mr. Chalmers, and accused Petitioner of having made statements of a sexual nature to her and of touching her inappropriately. Ms. Duke provided a written statement to Mr. Chalmers who forwarded the information to the Division General Manager, Chris Rucker. Mr. Rucker advised Mr. Chalmers to place Petitioner on paid administrative leave pending the outcome of an investigation concerning Ms. Duke's complaint. Mr. Chalmers followed this instruction and placed Petitioner on leave. Mr. Rucker traveled to Pensacola to meet with Mr. Chalmers and Ms. Duke. At this meeting, Ms. Duke reaffirmed what she had written in the complaint against Petitioner and told Mr. Rucker and Mr. Chalmers about another employee she believed had been sexually harassed by Petitioner, Kristy Bradberry. The next day, Mr. Rucker and Mr. Chalmers interviewed Ms. Bradberry who informed them that she had been sexually harassed by Petitioner. She provided a written statement which described the alleged harassment in detail. Ms. Bradberry told the interviewers of another person she believed had suffered sexual harassment by Petitioner, Tina Dunsford (Tina Richardson at the time of her complaint). Mr. Rucker and Mr. Chalmers next interviewed Ms. Dunsford who confirmed that Petitioner had sexually harassed her as well by making sexual comments and propositions to her, and by touching her inappropriately. After Ms. Dunsford's interview, Ryan Jenkins, another of Respondent's employees, reported that Ms. Dunsford had complained to him of sexual harassment by Petitioner a few months earlier. Mr. Jenkins had failed to take any action on the previous complaint. After interviewing the three complainants, Ms. Duke, Ms. Bradberry, and Ms. Dunsford, Mr. Rucker and Mr. Chalmers met with Petitioner. At that meeting, Petitioner denied all of the allegations made by the three female co-workers and gave no explanation for what they alleged had happened. Mr. Rucker believed the statements given by the three female co-workers who complained of sexual harassment by Petitioner were credible. Mr. Rucker made the decision with Mr. Chalmers to terminate Petitioner's employment. Respondent had no prior history of problems with any of the three female co-workers who complained of sexual harassment by Petitioner. Petitioner believes the sexual harassment charges were trumped up against him so that Respondent could fire him, since he was beyond the company probationary period and therefore could be terminated only for a business purpose pursuant to the company employee handbook. No evidence was produced at hearing to support a violation of company policy by Respondent in Petitioner's termination. At the time of hearing, Petitioner was employed with the Escambia County E.M.S.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim for relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael J. Welch 2060 Burjonik Lane Navarre, Florida 32566-2118 John B. Trawick, Esquire Shell, Fleming, Davis & Menge 226 Palafox Place Post Office Box 1831 Pensacola, Florida 32591-1831 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues for determination are whether Petitioner, Kenneth Davis, made sexually harassing statements and made body contact with a female counselor so as to constitute sexual harassment and a hostile work environment, in violation of Pinellas County Sheriff Office Civil Service Act and the rules and regulations of the Pinellas County Sheriff's Office, and, if so, what is the appropriate penalty.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes, and the entire record compiled herein, the following relevant and material facts are found: Respondent, Sheriff Everett S. Rice (Sheriff), is a constitutional officer of the State of Florida, responsible for providing law enforcement and correctional services within the geographic boundaries of Pinellas County, Florida. Petitioner, Detention Deputy Kenneth Davis (Deputy Davis), is a 23-year employee with the Pinellas County Sheriff's Office, having spent his entire career as a detention officer. As a result of years of training and experience, Deputy Davis is intimately familiar with the Sheriff's policy regarding sexual harassment, detention policies, operations, procedures, and the priority of security applicable to detention deputies. The evidence demonstrates that in the collective opinions of those detention deputies who worked longest with Deputy Davis, all agreed that his personality was that of one who "[was] loud and obnoxious--to pretty much everybody," "play[ed] around a lot," "never insulted anybody," and "[didn't] mean any harm." At all times pertinent to this cause, Deputy Davis held the rank of detention corporal until the Sheriff reduced his rank to Deputy and removed him from his position of detention corporal on March 10, 2003. Deputy Davis' chain-of-command consisted of Major Kirk Brunner, Detention and Correction Bureau commander; Captain Nesbitt; Lieutenant Keith George; and Sergeant Buckingham. Deputy Davis did not have authority over Lori Atwater (Ms. Atwater), the complainant in this cause. He was not in her chain-of-command nor was he one of her bosses in the sense that he could assign her tasks. At all times pertinent to this cause, Deputy Davis worked in detention barrack C, North Division. Barrack C is a two-storied structure divided into B block and C block, with each cellblock divided into an upper level and lower level. Deputy Davis had four deputies under his supervision in cellblock C. At all times pertinent to this cause, Control Deputy Salazar worked the control center at barrack C. The control deputy is stationed in a glassed enclosure with clear view of individuals desiring entrance into the waiting room of barrack C and with clear view of inmates desiring to leave the cellblock and enter the waiting room. On or about March 4, 2002, Ms. Atwater, an African- American and a long-time resident of St. Petersburg, Florida, commenced employment with the Pinellas County Sheriff's Office as an inmate-counselor. Ms. Atwater has an Associate of Science degree in Computer Technology Engineering and a Bachelor of Science degree in Management Information Systems. Her inmate- counselor duties consisted of identifying inmates who had family, legal, and personal issues requiring her intervention. The Department of Children and Family Services (DCFS) employed Ms. Atwater for ten years before she began employment with the Pinellas County Sheriff's Office. While employed with DCFS, she worked in food stamps, Medicaid, protective services, adoptions, and several community recruitment programs. DCFS also has a policy against sexual harassment. The Sheriff has adopted Pinellas County Sheriff's Office General Order 3-4, which defines and prohibits sexual harassment. Pursuant to General Order 3-4, sexual harassment is defined as: All unwelcome or unwanted advances; including sexual advances or unwanted sexual attention, whether between person(s) of the opposite or same sex. This includes, but is not limited to, leering, touching, patting, brushing against, hugging, kissing, fondling, any other similar physical contact, or quid pro quo arrangements (i.e., a situation in which an employee is forced to engage in unwelcomed sexual conduct in order to protect or advance his/her job.) Unwelcome requests or demands for favors, including sexual favors. This consists of subtle or blatant expectations, pressures, or request for any type of favor, including sexual favor, including unwelcome requests for dates, whether or not the request is accompanied by an implied or stated promise of preferential treatment or negative consequences. Inappropriate third party comments or one time comments made which do not constitute a hostile work environment, language not directed at the offended member, jokes (spoken, printed or drawn) that are not directed at the offended member or joint banter of a sexual or offensive nature in which the offended member may or may not be a party. All employees of the Sheriff, including Deputy Davis and Ms. Atwater, received instructions regarding the Sheriff's Sexual Harassment Policy. The evidence demonstrates that beginning in March of 2002 and continuing through the months of April and May 2002, Ms. Atwater noticed, without telling him to stop and without reporting her resulting complaint to her supervisor, that Lieutenant George would call her "Ms. Ashwood." At some unspecified time prior to March of 2002, Ms. Atwater concluded that the name "Ms. Ashwood" was offensive. Ms. Atwater based her conclusion on her interpretation and knowledge of the general reputation of a Ms. Ashwood (no first name given) within the African-American community of St. Petersburg. According to Ms. Atwater, Ms. Ashwood was known throughout the African- American community for engaging in sexual encounters with multiple partners. As a direct result of her superior, Lieutenant George, continuously calling her Ms. Ashwood, a name she considered to be sexually offensive, Ms. Atwater chose not to report her sexual harassment complaint against Lieutenant George through the proper protocol. The record contains no evidence that Ms. Atwater asked Lieutenant George what was his intended meaning by calling her Ms. Ashwood. The evidence demonstrates that Lieutenant George, having been involved in both the hiring of Ms. Atwater as well as involved in her performance evaluation, knew her name to be Ms. Atwater. Alleged statements made by Deputy Davis to Ms. Atwater in the cafeteria during a lunch period. The evidence demonstrated that Ms. Atwater and Deputy Davis initially enjoyed a rather cordial relationship at work during the period of March through May 2002, at least by outward appearances. Deputy Davis and Ms. Atwater both attended read- off sessions; on occasions, they walked together from the read- off sessions back to barrack A; and on two separate occasions, they were seated at the same table in the compound's buffet- styled cafeteria. They did not have contact with each other beyond what was necessary in the performance of their respective duties. They did not have contact with each other outside the workplace. On some unspecified date during lunch in the compound cafeteria, Ms. Atwater chose to ask Deputy Davis why Lieutenant George kept calling her Ms. Ashwood. According to Ms. Atwater, Deputy Davis came over to the table where she sat and she allegedly initiated the following conversation: Atwater: I really don't appreciate that, him [Lieutenant George] calling me Ms. Ashwood. Davis: He's probably P-U-S-S-Y whipped and you probably remind him of her. Atwater: He just alluded to--and used the term inside whore. Atwater: What's an inside whore? Davis: That's when you sleep with someone that makes Decisions for your career. Atwater: If I ever get promoted around here it will not be because I've slept with anybody, but based on my own merits. At the final hearing, Deputy Davis denied the allegations regarding the above statements attributed to him by Ms. Atwater. Thus, the evidence is irreconcilably in conflict as to whether Deputy Davis made those statements attributed to him with the intent of sexually harassing Ms. Atwater, and if the statements were, in fact, made, whether his answers were truthful responses to her question. The compound cafeteria has several long tables seating six to eight persons and several shorter tables seating four to six persons. It is significant that not a single witness, from among others who were seated at the same table with Ms. Atwater and Deputy Davis in the cafeteria on that unspecified day, was called to corroborate the statements allegedly made by Deputy Davis to Ms. Atwater. With knowledge of the Sheriff's sexual harassment policy coupled with her prior knowledge of DCFS's similar sexual harassment policy, and having been highly offended by Deputy Davis' conversation, it is significant that Ms. Atwater, whose counseling job included accurate record keeping, made no attempt to record this first incident with Deputy Davis resulting from repeated incidents with Lieutenant George. Additionally, Ms. Atwater chose not to follow protocol and report to her immediate supervisor her complaint of sexual harassment by a relatively new co-worker. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity, thus proving by a preponderance of the evidence that Deputy Davis made unwelcome or unwanted sexual comments or advances and/or unwelcome unwanted sexual demands, nor created a hostile work environment as Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what was said or not said by Ms. Atwater or by Deputy Davis during the alleged conversation that took place on some unspecified date in the compound cafeteria. Alleged intentional body contact by Deputy Davis with Ms. Atwater in the cafeteria buffet serving line. Ms. Atwater further testified that on another unspecified day while she was in the cafeteria buffet serving line fixing her salad, she felt "a brazen--it felt maybe like his [Deputy Davis] radio or something-it was hard--and then he went in my ear 'boo.' It made me jumpy and I made a squealing noise-because I didn't expect anything to braze in the back on my----." Continuing, Ms. Atwater testified that Lieutenant George came in the cafeteria at that time, and she asked him "why don't you tell your friend to just cut it out?" The Sheriff did not call Lieutenant George to testify. No other witness testified to corroborate Ms. Atwater's statements. Deputy Davis denied this second allegation of intentionally making body contact with Ms. Atwater and speaking in her ear. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity and that Deputy Davis engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur on that unspecified date between Deputy Davis and Ms. Atwater in the buffet serving line in the compound cafeteria. It is significant that Ms. Atwater, whose counseling job required accurate and detailed daily record keeping, made no record of Deputy Davis' second alleged sexual harassment of her person. With firsthand knowledge of the Sheriff's sexual harassment policy plus her ten-year experience with a similar sexual harassment policy during her employment with DCFS, Ms. Atwater chose again not to follow proper protocol. She chose not to properly report this second incident to her immediate supervisor. Her second decided refusal to report what she considered sexual harassment by the same co-worker is not a defense, if Deputy Davis was guilty of such conduct, and does not absolve him from liability. Having chosen for the second consecutive occasion not to report the alleged sexual harassment by Deputy Davis does present a significant impediment regarding Ms. Atwater's memory, recall, and credibility. Alleged repeated harassing comments by Deputy Davis resulting from Ms. Atwater's frightened squealing. Concluding, Ms. Atwater testified that "for months" after the undated cafeteria serving line incident, "every time" she would see Deputy Davis (minimum twice a week in barrack C) he would repeatedly come behind her and say--"Ewwww, counselor," and "Counselor, I want to see you." According to her, these statements allegedly resulted from the cafeteria serving line incident and from a subsequent work related discussion and disagreement between Deputy Davis and Ms. Atwater regarding the form "62" (a form used by inmates requesting to see the counselor). Ms. Atwater, when confronted with what she considered a third but continuing sexual harassment by Deputy Davis, again chose not to follow protocol and report this third incident to her supervisor. It is significant that according to Ms. Atwater, she was initially and had been continuously sexually offended by Lieutenant George calling her Ms. Ashwood. When she inquired of Deputy Davis why Lieutenant George called her Ms. Ashwood, she was again sexually offended by his alleged answer to her question. She turns then to Lieutenant George, who was continually sexual harassing her and (did not ask him to stop calling her Ms. Ashwood) asks his assistance (not to file a proper complaint) but to have Deputy Davis (whose answer to her question about Lieutenant George she considered sexual harassment) to "just knock it off." Regarding her third alleged sexual harassment complaint against Deputy Davis (Ms. Atwater with knowledge that Lieutenant George and Deputy Davis were friends and she admittedly intended to take advantage of their friendship), she went to Lieutenant George, who (1) had continuously called her Ms. Ashwood; (2) was in her chain-of-command; and (3) was also in Deputy Davis' chain-of-command (but not file a complaint against Deputy Davis) and asked if he would "talk to his friend [Deputy Davis]--I don't want to make waves over this-I don't want to make a big to do-if you could talk to him--just have him knock it off." At the final hearing, Deputy Davis denied her third allegation that he would repeatedly come behind her and say--"Ewwww, counselor," and "Counselor, I want to see you." It is significant that after months and three separate allegations of sexual harassment by Deputy Davis, Ms. Atwater chose not to follow protocol and make a sexual harassment complaint against Deputy Davis to Lieutenant George, who would have been obligated to initiate a formal investigation. She chose instead to ask a favor from one who had continuously called her the sexually harassing name of Ms. Ashwood. The evidence is irreconcilably in conflict as to whether Deputy Davis continually made the alleged sexual and harassing comments to Ms. Atwater during an unspecified number of months. The Sheriff presented no witness to corroborate Ms. Atwater's allegations on this issue. Lieutenant George was not called to testify, leaving Ms. Atwater's hearsay testimony regarding this particular issue without corroboration. For the third time, Ms. Atwater chose to not follow protocol and report her third sexual harassment incident. The fact finder acknowledges that her third decided refusal to report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a third time not to report the alleged sexual harassment by Deputy Davis to her immediate supervisor does present a significant obstacle in the evaluation of Ms. Atwater's credibility. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity that Deputy Davis for months engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur during unspecified months when Deputy Davis may have been in the presence of Ms. Atwater. Allegations that Deputy Davis intentionally delayed or caused delay of inmates desiring conference with Ms. Atwater. Regarding her final allegation of sexual harassment by retaliation against Deputy Davis, Ms. Atwater recalled that on one occasion, Deputy Davis intentionally caused a "two-hour" delay in getting inmates on her list from their cells to the conference area where she awaited them. The purported intent of this alleged two-hour delay was to threaten or to produce a negative consequence regarding Ms. Atwater's performance of her duties. I find that Ms. Atwater's August 9, 2002, memo to her supervisor, Deputy Armsheimer, purporting to be a chronology of events that occurred on August 8, 2002, conclusively demonstrates that Deputy Davis was not the cause, directly or indirectly, for Ms. Atwater's two-hour delay in getting the two inmates she had requested. The evidence demonstrates that Ms. Atwater gave her form "62" list (inmates to be pulled who had requested a conference with her) to the control deputy, Deputy Salazar, in barrack C and waited 40 minutes. Returning to the holding area and inquiring as to the whereabouts of her inmates, Deputy Davis and not Deputy Salazar informed Ms. Atwater that the top three inmates on her list were not there. Ms. Atwater asked Deputy Davis of the inmates' whereabouts, but he gave her no further explanation. Ms. Atwater thereafter called Deputy Hartfield, who is in her chain-of-command, to ask if he would look into the matter and Deputy Hartfield promised to get back to her. Ms. Atwater waited for Deputy Hartfield's return call. After waiting an unspecified period of time and not receiving Deputy Hartfield's returned message, she called Deputy Hartfield a second time and was told that he had relayed his message to control (Deputy Salazar) about one and one-half hours ago. In that message, Deputy Hartfield explained that her first requested inmate (no name given) had been moved to maximum security and her second inmate (Brandon) was written up earlier that morning by him. In her August 9, 2002, memo to Deputy Armsheimer, Ms. Atwater wrote, "the conversation concluded with me stating [to Deputy Hartfield] if I had known 1 1/2 hours ago, I would have just left out of here and could have eaten lunch." It is significant that Ms. Atwater authored her August 9, 2002, memorandum to Deputy Armsheimer, for the singular purpose of explaining the exact cause (and persons involved) of her two-hour plus wait for inmates who were not pulled for her. At the final hearing in May 2003, she contradicts her August 9, 2002, written statements by testifying that Deputy Davis caused her a "two-hour" delay in pulling her inmates. This obvious contradiction is a severe detriment upon her credibility. Ms. Atwater's memorandum to Sergeant Groff, dated October 30, 2002, was written to give a recount of her experiences with Deputy Davis during all times pertinent to this case. She began her memorandum with the statement: "[S]o for the whole story to be clear, I must tell you how we ended up here and start from the beginning." In her first sentence of the second paragraph appears the first conflict in the evidence of record. In that sentence, Ms. Atwater writes, "Shortly after starting to work here, I began to experience unpleasantness from Cpl. Kenneth Davis. His obnoxious gestures, comments and disposition could not be tolerated any longer." (This conclusion consisted of the three separate allegations against Deputy Davis made herein above.) With this opportunity to formally complain of sexual harassment in the work place, Ms. Atwater failed to include the fact that it was she who initially asked Deputy Davis why Lieutenant George called her the sexually offensive name of "Ms. Ashwood." Intentionally choosing to allege that Deputy Davis' answer to her question why Lieutenant George kept calling her "Ms. Ashwood" was the initial sexual harassment that created a hostile work place is contradictory to her testimony. Continuing, Ms. Atwater wrote--"I did tell him that I felt he 'played too much,' and need[ed] to stop moaning and groaning behind me." Even though she recounted moaning and groaning, she specifically omitted her alleged verbatim statements made by Deputy Davis (Finding of Fact 12 hereinabove) when he answered her question "why Lieutenant George calls me Ms. Ashwood." This is significant in that Ms. Atwater's testimony was that Deputy Davis' alleged verbatim statements when he answered her question were so "sexually harassing" that she was "immediately" offended the moment she heard them. Yet, she omits any mention that it was Lieutenant George continuously calling her "Ms. Ashwood" that initially and repeatedly offended her. The name Ashwood she considered had such a negative sexual reputation in the community that she was immediately offended and sexually harassed when Lieutenant George first called her Ms. Ashwood and each time thereafter. She omits any mention that it was her inquiry of Deputy Davis, "why Lieutenant George [sexually harassing her] was calling her the offensive name of Ms. Ashwood" that produced the alleged response. Based upon Ms. Atwater's acknowledgement contained in her October 30, 2002, memorandum to Sergeant Groff, I find that her allegations that Deputy Davis caused a delayed wait of two hours to get inmates pulled and, thus, "creat[ed] a hostile work environment" to be contrary to her August 9, 2002, memorandum to Sergeant Armsheimer, admitting that had she known her inmates were not in barrack C, she would have left and had lunch "one and one-half" hours prior. Ms. Atwater further admits in writing that from May of 2002 forward, she and Deputy Davis "barely" spoke to one another. If Ms. Atwater's memory is presumed to be accurate and she and Deputy Davis discontinued speaking to one another during the March through May 2002 period, it was not logical to conclude that Deputy Davis repeatedly and continually moaned and groaned in her ear for "months" thereafter (i.e. June, July, August, and October). For the fourth time, Ms. Atwater chose not to and did not report this fourth incident to her immediate supervisor at or near the time it occurred. Her sexual harassment complaint against Deputy Davis was filed after her October 2002 complaint was filed against Lieutenant George. Her fourth decided refusal to immediately report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a fourth time not to report the initial alleged sexual harassment by Deputy Davis during the March through May period, when coupled with the contradiction between her testimony that Deputy Davis was the cause of a two-hour delay in pulling her inmates, and her memorandum wherein she acknowledges that her inmates had been written up by Sergeant Hartfield, presents a credibility obstacle. Ms. Atwater makes no further mention of Deputy Davis in her October 30, 2002, memoranda, devoting the remainder to Lieutenant George. She recounts in detail their initial friendly relationship, turning to a cold and unfriendly relationship, the keeping-your-distance treatment, their many phone conversations at work, their lunch dates away from the work place, and their private phone calls when at home, ending on October 24, 2002, with an incident of kissing and Lieutenant George rubbing his groin against her buttocks and her resisting his advances. (See Joint Exhibit J-1.) In her final paragraph, Ms. Atwater relates how, unbeknownst to Lieutenant George, she arranged for a three-way call between herself, Lieutenant George, and her uncle, a City of St. Petersburg employee. She arranged the three-way call for the purpose of securing a witness to corroborate her statements regarding the Lieutenant George sexual harassment encounter. Though her alleged initial sexual harassment was initiated by Deputy Davis and continued for months, Ms. Atwater made no similar attempt to corroborate her claims of sexual harassment against Deputy Davis. Knowing that Deputy Davis was not within her chain-of-command and not in a supervisory position over her, there was no logical reason for Ms. Atwater to fear promotions and job security. Ms. Atwater knew that filing a complaint against a lieutenant within her chain-of- command presented a greater risk than filing a complaint against Deputy Davis who was not in her chain-of-command. Her choosing not to record (or procure corroboration) the Deputy Davis incidents, when coupled with her delay of many months in reporting her compliant through proper channels because of fear of reprisal, rings hollow. It was after the Administrative Review Board had begun an investigation of Ms. Atwater's October 2002 complaint of sexual harassment against Lieutenant George that the Sheriff initiated an investigation of Deputy Davis. Only after her egregious October 24, 2002, incident involving Lieutenant George did she file a subsequent and separate sexual harassment compliant against Deputy Davis. In the absence of corroboration, Ms. Atwater's testimony of a single incident of intentional touching and her testimony of alleged verbatim statements made by Deputy Davis and his unequivocal denial presents a "she said-he said" dilemma. Neither party's testimony is inherently more credible than the other party's testimony. Contrary to the opinion of Major Brunner, who sat on the Administrative Review Board, that when the Administrative Review Board questioned Deputy Davis regarding those allegations, Deputy Davis was "in denial." This assumption and by implication presumed guilt, thereby lending credibility to Ms. Atwater's allegations, is a conclusion not based on fact and is contrary to the evidence adduced during the de novo proceeding. Ms. Atwater's testimony of incidents having occurred over a four-month or more period and the lack of time or specific dates coupled with the contradictions between her testimony during the final hearing and her August 9, 2002, memorandum to her supervisor, creates an unfathomable chasm in the evaluation of her credibility. The Inspection Bureau of the Administrative Inspection Division investigated Ms. Atwater's complaint and submitted their investigative results to the Administrative Review Board, made up of various employees with the Pinellas County Sheriff's Office. The Administrative Review Board determined that Petitioner, Deputy Davis, had violated the Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, Subsection 4: violation of provisions of the law or rules, regulations, and operating procedures of the Pinellas County Sheriff's Office. The Administrative Review Board determined that Deputy Davis' conduct was a violation of the rules and regulations of the Pinellas County Sheriff's Office, Rules 3-1.1 (level five violation) and 5.16, relating to sexual harassment and discrimination as defined in the Sheriff's General Order 3-4. The Administrative Review Board determined that Deputy Davis' available range of discipline was calculated in conformance with the matrix contained within General Order 10-2 of the Pinellas County Sheriff's Office that allocates a point scale to various violations. The matrix provides that a level five offense, which includes sexual harassment, results in a 50- point assessment. Deputy Davis scored a total of 50 cumulative points with a discipline range of five-day suspension up to and including termination. Demotion is also authorized under the applicable General Order. After considering the evidence and available sanctions, the Sheriff notified Deputy Davis on March 10, 2003, that he was imposing a ten-day suspension without pay and demoting him from the rank of corporal to the rank of detention deputy. After weighing all the evidence, including the Sheriff's evidentiary presentation of Ms. Atwater's testimony of verbal comments made and intentional body conduct allegedly engaged in by Deputy Davis, this fact finder finds the uncorroborated hearsay evidence insufficient to prove, by a preponderance of the evidence, the allegations that Deputy Davis made sexually harassing verbal comments to Ms. Atwater, and that he made intentional sexually harassing body contact with her, so as to create a hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a final order finding that: Petitioner did not commit the verbal and physical conduct alleged in the charging document and that there was no violation of the rules, regulations, and policies of the Pinellas County Sheriff's Office as alleged. Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office was therefore inappropriate. Petitioner's demotion from his previous rank of detention corporal to the rank of detention deputy was therefore inappropriate. Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office be restored with full detention corporal's pay and benefits. Petitioner be restored to the rank of detention corporal2 and given full duties and responsibilities as previously held. DONE AND ENTERED this 20th day of August, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2003.
The Issue The issue is whether Respondent committed an act of discrimination or sexual harassment against Petitioner.
Findings Of Fact Petitioner was employed as a payroll, accounts-payable clerk for Respondent's furniture store from May 23, 2001 until May 20, 2002. Respondent operates a furniture store located at 6886 North 9th Avenue, Pensacola, Florida 32504-7358. Five months after commencing her employment with Respondent, Petitioner began to look for a new job. Petitioner believes that Mr. Alan Reese, Respondent's office manager and Petitioner's direct supervisor, began to follow her home in August 2001. Petitioner believes that, after ceasing to follow her when she confronted him about it, Mr. Reese began to follow her home again two months later. Petitioner accused Mr. Reese of following her home on numerous occasions, peeking into her windows, and sitting in his car and watching her while she tended to her garden. Petitioner was permitted to come to work late during October 2001, on occasion, when she was looking for a new place to live. Petitioner did not get along with Serita Coefield, her fellow accounting clerk at the furniture store. They often had disputes over the handling of invoices. In May of 2002, Petitioner met with Barbara Hoard, the Escambia County/Pensacola Human Resource Coordinator, to discuss the alleged harassment by Mr. Reese. Ms. Hoard told her to inform her employer in writing of her concerns and explained the availability of filing a complaint with the FCHR or the Equal Employment Opportunity Commission. On May 15, 2002, Petitioner delivered a memo to Mr. Reese in which she accused him of following her home, touching her improperly in the workplace, and asking her questions about her personal life. She also sent, by certified mail, a copy of the memo to Elmer Githens, Respondent's president. After receiving the memo, Mr. Githens conferred with Mr. Reese, then issued a memo to Petitioner on May 17, 2002, in which he set forth her work schedule for the dates of April 29 through May 16, 2002. Petitioner's regular work hours were supposed to be 8:00 a.m. to 5:00 p.m., with an hour for lunch. The May 17 memo, which was based upon Petitioner's actual time cards, showed that her start time at work ranged from 8:18 a.m. to 11:38 a.m. and her end time ranged from 4:01 p.m. to 6:12 p.m. Petitioner clocked in for a full eight- hour workday on only four of fourteen days during the time period reflected in the memo. Later in the day on May 17, 2002, Mr. Githens issued a second memo to Petitioner in which he noted that Petitioner had yelled at him when he gave her the first memo, and accused Serita Coefield of "being out to get her." The memo further stated that Petitioner "has alienated every one [she] works with due to [her] attitude." The memo continued with a discussion of Petitioner's work hours which were to be 8:00 a.m. to 5:00 p.m. with at least a 30-minute lunch break every day. Petitioner was informed that this was her final warning about her tardiness and her inability to get along with her co-workers. The memo concluded with the words "[t]he next time you will be dismissed." On Monday, May 20, 2002, Petitioner's next workday, Petitioner clocked in at 10:37 a.m. She was given a memo that day dismissing her for "willful misconduct after receiving ample warnings that termination of your employment was imminent if you continued present behavior of coming to work late, not putting lunch on your time card, clocking out after 5pm without permission and causing disturbances with fellow employees for no reason." Petitioner claims that, on the day she was fired, she arrived at Respondent's parking lot at 8:00 a.m., but sat in her car because she was having a "panic attack" due to her belief that Mr. Reese was continuing to stalk her. Both Petitioner and Mr. Reese live east of Respondent and travel, at least part of the way, in the same direction and on the same roads to go home after work. Mr. Reese denies knowing the location of Petitioner's home. Mr. Reese has never been to Petitioner's home. Mr. Reese admits he drove home in the same direction as Petitioner on numerous occasions since she drove along one of the routes he routinely took home. No one witnessed the alleged stalking of Petitioner by Mr. Reese. Petitioner claims to have contacted the police by telephone, but never filed a police report concerning the alleged stalking by Mr. Reese.
Recommendation is, Based upon the Findings of Fact and Conclusions of Law, it RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim for relief. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005.
The Issue The issue in this case is whether Petitioner has been the subject of an unlawful employment practice based on gender or handicap.
Findings Of Fact Petitioner is a licensed Registered Nurse. He was hired by Respondent on April 4, 1997, in its medical facility at Gulf Coast Correctional facility. In 2000, Petitioner's supervisor was Pamela Spears, R.N. At some point, Nurse Spears became friends with Chris Miles, a Licensed Practical Nurse, who worked on Petitioner's shift. Nurse Spears would sometimes talk with this L.P.N. in her office. Somehow, Petitioner felt his authority as the shift nurse was undermined by this relationship. It was not clear from the record what the basis of Petitioner's belief was, but his belief seemed to be related to the fact that Petitioner had to wait to speak with Nurse Spears. On May 5, 2000, Petitioner complained to Nurse Miles that he felt she was being treated with favoritism by Nurse Spears. Apparently, the discussion caused an uproar at the shift change and there was some agreement to swap shifts among the nurses to allow things to cool off. Around May 10, 2000, Nurse Odom filed sexual harassment charges against Petitioner for alleged comments and jokes of a sexual nature ("spanking the monkey", "choking the chicken", cross-dressing inuendos, use of handcuffs during sex, going to naked bars). In addition Nurse Miles filed a hostile work environment complaint against Petitioner because he allegedly threatened to spread rumors about her. Nurse Miles’ complaint did not involve sexual harassment. Nurse Nowak filed a sexual harassment complaint against Petitioner, but withdrew her complaint, indicating that she did not have a complaint with Petitioner and that she felt pressure to file her complaint. Nurse Spears did not file any complaint against Petitioner. Petitioner testified these nurses had been pressured into filing their complaints. However, he had no independent personal knowledge of such pressure and other than hearsay, offered no evidence of such pressure. Respondent, also did not offer any evidence demonstrating that such behavior was sexually harassing, as opposed to simply vengeful and petty behavior by a supervisor. On August 15, 2001, Dr. Gilo in front of co-workers and staff, called Petitioner, who is obese, a “fat lazy bum.” Petitioner filed a hostile work environment complaint against Dr. Gilo and an incident report was filed. The evidence demonstrated that Dr. Gilo was known for demeaning or belittling everyone and having a harsh manner. The comment was not related to any of the earlier complaints of the nurses, but to Dr. Gilo's irritation towards Petitioner for calling him at home. There was no evidence that demonstrated this comment constituted discrimination or harassment based on Petitioner's obesity. Likewise, there was no evidence that Petitioner's obesity was a handicap or viewed as a handicap by his employer. Respondent pursuant to its policy on sexual harassment complaints investigated the complaints. Several witness/co- worker statements were taken during the investigation that indicated Mr. Clardy, along with other employees, had made some statements or jokes of a sexual nature. The investigation took a considerable period of time. Again the record was not clear as to what caused the length of the investigation or whether the length of the investigation was unusual. However, on February 8, 2002, as a result of the investigation, Petitioner received a written reprimand for unspecified sexual jokes or comments. Petitioner filed a grievance regarding the reprimand. The grievance was denied in both Step 1 and Step 2 of the grievance process. There was no evidence that demonstrated either the undertaking of this investigation or the investigation itself constituted sexual harassment. However, on June 10, 2002, Petitioner filed a sexual harassment complaint against Respondent, the complaining nurses and Dr. Gilo for gender and disability discrimination. As with the nurses' complaints, the Respondent, pursuant to its policy, investigated Petitioner's complaints.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Respondent enter a final order affirming its decision that Petitioner is not eligible for services. DONE AND ENTERED this 7th day of March, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 7th day of March, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ronald J. Clardy 115 Sioux Trail Crawfordville, Florida 32327 Joshua E. Laws, Esquire Florida Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399
