The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to sexual harassment in the form of a sexually hostile work environment and was retaliated against for complaining about the alleged harassment in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, James E. Gonzales, is a male person who was hired by the Respondent, Pepsi Bottling Group, on March 13, 1995. He was hired as a route sales trainee in the Central Florida marketing unit of that employer. The Pepsi Bottling Group (Pepsi) is responsible for the manufacture sale and delivery of Pepsi products to its vendors. Over the last three years the Central Florida unit has been the foremost marketing unit in the United States. The management of the Central Florida Marketing Unit has been rated by its employees as being the top management team in the country for Pepsi. The Petitioner applied for a Pre-sale Customer Representative (CR) position on March 27, 2003. On April 21, 2003, the Petitioner was assigned to a Pre-Sell (CR) position. As a Pre-Sell CR, the Petitioner was responsible for serving his own accounts; creating and maintaining good will with all customers; ordering customer's products in advance; and developing all assigned accounts relative to sales volume, market share, product distribution, space allocation and customer service. He was responsible for solicitation of new business; selling and executing promotions; soliciting placement of equipment; selling sufficient inventory; and utilizing point of purchase materials to stimulate sales. He was also charged with maintaining "shelf facings" cleaning and shelving and rotating product and merchandising product sections and building displays to stimulate sales. Additionally, he was required to complete and submit all related paperwork regarding sales and promotional operations in an accurate and timely manner. The Petitioner's direct supervisor initially was David Lopez. He was replaced by Wanzell Underwood in approximately August 2003. On December 5, 2002, the Petitioner received the Respondent's employee handbook. The handbook contains the Respondent's Equal Employment Opportunity Policy and Sexual Harassment Policy. The Equal Employment Opportunity Policy prohibits discrimination on the basis of race, color, religion, gender, age, disability, etc. including sexual orientation. It encourages employees to immediately report any complaint, without fear of retaliation, to the Human Resources Manager or Human Resources Director. The Respondent's policy has a zero tolerance for retaliation and forbids any retaliatory action to be taken against an individual who in good faith reports a perceived violation of that policy. Employees who feel they have been retaliated against are required to report such retaliation to the Human Resources Manager or Director. The sexual harassment policy of the Respondent prohibits all forms of harassment and clearly sets out complaint procedures for employees to follow in the event they have experienced harassment. They are directed to report any complaint immediately to the Human Resources Manager or Director. Throughout his employment the Respondent received numerous customer complaints regarding the Petitioner's poor performance. The Petitioner received five disciplinary actions against him from the period 2003 through 2005. These "write- ups" were for failing to service customers according to the Respondent's standards and were dated August 2003, April 2004, September 2004, October 2004, and May 2005. On August 1, 2003, the Petitioner received a documented verbal warning after the Respondent received a complaint from a customer regarding the amount of out-of-date product in his store and the poor level of service he was receiving from the Petitioner. On April 9, 2004, the Petitioner received a documented verbal warning for his failure to prepare his three Circle K stores for a "customer tour," although he had assured his direct supervisor, Mr. Underwood, and the Key Account Manager, Eric Matson, that the store would be ready. The Petitioner's failure to prepare his Circle K stores for the customer's tour embarrassed both his supervisor and the Key Account Manager. On June 23, 2004, the assistant manager at ABC Liquor, a store Gonzales was responsible for, sent an e-mail to Eric Matson complaining about the lack of service provided by Gonzales and requested a new CR to service his store. The customer stated that Gonzales had given nothing but "crappy" service, bad attitude, and sometimes no service. On September 21, 2004, Eric Matson received an e-mail regarding the Petitioner's failure to order product for the Mt. Dora Sunoco store. The Petitioner's supervisor, Wanzell Underwood, visited the Mt. Dora Sunoco store and confirmed the manager's complaints. The Petitioner received a written warning for not properly servicing the Mt. Dora Sunoco store. In the Petitioner's contemporaneous written comments in opposition to the written warning he failed to note that the manager of the Mt. Dora Sunoco was purportedly sexually harassing him. On October 11, 2004, the Petitioner received a final written warning and one-day suspension after his direct supervisor re-visited the same Mt. Dora Sunoco store that complained previously. The Petitioner was warned that a similar problem in the future would lead to his termination. Again, in the Petitioner's written comments in opposition to his written warning, he made no mention that the manager of the Mt. Dora Sunoco store was sexually harassing him. On October 11, 2004, after the Petitioner was suspended for one day, he requested that the Human Resources Manager, Christopher Buhl, hold a meeting. During the meeting he complained for the first time to the Unit Sales Manager, Howard Corbett, the Sales Operations Manager, Tom Hopkins, and Mr. Buhl, that three years previously, in 2001, one person had told the Petitioner that everyone thought he was "gay" (meaning co-employees). One person asked him if he was gay, according to the Petitioner's story, and one person said, "We all know you're gay," before he became a Pre-Sell CR. The Petitioner, however, refused to cooperate with Mr. Buhl in obtaining information regarding his complaints. At no time during the meeting did the Petitioner complain about being sexually harassed by the manager of the Mt. Dora Sunoco store. During the October 11, 2004, meeting the Petitioner claimed his supervisor, Wanzell Underwood, threatened him. However, the Petitioner conceded during the meeting that the alleged statement made by Mr. Underwood was made to a group of Customer Representatives, to the effect that he would "kill you guys if you do not make the sales numbers." Mr. Underwood denied ever threatening to kill the Petitioner. During the meeting the Petitioner also complained that his route was too large and he requested that it be reduced. At no time during that October 11, 2004, meeting did the Petitioner complain that he was sexually harassed by Alice Marsh, the Mt. Dora Sunoco manager. His extensive notes and comments on his Disciplinary Action Reports did not document any such complaint. In November 2004, the Petitioner was asked to go to K- Mart and place an order, but the Petitioner failed to follow instructions and visit the store. Instead, the Petitioner placed the order over the phone. The manager of the store called the Respondent three times to complain about the poor service provided by Mr. Gonzales. Each year the Respondent changes its delivery routes. During the end of 2004 or the beginning of 2005, the Respondent re-routed all of its Pre-sell CR routes. The Respondent reduced the Petitioner's route as he had requested and in conformity with its route standards. Despite the Petitioner's allegation to the contrary, in fact the Petitioner's route was not reduced by as much as 50 percent. In May 2005, Key Account Manager, Mike Lewis, visited the Petitioner's K-Mart store to conduct a "Look at the Leader" audit. The Petitioner had been trained and was responsible for preparing the K-Mart for the audit. When Mr. Lewis arrived at the store, the store did not meet the Respondent's standards. Additionally, required product was missing from the displays. Mr. Lewis called Howard Corbett to inform him of the problems. Mr. Corbett called the Petitioner to ask about the missing product. The Petitioner assured him that the product was in the store and on display. The missing product was not displayed, however, and was later found in the back room of the K-Mart store. On May 18, 2005, the Respondent received another e- mail from Charles Pippen, District Manager for Sunoco, complaining of the Petitioner's poor service at the Mt. Dora Sunoco store. He claimed that the Petitioner did not reply to phone calls and rarely ordered enough product. On May 19, 2005, the Territory Sales Manager, John York, followed up on that complaint by visiting the Mt. Dora Sunoco store and meeting with the Manager, Alice Marsh. Mr. York was substituting for Mr. Underwood who was out on medical leave. During the meeting, Ms. Marsh complained that the Petitioner did not order the quantity of product she requested, failed to provide adequate signage, and refused to place product where she requested. While at the Mt. Dora Sunoco store, Mr. York observed the problems about which Ms. Marsh had complained. After meeting Ms. Marsh, Mr. York spoke with the Petitioner to inform him of Ms. Marsh's complaints. During his conversation with Mr. York, the Petitioner admitted to failing to service the account by not placing the product by the gas pumps as requested, not ordering the amount of product requested, and not hanging certain signs. Later in this conversation with Mr. York, the Petitioner informed Mr. York that he believed that the Sunoco Manager's reason for complaining about his service was that he had refused her sexual advances. The Petitioner did not tell Mr. York what the alleged advances consisted of or when they might have occurred. Mr. York, however, in fact was never the Petitioner's supervisor. The Petitioner was responsible for two CVS stores in Mt. Dora. On Friday, May 20, 2005, the Petitioner made an unusual request of his temporary Manager, Dan Manor, for a Saturday delivery to his CVS stores. The Respondent does not normally schedule Saturday deliveries for such "small format" stores like CVS. When Mr. Manor approved the Saturday delivery, he specifically instructed the Petitioner that must meet the bulk delivery driver at the stores to "merchandise" the product, because bulk delivery drivers do not merchandise the product delivered and Mr. Manor did not have a merchandiser assigned to the Mt. Dora stores. The Petitioner agreed to meet the bulk delivery driver at the CVS stores on Saturday. The Petitioner did not advise his supervisor that he had made arrangements with the CVS store manager or a merchandiser regarding alternate arrangements for the Saturday delivery. The supervisor would have expected the Petitioner to do so. On Saturday, May 21, 2005, the Petitioner failed to meet the bulk driver to assist in merchandising the orders at the two CVS stores as instructed. The customer refused to take delivery of the product until a merchandiser was present to merchandise the product. Mr. Manor was unable to reach the Petitioner by telephone because the Petitioner was at Sea World with his family. Mr. Manor had to send a merchandiser from Longwood in order to merchandise the product that the Petitioner had ordered for the CVS stores. On May 23, 2005, the Petitioner failed to attend a weekly mandatory 5:00 a.m. meeting. He did not call his supervisor advising of his unavailability. The Petitioner did call Mr. Manor at about 6:15 a.m. and told him that he had overslept. When Mr. Manor questioned the Petitioner about why he did not meet the bulk driver on Saturday, he said that "he did not get a chance to make it out on Saturday." On May 23, 2005, Mr. Corbett decided to terminate the Petitioner based on his very poor performance. That decision to terminate him was approved by the Respondent's Human Resources Department. On May 26, 2005, the Respondent terminated the Petitioner for failing to service the CVS stores at a critical time, for the services issues at the Sunoco and the K-Mart, and for failing to attend the Monday morning meeting. At the time of his termination the Petitioner was on a final warning and had been advised that he could be terminated. The Petitioner never alleged during his termination meeting that he was being sexually harassed. Howard Corbett provided the Petitioner with documents to file an internal appeal on the day he was terminated. The Petitioner, however, did not appeal his termination as permitted by the Respondent's policy. The Petitioner claims he was the victim of sexual harassment by being subjected to (1) homosexual related comments made in 2001, and (2) alleged sexual overtures by the Sunoco Manager, Alice Marsh, in 2003. According to Ms. Marsh, she was never interested in the Petitioner sexually. She did not socialize with the Petitioner, and did not want a relationship with him. She did not touch him and did not state that she wanted the Petitioner fired. She also testified that she never stated that she wanted a sexual relationship with the Petitioner. The Petitioner's allegations regarding sexual harassment by Ms. Marsh related the following behaviors: She touched his back and arm; She was too close to him when he was around; She was nice to him until informed that he was married; She suggested sexual interest by her body language and eyes; and She wore provocative clothing. David Lopez supervised the Petitioner for approximately two years in the 2001 to 2003 time period. During this time period the Petitioner never complained to Mr. Lopez that he had been sexually harassed. Mr. Lopez did not witness the Petitioner being harassed while working with the Respondent either. Wanzell Underwood supervised the Petitioner for approximately two years in the 2003 to 2005 time period. During this time, the Petitioner never complained to Mr. Underwood that he had been sexually harassed. Mr. Underwood did not witness the Petitioner being harassed while he worked for the Respondent. The Petitioner never made a compliant regarding the alleged sexual harassment by the Sunoco Manager, Alice Marsh, to the Human Resources Department, in accordance with the Respondent's policy. He did not explain the nature of any sexual harassment, even when he finally claimed that he was being harassed. The Respondent would have terminated the Petitioner for his poor performance regardless of whether he engaged in the purported protected activity by complaining of sexual harassment. The Petitioner alleges he was terminated for reasons other than complaining about sexual harassment, including his alleged knowledge of theft in Lake County. In any event, on July 15, 2005, the Petitioner filed the Charge of Discrimination with the Commission and the resulting dispute and formal proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2006. 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 James E. Gonzales 26437 Troon Avenue Sorrento, Florida 32757 Nicole Alexandra Sbert, Esquire Jackson Lewis LLP 390 North Orange Avenue Orlando, Florida 32802
The Issue Whether the Respondent, Mario Medero, discriminated against the Petitioner, Sharon L. Zbikowski, on the basis of her sex, female?
Findings Of Fact The Parties. The Petitioner, Sharon L. Zbikowski, is a female. The Respondent, Mario Medero, is a male. Dr. Medero is a physician. He practices medicine as a professional association. Dr. Medero is the chief executive officer and the supervisor or principal of the professional association. The professional association operates a medical office in Ocala, Florida. The medical practice performed by Dr. Medero consists primarily of treating individuals who have been injured on the job and who are covered by workers compensation insurance. Ms. Zbikowski's Employment. On August 20, 1992, Ms. Zbikowski was hired for employment by Dr. Medero's professional association as the front desk receptionist at Dr. Medero's office. At the time she was hired, Ms. Zbikowski was told that she would be considered for an accounts payable clerk position at the office. The position was held by Barbara Redding if Ms. Redding left the position. Ms. Zbikowski was told at the time of her employment that her consideration for the position of accounts payable clerk was dependent upon Ms. Redding actually leaving. Ms. Redding ultimately decided not to resign her position. The evidence failed to prove that Ms. Zbikowski was hired as a bookkeeper or accounts payable clerk, or that she was not placed in the position she was hired to fill. Ms. Zbikowski's Performance. Ms. Zbikowski worked initially at the front desk. Her performance was considered inadequate by Marilyn Hartsel, the office manager and Ms. Zbikowski's immediate supervisor. Ms. Zbikowski was moved to other positions within the office. She worked for a while in medical records and for approximately one day in accounts payable with Ms. Redding. Ms. Zbikowski's performance in medical records and in accounts payable was also considered inadequate by Ms. Hartsel. Within three or four weeks after Ms. Zbikowski began her employment, Ms. Hartsel had decided to recommend that Ms. Zbikowski be terminated because of the inadequacy of her work. Ms. Zbikowski's Employment by Dr. Medero. At the time that Ms. Zbikowski was initially employed at Dr. Medero's office, Dr. Medero had caused the office to advertise for a housekeeper for his home. Ms. Zbikowski discussed the position with Dr. Medero. Dr. Medero agreed to employ Ms. Zbikowski as his housekeeper and Ms. Zbikowski agreed to work as Dr. Medero's housekeeper. Ms. Zbikowski agreed to clean Dr. Medero's house, run errands for him and the office, pick up his son from school and take his son to and from tennis lessons, meet Dr. Medero's former wife half way between Ocala and Tampa to pick up or to drop off Dr. Medero's daughter, who was in the custody of his former wife, and generally oversee his household. Although the evidence failed to prove that Ms. Zbikowski performed services in her capacity as housekeeper for anyone other than Dr. Medero, Ms. Zbikowski was paid for her services out of accounts of the professional association and Ms. Hartsel continued to be her immediate supervisor. The evidence failed to prove that Ms. Zbikowski was forced in any way to accept employment as Dr. Medero's housekeeper. The evidence proved that she accepted the position voluntarily and without coercion. Ms. Zbikowski continued to work as Dr. Medero's housekeeper until September 28, 1992. During her employment as Dr. Medero's housekeeper, Dr. Medero was satisfied with Ms. Zbikowski's performance. Alleged Sexual Harassment. The evidence failed to prove that Dr. Medero sexually harassed Ms. Zbikowski. Ms. Zbikowski testified about very few specific alleged incidents involving Dr. Medero and the evidence failed to substantiate those incidents. Ms. Zbikowski admitted that she had had no physical contact with Dr. Medero except for one occasion when she hugged him from advancing funds to her to pay for her son's day care and on another occasion when he gave her a physical examination after being in an automobile accident. The evidence failed to prove that either incident involved improper conduct by Dr. Medero. Ms. Zbikowski's testimony that Dr. Medero evidenced a "flirtatious manner" was not substantiated by competent substantial evidence of specific incidents. The most specific incident, and the incident which led to Ms. Zbikowski's termination from employment, took place on Thursday, September 24, 1992. At lunch on that day, Ms. Zbikowski and her four year old son were in Dr. Medero's back yard. Ms. Zbikowski was cleaning lawn furniture. Dr. Medero and Ms. Redding came to Dr. Medero's house, waved at Ms. Zbikowski and went into Dr. Medero's bedroom. The curtains/blinds to the bedroom windows were closed soon after Dr. Medero and Ms. Redding went into the room. Dr. Medero and Ms. Redding, both of whom were not married at the time, were lovers. Ms. Zbikowski was aware of their relationship. At no time did Ms. Zbikowski see Dr. Medero or Ms. Redding in Dr. Medero's bedroom. Ms. Zbikowski believes that Dr. Medero and Ms. Redding engaged in sexual intercourse while in the bedroom. This belief was not, however, substantiated by competent substantial evidence. Dr. Medero and Ms. Redding, who is not longer involved personally or in a working relationship with Dr. Medero, both testified that they did not engage in sexual intercourse. Ms. Zbikowski did not see them engage in intercourse. At best, Ms. Zbikowski's belief was based upon hearing "giggling" and "these little, um, sounds and things" from the bedroom. Ms. Zbikowski's Termination from Employment. On the afternoon of September 24, 1992, Ms. Zbikowski spoke with Ms. Hartsel and told her that Dr. Medero and Ms. Redding had sexual intercourse in her presence and her son's presence. Ms. Zbikowski was very upset and Ms. Hartsel told her to take the afternoon off and report to the office the next morning. Ms. Zbikowski also made other allegations, which the evidence failed to substantiate, of incidents of sexual harassment by Dr. Medero. Ms. Zbikowski left a beeper and a garage door opener she had been provided by Dr. Medero at Dr. Medero's home and left. The next morning, Friday, September 25, 1992, Ms. Zbikowski reported to the office. She was told that she would be expected to the work at the office in the mornings and then work at Dr. Medero's home in the afternoons. Ms. Zbikowski left at lunch and did not return. Ms. Zbikowski informed Ms. Hartsel that she did not intend to return that day because she did not want to return to Dr. Medero's home. Ms. Hartsel told Ms. Zbikowski that she would discuss the matter with Dr. Medero. Ms. Hartsel did not, however, order Ms. Zbikowski to return to work that day or inform her that she was not authorized to stay home. After speaking to Ms. Hartsel by telephone that weekend and being told that Ms. Hartsel had not yet discussed the matter with Dr. Medero, Ms. Zbikowski reported to work Monday, September 29, 1992. By the time that Ms. Zbikowski returned to the office on Monday, Dr. Medero had been informed of the allegations of sexual harassment she had made against him to Ms. Hartsel. Shortly after arriving at the office, Ms. Zbikowski was escorted to her automobile by Dr. Medero, Ms. Hartsel and a nurse and was told by Dr. Medero not to return. Ms. Zbikowski was, therefore, fired by Dr. Medero. Ms. Zbikowski was terminated because of the allegations she made concerning Dr. Medero and Ms. Redding and the other allegations of sexual harassment. Ms. Zbikowski was not terminated because she was not performing her duties as Dr. Medero's housekeeper in a satisfactory manner. Ms. Zbikowski's Subsequent Employment. Ms. Zbikowski was employed, and eventually terminated, by other physicians after her termination from employment by Dr. Medero. The evidence failed to prove that Dr. Medero was involved in any manner in Ms. Zbikowski's subsequent terminations from employment. Ms. Zbikowski's Charge of Discrimination. Ms. Zbikowski filed a Charge of Discrimination against Dr. Medero with the Florida Commission on Human Relations. Ms. Zbikowski alleged that she had been discriminated against based upon the following: I am a female. I worked for the above named respondent since August 20, 1992, until September 28, 1992 when I was discharged from my position of maid. During my employment I was subjected to sexual harassment by Dr. Mario Medero, and also I was subjected to different terms and conditions in my employment. I believe I have been discriminated against because of my sex, in violation of Title VII of the Civil Rights Act of 1964, as amended. On September 2, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Zbikowski filed a Petition for Relief, requesting a formal administrative hearing on October 19, 1993. In the Petition for Relief filed with the Commission Ms. Zbikowski alleged, in part, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The disputed issues of material fact, if any, are as listed below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The ultimate facts alleged and entitlement to relief are as listed below: . . . . The alleged fact memos are that Petitioner was hired for a "Bookkeeping" position but was never given the opportunity to work in this position as original Bookkeeper (Dr. Medero's girlfriend) decided not to leave her position, so Petitioner was given a less meaningful job as "Housekeeper" but was subjected to harassing sexual misconduct by Respondent. The relief is as follows: Petitioner has for 1 year been trying to maintain and seek employment in the Medical field, one which she has worked in for 13 years, but because of Dr. Medero's influence in the Medical field has made it very hard for Petitioner to continue in this field. Petitioner is seeking recovery for the discriminating position he placed her in while under his employment plus relief from the undue hardship which has been placed upon her because of his lies in this matter. . . . . . . . Ms. Zbikowski proved the following allegations contained in her Charge of Discrimination and the Petition for Relief: "I am a female." "I worked for the above named respondent since August 20, 1992, until September 28, 1992, when I was discharged from my position of maid." "Petitioner did not abandoned [sic] her job." The remaining allegations contained in the Charge of Discrimination and the Petition for Relief were not supported by the weight of the evidence. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Zbikowski. Ms. Zbikowski failed to prove that any action of Dr. Medero was based upon Ms. Zbikowski's sex: she was not held to any standard or requirement based upon her sex, she was not sexually harassed and she was not terminated because of her sex. Ms. Zbikowski failed to prove that any policy or standard of Dr. Medero or his office had a disparate impact on female employees. Ms. Zbikowski failed to prove that she was replaced by a male or that other female employees with comparable or lessor qualifications were retained. Ms. Zbikowski failed to prove that she was sexually harassed by Dr. Medero. Ms. Zbikowski failed to prove that Dr. Medero or his office discriminated against her on the basis of her sex, female.
The Issue The issue for determination is what should be the award to Petitioner as to back pay, interest on the amount awarded, retirement system contributions, attorney's fees, and costs.
Findings Of Fact Had Petitioner retained her employment with Respondent, she would have earned $161,014.11. However, she actually earned $125,865.87. As a result of Petitioner's being terminated by Respondent, she lost income in the amount of $35,148.24. As a result of Petitioner's being terminated by Respondent, she lost pension contributions in the amount of $7,110.16. Consequently, Petitioner incurred a total monetary loss in the amount of $42,258.41. As to whether Petitioner incurred a break in service, no one from the Division of Retirement was called to testify. Consequently, no evidence was presented as to that issue. Petitioner suggests that she should receive credit for retirement from October 8, 1993, the date of her termination when she was a career service employee, to January 1995, the date that she again became a career service employee. Petitioner's suggestion is a reasonable resolution to the issue of break in service and should be implemented if there exists a break in service. No argument was presented to contradict that the statutory interest rate is ten percent per annum. Petitioner's counsel testified that she expended 437.80 hours on this matter and Petitioner's expert opined that such hours are reasonable. Respondent's expert opined that 241.30 hours are reasonable. Petitioner's expert did not review the index of the official file of this matter, which was maintained by the Division of Administrative Hearings. Respondent's expert reviewed the index online. Further, Respondent's counsel reviewed the Verified Motion, but did not review the file of Petitioner's counsel. Respondent's expert questioned whether Petitioner's counsel personally performed the tasks in certain entries in the Verified Motion or whether a secretary performed the tasks, not whether the tasks were performed. However, Respondent's expert did not question, and did not indicate that he was required to question, Petitioner's counsel on such entries prior to hearing. Regarding such entries, Petitioner's counsel testified that she, not her secretary, performed the tasks in the entries. The testimony of Petitioner's counsel is found credible. Respondent's expert also questioned whether some entries contained adequate detail and specificity to support them, not whether the tasks were performed. The expert's testimony is found to be credible. The detail and specificity are inadequate in the entries identified by Respondent's expert. The lack of detail and specificity dictate a reduction in the number of hours requested by 98.30 hours. Consequently, the number of hours reasonably expended by Petitioner's counsel in this matter is 339.50. Petitioner and her counsel entered into a mixed agreement (Agreement) for representation at $250.00 per hour and for contingent fees. The Agreement provided in pertinent part as follows: agree to pay my attorneys from the proceeds of the gross recovery including costs and fees awarded attorney's fees, if applicable the following fee: * * * b. 40% of any recovery up to $1 million after the filing of an answer or the demand for appointment of arbitrator through the trial of the case; 40% becomes immediately applicable as soon as the matter is set for trial; * * * My attorneys shall be entitled to choose the fee at the hourly rate [$250.00 per hour] if I am entitled to an award of attorneys fees from the client or the contingency, whichever is greater. In the event there is a court-awarded fee which is more than the contingency fee, the attorneys shall keep the court-awarded fee in lieu of the contingency fee provided it is greater than the contingency fee and provided the court-awarded fee is actually collected. The hourly rate of $250.00 by Petitioner's counsel is within the range of rates for this matter. The hourly rate of $250.00 is reasonable. Therefore, the amount of reasonable attorney's fees in this matter is $84,875. Petitioner requests an enhancement of attorney's fees by one-third because of the uniqueness or unusualness of this matter. The evidence is insufficient to demonstrate that this matter is a unique or unusual case involving employment discrimination. Petitioner's counsel requests costs in the amount of $3,094.49. The Verified Motion contains taxable and non-taxable costs.2 Costs identified as fax or facsimile, postage, cab fare, and transportation to and from the courthouse should be excluded as inappropriate. As a result, the reasonable amount of costs is $2,844.48. Petitioner's Verified Supplemental Motion indicates additional attorney's fees associated with this hearing in the amount of $11,200.00, representing 44.80 hours (out of a total of 65.30 hours indicated) at a rate of $250.00 an hour; and additional costs associated with this hearing in the amount of $12,100.91. Regarding the supplemental attorney's fees, no explanation was submitted as to why the entries from June 6, 2003 to August 20, 2003 were not available at hearing. Notwithstanding, the supplemental documentation is sufficiently detailed and specific. As a result, the number of supplemental hours reasonably expended by Petitioner's counsel is 44.80, and the reasonable amount of supplemental attorney's fees is $11,200.00. Regarding the supplemental costs, the cost for the services rendered by Petitioner's experts are included in the $12,100.91. Petitioner obtained the services of an expert on attorney's fees and an expert on lost wages and benefits. For the services rendered by the expert on attorney's fees, the cost was in the amount of $1,775.00. For the services rendered by the expert on lost wages and benefits, the cost was in the amount of $9,006.25. The total cost for the services rendered by the experts is in the amount of $10,781.25. Again, costs identified as fax or facsimile, postage, cab fare, and transportation to and from the courthouse should be excluded as inappropriate. Additionally, regarding costs, Petitioner represents that the parties agreed to equally share in the expense of the court reporter for the hearing, which is shown on the Verified Supplemental Motion as $663.00. Respondent did not refute the representation. Consequently, the reasonable amount of supplemental costs is $12,054.91.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order as to back pay, interest on the amount awarded, retirement system contributions, attorney's fees, and costs: Ordering the Department of Health and Rehabilitative Services n/k/a Department of Children and Family Services (Department) to pay Gloria Garcia (Garcia) back pay in the amount of $35,148.24. Ordering the Department to make contributions to the Florida Retirement System on behalf of Garcia in the amount of $7,110.16. Ordering the re-evaluation of Garcia's break in service by the Division of Retirement. Further, ordering that, if it is in compliance with and satisfies applicable statutes and rules of the Division of Retirement, Garcia receive credit in time for retirement from October 8, 1993, the date of her termination, to January 1995, the date that she again became a career service employee. Ordering the Department to pay to Garcia's counsel attorney's fees in the amount of $96,075.00 and costs in the amount of $14,899.39, totaling $110,974.39. Ordering the statutory interest rate of ten percent per annum be applied to the amounts awarded. DONE AND ENTERED this 22nd day of October, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2003.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of race in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Facts Stipulated to By the Parties Embry-Riddle is an independent, nonsectarian, not-for- profit, co-educational university. Embry-Riddle serves culturally diverse students seeking careers in aviation, aerospace, engineering, and related fields, with residential campuses in Daytona Beach, Florida, and Prescott, Arizona, and an extended campus (a/k/a Worldwide Campuses) consisting of 156 teaching sites in the United States and Europe. Michael Perry began his employment with Embry-Riddle on November 30, 2001, as a part-time associate center director at Embry-Riddle's Tallahassee teaching site. His job responsibilities were to market Embry-Riddle's programs, enroll students and provide some student services, the timely completion of registration forms and matriculation applications, and basic administrative duties. Petitioner did not have authority to enter into a contract for cellular phone service on behalf of Embry-Riddle that Embry-Riddle would be obligated to pay. Embry-Riddle's Tallahassee teaching site is on the campus of Tallahassee Community College ("TCC"), along with the extended campuses of other higher-education institutions, including Flagler College-Tallahassee and Barry University. In February 2003, Petitioner began to work full-time with the same job title and responsibilities. In February 2004, Petitioner was promoted from assistant center director to associate center director. He received a pay increase, and was given the additional responsibility of supervising an assistant and a Veterans' Affairs ("VA") student employee. At all times, Petitioner's assistant was Katrina Alexander, an African-American female. At all times relevant to this claim, Petitioner's VA student employee was Kiesha Moodie, an African-American female. The Tallahassee teaching site was overseen by Center Director Albert Borovich from a remote site in the panhandle of Florida. On or about May 18, 2005, Ms. Alexander reported that Ms. Moodie advised her that she was uncomfortable about some interaction she had with Petitioner in his office. The precise nature of the interaction is in dispute. At some point after May 23, 2005, Mr. Borovich was given certain memoranda by Dr. Barbara Sloan, advising him of the complaints of sexual harassment by certain unnamed employees of TCC. On June 6, 2005, Mr. Borovich received a copy of a memorandum from Maura Freeberg Wilson to Joketra Hall advising of complaints by female employees of Flagler College-Tallahassee about Petitioner. On June 10, 2005, Debbie Wiggins, the Southeast Regional Director of Operations for Embry-Riddle, and the direct supervisor of Mr. Borovich, provided copies of the alleged victim's statements to Petitioner for response. Petitioner responded to the charge by a report, dated June 15, 2005, denying the claims of sexual harassment and inappropriate behavior. Respondent has a human resources department housed in its headquarters in Daytona Beach, Florida. The human resources department is responsible for investigating complaints of sexual harassment and inappropriate behavior by an employee. The human resources department had not started its investigation of the complaints against Petitioner at the time Ms. Wiggins gave the alleged victim's statements to Petitioner. Rick Snodgrass was appointed by Linda Mobley to investigate the claims of sexual harassment and inappropriate behavior on behalf of Respondent's human resources department. Ms. Mobley was a human resource professional in Respondent's human resource department in Daytona Beach, Florida. Mr. Snodgrass was a human resource professional in Respondent's human resources department in Daytona Beach, Florida. On June 20, 2005, a telephone call was received at the Tallahassee teaching site from Nextel Partners Recovery concerning a delinquent account ("the Nextel Account"). On June 20, 2005, Mr. Borovich called Respondent's payroll department and asked whether Petitioner's paycheck could be held, but was advised that it was too late. At this time, Petitioner had made two payments to Nextel Partners on the Nextel Account at issue. The funds used to make this payment came directly from Petitioner and were not Embry-Riddle funds. On June 21, 2005, Mr. Borovich called Petitioner about the Nextel Account. On June 21, 2005, Petitioner was placed on administrative leave without pay. Petitioner told Mr. Borovich that he had opened the account at issue, that it was in his name, and that he had been paying the bills. The Nextel Subscriber Agreement lists "Embry-Riddle" in the section labeled "Full Customer Name." The Nextel Subscriber Agreement lists the address of the Tallahassee teaching site of Embry-Riddle in the section labeled "Mailing Address." The Nextel Subscriber Agreement lists Petitioner's home address in the section labeled "Shipping Address." The Nextel Subscriber Agreement has Petitioner's signature in the section labeled "Customer Signature." The Nextel Subscriber Agreement has "Assist. Dir. Oper." in the section labeled "Title." The Nextel New Customer Checklist lists "Embry- Riddle/TCC" in the section labeled "Customer/Company Name." The Nextel New Customer Checklist lists "Michael" in the section labeled "Contact." The Nextel New Customer Checklist has Petitioner's signature in the section labeled "NEXTEL Customer Signature." Petitioner provided his driver's license to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided his Embry-Riddle identification card to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided his Embry-Riddle business card to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided the address of Embry-Riddle's main campus in Daytona Beach to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided the address of Embry-Riddle's Tallahassee teaching site for billing purposes in conjunction with opening the Nextel Account. Petitioner directed that the bills be sent to Respondent's Tallahassee teaching site, "Attn: Michael L. Perry," in conjunction with opening the Nextel Account. Petitioner provided Respondent's Consumer Certificate of Exemption (Embry-Riddle's certificate of tax exemption) to Nextel Partners in conjunction with opening the Nextel Account. On June 20, 2005, Nextel Partners asserted that $936.55 was past due and owing on the Nextel Account. The alleged past due balance was sent to collection by Nextel Partners. The debt collection firm of Lamon, Hanley & Assoc., Inc., sought payment of the alleged past due amount from Embry- Riddle. The debt collection firm of J.J. MacIntyre Co., Inc., sought payment of the alleged past due amount from Embry-Riddle. Mr. Snodgrass was charged with investigating the events surrounding the Nextel Account by Ms. Mobley. The investigations of the claims of sexual harassment and the Nextel Account occurred simultaneously. Mr. Snodgrass traveled to Tallahassee on June 23, 2005, during which he met with several individuals regarding the claims of sexual harassment. The complainants from TCC, Flagler College- Tallahassee, and Barry University declined to participate in the investigation on the advice of their legal counsel. Ms. Moodie indicated to Mr. Snodgrass that she had addressed her concerns directly with Petitioner, and she withdrew her complaint. Mr. Snodgrass interviewed Petitioner last, in the presence of Mr. Borovich. Mr. Borovich was not present during the interviews of the female witnesses. At that time, Mr. Borovich found that there was insufficient evidence to make a finding on the claims of sexual harassment, and he recommended no direct discipline of Perry on the claims of sexual harassment. Mr. Snodgrass also discussed the Nextel Account with Petitioner during the meeting of June 23, 2005. Petitioner again asserted that the Nextel Subscriber Agreement was an agreement personal to him, and not an agreement between Nextel Partners and Embry-Riddle. Petitioner was advised that his employment was being terminated because of the actions surrounding the Nextel Account, but he was offered the opportunity to resign instead. Petitioner chose to resign his employment with Embry- Riddle. Petitioner's termination was involuntary. Respondent employs African-Americans in its extended campuses across the United States, including faculty, center directors, and associate center directors. Additional Findings of Fact Not Stipulated to By the Parties Petitioner is a 49-year-old African-American male, who has always lived in the southern United States. Petitioner was qualified for his position and had not been the subject of discipline in connection with his employment until January 2005, when he received a letter of reprimand from his supervisor, Mr. Borovich. In addition to his employment at Embry-Riddle, Petitioner has served as a minister, and has had experience counseling others who have been the victims of racial discrimination. Petitioner testified to his belief that Respondent discriminated against him by automatically concluding that he was guilty of committing fraud by obtaining the Nextel cellular phone because he was an African-American male. Petitioner testified to his experience, and as a minister counseling other victims of discrimination, that African-American males are considered guilty regardless of proof, and may still be considered guilty if they stand up for their rights. Petitioner believes that society generally feels that African-American males cannot tell the truth. Petitioner also testified that he was hurt the most by being accused by Respondent of being a thief without the opportunity to provide documents to rebut Respondent's accusation. Petitioner testified to his experience and belief that African-Americans, who have been the victims of racism in the South, have often been put in the position of having no chance to present evidence disproving the charges levied against them. Petitioner testified that he received a telephone call from Mr. Borovich, on May 23, 2005, ordering him to immediately apologize to the three alleged victims of sexual harassment or inappropriate conduct. He believed he was not given an opportunity to dispel Mr. Borovich of any notion that he had acted inappropriately towards the three women, nor had any investigation been performed at that point. Petitioner complied with the order to apologize to the three alleged victims of the sexual harassment, and testified he felt humiliated as a result of the experience. He believes he was "taken back" to a time in our society when he would have been guilty just because a white man said he was guilty. Mr. Borovich testified at the hearing that he did not recall ever speaking with Petitioner on May 23, 2005, nor did he recall "ordering" Petitioner to apologize to the alleged victims. Petitioner testified that he complained about the fact that he was forced to apologize to the three alleged victims of sexual harassment, and that his complaints were ignored by his superiors. Respondent is an equal opportunity employer that regularly trains its employees in seminars about equal opportunity employment, sexual harassment, and disability. Respondent maintains extensive employment policies in a policy manual referred to as both a POM and an APPS. These policies are reviewed with Embry-Riddle personnel at orientation, and made available to all personnel electronically through an intranet site at any time from any computer. Respondent has policies prohibiting sexual harassment and racial discrimination. Respondent's policies and procedures provide that individuals reporting sexual harassment should contact human resources, which would then conduct an investigation. This investigation is then conducted according to Respondent's policies and procedures. At all times relevant to this matter, Respondent had three employees physically located in the administrative offices of the Tallahassee teaching site: Petitioner, Ms. Alexander, and Ms. Moodie. According to Mr. Borovich, Petitioner was a good marketer, but had some difficulty in meeting deadlines. Ms. Alexander determined that her interaction with Petitioner on May 18, 2005, fit within Respondent's definition of sexual harassment. Respondent's policy requires that a supervisor who is made aware of sexual harassment must report the incident. Ms. Alexander attempted to contact Mr. Borovich on May 18, 2005, but he was not in his office. She, thereafter, consulted the policy and procedures manual and determined she was to contact the faculty chair when the center director was unavailable, which she did. Once he received the complaint from Ms. Alexander, Mr. Borovich began gathering information from the people involved, and then he reported the alleged sexual harassment to Respondent's human resources department pursuant to Embry-Riddle policy. Ms. Moodie told Ms. Alexander that she did not believe she was sexually harassed, but that she felt uncomfortable standing on top of a table and writing on a white board while Petitioner and Mr. Deric Mordica, a student, watched her from behind. Petitioner believes that Ms. Moodie's complaint to Ms. Alexander "started this whole thing." Both Ms. Moodie and Ms. Alexander are African-American. Maura Freeberg Williams, during the relevant time period, was employed in a supervisor capacity by Flagler College, whose offices were located in the same building as Embry-Riddle's Tallahassee teaching site. Joketra Hall, during the relevant time period, was employed in a supervisor capacity by TCC on whose campus Respondent is located. Debbie Wiggins, during the relevant time period, was the Southeast Regional Director of Operations for Respondent, and Mr. Borovich's direct supervisor. Her office was not located on the Tallahassee teaching site. When Ms. Wiggins provided Petitioner with copies of the alleged victims' statements on June 10, 2005, she was told by Ms. Mobley that she had breached investigative protocol which dictated that the human resources department was to interview Petitioner prior to him seeing the statements. This is done in order to maintain the anonymity of the victim until human resources has had the opportunity to investigate. Ms. Mobley directed Ms. Wiggins to refrain from involving herself in the investigation, which was to be conducted by the human resources department. These discussions were memorialized in electronic mail between Ms. Mobley and Ms. Wiggins. Mr. Snodgrass testified that this breach in protocol nearly compromised the investigation, but it was caught in time to conduct a proper investigation. Mr. Snodgrass determined how the investigation would be handled, decided whom Respondent would interview, and decided which statements from individuals would be taken. Mr. Snodgrass also determined the outcome of the investigation. Mr. Snodgrass made a trip to Tallahassee on June 23, 2005, during which he met with and questioned several individuals regarding the claims of sexual harassment. Since Ms. Moodie refused to discuss the alleged incident because she had already discussed it with Petitioner and withdrawn her complaint, and since the employees of TCC, Flagler College-Tallahassee, and Barry University declined to speak with Mr. Snodgrass, he concluded the sexual harassment complaints could not be sustained. Mr. Snodgrass met with Petitioner during his June 23 trip to Tallahassee and requested that Mr. Borovich attend the meeting as a witness. Mr. Snodgrass performed the questioning without comment by Mr. Borovich. The first part of the meeting dealt with the sexual harassment claims. Following the questioning, Mr. Snodgrass determined that the evidence was insufficient to make a finding of sexual harassment. He put aside his folder concerning this claim. The second part of the meeting concerned the Nextel cellular phone contract. Mr. Snodgrass asked Petitioner how he came to have two phones in Embry-Riddle's name. Petitioner repeated the information he had given to Mr. Borovich. Mr. Snodgrass presented the documents concerning the Nextel Account to Petitioner. Mr. Snodgrass believed that the Nextel documents were more credible than Petitioner's answers to his questions concerning the Nextel Account. Petitioner testified that he contracted with Nextel to obtain personal cellular telephones for himself and his wife. Petitioner entered into the Nextel contract to receive a discount being offered to public employees and people working for universities which he learned about through a document that was faxed to the machine he shared with others at TCC. Petitioner met with the Nextel representative at his office to complete the paperwork. Petitioner agreed to have his monthly bills sent to his office where he also received other personal bills. Petitioner paid for his cellular telephone usage with his own funds. Petitioner received the benefit of using Respondent's tax exempt certificate on his contract with Nextel. Petitioner entered into a dispute with Nextel over the quality of his telephone service, which led to the matter being turned over by Nextel to its collection agents. Petitioner never resolved the matter of his dispute with Nextel over the quality of his telephone service. After Petitioner's termination from employment, Respondent paid the past due amount for Petitioner's phone to Nextel out of funds owed to Petitioner for unused leave time during his employment. Mr. Snodgrass advised Petitioner at the time of termination of his employment that he had violated school policy by entering into the cellular phone contract. Petitioner was informed that his "employment was being terminated due to the fact that he opened [the Nextel] account without proper permission." Petitioner did not have contracting authority to bind Respondent. Respondent provides cellular telephone allowances for some of its employees who travel a great deal. None of Respondent's employees have cellular telephones that are owned or contracted for by Respondent. The decision to terminate Petitioner was made by Ms. Mobley. Mr. Borovich was not involved in the decision to terminate Petitioner. Ms. Mobley was not aware of Petitioner's race until she reviewed the documents regarding the Nextel Account, which included a photocopy of Petitioner's identification card. Ms. Mobley testified that the investigative protocols used concerning Petitioner were the same she would use regardless of the employee's race or gender. Following Petitioner's resignation, Ms. Alexander performed Petitioner's prior duties, and was the only person designated to the Tallahassee teaching site for the next 18 months. At that time, the position formerly held by Petitioner was given to a white female. Petitioner sought unemployment benefits, giving as his reason for his termination a "permanent layoff" due to "reduction in force due to lack of student enrollment." Ms. Alexander testified that she worked closely with Petitioner and Mr. Borovich, and that she socialized outside of work with Mr. Borovich. Ms. Alexander never witnessed Mr. Borovich act in a racially discriminatory manner towards her or Petitioner. Petitioner was not aware of any African-American males employed at his level or higher in the organizational structure of Embry-Riddle. Embry-Riddle employs 190 African-Americans out of 1,500 total employees in its worldwide campuses, including faculty, center directors, and associate center directors. Ninety percent of those African-American individuals were in positions equal to or higher than that held by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of June, 2007, 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 15th day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael O. Murray, Esquire Embry Riddle Aeronautical University 600 South Clyde Morris Boulevard Daytona Beach, Florida 32114 Bill Reeves, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32309 Thomas J. Leek, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 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 sexual harassment and/or retaliation while employed with Respondent in violation of Subsections 760.10(1)(a) and/or (7), Florida Statutes (2008).1
Findings Of Fact Respondent is an employer within the definition found in Section 760.02, Florida Statutes. Petitioner was hired as an employee of Respondent in July 1993, as an X-ray technologist ("tech") in the Radiology Department. She is an adult female and, as such, is a member of a protected class. During her employee orientation, Petitioner received and read a copy of Respondent's Employee Handbook. Among other things, Respondent's Employee Handbook addresses the issue of sexual harassment in the workplace. Respondent's policy strictly prohibits sexual harassment and states that Respondent "will not tolerate such action by employees." Respondent's policy also encourages any employee who feels that he/she is being subject to sexual harassment to discuss and/or make a complaint with the Human Resources Department. Any such complaint is handled according to Respondent's Policy No. 9510-17, in order to ensure appropriate investigation and action. Respondent's employees also receive computer-based training regarding sexual harassment and Respondent's policy prohibiting the same, every year. Petitioner received this computer-based training regarding sexual harassment. In October 2006, Petitioner started training to be a magnetic resonance imaging ("MRI") tech. Petitioner was chosen to be cross-trained from an X-ray tech to a MRI tech by Greg Phillips, who was then the manager of Diagnostic Imaging. Phillips became her unofficial "mentor" at Respondent's facility. Petitioner received on-the-job training for an MRI tech from Chris Depelteau, Amy Brantly, and Lucinda Swales, all of whom were MRI techs at the time. In December 2006, Petitioner received a secondary job code which allowed her to work independently as an MRI tech part-time. Essentially this meant that she could "take call." That same month, Paul Licker was hired by Respondent as lead MRI tech. Depelteau had also applied for this job, but had not been chosen. Upon being hired by Respondent, Licker was also made aware of its policy regarding sexual harassment. As lead MRI tech, Licker was responsible for scheduling the MRI techs, ordering supplies, working on protocols, ensuring that patients were being properly scanned and treated, and following up with the MRI techs as they cared for patients. Therefore, Licker became Petitioner's immediate supervisor. Like all the other MRI techs, Licker also trained Petitioner in MRI. In training Petitioner, Licker often taught her different techniques or ways of doing things than the way she had been taught by the other MRI techs. Licker, on several occasions, sought to teach Petitioner his way of doing things on the computer, which was different from the others. In doing so, Licker invaded Petitioner's workspace and engaged in inappropriate touching, particularly by covering her hand with his while manipulating the mouse, to the point that she became uncomfortable. Licker also started implementing changes and different ways of doing things throughout the MRI department. As lead MRI tech, Licker had the authority to implement such changes. Also, during this same period, if Licker added patients or made other changes to her schedule, Petitioner would argue with or complain to him. In fact, Petitioner did not like Licker and also told Depelteau and other employees that Licker was a "bad supervisor." Licker himself recognized that Petitioner did not like the way he was supervising the department. A few weeks after Licker started working for Respondent, Petitioner approached Phillips complaining that Licker was calling her, other female employees, and patients, "Babe." For instance, Licker would say, "Babe, I need you to do this for me," when asking Petitioner to complete a task. Petitioner indicated that she thought that the use of this term was inappropriate and demeaning and that it made her uncomfortable. In fact, other employees who were friendly with Petitioner understood that Licker was using the term "Babe" the way another person might use the terms "Sweetie," or "Honey," i.e., in a non-sexual or non-derogatory way. However, understanding that Licker was a new supervisor who may not have understood that the term suggested something sexual in using the term "Babe," Phillips suggested to Petitioner that she speak directly with Licker to resolve this issue. Phillips also spoke to Licker directly regarding his use of the term "Babe." Specifically, Phillips advised Licker that he "needed to carefully choose his words around patients and employees." Phillips also advised Licker that some people did not like being addressed by "Sweetie or Hun or Babe," and that he should refrain from using these terms in the workplace. Licker understood Phillips' suggestion and tried to refrain from calling Petitioner, or anybody else, "Babe" or any word similar to the term. Petitioner did not complain about any other alleged inappropriate conduct by Licker to Phillips, or any other manager, until February 1, 2007. However, shortly after he started working for Respondent, Licker made an inappropriate comment in the cafeteria to Petitioner. Licker stated to other employees that he could not sit next to Petitioner because they were sleeping together. Licker made a similar inappropriate comment to Dana Keach when he first started employment at Parrish. He suggested that there was a lesbian relationship between Keach and another woman. This conduct was not reported until much later. Prior to February 1, 2007, it became readily apparent that the MRI department was suffering serious setbacks because the department employees were not working cooperatively together. The biggest problem in the MRI department appeared to be a lack of teamwork resulting from the staff's inability to communicate effectively with one another. Licker advised Gallacher that he was struggling in his "daily interactions" with Depelteau and Petitioner and that he simply "could not make the group happy, whether it was scheduling or time off or just getting through the day." MRI's problems grew to the point that Phillips and Gallacher both stepped in to try to improve communications and teamwork among Licker, Petitioner, Depelteau, and Shelly Hugoboom, the MRI CT assistant. The entire MRI department engaged in team-building meetings and even worked with the medical center's chaplain in an attempt to learn to work together. These department meetings were intense and discussion often became heated among the MRI staff members. In addition to these team-building meetings, Gallacher met with staff members individually to discuss their concerns. Gallacher also addressed the interpersonal skills issues between Petitioner and Hugoboom. Specifically, Gallacher met with the two employees together "to see if they could put [their issues] to rest and move on." In the midst of these efforts to improve the department, Petitioner came to Phillips on February 1, 2007, complaining that Licker was continuing to call her "Babe," and that he had also offered her some concert tickets. Phillips observed that Petitioner was extremely upset and immediately contacted Human Resources Manager Roberta Chaildin to start an investigation in regard to Licker's alleged behavior. Phillips and Chaildin spoke with Petitioner and Licker, individually, regarding Petitioner's claims. When questioned regarding the concert ticket, Licker explained that he had been looking to sell an extra ticket that he had. Licker advised Phillips and Chaildin that Petitioner had taken his offer to sell her the extra ticket "out of context," when she assumed that he was asking her to the concert on a date. Licker specified that he had asked Petitioner if she wanted to buy his extra ticket and "tag along" with him and his friends to the concert. Licker also offered his extra ticket to other people besides Petitioner. After speaking with Petitioner and Licker, Phillips and Chaildin determined that they were dealing with a "he-said- she-said situation and a misunderstanding." "He said, I was trying to sell the ticket or give it away. She said, he had asked me out on a date to a concert." Phillips and Chaildin determined that this was not a case of "sexual harassment" by Licker. They did, however, warn Licker that as a supervisor, he had to be "extremely careful" in how he spoke to his subordinate employees. Phillips and Chaildin advised Petitioner that they had investigated her claim and concluded that there was no evidence of sexual harassment. They encouraged her, however, to file a report if she continued to have issues with Licker. Over five months passed without a complaint or incident. Then on July 11, 2007, Licker verbally counseled Petitioner regarding her having accumulated nine tardy appearances ("tardies") at work since January 1, 2007. In speaking with Petitioner, Licker wanted to ensure that Petitioner understood that she needed to be on time in the future, as she had exceeded the number of tardies deemed acceptable by Respondent. To ensure that nothing said during the verbal counseling session was misconstrued by Petitioner, Licker had another supervisor, Boyd Wallace, serve as a witness. The tardies cited in Licker's verbal counseling to Petitioner were unrelated to instances when he would excuse her from work due to slower volume in the MRI department. On August 21, 2007, Licker observed Petitioner on the telephone being advised by security that she had parked in a "no parking" zone. During the conversation, Petitioner became agitated. Licker documented and filed the incident. Phillips personally addressed this incident with Petitioner. On October 10, 2007, the MRI department was working an already full schedule when Licker had to add a patient to the schedule due to an emergency situation. Petitioner objected to Licker adding another patient to the day and became withdrawn and resentful. Licker instructed Petitioner that she needed to change her attitude and become more cooperative. The evidence is not persuasive that Licker assigned Petitioner "menial tasks" after she complained about his having offered her the concert tickets in February 2007. In October 2007, Gallacher, Phillips and Chaildin met Petitioner and issued her a Decision Day disciplinary letter. A "Decision Day" meeting and letter is a management tool in which the employee is given a paid day off to contemplate whether they wish to remain an employee of Respondent. This resulted from Respondent's concerns regarding her "interpersonal skills." This was an issue that had been continuously addressed by Licker and other supervisors or managers at Respondent. The incident which prompted the progressive disciplinary action involved Debbie York, a relatively new employee who resigned from the MRI department, claiming that Petitioner and her interactions with other employees and with Licker was the reason for her leaving. During the Decision Day meeting, Petitioner stated that she was the "victim" and brought up the previous incidents of allegedly being sexually harassed. Petitioner was reminded that she had not complained of any other instances of alleged sexual harassment since she complained of Licker's offering her concert tickets in February 2007 and that the matter was investigated and resolved. From the point of view of management, the Decision Day meeting was intended to address Petitioner's on-going issues with her co-workers and her supervisor. However, Petitioner did not bring up any new incidents of alleged sexual harassment by Licker during the Decision Day meeting. Following the meeting, Petitioner took her Decision Day letter and returned to work. The Decision Day letter called for the creation of an Action Plan, which Respondent uses to help a struggling employee "become invested with the organization and with [his or her] team." Thereafter, Petitioner met with Gallacher to discuss what should be included in her Action Plan. On November 7, 2007, an Action Plan was drafted and signed. It included a number of initiatives designed to assist Petitioner in being "re[-]engaged" with the MRI department. Despite being placed on an Action Plan, Petitioner continued to have issues with Licker being her supervisor. On November 20, 2007, Licker verbally counseled Petitioner for her failure to discuss changes in her weekly schedule with him. Licker specifically identified Petitioner's "communication skills" as a continuing issue. On December 19, 2007, Petitioner was suspended without pay for two days for stating that Licker was being an "asshole," or something to that effect, in front of a co-worker. Petitioner accepted responsibility for her comment. Along with her suspension, Petitioner was also issued a written warning stated in pertinent part, "Upon your return [from suspension], you will be expected to demonstrate a high level of interpersonal skills towards your co-workers, management and this organization and work on completion of your Action Plan items. Any reports of less than acceptable behavior or performance or deviation from a Diagnostic Imaging or PMC policy or procedure will result in immediate termination." As a result of the written warning, Petitioner also lost 50 percent of her annual merit increase. In January 2008, management considered that the MRI department was still very "dysfunctional." Scott Hazelbaker, the new executive director of Diagnostics/Cardiovascular, met with all of the MRI employees as a group to discuss his "expectations of working together as a team." Hazelbaker also discerned that Licker lacked leadership skills to be an effective supervisor. In fact, none of the MRI employees had much respect for Licker's management style. On April 10, 2008, Hazelbaker, Gallacher, and Chaildin met with Petitioner to discuss her progress under the Action Plan. During the meeting, Hazelbaker reviewed Petitioner's history toward Respondent, explaining that her negative attitude could not be tolerated. Specifically, her negativity, failure to be a team player, and refusal to embrace or become engaged in Respondent's culture were detrimentally affecting the work of MRI as a whole. Hazelbaker continued by advising Respondent that as a result of her "track record," she could either resign from her employment or be terminated. Petitioner was advised that if she resigned, Respondent would pay her for two weeks in lieu of having her work through her notice period, pay her the balance of her personal leave bank, extend her health benefits for two weeks so that she could fill her prescriptions, and even designate her eligible for rehire in its system. At the end of the meeting, Petitioner tendered her resignation notice to Respondent. At no time during the meeting did Petitioner ask to leave the room or make a call in order to seek advice or legal counsel. Further, at no time during the meeting did Petitioner raise her past issues regarding Licker and the alleged sexual harassment she suffered. The evidence is persuasive that Licker did not influence the decision to terminate Petitioner. He had not asked for her to be terminated. In August 2009, more than one year after Petitioner resigned, Respondent received a complaint regarding Licker from then-X-Ray Tech Dana Keach, who claimed that Licker made sexually suggestive comments to her. Following an investigation, Licker was terminated, effective September 24, 2009, for "communication unsuitability between care partners." It does not appear that Licker was terminated for engaging in sexual harassment. The evidence is not persuasive that during the time he was employed by Respondent that Licker had inappropriate discussions in the workplace on numerous occasions in front of both male and female employees; nor that Licker would also discuss pornography in the workplace.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Lesa Burkavage's, claims of unlawful sexual harassment and retaliation against Respondent, Parrish Medical Center. DONE AND ENTERED this 19th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2010.
