The Issue Whether Petitioner (“Holly Mathis” or “Ms. Mathis”), in contravention of the Florida Civil Rights Act of 1992, sections 760.01 through 760.11 and 509.092, Florida Statutes (2014),1/ experienced sexual harassment and/or disparate treatment during her employment at Respondent, O’Reilly Auto Parts (“O’Reilly”).
Findings Of Fact O’Reilly is a retail distributor of automobile parts headquartered in Springfield, Missouri. On approximately August 11, 2014, Ms. Mathis began working at an O’Reilly’s store in Panama City Beach, Florida (“store no. 4564”). Her duties included pulling automobile parts from the store’s inventory and using an O’Reilly’s-owned vehicle to deliver automobile parts to mechanics in the surrounding area. Ms. Mathis was the only female employee at store no. 4564. Upon beginning her employment with O’Reilly, Ms. Mathis received a copy of the O’Reilly Auto Parts Team Member Handbook (“the Handbook”) detailing policies, benefits, and the responsibilities of O’Reilly’s employees. One portion of the Handbook specifies that O’Reilly’s employees “are not discriminated against on the basis of race, religion, color, national origin, sex, sexual orientation, pregnancy, age, military obligation, disability, or other protected class as defined by federal, state or local laws.” Another portion of the Handbook addressed harassment and stated that “[a]buse of other team members through ethnic, racist, or sexist slurs or other derogatory or objectionable conduct is unacceptable behavior and will be subject to progressive discipline.” This portion of the Handbook continued by describing sexual harassment as follows: Sexual harassment is a specific form of harassment that undermines the integrity of the employment relationship – it will not be tolerated. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment. Submission to or rejection of the conduct is the basis for an employment decision affecting the harassed team member. The harassment substantially interferes with a team member’s work performance or creates an intimidating, hostile, or offensive work environment. This portion of the Handbook also instructed employees how to report harassment: If you feel you have been discriminated against or have observed another team member being discriminated against due to race, color, religion, national origin, disability, sex, age or veteran status, you should immediately report such incidents to your supervisor/manager, local Human Resources representative, the corporate Human Resources Department, or anonymously via the company’s T.I.P.S. Hotline at 1-800-473-8470 without fear of reprisal. A prompt, thorough investigation will be made as confidentially as possible. Appropriate action, up to and including termination, will be taken to ensure that neither discrimination nor harassment persists . . . . The Handbook instructs an O’Reilly’s employee with work-related concerns to bring them to the attention of his or her supervisor. If the work-related concern involves that employee’s supervisor, then the Handbook instructs the employee to “speak directly with the next level of supervision.” Store no. 4564 had a poster notifying employees that sexual harassment is illegal. The poster stated that: If you experience or witness sexual harassment, report it immediately to your supervisor or the Human Resources Department without fear of retaliation. The company will promptly investigate all complaints as confidentially as possible. If the company concludes that sexual harassment did occur, disciplinary action will be taken with the offender(s) up to and including termination. The poster listed two “hotline” phone numbers that O’Reilly’s employees could utilize to report sexual harassment. Also, the Handbook states that “[s]moking, eating, and drinking are not allowed in company vehicles, and team members are not permitted to possess food or beverages, including water, within the cab of a store delivery vehicle.” As noted above, Ms. Mathis began working for O’Reilly on approximately August 11, 2014. She typically worked from 8:00 a.m. to 5:00 p.m. on Wednesdays, Thursdays, and Fridays. Ms. Mathis’ hiring by O’Reilly was probably facilitated by the fact that she had previously worked with the store’s general manager (Paul Stephenson) at an Advance Auto Parts store. Ms. Mathis considered Mr. Stephenson to be a “big brother.” However, in September of 2014, Mr. Stephenson began directing sexual comments toward Ms. Mathis, and inappropriate conduct by Mr. Stephenson continued through April of 2015.2/ During Ms. Mathis’ employment with O’Reilly, Mr. Stephenson was the highest-ranking employee at the Panama City Beach store. Therefore, Mr. Stephenson had supervisory authority over Ms. Mathis. On April 4, 2015, Ms. Mathis and Mr. Stephenson were working at store no. 4564. When Ms. Mathis asked to leave early so that she could spend time with her newborn, Mr. Stephenson repeatedly asked her to expose her breasts to him. Ms. Mathis refused Mr. Stephenson’s requests but was eventually allowed to leave work early. However, Ms. Mathis had been under the impression that she would not be allowed to leave early unless she complied with Mr. Stephenson’s request. On approximately April 13, 2015, Ms. Mathis applied for a position at an Autozone store approximately five minutes from store no. 4564. By April 14, 2015, Ms. Mathis had secured a new position at that Autozone store and submitted a letter of resignation to O’Reilly on April 14, 2015. Mr. Stephenson’s inappropriate conduct did not stop after Ms. Mathis submitted her letter of resignation. As discussed in her Petition for Relief, Mr. Stephenson attempted to touch her in an inappropriate manner many times on April 15, 2015, and succeeded in doing so on April 16, 2015. Ms. Mathis reaffirmed that statement during her testimony at the final hearing. The undersigned finds Ms. Mathis’ testimony regarding Mr. Stephenson’s conduct in April of 2015 to be credible. April 16, 2015, was Ms. Mathis’ last day of work at store no. 4564, and she began working for Autozone on April 17, 2015. In addition to Mr. Stephenson’s inappropriate conduct, Ms. Mathis asserts that she was subjected to disparate treatment by her direct supervisor, William Yohe. Specifically, Ms. Mathis testified that Mr. Yohe would belittle her by calling her “stupid” in front of co-workers and customers. Male employees did not experience such verbal abuse. In addition, Mr. Yohe allegedly allowed male drivers to decline deliveries without giving Ms. Mathis the same option. When a male driver declined a particular delivery, then Ms. Mathis was required to handle it. Also, Mr. Yohe allegedly allowed male drivers to have food and beverages in the O’Reilly-owned delivery vehicles. However, Mr. Yohe sent Ms. Mathis home early on April 10, 2015, for having a Gatorade in a delivery vehicle. With the exception of family and friends, Ms. Mathis told no one (including no one with authority over Mr. Stephenson and Mr. Yohe in O’Reilly’s chain-of-command) of the sexual harassment and disparate treatment she experienced at store no. 4564. Ms. Mathis did not report the sexual harassment and disparate treatment to anyone associated with O’Reilly because she was worried that Mr. Stephenson or Mr. Yohe would learn of her complaints and fire her. As a single mother of a newborn, she could ill afford to be out of work. As for the anonymous T.I.P.S. Hotline in the Handbook, Ms. Mathis was concerned that her anonymity could not be maintained because she was the only female employee at store no. 4564. The undersigned finds that Ms. Mathis proved by a preponderance of the evidence that Mr. Stephenson sexually harassed her in April of 2015 as described above. There was no reliable evidence to rebut Ms. Mathis’ allegations regarding Mr. Stephenson. For example, another driver at store no. 4564 testified that he never observed any behavior towards Ms. Mathis that amounted to a violation of O’Reilly’s policies. However, that testimony and his written statement were of little use because the other driver worked Mondays and Tuesdays while Ms. Mathis usually worked Wednesday through Friday. Mr. Stephenson did not testify during the final hearing. He did give a written statement to O’Reilly in which he denied any inappropriate conduct of the nature described by Ms. Mathis. However, and as explained in the Conclusions of Law below, Mr. Stephenson’s written statement was hearsay, and it did not supplement or corroborate any non-hearsay evidence. In addition, several other O’Reilly’s employees submitted written statements explaining that they had never seen any discrimination at their workplace and/or that they were unaware of any discrimination occurring at their workplace. However, those employees did not testify, and their written statements did not supplement or corroborate any non-hearsay evidence. Mr. Yohe gave a written statement in which he noted that no one had complained to him about being sexually harassed. However, and as noted above, Ms. Mathis told no one other than friends and family about her experiences at store no. 4564. While Ms. Mathis proved by a preponderance of the evidence that she was sexually harassed by Mr. Stephenson during her employment at O’Reilly, she did not prove by a preponderance of the evidence that she was subjected to other types of disparate treatment. Mr. Yohe denied verbally abusing Ms. Mathis, and O’Reilly’s witnesses persuasively testified that male and female drivers were treated equally with regard to having prohibited items in O’Reilly-owned delivery vehicles. As for Ms. Mathis’ assertion that she was forced to make deliveries that male drivers declined, Mr. Yohe rebutted that assertion by testifying that Ms. Mathis was unable to successfully work the front counter at store no. 4564 because she had yet to accumulate sufficient knowledge of automobile parts. Therefore, if the front counter was short-staffed at certain times, then a male driver would be asked to work the front counter and Ms. Mathis would have to handle all of the deliveries during that time period. The undersigned also finds O’Reilly had reasonable measures in place to prevent and promptly correct any sexually harassing behavior. It is also found that Ms. Mathis failed to take advantage of the preventative or corrective opportunities offered by O’Reilly.
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 dismissing Holly Mathis’ claim for relief. DONE AND ENTERED this 13th day of July, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 13th day of July, 2016.
The Issue Whether Respondent, Carrabba's Italian Grill, Inc., subjected Petitioners, Jasen Baker and Bernard Southwell, to a hostile work environment and retaliation in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Respondent operates a chain of casual Italian restaurants. Respondent has adopted a policy against discrimination and harassment. In addition to prohibiting harassment, the policy instructs employees whom to contact if they experience harassment. The policy is contained in an employee handbook that is distributed to all employees during the initial orientation process. During orientation, Respondent's manager reviews the employee handbook with the new employee, including the policy on sexual harassment. During the orientation process, Respondent also requires employees to view a video that explains that Respondent will not tolerate harassment. The video familiarizes the employees with the company's expectations regarding the reporting of harassment in the workplace. During the orientation process, the employees are required to sign an acknowledgment on the exterior of their employee folders indicating that they have received and read the policy against harassment. The critical sections of the policy are reprinted on the folders immediately above the signature lines. All of Respondent's restaurants are required to display a poster known as the "Carrabbamico Info" poster in the kitchen area. This poster reprints the harassment policy and provides employees with a list of names to call if they feel that they have been harassed. Respondent has implemented reasonable precautions to prevent harassment from occurring in its restaurants. In the Central Florida market, Respondent's restaurants are overseen by a joint venture partner named Dick Meyer. Meyer is responsible for hiring and firing the managers of the restaurants that he oversees. In March 2000, Lawton DePriest became the managing partner at Respondent's Palm Bay location. DePriest reported to Meyer. DePriest remained in that capacity until September 2003, when he became the managing partner of Respondent's restaurant located in Formosa Gardens. It was DePriest's management style to frequently yell at employees in order to motivate them. It is also possible that he had favorites on the staff of the Palm Bay restaurant. Baker was hired by Respondent's Palm Bay restaurant in January 2002. At the time that Baker began working for Respondent, he attended an orientation session conducted by DePriest. It was DePriest's practice during orientation to discuss harassment issues and instruct employees to come to him directly if they experience any problems with sexual harassment. If for some reason an employee is not comfortable with him, DePriest would encourage the employee to contact any other person listed on the poster. Baker was given a copy of Respondent's handbook, which contains the company's policy against harassment. On that same date, January 19, 2002, Baker signed his employee folder on the blank line under the harassment policy indicating that he had read and received the policy. Whether he reviewed the employee handbook further after that date is irrelevant. Baker "vividly remembers" that during his orientation, he watched the videotape that included instructions on what he should do if he felt harassed. However, during the hearing, Baker denied ever seeing the Carrabbamico Info poster. However, Baker admitted on cross-examination that during his deposition, he had acknowledged seeing the Carrabbamico Info poster posted in the store. During the deposition, Baker specifically remembered that there were business cards with contact information for Meyer and Cheri Ashe attached to the bottom of the poster. Despite Baker's attempt to deny seeing the poster, his earlier answers in deposition were more credible in view of his specific recollection of the attached business cards and the lack of any persuasive explanation for the discrepancy. After completing his orientation, Baker initially worked as a dishwasher. Later, he was shown how to do food preparation work. Before coming to work for Respondent, Baker had previously worked for a restaurant by the name of Golden Corral. During the time that he worked with Golden Corral, he became acquainted with a co-worker named Bernard Southwell. In the summer of 2002, Petitioners discussed the possibility of Southwell coming to work for Respondent. Baker spoke favorably of the restaurant and recommended that Southwell submit an application. At the time, Baker had worked for Respondent for six or seven months. Baker did not express to Southwell that he had observed or experienced any problems with unwelcome harassment. Southwell submitted an application and was hired by Respondent's Palm Bay restaurant in August 2002 as a dishwasher. At the time he began employment with Respondent, Southwell was living with a friend of his named Joe Corbett. At the time, Baker was living in a one-bedroom apartment with his girlfriend. Several weeks later, Baker's girlfriend decided to move out. According to Petitioners, she suggested to Southwell that he move into Baker's apartment to replace her. Around October 2002, Southwell moved out of the Corbett residence and moved in with Baker. A third employee named Chris Germana also moved into the residence around the same time. Because the apartment only had one bedroom, Germana slept on the couch. Petitioners slept in the bedroom. When employees at the restaurant learned of these arrangements, speculation began about whether the two men were homosexual. According to Petitioners, sometime after Southwell started to room with Baker, co-workers at the restaurant started referring to Petitioners by nicknames. The co-workers referred to Baker as "powder," "crack pipe," and "crack head." Baker knew that "powder" was a reference to a character from the movie "Powder" and that the name had nothing to do with his sexuality. The co-workers also referred to Petitioners as "butt buddies." Southwell testified that a male co-worker, Christopher Bouley, told him, "I know you guys are lovers." Bouley, Arnold Samuel and DePriest all used these nicknames on occasion to refer to both Petitioners, according to Baker. After several months, Southwell eventually went to DePriest and complained about the "powder," "crack pipe," and "butt buddies" nicknames. Southwell told DePriest that the nicknames were funny at first, but that they started getting old. DePriest then told Samuel and Bouley to stop using the nicknames. Thereafter, the use of the nicknames stopped. Southwell claimed that Bouley would gyrate his hips behind other employees as they were bending down. However, Petitioners both admitted that Bouley would do these hip motions to both male and female employees. During the hearing, Petitioners claimed that Bouley subjected them to unwelcome touching. Baker claimed that Bouley had touched his buttocks once. However, Baker acknowledged that when his deposition was taken prior to the final hearing, he did not mention that Bouley touched his buttocks. In fact, when asked during his deposition whether he had been sexually harassed, Baker testified that he had not and that he had only been verbally harassed. Furthermore, Baker made no mention of any physical touching in the Affidavit that he submitted to FCHR at the time he filed his charge of discrimination. Southwell never saw Bouley touch or grab Baker's buttocks. And despite their close relationship, Baker never told Southwell that Bouley had grabbed his buttocks. Accordingly, Baker's allegation that he was touched inappropriately by Bouley or any other of Respondent's employees is not credible. Southwell claimed that Bouley had touched his buttocks on two or three occasions and touched his nipples twice. Southwell also claimed that Bouley had touched his penis on one occasion. According to Southwell, he was bending down to pick up sauté pans when Bouley, who was supposedly standing behind him, reached between Southwell's legs from behind and clutched Southwell's genital area through his trousers. This incident supposedly occurred during the restaurant's hours of operation while customers were in the restaurant. The alleged grabbing supposedly took place in front of a stove that sat in full view of customers seated at the restaurant's bar. Bouley flatly denied ever touching Southwell's genitals or private area. In the Affidavit that Southwell submitted to FCHR at the time he filed his charge of discrimination, Southwell made no mention of Bouley touching Southwell's penis. At the time that he submitted this Affidavit, Southwell was represented by counsel. Southwell did not offer any convincing reason for the omission of any description of his genitals being grabbed. Accordingly, Southwell's allegation that Bouley touched Southwell's genitals is not credible. Although Petitioners testified that they spoke to DePriest on several occasions, they admit that they never spoke to any of the other individuals listed on the harassment poster to complain about sexual harassment. DePriest testified that the only complaint he ever received had to do with the nicknames and that he took prompt action to resolve this problem. Annually, Respondent submits an employee experience survey to its employees that is completed anonymously and forwarded to an outside company for analysis. After the survey is completed, employees participate in a small group feedback session to discuss the results of the survey. On March 11, 2003, DePriest held the feedback session for his store, which was attended by Petitioners. During the session, Southwell commented about the situation with the nicknames. He indicated that the situation was resolved when it was brought to DePriest's attention. This was the sole extent to which either employee complained of unwelcome behavior. Respondent was not on notice of any problems with regard to touching or more serious inappropriate behavior. On March 12, 2003, Petitioners' last day of work, Southwell approached DePriest to complain about scheduling for a special event at the convention center. Southwell stated that he and Baker had signed up to participate in this event. Southwell was scheduled for the event, but Baker was not. DePriest explained that he needed Baker to float, because there were not enough people scheduled to work at the restaurant that night. DePriest later talked to Baker, who indicated that he was not disappointed that he was not participating in the event. That conversation, however, was the last time that DePriest saw Baker. DePriest learned that Petitioners had left before the end of their shift, when the plates in the restaurant were getting low and the sauté pans were getting stacked up. DePriest asked about the whereabouts of Petitioners and learned that they were seen riding their bicycles away from the restaurant. DePriest could not contact them because they did not have a telephone. DePriest eventually terminated their employment for voluntarily walking off the job.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that: Dismisses the Petition for Relief filed by Petitioner, Jasen Baker, in DOAH Case No. 05-0623, FCHR No. 23-03891; and Dismisses the Petition for Relief filed by Petitioner, Bernard Southwell, DOAH Case No. 05-0632, FCHR No. 23-03892. DONE AND ENTERED this 10th day of November, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jason M. Gordon, Esquire Gordon & Cornell 103 North Atlantic Avenue Cocoa Beach, Florida 32931 Kevin D. Johnson, Esquire Thompson, Sizemore & Gonzalez, P.A. 501 East Kennedy Boulevard, Suite 1400 Tampa, Florida 33602 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Lincare, Inc., is liable to Petitioner, Sharon Ford, for subjecting her to a hostile work environment based on sexual harassment.
Findings Of Fact The Parties and Complaint Allegations Lincare is a Tampa-based company that focuses on home- healthcare services. It has an annual revenue of over $3 billion and is a wholly-owned subsidiary of a company based in Germany. Ms. Ford, a married woman with children, is an accountant and an attorney. Lincare first hired her as its acquisition counsel in 2001 and promoted her to director of acquisitions in 2002. She held that position for almost 15 years before she left the company on January 27, 2017. Mr. Tripp, a married man with children, served as an Arabic linguist in the Army before obtaining his law degree. Lincare hired Mr. Tripp to replace Ms. Ford as its acquisition counsel in 2002 and promoted him to general counsel in 2013. He still holds that position. On January 19, 2018, almost a year after leaving Lincare, Ms. Ford filed a Complaint with the Commission alleging a hostile work environment. She alleged that Mr. Tripp, over a 15-month period from December 2015 through March 2017, subjected her to severe and pervasive sexual harassment. On July 13, 2018, the Commission issued its notice of determination of no reasonable cause and mailed it to Ms. Ford. The notice advised her that she “may request an administrative hearing . . . by filing a Petition for Relief within 35 days of the date the determination was signed by the Executive Director.” Ms. Ford received the notice in the mail on July 16, 2018. On August 16, 2018, 34 days after the Commission issued its notice, Ms. Ford requested an administrative hearing by mailing her Petition to the Commission via U.S. mail. The Commission received the Petition on August 20, 2018. On the same day, the Commission generated its transmittal letter. But, instead of transmitting the Petition to DOAH, the Commission advised Ms. Ford that the Petition appeared to be untimely because it was received three days beyond the 35-day deadline under section 760.11(7), Florida Statutes. After Ms. Ford responded that she timely requested a hearing by post-marking her Petition before the 35-day deadline, the Commission transmitted the case to DOAH on September 21, 2018. The transmittal letter, dated August 20, 2018, did not dismiss the Petition as untimely but rather requested assignment of a judge to “conduct all necessary proceedings required under the law.” Lincare’s Structure and Policies Between 2015 and 2017 Lincare had three officers: chief executive officer (“CEO”), chief financial officer (“CFO”), and chief operating officer (“COO”). The corporate chart had the CEO at the top and the CFO and COO, who reported to the CEO, immediately thereunder. The second tier of the chart listed six department heads, none of whom were corporate officers: corporate compliance officer, head of business innovation, head of human resources, head of public relations & communications, general counsel, and director of acquisitions. These managers were equal on the hierarchy chart and all reported directly to the CEO. As director of acquisitions, Ms. Ford brought in the deals, negotiated the business side, and quarterbacked them to closing. She helped move the deals along by ensuring that Lincare personnel communicated and accomplished their required tasks. She provided business advice to the legal department and worked closely with the acquisition attorney (on smaller deals) and the general counsel (on larger deals). Ms. Ford received a salary and an objective bonus tied to the deals that closed.2/ As the general counsel, Mr. Tripp oversaw legal affairs and supervised five lawyers in the legal department, but had no control over any other department. As to the deals, Mr. Tripp handled the legal aspects, such as contracts, due diligence, and compliance, provided legal advice, and assessed risks. The CEO, COO, and CFO had sole authority to decide whether a deal closed. Mr. Tripp received a salary and a discretionary bonus tied to the company’s financial success in a given year. Although Ms. Ford and Mr. Tripp gave each other advice, they were equals on the corporate chart. Mr. Tripp had no authority over Ms. Ford and lacked the power to hire, discipline, promote, transfer, fire, or control her compensation. They were coworkers who both answered directly to the CEO. The head of human resources (“head of HR”) ran the HR department and its roughly 15 to 18 employees. Directly under the Head of HR was the employee relations director, Ms. Adams. Among other things, the HR department oversaw the employee handbook and investigated reports of discrimination and harassment. The handbook included a detailed anti-harassment policy forbidding sexual harassment by any employee at work or at work-related events outside the office. Harassment was defined to include unwelcome sexual advances, requests for conduct of a sexual nature, and other unwelcome behavior that was personally offensive and interfered with work effectiveness done in person or through electronic means. The policy prohibited any employee from making employment decisions based on the submission to or rejection of sexual advances, and noted in bold that any violation would subject an employee to discipline up to an immediate discharge. The handbook contained a detailed reporting procedure for employees who believed, had concerns, or suspected they or anyone else may have been harassed. The policy required them “to immediately notify” a named individual based on their location, which included the employee relations director or the HR Manager for employees in the corporate office. The handbook required employees to follow the procedure and noted that the failure to do so could adversely affect their rights to pursue a claim. Lincare took harassment allegations seriously. Once an allegation was reported, the employee relations director or HR managers investigated; the legal department was not involved unless a particular legal question arose. They obtained as much information as possible from the victim, spoke to potential witnesses, reviewed available documents, and interviewed the accused. If the investigation uncovered no corroborating evidence and the accused denied any wrongdoing, a report would be added to the accused’s personnel file; upon a second allegation, the accused would be terminated. If a supervisor retaliated against an employee for reporting harassment, that supervisor would be terminated. Lincare disseminated the handbook and updated versions to employees and required them to sign a form acknowledging that they received the handbook and would abide by its policies. Ms. Ford signed such forms each time she received a revised handbook, including in 2015——the version in effect until she left Lincare in January 2017. She knew about the harassment policy, the reporting requirement, and the fact that her failure to so report could adversely affect her rights. Friends and Coworkers for Over 15 Years Ms. Ford and Mr. Tripp worked closely together at Lincare for 15 years and they became good friends in the process. When Lincare hired Mr. Tripp as acquisition counsel in 2002, he worked closely with Ms. Ford on hundreds of deals. They were in constant, daily contact to strategize, handle diligence and compliance issues, advise each other on the tasks they both had to complete, and ensure the deals closed. They also had a close friendship. They regularly went to lunch alone and with others, as often as three days per week, attended social events with mutual friends, and spoke on the phone and texted about business and personal matters. They had much in common as married parents with kids around the same age and they enjoyed each other’s company. When Mr. Tripp became general counsel in 2013, Ms. Ford initially worked closely with the new acquisition counsel. In late 2014, however, she and Mr. Tripp resumed working closely together when Lincare began negotiating larger transactions. Project Maverick was the largest acquisition of Ms. Ford’s career and it closed in March 2016. Project Falcon was the largest divestiture of her career and it closed in August 2016. These two deals, and others, required Ms. Ford and Mr. Tripp to work even more closely together from 2015 until she left the company in January 2017. They often met multiple times per day. Ms. Ford sought Mr. Tripp’s assistance on the legal side and he sought her assistance on the business side. As before, she remained the quarterback shepherding the deal forward. Their friendship continued during this period. They invited each other to lunch regularly, alone and with coworkers. They attended social events with friends, including holiday dinners in 2015 and 2016. On out-of-town work trips, they rented cars together and sometimes spent time alone, such as for meals. They continued to text and speak on the phone about business and personal matters. They talked about their families, children, and other personal matters much like longtime friends do. They checked in on each other when personal crises occurred. And, when Ms. Ford began tense negotiations with the CEO about her compensation, which ultimately led her to leave Lincare, she relied on Mr. Tripp as a sounding board and for moral support. Even after Ms. Ford left the company in January 2017, she maintained contact with him. They had lunch alone at least once. For months, they continued to text each other, even about personal matters such as when she texted him after he had been in a car accident. However, their communication largely ceased once Ms. Ford filed a lawsuit against Lincare over her compensation. Ms. Ford’s Testimony Accusing Mr. Tripp of Sexual Harassment The first incident occurred on December 11, 2015. In that 10 to 20 minute conversation in her office, Mr. Tripp professed strong feelings for her and that he desired a confidential, sexual relationship with her. She rejected him and said they were just friends. She immediately called her husband and spoke to him all the way home. She felt humiliated, embarrassed, and angry. She did not attend a football game that weekend with other coworkers to avoid Mr. Tripp and kept her communications with him to e-mail for the next week. The second incident occurred in her office later in December 2015. While discussing another affair that may be happening at work, Mr. Tripp said he could not report the other employee because he wanted to do the same thing with Ms. Ford, notwithstanding the professional and personal risks. She again rejected him. For the next few weeks, Ms. Ford tried to avoid him as much as possible, but she had to face him because the deals began to lag. She said he continued to make comments here and there, but she offered no specific details. The third incident occurred in January 2016, after a conference call in Mr. Tripp’s office. He said he knew Ms. Ford was avoiding him, but he could not function. He told her he was willing to leave his wife, but she again rejected him. Over the next few months, the comments and innuendo pretty much ceased so Ms. Ford decided to go back to being friends to ensure that the Maverick and Falcon deals closed. However, a fourth incident occurred in the parking lot after a late conference call in June 2016. Mr. Tripp professed that his feelings were stronger now and that he was waiting for Ms. Ford to change her mind. She said her feelings had not changed and he said he understood. For the remainder of 2016, Ms. Ford testified generally that Mr. Tripp continued to make comments about his inability to function and that he got more obsessive as the year progressed. But she offered little detail about the comments or where and when they occurred, except that she had to be around Mr. Tripp’s wife several times and she and Mr. Tripp agreed it was uncomfortable. The fifth incident occurred in October 2016 when Mr. Tripp told her he was learning Hebrew to “connect” with her in her native language. He tried to communicate with her in Hebrew in person and via text, despite her telling him to stop because it made her very uncomfortable. As a result, she again started to avoid him at the office, though he texted her to see if she was alright and admitted to acting like a high school student. In January 2017, Mr. Tripp continued with innuendo, spoke in Hebrew, and told Ms. Ford that he might move closer to her. She believed he was obsessed, which made her nervous about his stability and her safety. But she offered no specific dates on which these events occurred. Mr. Tripp came to Ms. Ford’s office twice that month after she had heated meetings with the CEO, including on her last day at the company, January 27, 2017. He cried because he could not imagine how he would go on if she left, as she was the only reason he came to work every day. That evening, he told her on the phone that he now knows what a divorce feels like. Mr. Tripp continued to harass her following her departure, including taking his family to the same ski resort in March 2017. She testified that she stayed in her room to avoid him and never initiated contact with him while there, though text messages admitted into evidence confirm she texted him several times, about a security breach and generally about his vacation. In January 2018, a year after she left the company during a mediation of her lawsuit against Lincare, Ms. Ford for the first time accused Mr. Tripp of sexual harassment. She had not reported the allegations pursuant to Lincare’s policy, though she knew it required her to do so. She never informed other coworkers either. In fact, the only person she said she told was her husband, though he did not testify at the hearing. Ms. Ford testified that she did not report the allegations because she had a contentious relationship with the CEO during this period and she believed the CEO would terminate her. She also was concerned that Mr. Tripp was unstable and could decide to kill the deals to ensure she missed out on her bonuses. Lastly, she thought reporting would be futile due to Lincare’s culture of harassment, including by one of the two individuals to whom she was directed to report, the head of HR. Mr. Tripp’s Testimony Denying the Alleged Sexual Harassment Mr. Tripp said that he never harassed Ms. Ford. Indeed, no one has ever accused him of harassment. He said he never expressed romantic feelings for her, suggested having a sexual relationship with her, or did anything to scare her. Ms. Ford’s allegations against him came as a shock. He believed they had been good friends for over 15 years and she never indicated otherwise. They enjoyed each other’s company, had children around the same age, and spoke often about business and personal things, like friends often do. Even during the period of alleged harassment, he noticed no changes in her behavior. They continued to invite each other to lunch regularly, often eating together alone, and continued to discuss deeply personal matters about their families. They texted each other often and attended holiday dinners with friends. She chose to sit next to him at a work event at a hotel in the fall of 2016. The same could be said for business trips during this period. On a March 2016 trip to New York, Ms. Ford left a group dinner early with him because he was sick, they worked out the next day, and had breakfast. On an August 2016 trip to Nashville to celebrate the closing of the Maverick deal, they rented a car together and went to dinner alone after Ms. Ford invited him. On a trip to New York in August/September 2016, Ms. Ford stayed with Mr. Tripp to retrieve his briefcase from the office and went to the airport together after the rest of the team left. Mr. Tripp admitted to learning some Hebrew, but because he liked languages (he was an Arabic linguist in the Army), not to become romantically connected to Ms. Ford. He practiced with her because she was the only person he knew who spoke Hebrew, just as he did with other coworkers who spoke another language. She never said it made her uncomfortable. Mr. Tripp also admitted that his wife suggested moving closer to Plant High School because it had a beneficial program for their son. The idea had nothing to do with Ms. Ford, who did not live nearby, and they decided not to move in any event. Even on her final days at Lincare, they had usual interactions. Mr. Tripp admitted calling Ms. Ford the evening of her last day (but said he had not come down to her office earlier) to express concern for his friend and sadness that they would no longer be working together. He did not recall commenting about a divorce, but if he had, it only related to her being a friend. For a few months after she left Lincare, Mr. Tripp believed their relationship had not changed. They continued to text each other and had lunch alone at least once. Though he took a ski trip to the same resort in March 2017, his wife chose the resort and Ms. Ford reached out to him several times during that trip to see how he was doing. Ms. Ford also texted him after he had a car accident in March/April 2017. It was not until several months after Ms. Ford left Lincare and filed her lawsuit against the company that he noticed a change in her attitude. At one point, he invited her to lunch with a mutual friend, but she did not respond and he later learned they had lunch without him. Ms. Ford also told him on the phone that he was going to hate her someday, though he had no idea then what that meant. After a hurricane in August/September 2017, he reached out to make sure she was safe; she thanked him and wished his family well too. That was their last communication before the sexual harassment allegations were made. Credibility Findings as to the Conflicting Testimony After hearing the conflicting testimony from Ms. Ford and Mr. Tripp and observing their demeanor, the undersigned found it exceedingly difficult initially to determine who is telling the truth and who is quite an effective storyteller. Ms. Ford’s conviction in her accusations against Mr. Tripp was equal to his conviction in his denials. But, when considering all of the record evidence and testimony, the scales of credibility tip in Mr. Tripp’s favor for several reasons. For one, Ms. Ford cultivated a professional and personal relationship with Mr. Tripp throughout the alleged harassment period and continued to do so even after she left Lincare. Although she said she maintained contact because they had to work together and she wanted him as an ally, she also accused him of stalker-like, obsessive, humiliating, and unstable behavior. Her efforts to maintain a friendship with him, even after leaving Lincare, are at odds with someone who feels humiliated and fears for their safety. Ms. Ford’s testimony also veered from the affidavit she filed with the Commission. She testified that he generally made comments between November 2016 and January 2017, yet her affidavit offered more specifics as to the comments allegedly made. Her testimony about him moving to her neighborhood was entirely omitted from her affidavit. Her testimony about his efforts to sometimes communicate with her in Hebrew was at odds with the affidavit’s claim that he did so “continuously.” And, her testimony about the comments he made on her last day at Lincare differed as to substance and degree from her affidavit. Further, Ms. Ford’s testimony was directly refuted by other evidence. She testified that she did not affirmatively communicate with him about anything personal in March 2017, but text messages confirm that she checked in with him several times during the trip about his vacation and engaged in more friendly conversation than initially admitted. Ms. Ford’s reasons for waiting until a year after she left Lincare to report the accusations also call her credibility into doubt. Though she testified that she feared Mr. Tripp would kill two large deals and her bonuses therefrom, those deals closed in March and August 2016, and yet she never reported the allegedly ongoing harassment before she left Lincare at the end of January 2017. It also cannot be ignored that she waited until January 2018 to report the accusations and did so during the mediation of her compensation lawsuit against the company. Lastly, though not fatal to her claim, Ms. Ford’s failure to present any corroborating evidence cannot be ignored. She testified that she lost weight, suffered hair loss, and could not sleep, and said that it was the worst year of her life. Yet, the record is devoid of evidence that any other friends or coworkers noticed such changes, that she missed work or social events, or that she suffered at work in any way. She said he sent her inappropriate text messages, but provided no proof of them. She apparently kept a journal about work issues, but did not document the harassing incidents. And, though she said she immediately told her husband in December 2015, she chose not to present his testimony even though he was the only person who could corroborate her accusations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Sharon Ford, failed to timely file her Complaint and, regardless, that Ms. Ford failed to establish that Respondent, Lincare, Inc., committed an unlawful employment practice against her, both of which warrant dismissal of her Petition for Relief. DONE AND ENTERED this 17th day of May, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2019.
The Issue Whether Petitioner was discriminated against by the Respondent based on race and/or subjected to a hostile work environment based on race in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Alphonso Williams, Jr., is an African- American male (Petitioner). Respondent, L. Pugh & Associates (Respondent), is a closely held company in the business of designing, constructing and maintaining fire safety equipment and systems. The company is owned by Larry Pugh and his wife Sharon Pugh. Andy Pugh, the brother of Larry Pugh, is employed by the company as a construction supervisor and spends most the day in the field away from the company’s shop and warehouse. Soni Sully is the company’s office manager and bookkeeper. In 1997, Petitioner was hired by Larry Pugh to run errands for him and to maintain the shop. Petitioner had learned of the job opening from Johnny James, an African-American employee of Respondent’s. Prior to being hired, the employee warned Petitioner about Andy Pugh. The employee intended to communicate that Andy Pugh was a hard, irascible person to work for who did not tolerate mistakes, did not cut anyone any slack, and did not speak in socially polite terms. At hearing, Andy Pugh was described as an ex-marine sergeant. The employee did not intend to communicate that Andy Pugh was a racist. However, Petitioner interpreted the employee’s remarks as such. Throughout this process, Petitioner’s allegations regarding Andy Pugh’s racial slurs towards him have grown initially from three incidents of Mr. Pugh calling Petitioner a "nigger" to, by the time of the hearing, daily racial disparagement. Other than Petitioner’s testimony, there was no evidence of such name calling or such racial disparagement being reported by Petitioner. Contrary to Petitioner’s allegations, there was no evidence from either Petitioner or Respondent that Soni Sully ever issued any racial slurs against Petitioner. Given the lack of corroborative evidence regarding racial slurs and their increasing frequency, Petitioner has failed to establish that he was subjected to such racial slurs while he was employed by Respondent. Petitioner also charged that Andy Pugh would deliberately take the company vehicle assigned to him and assign it to someone on one of the construction crews Mr. Pugh supervised. However, the evidence demonstrated that none of the company’s fleet of vehicles were assigned to any one employee. The company’s vehicles were for use as needed by the company and could be assigned by Andy Pugh as he needed. This policy was explained to Petitioner many times. However, he never seemed to understand the explanation or accept it. Indeed, Petitioner continued to complain to Ms. Sully and Andy Pugh about "his" vehicle being taken. Petitioner’s constant complaints on the subject irritated Andy Pugh who did not always respond politely to Petitioner’s complaints. Petitioner received an hourly wage and mileage for the number of miles he drove. Initially, his hourly wage was $7.00. Over time, his hourly wage was increased to $8.50. By his choice, he received mileage even though he usually drove a company vehicle because it benefited him financially to claim mileage. No employee, including Petitioner, received both mileage and a vehicle allowance. At some point, Respondent instituted a company-wide policy limiting the amount of overtime an employee could work. Larry Pugh felt overtime billing was out-of-control and therefore created the policy. All employees, including Petitioner, were affected by the limitation. When Petitioner complained of the reduction the limitation of overtime caused in his pay, Petitioner was treated more beneficially than other employees and was permitted to work five hours of overtime per week. There was no evidence that Petitioner did not receive the mileage or the hourly pay he was entitled to receive. Likewise, there was no evidence that Petitioner was the only employee required to sign in and out. On June 7, 2001, Petitioner again complained to Andy Pugh about "his" vehicle being taken. At some point, words were exchanged between Andy Pugh and Petitioner. Petitioner alleged that Andy Pugh grabbed him by throat, called him a "nigger" and threatened to kill him. However, the details of this exchange are unclear due to the changing story of Petitioner about those details, the irreconcilable testimony and statements of Petitioner and Mr. Pugh, witnesses to the altercation and the surveillance tape of the premises during the altercation. Other than words being exchanged, there was insufficient evidence to show that this altercation was based on Petitioner’s race or occurred in the physical manner alleged by Petitioner. After talking with Sharon Pugh, Petitioner filed a criminal complaint with the Sheriff’s Department. The details of Petitioner's conversation with Ms. Pugh are unclear. After an investigation, including interviewing witnesses and reviewing the surveillance tape, no arrest or criminal charges were filed against Andy Pugh. Petitioner was placed on paid administrative leave until Larry Pugh, who was away, could investigate the incident. Upon his return, Larry Pugh looked into the matter and decided to terminate Petitioner mostly for filing criminal charges against his brother, but also, in part, for other more minor personality conflicts Petitioner had had in dealing with others while on company business. The evidence did not show that Larry Pugh’s reasons for terminating Petitioner were pretextual, retaliatory for Petitioner engaging in a protected activity or based on race. Therefore, the Petition for Relief should be dismissed.
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 dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2003. 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 Frederick J. Gant, Esquire Allbritton & Gant 322 West Cervantes Street Pensacola, Florida 32501 Michael J. Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Alphonso Williams, Jr. 2415 North "E" Street Pensacola, Florida 32501
The Issue The issue in this case is whether Limited Edition Interiors, Inc. (Respondent), committed an act of unlawful employment discrimination and an act of retaliation against an employee, Arlene Matvey (Petitioner), in violation of Pinellas County Code sections 70-53(a) and 70-54(1).
Findings Of Fact At all times material to this case, the Respondent was an interior furnishings retailer located in Largo, Florida, and owned by William S. Miller (Mr. Miller) and Judith L. Miller (Mrs. Miller), a married couple. Mrs. Miller was the president of the company. Mr. Miller was the secretary/treasurer of the company. Both Mr. and Mrs. Miller were generally present at the business. The Respondent was an "employer" pursuant to the definition of the term set forth within the applicable Pinellas County Code provision. On October 31, 2005, the Respondent hired the Petitioner to work as the office manager and bookkeeper in a full-time, salaried position. The Petitioner's duties included tracking various accounts, preparing sales invoices, preparing the payroll, preparing certain tax records, and general office filing. The Petitioner, a single mother, had been unemployed for an extended period prior to being hired by the Respondent. Both Mr. and Mrs. Miller knew that the Petitioner needed the financial support provided by her job. Mr. Miller was the Petitioner's supervisor. Their work areas were in relatively close proximity, with Mr. Miller occupying an office space with a door and the Petitioner occupying a workstation immediately outside Mr. Miller's office. There was a second workstation also located outside Mr. Miller's office, and, on occasion, a third employee was present in the area. A few months after the Petitioner began employment at the Respondent, Mr. Miller began to make remarks about the Petitioner's physical appearance, particularly her "derriere." The remarks were frequent and were heard by other employees. The Petitioner was offended by the remarks and routinely told Mr. Miller to stop. On more than one occasion, Mr. Miller asked the Petitioner to sit on his lap. The Petitioner objected to Mr. Miller's requests and told him so. On at least one occasion, the exchange between Mr. Miller and the Petitioner was overheard by another employee. At various times, Mr. Miller called male employees and the Petitioner into his office to view sexually-suggestive photographs on his computer, some of which were described as pornographic. The Petitioner and other employees objected to the display of photographs and told him that they objected to his showing them the photos. At other times, Mr. Miller called the Petitioner into his office and showed her pornographic images on his computer screen. She felt disturbed by his behavior and told him of her objection. At times during the Petitioner's employment by the Respondent, Mr. Miller made purposeful and inappropriate physical contact with the Petitioner's body. Such contact included attempts to grab the Petitioner by her waist and to rub his clothed genital area against the Petitioner's clothed buttocks. The Petitioner consistently objected to Mr. Miller's behavior and told him of her objections. Other employees observed Mr. Miller's conduct and the Petitioner's objections to his behavior. On one occasion, Mr. Miller called the Petitioner into his office and told her a joke that included his displaying the outline of his penis through his pants, at which time the Petitioner voiced her objection to Mr. Miller. In September 2007, Mr. Miller appeared at the Petitioner's home, and, while there, he exposed his penis to the Petitioner and attempted to entice the Petitioner into sexual activity. He had not been invited to come to her home, and he left the premises when she directed him to do so. At various times during her employment, Mr. Miller asked the Petitioner to expose her breasts to him, and she objected and declined to do so. She eventually complied with the request on one occasion, because she feared losing her job if she refused. Subsequently, Mr. Miller told a male employee that the Petitioner had acceded to his request to see her breasts. The male employee relayed the conversation to the Petitioner, who felt humiliated by the incident. There was no evidence presented at the hearing to suggest that the Petitioner invited or encouraged Mr. Miller's inappropriate behavior. To the contrary, the evidence establishes that the Petitioner routinely told Mr. Miller of her objections to his conduct at the time it occurred. Because the Petitioner had been unemployed prior to being hired by the Respondent and was afraid of losing her job, she did not complain to Mrs. Miller about Mr. Miller's conduct. At the beginning of 2008, the Petitioner advised Mr. Miller that she felt he was "sexually harassing" her. Mr. Miller thereafter began to engage in a pattern of verbal harassment directed towards the Petitioner's job performance. He began to assign tasks to the Petitioner unrelated to her prior bookkeeping or office manager duties. She was assigned to monitor the store inventory, prepare sales tags and attach them to floor samples, dust the store, and clean the kitchen. Mr. Miller routinely criticized the Petitioner's work skills, argued with her about the performance of her duties, and called her "stupid." Prior to January 2008, neither Mr. nor Mrs. Miller had expressed any significant dissatisfaction with the quality of the Petitioner's work as office manager or bookkeeper. There was no credible evidence presented at the hearing that the Petitioner was unable or unwilling to perform the office manager and bookkeeper tasks for which she was hired. Indicative of Mr. Miller's general attitude towards the Petitioner, he used a parrot that was kept at the store to intimidate the Petitioner, who was afraid (perhaps irrationally) of the bird. Mr. Miller clearly knew that the Petitioner was fearful of the bird, yet he would stand behind the Petitioner while she was working and hold the bird near the Petitioner's head, terrifying her. In early 2009, Mr. Miller again called the Petitioner into his office and showed her pornographic images on his computer screen. She again advised him of her objection to his conduct. Prior to 2009, the Petitioner had not talked with Mrs. Miller about her husband's conduct, because the Petitioner remained concerned about losing the job. However, in February 2009, while the two women were both in the store's lunchroom area, the Petitioner advised Mrs. Miller of Mr. Miller's conduct and asked Mrs. Miller to intervene. Mr. Miller had been out of the store for much of February 2009. He returned to work on February 23, 2009, and the Petitioner testified that he left her alone for a few days after his return. However, on March 2, 2009, the Respondent terminated the Petitioner's employment as a salaried, full-time employee, transferred her into an hourly wage position, and reduced her employment hours. She was partially relieved of her bookkeeping responsibilities and was assigned additional store tasks such as moving old boxes and cataloging their contents. The Respondent asserted that the March 2, 2009, action was the result of deteriorating business conditions. The Respondent asserted that the store revenues had declined and that they were required to reduce payroll costs by reducing personnel. The Respondent failed to provide any credible evidence supporting the assertion that deteriorating sales and income were the rationale behind the alteration of the Petitioner's work responsibilities. After March 2, 2009, Mr. Miller routinely continued to criticize the Petitioner's work performance. On July 23, 2009, Mr. Miller and the Petitioner became engaged in a heated discussion in the office area, during which he referred to her as a "fucking c-nt." Although Mr. Miller testified that he did not intend for the Petitioner to hear his insult, he said it loudly enough to be overheard by another employee who was also in the office area. Mr. Miller had previously used the same phrase to refer to other women, including Mrs. Miller. The Petitioner immediately reacted, screaming at Mr. Miller that he could not use the phrase and stating that she would be filing "a complaint" against him. The Petitioner left the office area and went into the store area, loudly protesting Mr. Miller's insult and intending to advise Mrs. Miller of the incident. Because there were customers in the store at the time, Mrs. Miller focused more on calming the Petitioner and not disrupting the store. After speaking briefly with Mrs. Miller, the Petitioner returned to the office area to collect her possessions. Mr. Miller approached the Petitioner and placed his hands in the area of her neck, which caused the Petitioner to feel physically threatened. The Petitioner took her possessions and left the store. The Petitioner next returned to work on July 27, 2009, at which time she was told that she was no longer the office manager and bookkeeper. At the hearing, Mr. Miller testified that the Petitioner was removed from the office because the situation had become volatile. Mrs. Miller testified that, because the Petitioner was argumentative, a decision had been made to remove her from the office. On July 27, 2009, when the Petitioner asked Mrs. Miller why she was no longer the office manager, Mrs. Miller said the Petitioner's job had been changed "because of Bill," meaning Mr. Miller. As of July 27, 2009, the Petitioner had no further office management responsibilities and retained only janitorial and store tasks. The Petitioner was also directed to call the store before coming in to see if she was needed on that day. On some days, the Petitioner was told there was no work for her. On August 14, 2009, the Respondent terminated the Petitioner's employment. There was no credible evidence presented at the hearing that the termination of the Petitioner's employment was related to dissatisfaction with her performance as the Respondent's office manager and bookkeeper, or to the performance of the other tasks that were subsequently assigned. The Respondent asserted that economic conditions caused them to terminate some employees, including the Petitioner, but there was no credible evidence presented to support the assertion. The evidence presented during the hearing established that employees who were terminated were fired for non-performance of their job duties. There was no credible evidence presented at the hearing that the Petitioner's termination or the reduction in her work hours was related to the Respondent's economic condition. At the hearing, employees (both current and former) described Mr. Miller's treatment of women as degrading and humiliating. Employees who worked for the Respondent concurrently with the Petitioner were aware that she was being humiliated by Mr. Miller's behavior. In addition to the Petitioner, Mr. Miller previously assigned janitorial duties to an employee whom he disfavored when he wanted the employee to quit. After the Petitioner's employment was terminated by the Respondent, the Petitioner attempted to obtain another job. During the period of unemployment, the Petitioner received $300.00 per week in unemployment compensation benefits. As of November 9, 2006, the Petitioner earned a bi- weekly salary of $1,600.00 from the Respondent. As of February 1, 2006, the Respondent provided health insurance coverage for the Petitioner as a benefit of her employment and continued such coverage after her termination and through December 31, 2009. As of April 29, 2010, the Petitioner became employed by Gentry Printing Company as a full-time bookkeeper earning $15.00 per hour and working a 40-hour week. On July 17, 2010, the Petitioner received a raise from Gentry Printing Company to $16.00 per hour for the 40-hour week. Gentry Printing Company withholds $22.50 from the Petitioner's weekly income as her contribution to the medical insurance program. At the hearing, the Petitioner presented testimony related to damages. The evidence established that the Petitioner was entitled to an award of $32,745.00 in back pay. The Respondent presented no corresponding evidence or testimony related to damages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the Respondent violated Pinellas County Code sections 70-53 and 70-54 and ordering the Respondent to pay the sum of $32,745.00 plus interest at the prevailing statutory rate to the Petitioner. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2011. COPIES FURNISHED: William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Robert G. Walker, Jr., Esquire Robert G. Walker, P.A. 1421 Court Street, Suite F Clearwater, Florida 33756 Sherri K. Adelkoff, Esquire 1159 South Negley Avenue Pittsburgh, Pennsylvania 15217 Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Peter J. Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756
The Issue Did Respondent, Winn-Dixie Corporation (Winn-Dixie), discriminate against Petitioners on account of their race or sex, or retaliate against Petitioners in violation of chapter 760, Florida Statutes?
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Petitioners, Reginald Burden (Burden) and Donald Rockhold (Rockhold) were co-workers and Warehouse Supervisors for the night shift at Winn-Dixie's General Merchandise Distribution (GMD) facility on Edgewood Avenue in Jacksonville, Florida. At the time of their termination from Winn-Dixie, Rockhold had worked for Winn-Dixie for almost ten years and Burden for fourteen years. In March 2009, Rockhold's supervisor, Mark Murray (Murray) received an anonymous letter accusing Rockhold (a/k/a Rocco) of being unable to control his libido and attempting to "sleep with as many women under him as possible, married or single." Murray showed the letter to his immediate supervisor, Operations Manager Jayson Kielar (Kielar), who in turn showed it to his supervisor, Distribution Center Manager Robert Stewart (Stewart). Contrary to Winn-Dixie policy, the existence of the letter accusing an employee of sexual harassment was not immediately brought to the attention of the Winn-Dixie Human Resources (HR) office. According to Kielar, Stewart did not inform HR because he was afraid someone would be fired. Instead, it was decided the matter would be handled internally at the GMD. Stewart and Kielar informally questioned Rockhold, who denied all of the allegations in the letter. Kielar questioned Stewart's decision not to involve HR, but because Stewart was his boss, he capitulated. In December 2009, Winn-Dixie received a second, similar anonymous letter complaining about rampant sexual harassment in the GMD. This time, however, Peter Lynch, Winn-Dixie's CEO also received a copy. Entitled "Gross Abuse of Power Winn-Dixie Sex Camp," the letter contained lurid accusations of sexual misconduct and named Rockhold as the worst abuser. The letter also accused several other male supervisors, namely Burden (a/k/a Regis or Reggie), Kielar, Murray and Raynell Turner, of sexually harassing female employees. Winn-Dixie immediately launched an investigation to determine whether the allegations were accurate. Robert Scott (an African-American male), Tanya Kornegay (an African-American female), and Stacy Brink (a white female) interviewed numerous GMD employees and obtained written witness statements. Rockhold was interviewed twice (January 18 and 25, 2010) and Burden once (January 18, 2010). During the course of the investigation, it became evident that many of the more sordid accusations of overt sexual misconduct in the letters were false or unsubstantiated. However, the investigation did reveal violations by Petitioners of Winn-Dixie's "Written Company Policy Statement on Harassment, Including Sexual and Racial Harassment." That Statement provides in relevant part: The company will not tolerate any harassment that degrades or shows hostility towards an individual because of race, color religion, sex, national origin, age or disability, including, but not limited to slurs, jokes, verbal abuse, stereotyping, threats, intimidation, hostile acts, or denigrating or hostile written or graphic material circulated or posted in the Company premises. Anyone who violates these guidelines will be subject to termination. * * * 3. Management at all levels is responsible for reporting and taking corrective action to prevent harassment in the work place. * * * The following conduct, especially by managers, can be as serious (or even more serious) than harassment itself: Ignoring or concealing harassment, or treating it as a joke. Failing to report known harassment. Retaliating against associates reporting or complaining of harassment. Being dishonest or refusing to cooperate with a harassment investigation. With respect to Rockhold, the investigation revealed that Rockhold had heard racial slurs and racially inappropriate remarks among employees but failed to take any disciplinary action or report the harassment to HR. One employee complained that Rockhold observed African-American and white employees using the words "nigger" and "cracker" in the workplace. In addition, another employee complained that Rockhold ignored a co-worker saying, "If you come back in Middleburg, we'll show you how we used to do them black boys back in the days." At hearing, Rockhold acknowledged that he heard GMD employees calling each other "nigger" or "cracker." He stated that he "called them out on it." He explained his failure to take any formal disciplinary action by stating, "It wasn't malicious. It was the n-word between black guys being thrown back and forth as a nickname." According to Rockhold, he didn't think it was inflammatory in that context and was merely their vernacular. The investigation also revealed allegations from several employees that Burden made inappropriate sexual comments toward female employees. These included witness statements from John Mason, Tammy Underwood, Amber Brown and Frank Butler. Burden was reported as saying one female employee had "big titties," and telling another female employee that she looked good in her jeans, that Burden could "handle" her, and when was she going to let him be the one for her, and that she didn't need to mess with the young guys because he (Burden) could please her better in the bedroom. One GMD employee testified at hearing that he was present when Burden told a group of employees that he thought a particular female employee had "nice tits." Petitioners knew Winn-Dixie did not tolerate sexual or racial harassment in the workplace, and they were tasked with making sure the environment was not one where employees felt it would be tolerated. Both Petitioners received sexual and racial harassment training as part of their leadership training. Winn-Dixie's employment policies emphasize the importance of supervisors' roles as leaders and the importance of not giving the impression to employees that it is acceptable to make inappropriate jokes in the workplace. Moreover, a supervisor has a duty to act when observing harassing behavior in the workplace. The failure to act communicates to subordinates the company condones or tolerates the behavior. As a result of the investigation, Winn-Dixie decided to terminate Petitioners' employment. Several members of Winn- Dixie's management (male, female, white and African-American) were involved in making this decision. One of those involved in making the decision testified that the group never discussed or considered Petitioners' gender in their decision to terminate Petitioners' employment. The termination notices given to Petitioners are identical, and read as follows: "As the result of an anonymous letter received in early January 2010, addressed to Peter Lynch, a thorough investigation was conducted relative to alleged allegations of inappropriate comments by Associates regarding sexual and racial comments in the presence of management in the Jax-GMD Warehouse. The investigation clearly identifies you as a willing participant or lack of effective execution of the proper protocol established through management training (Duty to Act) to address inappropriate comments from Associates as required by Winn-Dixie's Policy in your Supervisor position." At hearing, Rockhold described his job as "being his life, other than his children." He also testified that being falsely accused of sexual misconduct or ignoring employees who engaged in sexual or racial misconduct, then being fired, ruined his life. He "poured his heart and soul into the company" and testified that no one had ever come to him, as a supervisor, with any kind of a problem with regard to sexual or racial misconduct. Burden testified that he believed that Robert Scott (African-American male) was the one that made the decision to terminate him, not Jayson Kielar (white male) since Kielar had written a letter of recommendation for Burden after he was terminated. Burden testified that he believed he was terminated because he was a man accused of sexual harassment and that somebody had to take the responsibility for the false allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petitions for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 17th day of June, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2013.
The Issue The issue in this case is whether Petitioner has been the subject of an unlawful employment practice based on gender or handicap.
Findings Of Fact Petitioner is a licensed Registered Nurse. He was hired by Respondent on April 4, 1997, in its medical facility at Gulf Coast Correctional facility. In 2000, Petitioner's supervisor was Pamela Spears, R.N. At some point, Nurse Spears became friends with Chris Miles, a Licensed Practical Nurse, who worked on Petitioner's shift. Nurse Spears would sometimes talk with this L.P.N. in her office. Somehow, Petitioner felt his authority as the shift nurse was undermined by this relationship. It was not clear from the record what the basis of Petitioner's belief was, but his belief seemed to be related to the fact that Petitioner had to wait to speak with Nurse Spears. On May 5, 2000, Petitioner complained to Nurse Miles that he felt she was being treated with favoritism by Nurse Spears. Apparently, the discussion caused an uproar at the shift change and there was some agreement to swap shifts among the nurses to allow things to cool off. Around May 10, 2000, Nurse Odom filed sexual harassment charges against Petitioner for alleged comments and jokes of a sexual nature ("spanking the monkey", "choking the chicken", cross-dressing inuendos, use of handcuffs during sex, going to naked bars). In addition Nurse Miles filed a hostile work environment complaint against Petitioner because he allegedly threatened to spread rumors about her. Nurse Miles’ complaint did not involve sexual harassment. Nurse Nowak filed a sexual harassment complaint against Petitioner, but withdrew her complaint, indicating that she did not have a complaint with Petitioner and that she felt pressure to file her complaint. Nurse Spears did not file any complaint against Petitioner. Petitioner testified these nurses had been pressured into filing their complaints. However, he had no independent personal knowledge of such pressure and other than hearsay, offered no evidence of such pressure. Respondent, also did not offer any evidence demonstrating that such behavior was sexually harassing, as opposed to simply vengeful and petty behavior by a supervisor. On August 15, 2001, Dr. Gilo in front of co-workers and staff, called Petitioner, who is obese, a “fat lazy bum.” Petitioner filed a hostile work environment complaint against Dr. Gilo and an incident report was filed. The evidence demonstrated that Dr. Gilo was known for demeaning or belittling everyone and having a harsh manner. The comment was not related to any of the earlier complaints of the nurses, but to Dr. Gilo's irritation towards Petitioner for calling him at home. There was no evidence that demonstrated this comment constituted discrimination or harassment based on Petitioner's obesity. Likewise, there was no evidence that Petitioner's obesity was a handicap or viewed as a handicap by his employer. Respondent pursuant to its policy on sexual harassment complaints investigated the complaints. Several witness/co- worker statements were taken during the investigation that indicated Mr. Clardy, along with other employees, had made some statements or jokes of a sexual nature. The investigation took a considerable period of time. Again the record was not clear as to what caused the length of the investigation or whether the length of the investigation was unusual. However, on February 8, 2002, as a result of the investigation, Petitioner received a written reprimand for unspecified sexual jokes or comments. Petitioner filed a grievance regarding the reprimand. The grievance was denied in both Step 1 and Step 2 of the grievance process. There was no evidence that demonstrated either the undertaking of this investigation or the investigation itself constituted sexual harassment. However, on June 10, 2002, Petitioner filed a sexual harassment complaint against Respondent, the complaining nurses and Dr. Gilo for gender and disability discrimination. As with the nurses' complaints, the Respondent, pursuant to its policy, investigated Petitioner's complaints.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Respondent enter a final order affirming its decision that Petitioner is not eligible for services. DONE AND ENTERED this 7th day of March, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ronald J. Clardy 115 Sioux Trail Crawfordville, Florida 32327 Joshua E. Laws, Esquire Florida Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399
The Issue The ultimate issue is whether the Respondent, Tallahassee Coca-Cola Bottling Company (Coke), engaged in an unlawful employment practice on the basis of race in its termination of James Andrews, the Petitioner. Andrews was purportedly terminated because of allegations that he had repeatedly sexually harassed and touched female employees. Resolution of the ultimate issue does not require a determination of whether such sexual harassment actually occurred. Instead, the issue is whether Coke's motivation for the termination was racially based and thus impermissible.
Findings Of Fact Andrews, who is black, was initially hired by Coke in 1969 and worked on the production line until he quit in 1971. Andrews was rehired by Coke in 1973, also in the production department. He worked in various positions in both the production department and in the inventory warehouse, and was promoted to assistant production superintendent in 1977. When the production department was closed in June 1982, Andrews transferred to the warehouse as assistant warehouse supervisor. In 1983, he assumed the responsibilities of head shipping and receiving clerk, and was placed in charge of inventory control, plant security and vehicle maintenance. Warehouse Supervisor Dale Dunlap resigned in July 1988 and Andrews was promoted to Warehouse Supervisor. As warehouse supervisor, Andrews had primary responsibility for the overall management of the warehouse, including inventory control, shipping and receiving, personnel management, and warehouse and vehicle maintenance. Andrews' performance evaluations were generally excellent, but the most recent evaluations were less favorable than his earlier reviews. Reports of Sexual Harassment Prior to Andrews' termination reports of sexual harassment were made to Coke by three employees: Susan Lingerfelt, Mandy Stinson, and Sue Rosenthal (now Rubin). In summer 1989, Lingerfelt reported to Office Supervisor Mandy Stinson that Andrews had just grabbed her in the warehouse by the Coke machine and had forced her head back and kissed her. She had shoved Andrews into the Coke machine, told him not to do that, and went to report it to her supervisor. Because the Sales Center Manager had resigned and his replacement had not yet been appointed, the two women agreed not to tell anyone about the incident, but instead to wait until the new manager arrived. In February 1990, around Valentine's Day, Lingerfelt reported that Andrews came up behind her when she was sitting alone at a computer terminal, grabbed her hair, pulled her head back, and again kissed her on the lips. Lingerfelt again protested and tried to get away from Andrews. Lingerfelt again reported the incident immediately to Stinson. Stinson and Lingerfelt went immediately to Lee Burk, the new Sales Center Manager, and reported the incident and the earlier incident at the Coke machine. During this same meeting with Lee Burk, Stinson also complained that she had been repeatedly harassed by Andrews and that Andrews had come up behind her, given her a "bear hug," and tried to kiss her. Burk was confused about what had happened to Lingerfelt because a black employee, Roosevelt Humphrey, had reported to him a couple of months before that he had seen two employees consensually embracing at the Coke machine. Humphrey had not identified the two employees except to say one was a supervisor. Burk mistakenly believed that the two separate Coke machine incidents were the same event. Based on this mistaken belief, Burk thought that a supervisors' meeting would be enough to solve the problem. A few days later, Burk called a supervisors' meeting and discussed several topics, including sexual harassment. He redistributed and discussed Coke's written policy forbidding sexual harassment. Burk told all the supervisors in no uncertain terms that he would not tolerate unwelcome sexual advances at the plant and that if anything of that sort had happened, the supervisor had better clean up his act. In August 1990, Andrews again was reported by Lingerfelt for grabbing her hair, pulling her head back and kissing her on the lips. Lingerfelt tried to slap Andrews, but missed, hitting him on the shoulder. Lingerfelt went immediately to Stinson and they went to see Burk. Lingerfelt was quite upset and was crying. When Burk heard the report, he said he would take care of it. Lingerfelt left the plant for about an hour to collect herself. While Lingerfelt was gone, Burk called Andrews to his office and confronted him with the two women's allegations, including the previous reports by both women. Andrews categorically denied the allegations, except that he had once put his arms around Lingerfelt. He denied ever kissing her and said he did not mean anything by his actions. Burk stressed to Andrews that he could not touch any female employee again, even if he didn't think anything was wrong with it--that he must stop it. Andrews claimed that Lingerfelt had invited the contact by bumping against him and that she was making the allegations because he was black. Andrews also claimed that Lingerfelt had allowed sexually explicit advances from a white supervisor, Doc Roddenberry, and that Roddenberry, not Andrews, should be the subject of Burk's admonitions. Burk told Andrews that he had only gotten complaints about him (Andrews) and that if he continued with his unwelcome conduct, he could lose his job. No advances were reported by Lingerfelt for a few months, but she did complain that Andrews was uncooperative with her about work. In January 1991, Lingerfelt noted that Andrews was calling her frequently and spending long periods of time in her office. Because this behavior was similar to Andrews' conduct before the previous incidents, Lingerfelt became concerned. On January 16, 1991, Stinson was in Jacksonville at Coke's regional office. Lingerfelt became so concerned that she called Stinson in Jacksonville and reported that Andrews had spent several hours that day in Lingerfelt's office staring at her. Stinson immediately asked the Regional Human Resources Manager, Thomas Bauman, for assistance. Stinson informed Bauman of all the prior alleged sexual harassment by Andrews. The next day Stinson returned to Tallahassee and she and Lingerfelt spoke with Burk. Lingerfelt, who was visibly scared and crying, explained to Burk that Andrews had been standing around her office staring at her. Burk said he would address the problem immediately. After talking with Bauman and obtaining his approval, Burk called Andrews into his office and confronted him again. Andrews denied that he had been hanging around Lingerfelt's office staring at her. Burk then brought Stinson into his office to confront Andrews about his persistent harassment against her. Andrews denied the allegations and accused Stinson of "coming on" to him. Andrews again asserted that the women's allegations were racially motivated. He also brought up his allegations against Roddenberry and Lingerfelt and demanded to know why Roddenberry could "get away with it" and he couldn't. Burk advised Andrews that it was only his own misconduct which was being addressed at the moment. Burk also informed Andrews that the allegations of Andrews' misconduct would be brought to the attention of Bauman for further action. Shortly thereafter, Coke's Special Events Supervisor, Sue Rosenthal (now Rubin), reported several events of sexual harassment by Andrews. She had come forward to help support Lingerfelt. Coke's Investigation After discussing the situation and receiving instructions from Buddy Donaldson, Coke's Florida Human Resources Director, Bauman travelled to Tallahassee to conduct an investigation on January 24 and 25, 1991, into the allegations against Andrews. Bauman first met with Burk and received a briefing on the series of allegations. Burk reported the incident which Roosevelt Humphrey had reported to him, still thinking that incident involved Andrews. Bauman interviewed Lingerfelt, who related in great detail each of the alleged incidents set forth above. Bauman took notes and Lingerfelt signed those notes as being an accurate account of her statement. Bauman asked Lingerfelt whether she had any racial motivation for her reports. Lingerfelt denied that Andrews' race had anything to do with her allegations. At this meeting, Lingerfelt told Bauman that she had hired an attorney and had filed sexual harassment charges against Coke with the Florida Commission on Human Relations. Bauman next interviewed Roosevelt Humphrey. Humphrey told Bauman that the two people he had reported were Lingerfelt and Roddenberry, not Lingerfelt and Andrews. Humphrey also acknowledged that he had not seen any other such incidents involving Lingerfelt and Roddenberry since the one incident he had reported to Burk without giving names. Bauman then went to Lingerfelt and asked if Roddenberry had sexually harassed her. Lingerfelt denied that Roddenberry had ever harassed her. Bauman next interviewed Rosenthal. Rosenthal told Bauman that before she became a supervisor in early 1989, Andrews had engaged in unwelcome sexual conduct toward her on three occasions. The first two times, Andrews came up behind her in her office, lifted the hair on the back of her neck, and kissed her on the neck. The third time, Andrews surprised her by kissing her on the lips after she had finished a telephone call and had turned around. Rosenthal said she was too startled to say anything after the first incident, but after the second and third events, she told Andrews not to do that. She said she did not report these incidents at the time because she was new, young and nervous. Rosenthal also reported that she had recently seen Andrews "stalking" Lingerfelt, staring at her for long periods of time and waiting for Rosenthal to leave so that he could be alone with Lingerfelt. Bauman asked Rosenthal whether her allegations could be racially motivated. Rosenthal said race had nothing to do with it and, in fact, she lived with a black roommate. Rosenthal had selected that woman from a pool of applicants who had responded to her newspaper ad seeking a roommate. Bauman next interviewed Stinson. Stinson told Bauman of the harassment she had suffered from Andrews, which included several attempts by Andrews to hug and kiss her. She also related information about the times Lingerfelt would come to her and they would go to Burk about Andrews' actions toward Lingerfelt. On January 25, 1991, Bauman officially interviewed Burk. Burk related the actions he had taken, including the supervisors' meeting in February 1990 and the personal meetings with Andrews in August 1990 and January 1991. Burk also recommended that Andrews be terminated for sexual harassment and stalking. Suspension and Termination Bauman then called Donaldson and discussed the information he had learned. They decided that Andrews should be suspended immediately, pending a final decision. They also decided not to interview Andrews again because he had denied any wrongdoing twice, most recently a week earlier. They had no reason to believe that Andrews would recede from his denials. Before suspending Andrews, Bauman asked Lingerfelt and Stinson to leave the building. He did so because of his concern and the women's concerns about their personal safety, especially when Andrews was told of the suspension. As soon as the two women had left the building, Bauman called Andrews to Burk's office. They told Andrews that he was being suspended for conduct unbecoming a supervisor. Andrews wanted to know "who said what" about him, but Bauman declined to give him further details. As he was leaving Burk's office, not knowing that Lingerfelt and Stinson had left the building, Andrews shouted to the closed door of Stinson's office something to the effect of "Did you women hear that--are you happy now?" As soon as Andrews was escorted from the premises, Coke changed all the locks at the Tallahassee facility, which was standard procedure. Bauman also had an automatic front door lock installed so that no one could enter the front office without being pre-screened. The following week, Bauman and Donaldson reviewed all the information, including the interview notes which had been attested to by the three women. They concluded that sufficient evidence existed to require termination of Andrews' employment. On January 31, 1991, Donaldson came to Tallahassee, summoned Andrews to the facility, and terminated him for misconduct. The decision to terminate Andrews was based on a good faith belief that he had engaged in inappropriate sexual conduct on multiple occasions, despite and in the face of at least two warnings by the sales center manager. Coke did not immediately replace Andrews. Due to a "cost containment" program that had recently been instituted and because Tallahassee's volume was too low, Burk was not permitted to hire a replacement. In February 1992, more than a year later and after two neighboring sales centers were closed and their operations consolidated at the Tallahassee facility, Burk was allowed to hire a replacement. He hired the warehouse manager from one of the closed sales centers, a white male. Other Victims Come Forward While Coke knew of only three female employees who had been harassed by Andrews when Coke terminated him, three additional women also came forward to testify about sexual harassment they had suffered at the hand of Andrews. Johnnie Mae Marshall, a black woman who had worked for Coke as a receptionist, said Andrews had suggestively rubbed her arms and hands when she handed him documents. To stop it, she ceased to hand him papers, instead placing all such documents in a mail tray for him. Christen Cheshire, a white female telephone sales operator, testified that Andrews harassed her beginning in late 1988. She said Andrews came into her office once or twice a day, hugged her around the neck, and kissed or attempted to kiss her. This went on for about two months before Cheshire was able to persuade Andrews to stop the unwelcome advances. While Cheshire never reported Andrews' advances, Marshall remembers Cheshire complaining to her about it. Jeanie Benton, a white female who worked for Coke from 1987 to 1990, also testified about Andrews' unwelcome advances. One time when she rose from her desk and turned around, Andrews was right behind her and tried to kiss her. She told him to get back and leave her alone. On a later occasion, Andrews tried to massage her shoulders and she told him to stop. Thereafter, Andrews would stand in her office door and stare at her. Andrews' Claims of Discrimination Andrews' claims that the termination was motivated by racial discrimination and that Coke's reasons for terminating him were pretexts for discrimination. As evidence, he offered a story that Roddenberry committed egregious acts of sexual harassment and misconduct, but was not disciplined. Additionally, he alleged that a "white clique" wanted to get rid of him because they did not like that a black man was made warehouse supervisor. Not one shred of credible evidence was given to support Andrews' claims. Besides Andrews' own testimony, the only witness who claimed to have seen any sexually inappropriate conduct between Roddenberry and anyone, including Lingerfelt, was Roosevelt Humphrey. Humphrey was not a credible witness. First, he was terminated by Coke for stealing a check from a coworker and cashing it. Next, he said he saw Roddenberry and Lingerfelt three times a week with Roddenberry kissing Lingerfelt, rubbing her buttocks and her breasts. However, he was not even working at the warehouse during most of the time he said he saw this and his testimony was filled with contradictions and discrepancies. Finally, he named others who saw and discussed this behavior; but each of those named persons denied ever seeing any sexually inappropriate behavior between Roddenberry and Lingerfelt or other female employees. Andrews' suggestion that his termination was racially motivated by false reports from a group of white employees, including Lingerfelt, Stinson, Rosenthal, and Roddenberry, is also unworthy of belief. Andrews' purported to support his conspiracy theory with anecdotes about other white employees, Jeanie Benton and William Beck, who tried to help him in the face of the covert actions of the alleged conspirators. However, Benton and Beck both denied that the events Andrews described in his anecdotes ever occurred. Additionally, Andrews' version of all these incidents was simply implausible and inconsistent with the credible and substantial evidence. Finally, Andrews presented no credible evidence to rebut Coke's evidence of its legitimate reason for the termination. Andrews simply offered no competent or probative evidence of a racial motivation for his termination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying and dismissing the Petition for Relief filed by James Andrews, Jr. DONE and ENTERED this 23rd day of September, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2063 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Andrews, Jr. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 9-12(8-11); 17-19(13- 15); 23-25(20-22); 34(29); 36(31); 37(32); 40(35); 41(36 & 37); 42(38); 45(42); 46(43); 50 & 51(46); and 53(47). 2. Proposed findings of fact 4-8, 13-16, 20-22, 26-33, 35, 38, 39, 43, 44, 47-49, and 54 are subordinate to the facts actually found in this Recommended Order. 3. Proposed finding of fact 52 and 55 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Tallahassee Coca-Cola Bottling Co. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 53(35). 2. Proposed findings of fact 4, 5, 12-17, 19, 20, 22-27, 29-36, 40, 43, 44, 47-52, 55, 56, 79, 80, 87-90, 127, and 137 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 6-9, 11, 18, 85, 91, 102, 107-113, 117, 118, 121, 128-130, 134, and 136 are unsupported by the credible, competent and substantial evidence. 4. Proposed findings of fact 10, 21, 28, 37-39, 41, 42, 45, 46, 54, 57-78, 81-84, 86, 92-101, 103-106, 114-116, 119, 120, 122-126, 131-133, 135, and 138-152 are irrelevant, repetitive, unnecessary, and contain summaries of testimony and argument which are not appropriate proposed findings of fact. COPIES FURNISHED: Marie A. Mattox Attorney at Law 3045 Tower Court Tallahassee, Florida 32303 William R. Radford Attorney at Law 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Petitioner was sexually harassed and constructively discharged contrary to section 760.10, Florida Statutes (2013), and if so, what remedy should be ordered.
Findings Of Fact Evidence Adduced at the Final Hearing HPC was a rehabilitation and long-term care facility with 180 beds.1/ Petitioner is a female who was employed at HCP as a certified nursing assistant (“CNA”). Petitioner was working at HCP during the evening of Friday, March 21, 2014. She had finished assisting with the transfer of residents from the dining area and was standing at a nurses’ station. Three other HCP employees (Derrick Hahn, Atrice Jones, and Erica Russell) were engaged in a conversation about seven feet from Petitioner. Mr. Hahn was a nurse supervisor. While he was in a position in which he could have supervised Petitioner, there was no testimony that he ever did so. Petitioner was standing with her back against a computer, and she was not participating in the conversation. Mr. Hahn turned to leave Ms. Jones and Ms. Russell. As he was doing so, he collided with Petitioner, and his chest made contact with her chest. At the final hearing, Mr. Hahn and Ms. Jones testified that the collision resulted from Mr. Hahn tripping over a wheelchair and losing his balance. Petitioner testified that there was no wheelchair, thus implying that Mr. Hahn intentionally collided with her. An unidentified person who witnessed the collision immediately asked aloud if Mr. Hahn was trying to run over the CNAs. Mr. Hahn replied by stating that the collision was a “love bug” or a “love bump” and walked away. Petitioner was disturbed by this incident went outside to compose herself. At some point, Petitioner continued with her duties. However, after 15 to 20 minutes, she decided to report the incident to her direct supervisor, Carrie Harper. Ms. Harper immediately called HCP’s facility supervisor, Tonya McAteer. After Petitioner described the incident to her, Ms. McAteer called the Director of Nursing, Holly Henry. Mr. Hahn did not return to work until Monday, March 24, 2014. When he did so, Ms. Henry and Joseph Ballay (the lead administrator of HCP) met with him to discuss the incident. Mr. Hahn told them that he had tripped over a wheelchair and that the collision with Petitioner was accidental. Mr. Ballay and Ms. Henry also met with Petitioner on March 24, 2014. Petitioner reported to them that Mr. Hahn intentionally collided with her. Mr. Ballay told Petitioner that an investigation would be initiated and that Petitioner would not be required to have any additional contact with Mr. Hahn. In order to maintain separation between Mr. Hahn and Petitioner, Ms. McAteer assumed full responsibility for supervising Petitioner. During their investigation, Mr. Ballay and Ms. Henry talked to Atrice Jones, one of the nurses who were present when the incident occurred. Ms. Jones stated that the incident was accidental and that Mr. Hahn was embarrassed that he had collided with Petitioner. Mr. Ballay and Ms. Henry also conferred with other HCP employees but found no evidence that this incident was part of a continuing pattern of inappropriate conduct by Mr. Hahn. Mr. Ballay and Ms. Henry completed their investigation by Friday, March 28, 2014, and concluded that Mr. Hahn unintentionally collided with Petitioner. At the conclusion of their investigation, Mr. Ballay and Ms. Henry admonished Mr. Hahn for describing the incident as a “love bug” or “love bump” after a bystander asked him if he was trying to run over the CNAs. Mr. Ballay and Ms. Henry also advised Mr. Hahn that an apology to Petitioner immediately after the incident would have been appropriate. Mr. Ballay and Ms. Henry spoke to Petitioner about the outcome of their investigation, but Petitioner did not agree with their conclusion. Over the next three months, there were no further incidents between Petitioner and Mr. Hahn. During her testimony, Petitioner cited no other instances of alleged misconduct by co-workers or supervisors. Petitioner’s employment with HCP ended in late July or early August of 2014. Petitioner testified that she voluntarily separated from HCP after concluding she could no longer work for an organization that did not care about her feelings. In contrast, Mr. Ballay testified that Petitioner was dismissed after she failed to report to work on July 30 and July 31, 2014. During the final hearing, the testimony differed as to what HCP’s management did immediately after the incident. Petitioner testified that three weeks passed before HCP’s management initiated its investigation. In contrast, Mr. Ballay testified that he and Ms. Henry completed their investigation within one week following the incident. As a matter of ultimate fact, the undersigned finds that the greater weight of the evidence demonstrates that Mr. Ballay and Ms. Henry completed their investigation by Friday, March 28, 2014. As noted above, the testimony also differed as to whether Mr. Hahn tripped over a wheelchair prior to colliding with Petitioner. In light of what Mr. Hahn said immediately after he collided with Petitioner and his failure to apologize, it is not surprising that Petitioner concluded that Mr. Hahn intentionally collided with her. However, even if Petitioner’s recollection were to be found more credible than that of the other witnesses, Petitioner’s allegations do not demonstrate that she was subjected to a hostile work environment or that she was constructively discharged.
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 dismissing Petitioner’s claim for relief. DONE AND ENTERED this 24th day of February, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 24th day of February, 2016.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 16, 2001.
Findings Of Fact Petitioner was employed by Respondent, Toucan's Restaurant, as a cocktail waitress. The record is unclear as to when she began her employment there. Her last day on the job was March 18, 2000. The record is not entirely clear as to the exact legal entity that owned Toucan's Restaurant (the restaurant). However, Mary Ann Pistilli was an apparent officer of the corporation which owned the restaurant and acted in the capacity of manager. There is no evidence in the record showing that Mary Ann Pistilli's husband, Craig Pistilli, was an owner or manager of the restaurant. However, he was sometimes at the restaurant. The extent or frequency of his presence at the restaurant is also unclear. According to Rene Brewer, a bartender at the restaurant, Mr. Pistilli "wasn't there a lot." While present at the restaurant, Mr. Pistilli would sometimes give direction to employees on certain issues. For example, he directed Ms. Brewer as to the amount of liquor she put in a customer's drink. It was Ms. Brewer's understanding that Mrs. Pistilli knew that Mr. Pistilli would sometimes direct employees regarding such employment tasks. However, Mrs. Pistilli did not testify as to her knowledge of Mr. Pistilli's actions of giving any direction to employees, and, therefore, the extent of her actual knowledge of Mr. Pistilli's actions regarding directing employees on employment matters was not established. On Friday nights, Karaoke entertainment was offered at the restaurant. During a certain song, Petitioner would perform a dance. Petitioner was not asked to perform this dance by her employer and did so voluntarily. Mrs. Pistilli was opposed to Petitioner dancing in this manner. Petitioner would stand on a chair near the Karaoke machine with her back to the patrons, let down her hair, and unbutton her shirt giving the appearance she was undressing. However, she wore a t-shirt under the shirt she unbuttoned. When she turned to face the patrons, it became clear that she wore the t-shirt underneath the shirt she unbuttoned. Then she would dance around the restaurant and its bar area and patrons would give her money for dancing. The money was given to her by both male and female patrons in various ways. For example, when a male patron would put money in the side of his mouth, she would take it with her teeth. Petitioner's dancing was not sexual in nature but was more in the nature of a fun part of the Karaoke. On March 18, 2000, Petitioner was in the bar area of the restaurant. Petitioner's description of what happened is as follows: I was at work, and Craig had come in with one of his friends. It was his friend's birthday. And the bar wasn't very busy at all. I had two customers that just came in. And he was just being loud, and he came over and asked me if I'd get up on the bar and dance, and I told him no. He set me up--at the end of the bar is like a long, and then there's a little like an L, and that part lifts up. The lift-up part was down, and he set me up on top of that. And I told him, you know, to leave me alone. And when I got down, he slapped me on the rear. And then he backed up, he unbuttoned his shirt, he unzipped his pants and said I ought to go in the dining room and dance around like this….Craig's friend was sitting at the bar, and Craig came over and said I got twenty dollars in my pocket, I want you to dance, it's Chris' birthday, and I told him no. And so a few minutes later he came over, he grabbed my arms, he shoved me against-- lifted my arms over my head, shoved me in the corner of the bar. I told him he was hurting me . . . . After the third time of me telling him that he was hurting me, he finally let go and he backed up and he went 00-00-00. And I was very upset. I went into the kitchen, I was crying very hard . . . . While Petitioner's description of what happened contains hearsay statements purportedly made by Mr. Pistilli, Petitioner's testimony describing Mr. Pistilli's actions and her reaction to the incident is deemed to be credible. Petitioner sustained physical injuries as a result of this incident with Mr. Pistilli.2/ Ms. Brewer was behind the bar on Petitioner's last day of employment. She saw Mr. Pistilli come into the restaurant with a friend. Mr. Pistilli appeared to her to be intoxicated. She saw Mr. Pistilli hug Petitioner in front of the bar. She did not see any other contact between Mr. Pistilli and Petitioner on that day. However, she had seen Petitioner hug Mr. Pistilli on other occasions. She also saw Petitioner hug restaurant patrons on other occasions. Teresa Woods was another bartender who worked at the restaurant. On Petitioner's last day of employment, Ms. Woods briefly saw and spoke to Petitioner in the kitchen of the restaurant. Petitioner was upset and told Ms. Woods that her neck and back were hurt. Petitioner then left the building and did not say anything further to Ms. Woods. Petitioner did not return to work. Mrs. Pistilli was not at the restaurant on March 18, 2000. She did not see any of the events that occurred between Petitioner and her husband. She had heard about the allegation that her husband hugged Petitioner but was unaware of the other allegations: Q: When did you first become aware that Mrs. Youngs had filed a workers' compensation claim? A: I can't recall exactly when it was. They did call me. I can't tell you exactly how long a period of time-- Q: Can you give us your best approximation of how close it was in time to--if you assume that the date-- A: A month. A month maybe. I don't know. It was well after. * * * Q: And did the comp carrier tell you the nature of the injury or how Mrs. Youngs contends that it happened? A: Yes, And he came in and I spoke with him, and they said that they'd be back in touch, and never heard from them. Q: And what did they tell you or what was their understanding of what Mrs. Youngs was contending happened after that conversation? A: All I know is my husband hugging her. This stuff I heard today is all new stuff about zippering pants. I never heard of any of that. I never heard any of that. While Mrs. Pistilli was generally aware of an ongoing workers' compensation claim by Petitioner against the restaurant, she was unaware of the most egregious allegations made regarding her husband until well after the fact. While she understood that her husband hugged Petitioner on March 18, 2000, her knowledge of that was gained approximately one month after the fact when finding out about a workers' compensation claim. Moreover, she had knowledge that during Petitioner's period of employment at the restaurant, Petitioner occasionally hugged her husband and some restaurant patrons. No competent evidence was presented that Mrs. Pistilli knew or should have known that Mr. Pistilli engaged in the behavior described by Petitioner that took place on March 18, 2000. Petitioner acknowledged that other than the incident on March 18, 2000, Mr. Pistilli did not make any references to Petitioner about her body during her employment at the restaurant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S __ BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2003.
