The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes (2006), and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a female formerly employed by the School District. From February 2006 to April 18, 2007, she was employed as a paraprofessional in the special education unit at Flagler Palm Coast High School. Petitioner is an "aggrieved person" within the meaning of Section 760.02(6) and (10), Florida Statutes, in that Petitioner is female and filed a complaint of gender discrimination and retaliation with the Commission. Respondent is an "employer" within the meaning of Section 760.02(7), Florida Statutes. From the inception of her employment and until March 13, 2007, Ms. Price was assigned as a paraprofessional (parapro) in Mr. Robert Rinker's classroom. Ms. Price had not been in the work force for several years before taking the job at Flagler Palm Coast High School and was taking classes at night to obtain her teaching degree. Mr. Rinker teaches in what was described as a self- contained classroom for students who are classified as emotionally handicapped in the exceptional education program. At Flagler Palm Coast High School, at least some of the students in the program would attend classes in the 300 building of the campus, and would have fewer classes and teachers compared to a traditional schedule. However, students would not necessarily be limited to one classroom all day. They could, for example, have classes with other special education teachers in the 300 building. Parapros are evaluated by the assistant principal. While teachers with whom the parapro worked might be asked to provide input for evaluations, the teachers are not considered to be their supervisors. Ms. Price was in the classroom with Mr. Rinker during first and second periods, between classes, and during lunch. During third and fourth period, Mr. Rinker supervised students in the gym while Ms. Price remained in the classroom with students who did not go to the gym. Stan Hall also teaches special education in the 300 building of Flagler Palm Coast High School. During Ms. Price’s employment, he was assisted by a parapro named Kathy Picano. Ms. Picano sometimes visited Ms. Price in Mr. Rinker’s classroom. She is significantly younger than both Ms. Price and Mr. Rinker. Mr. Rinker is a jovial man and a veteran teacher. He coaches soccer and has coached basketball. He is well liked by his peers and by the students he teaches. Mr. Rinker often tells jokes and stories, and sometimes his jokes are “off color” or of a sexual nature. The jokes and stories are told to both male and female colleagues and not in the presence of students. No other staff member had ever told Mr. Rinker that his jokes were offensive and no one had ever complained to supervisory personnel that they were offended by Mr. Rinker’s behavior. Mr. Rinker sometimes used the phrase, “a good lovin’ is the universal cure.” He testified that he had heard this phrase since his childhood from his older relatives, and simply meant that when someone is having a bad day, a hug or other encouragement helps make things better. The remark could be addressed to students and staff alike. He did not mean anything sexual by the phrase, and others hearing the phrase did not interpret it as a sexual remark. Mr. Rinker’s testimony is credited. Ms. Price, however, was offended by Mr. Rinker’s jokes. She testified that nearly every conversation with Mr. Rinker became focused on sex. According to Ms. Price, the first week she worked with Mr. Rinker, they were discussing mailboxes in the classroom, and he stated, “let’s talk about the box you are sitting on.” She understood that he was referring to her vagina. Ms. Price stated that she was shocked by this statement, but did not say so because it was her first week on the job. Mr. Rinker does not remember ever making such a statement. Whether or not this incident actually happened, it occurred over a year prior to Ms. Price's complaint to either the School District or the Commission. Also that first week, Ms. Price mentioned in the classroom that she had a headache, and in response Mr. Rinker rubbed her shoulders or neck. Ms. Price was offended but did not tell Mr. Rinker his touch was unwelcome. Ms. Price claims that while things were not too bad the first semester she worked with Mr. Rinker, eventually it got to the point where she was unable to have a conversation with Mr. Rinker without it focusing on sex. She claimed that he sometimes purposefully rubbed up against her in the classroom.1/ In order to avoid talking to him or being physically close to him, she moved her desk to another part of the room. While she claimed the situation was intolerable, she did not report Mr. Rinker’s behavior to any supervisor and did not tell him she was offended by his conduct. Kathy Picano and Ms. Price sometimes spent time together in Mr. Rinker’s classroom. Mr. Rinker sometimes told jokes in Ms. Picano's presence and sometimes “invaded her personal space.” He acknowledged that he might have patted her on the back in passing as part of a greeting, but Ms. Picano described the touch as no different from what she might have received from her grandmother. Although Ms. Picano did not particularly care for Mr. Rinker’s jokes, she attributed them to being “just his personality.” She was not offended by Mr. Rinker’s behavior and, before being questioned with respect to Ms. Price's complaint in this case, never complained about it to him or anyone else in authority at the school. She acknowledged hearing Mr. Rinker make the “good lovin” comment, but found it endearing, as opposed to harassing. Ms. Price, however, was deeply offended by what she viewed as Mr. Rinker’s behavior toward Ms. Picano. The things with which she took offense did not stop with Mr. Rinker’s jokes or the attention she perceived that he gave to Ms. Picano. She did not think that Mr. Rinker or Mr. Hall did an adequate job of teaching, and was upset that Mr. Hall’s students were allowed, on occasion, to come to Mr. Rinker’s classroom to finish assignments because they were disruptive. She did not appreciate the way Mr. Peacock, the assistant principal, performed his job and believed there was an unwritten code where coaches and athletes did not have to follow the same rules as others on campus. Perhaps most of all, she was offended because students in Mr. Rinker’s classroom talked about sex too much and she did not believe that he did enough to stop it. In her view, this was exacerbated when Mr. Hall’s students were allowed to come over and finish work. Further, she believed that the students were using the computers in the classroom to access inappropriate videos and music that were offensive. Computers were in the classroom for students to complete assignments and to do research for school projects. When they were finished with their work, students sometimes played games on the computers and checked sports sites. Sites such as “myspace,” however, were blocked in accordance with school policy. While Ms. Price claimed the students were using the computers for inappropriate purposes, she admitted that she could not see what was on the computer screens from where she sat in the classroom. The testimony of the students did not corroborate her claim. All stated computers were used for school work and when school work was finished, to play games as stated above. Only one student indicated that he watched music videos. All the others denied doing so. There is no question that the students in Mr. Rinker’s class sometimes talked about sex and used profanity in the classroom.2/ One of the classes was a health class. The students were teenagers, many of whom had significant emotional problems with little or no support at home. Some of their individual education plans addressed the problem of too much use of profanity, with a goal of reducing its use in the classroom setting. Staff who testified all stated that trying to eliminate the use of profanity entirely was probably not a realistic goal, but modifying behavior to reduce it was. Their testimony is credited. Ms. Price was not the only one who complained about students talking about sex in the classroom. Barbara Ryan was another parapro who sometimes worked in Mr. Rinker’s classroom. She agreed that the students sometimes talked about sex and remembered a particular incident where she thought the discussion was particularly explicit and she said something to Mr. Rinker. He told the students involved to “knock it off.” In December 2006, an anonymous call came in to Ms. Myra Middleton at the District office complaining about inappropriate language used by students in the 300 building. Ms. Middleton referred the person to Mr. Peacock in accordance with School District policy. She spoke to Mr. Peacock, who said he would take care of it. After the phone call, Mr. Peacock went to each of the classrooms in the 300 building and spoke to the students about the inappropriateness of using profanity and talking about sex in the classroom. There was no evidence, however, that the anonymous call was placed because of conduct occurring in Mr. Rinker's classroom. The talk by students did not necessarily stop after Mr. Peacock spoke to the students. However, the more credible evidence is that these conversations did not involve the entire class, but rather small groups of students. Several students testified they never heard talk about sex in the classroom. The conversations that did occur took place while other conversations were also taking place. When Mr. Rinker heard the conversations, he told students to stop. There is no credible evidence that Mr. Rinker heard each conversation that Ms. Price heard or that he deliberately chose not to address the students’ behavior. Nor is there any evidence that the students’ discussions regarding sex were in any way directed toward her. Mr. Rinker was not particularly computer literate. As a consequence, Ms. Price entered all of the students' grades in the computer. She had access to Mr. Rinker’s password and would print out his e-mail. In early March, 2007, Mr. Rinker received an e-mail from Mr. Peacock’s secretary directing that he see Mr. Peacock regarding his evaluation. Ms. Price did not believe that Mr. Peacock intended to complete the required observation for Mr. Rinker's evaluation, and this offended her. Ms. Price answered the e-mail as if she were Mr. Rinker, noting that no observation had yet taken place. This conduct violated the written standards applicable to parapros. Mr. Peacock discovered that Ms. Price, and not Mr. Rinker, had responded to his secretary's e-mail. On March 9, 2007, Mr. Peacock called Ms. Price into his office and told her that it was improper for her to send e-mails under Mr. Rinker’s name. During the meeting, Ms. Price explained that she was inputting grades, attendance and all other computer data. Mr. Peacock advised that additional training would be made available for Mr. Rinker, but that she was not to perform his duties. Ms. Price was under the impression that she was receiving a reprimand. She also felt that Mr. Rinker, who was also counseled by Mr. Peacock, did not defend her as vigorously as he should, and that he was the one who should be in trouble. In fact, Mr. Rinker told Mr. Peacock that Ms. Price had his permission to use his password for the computer and that she was very helpful. Ms. Price’s reaction to this incident was well out of proportion to the incident itself. Moreover, she did not appear to recognize that what she did in signing Mr. Rinker’s name to the e-mail was wrong. She was crying, both after the meeting and into the next week. The meeting with Mr. Peacock took place on a Friday. On Monday, Ms. Price was on a previously-scheduled day off. On Tuesday, she was still upset to the point of tears, and went to see Sue Marier, the ESE Department head. Although she was told repeatedly, both by Ms. Marier and by Mr. Peacock, that she was not being formally reprimanded for the incident, she continued to believe she was being treated unfairly. She told Mr. Rinker, Ms. Marier and Mr. Peacock that if she was going down, then so was Mr. Rinker. The following day, March 14, 2007, Ms. Price went to the principal, Nancy Willis, and complained that Mr. Rinker had been sexually harassing her since the beginning of her employment. Ms. Willis advised Ms. Price to put her complaint in writing, which she did. The complaint was forwarded immediately to the district office for investigation. During the investigation, Mr. Rinker was suspended with pay. Mrs. Willis also asked Ms. Price if she wanted to be moved to a different classroom, and Ms. Price indicated she did not want to be around Mr. Rinker. Mrs. Willis went to Sue Marier, the ESE Department Head, and asked where there was a need for a parapro so that Ms. Price could be transferred. At the time of the request, Ms. Marier did not know that Ms. Price had filed the complaint regarding sexual harassment and thought Ms. Price was still upset over the computer e-mail incident. She told Mrs. Willis that the greatest need was in the class for autistic children, and Ms. Price was transferred to that class. A decision had been made to add more staff, including another teacher, for that area, but positions had not yet been advertised. Parapros do not generally have the right to choose their assignments. They are placed in the classroom with the greatest need. At the time of Ms. Price's transfer, the autistic classroom was the classroom with the greatest need. This transfer did not result in a change in pay or status. There were significantly fewer students in the autistic class than in Mr. Rinker's class, and at least one of the students had a one-on-one aide in the classroom. While there was a slight change in schedule, it was not significant, and she remained a parapro at the same rate of pay. Both Sue Marier and Nancy Willis went by at different times to check on Ms. Price in her new placement. The more credible evidence indicates that Ms. Price did not complain about being in this classroom. The School District has two policies that deal with sexual harassment: Policy number 662, entitled Prohibition of Sexual Harassment - Employees, and Policy number 217, entitled Prohibiting Discrimination, Including Sexual and Other Forms of Harassment. It is unclear why the School District has both at the same time. The definitions regarding sexual harassment in both policies are similar, with Policy number 217 being slightly more detailed. The complaint procedure outlined in Policy number 217 is clearly more detailed, and it cannot be said that it was followed to the letter in this case. However, Policy number 217 was amended after the investigation took place in this case. No testimony was presented to show whether the more detailed procedures presently listed in Policy number 217 were in place at the time of the investigation. Further, the documents related to the investigation reference Policy number 662, as opposed to Policy number 217. It is found that the investigation was conducted in accordance with Policy number 662, and that to do so was appropriate. Ms. Price’s complaint of sexual harassment was investigated by April Dixon and Harriet Holiday. Over the course of the next several days, both Mr. Rinker and Ms. Price were interviewed (separately) as well as several other staff members. Those staff members included Sue Marier, Kathy Picano, Donna Dopp, Stan Hall, Pat Barile (Sue Marier's assistant), Mr. Tietema (another teacher), and Barbara Ryan. The investigation conducted was reasonable, given the allegations by Ms. Price. Ms. Price's written complaint stated that Mr. Rinker made inappropriate sexual comments; that he rubbed up against her on numerous occasions; that Mr. Rinker allowed the students to talk in the classroom using sexually explicit language and had made no effort to stop it; and that he had made inappropriate sexual comments to Ms. Picano. Policy number 662 provides in pertinent part: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: submission to such conduct is made, either explicitly or implicitly, a term or condition of employment (or of an individual's education). submission to or rejection of such conduct is used as the basis for an employment or employment decisions affecting that individual; or such conduct substantially interferes with an employee's work performance, or creates an intimidating, hostile or offensive work environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal harassment or abuse; pressure for sexual activity; repeated remarks to a person with sexual or demeaning implications; unwelcome or inappropriate touching; suggesting or demanding sexual involvement accompanied by implied or explicit threats concerning one's employment. * * * Procedures. -- Any employee who alleges sexual harassment by any staff member must report the incident directly to the building principal or the employee's immediate supervisor. Alternatively, the employee may make the report to the Assistant Superintendent of Instructional Accountability. Filing a complaint or otherwise reporting sexual harassment will not affect the individual's status, future employment or work assignments. The right of confidentiality, both of the complaint and of the accused will be respected, consistent with the Board's legal obligations, and with the necessity to investigate allegations of misconduct and take corrective action when this conduct has occurred. In determining whether alleged conduct constitutes sexual harassment, the totality of circumstances, the nature of the conduct, and the context in which the alleged conduct occurred will be investigated. The Superintendent or designee has the responsibility of investigating and resolving complaints of sexual harassment. A substantiated charge against a Board employee shall subject such employee to disciplinary action, including but not limited to warning, suspension or termination, subject to applicable procedural requirements. After investigation of Ms. Price's complaints, April Dixon discussed her findings with Mr. Delbrugge, the School District Superintendent. She also turned over to him all of the transcripts of taped interviews and her conclusions regarding the investigation. She concluded, and he agreed, that the investigation showed Mr. Rinker told inappropriate jokes in the workplace but that in all other respects Ms. Price's complaints were not substantiated. The investigation also revealed that Ms. Price also used profanity and occasionally told sexually- related jokes in the workplace. The Superintendent decided that the appropriate penalty (in addition to the suspension with pay already imposed) was to reprimand Mr. Rinker with a letter in his file; to require him to receive additional training on sexual harassment; to warn him that further complaints would result in termination; and to place him on probation for the remainder of the school year. This discipline was consistent with the School District's collective bargaining agreement concerning discipline of instructional staff. Mr. Rinker was informed of this result March 19, 2007, and completed the sexual harassment training as required. Ms. Price was notified informally of the results of the investigation that same day. She received official notification by letter dated May 3, 2007. Ms. Price was very dissatisfied with the results of the investigation and the action taken by the School District. She felt that Mr. Rinker should be fired. It is clear, after hearing, that nothing less then Mr. Rinker's termination would appease her. Ms. Price was also unhappy with her new placement. She did not like being in the classroom with the autistic students and felt they were dangerous. She felt that she should have been allowed to remain in her original classroom and Mr. Rinker should have been removed. After less than three weeks, she tendered her resignation. This three-week period included one week off for Spring Break and some personal leave days taken due to Ms. Price's husband having a stroke. Her resignation is dated April 18, 2007, but her last day working in the classroom was approximately April 6, 2007. Ms. Price's resignation was voluntary. While there was some belief that she left because of her husband's stroke, Ms. Price disputes that assertion and insists that it was because of the conditions in the new classroom to which she was assigned. Her resignation letter, however, references neither reason. It states: Dear Ms. Willis: It is with sincere regret that I am writing this letter of resignation as an ESE Para Professional for Flagler Palm Coast High School. Please accept this as such. I do apologize for the short notice. I would also like to take this opportunity to express to you my appreciation of your handling of my complaint. You are the only one who has validated me as a person and as a worthy employee. I only had a brief encounter with you but it was enough for me to know that working directly under you would have been a pleasure as well as a great learning experience as I respect your leadership abilities. I recognize that this is a trying situation for all involved and that you have done your very best to rectify the matter under the circumstances. It is important for me to let you know that whatever happens in the future in regards to my claim, this is no way a reflection on you. I truly hope that you can appreciate my position and the importance of making positive changes for the future. Based upon the evidence presented, it is found that Ms. Price resigned for a variety of reasons, including her husband's stroke and her unhappiness with the new placement. However, her dissatisfaction with the handling of the complaint regarding Mr. Rinker and his continued employment was at least a part of her decision. Ms. Price was not subjected to an adverse employment action as a result of her complaint. To the contrary, school officials transferred her to another classroom at her request. The conditions in the new classroom setting were not onerous.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Human Relations Commission dismissing Petitioner’s complaint in its entirety. DONE AND ENTERED this 8th day of August, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 8th day of August, 2008.
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.
The Issue The issue in this case is whether Fort Myers Broadcasting Company (FMBC or Respondent) committed an unlawful employment practice against Jaziah Rivera (Ms. Rivera or Petitioner) on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact FMBC operates in an office building located at 2824 Palm Beach Boulevard, Fort Myers, Florida. For at least 20 years prior to September 2018, FMBC outsourced its cleaning needs. In or around August 2018, a management team at FMBC met to discuss its custodial services. The team included Joseph Schwartzel, Jim Schwartzel, Mark Gilson (Mr. Gilson), and Mr. Mayne. Joseph Schwartzel is the general manager of FMBC, and has served in that role for approximately 25 years. Jim Schwartzel, Mr. Gilson, and Mr. Mayne are all senior managers who report directly to Joseph Schwartzel. After the discussion, the management team decided to terminate FMBC’s contract for outside custodial services and hire an in-house custodian. General Manager Joseph Schwartzel was the final decision maker on this matter. In September 2018, FMBC hired Ms. Rivera as a full-time custodial worker. Ms. Rivera was the first in-house custodian hired by FMBC in its history. Her job duties included generalized cleaning like sweeping, mopping, taking out the trash, dusting, restocking supplies in the bathrooms, and vacuuming. Ms. Rivera reported directly to Mr. Mayne, who served as FMBC’s Chief Engineer. During Ms. Rivera’s entire time at FMBC, Mr. Mayne was her direct supervisor. Ms. Rivera’s weekly scheduled hours were Monday through Friday, 9:00 a.m. to 6:00 p.m. She sometimes altered those hours and worked from 10:00 a.m. to 7:00 p.m. Ms. Rivera testified that she would sometimes work “after hours or on the weekend” if she had to make up missed time. FMBC received complaints from employees that some areas at FMBC were not being stocked/cleaned properly or in a timely fashion. Mr. Mayne spoke to Ms. Rivera about the complaints. Ms. Rivera complained to Mr. Mayne that the amount of cleaning she was required to complete was too much for one person and that she needed assistance. In or around December 2018, FMBC hired an in-house, part-time custodial worker to assist Ms. Rivera with the cleaning duties. The part-time custodian was quickly relieved of her duties, because she proved to be unreliable. In April 2019, Ms. Rivera complained that she was experiencing back pain and was unable to take out the trash. She provided FMBC with a doctor’s note which stated that she was not allowed to lift items that weighed more than 15 pounds. FMBC proposed several accommodations to assist Ms. Rivera in taking out the trash, including providing a rolling bin to push the trash to the dumpster. On several occasions, Mr. Mayne also provided two to three non- custodial employees, from the engineering department, to assist Ms. Rivera with taking out the trash. In April 2019, FMBC hired another part-time employee, Imari Porter (Ms. Porter), to help Ms. Rivera with the cleaning duties. Ms. Porter is Ms. Rivera’s sister. In April 2019, FMBC’s upper management team—Joseph Schwartzel, Jim Schwartzel, Mr. Gilson, and Mr. Mayne—met several times over a two- week period to discuss its custodial needs. The team made the decision to eliminate the full-time and part-time in-house custodian positions and return to outsourcing the custodial services. As the general manager, Joseph Schwartzel was, again, the final decision maker. Joseph Schwartzel testified about the reasoning behind FMBC’s decision to move back to its out-sourced custodial services model. He stated as follows: Well, basically, I think, we discovered that we had made a mistake trying to have an in-house custodial position. We thought it was a good idea to begin with as we could have someone work during the day when most the employees were there and provide cleaning services while people were at the office. And if there were spills or things like that, there would be someone immediately available to try and remedy the situation. So it sounded good. What we didn’t realize is how difficult it would be to cover if someone wasn’t there. If they were out sick, if they were on vacation, things of that nature. In Ms. Rivera’s case, where she had a health issue, all of a sudden we were scrambling, trying to figure out how to get the facility cleaned. And we didn’t have anyone else that could do that on the long- term basis. So it became very problematic. Thus, instead of, you know, having an in-house custodial position, we elected to go back to a third party to do it. On April 22, 2019, FMBC terminated Ms. Porter, less than one month after hiring her. The next day, on April 23, 2019, Mr. Mayne and Karen Seiferth (FMBC’s human resources manager) met with Ms. Rivera. Mr. Mayne terminated Ms. Rivera. FMBC immediately returned to its past arrangement of outsourcing its cleaning needs—on April 23, 2019, the same day Ms. Rivera was terminated, FMBC signed a contract with ABC International Cleaning Service. As of the date of the final hearing, FMBC continued to outsource its cleaning and still contracts with ABC International Cleaning Service. Sexual Harassment Allegations Ms. Rivera testified that Mr. Mayne sexually harassed her during her entire period of employment with FMBC. Ms. Rivera testified that Mr. Mayne subjected her to sexual harassment in the following ways: by staring at Ms. Rivera and looking at her body parts, as if he was “undressing [her] with his eyes”; brushing past her on one occasion, causing his leg to “graze” her buttocks; and making comments about her khaki pants and her buttocks being “big.” Ms. Rivera also testified that Mr. Mayne frequently asked her “to go out for drinks” and that she perceived those invitations as sexual advances. Ms. Rivera testified that she rejected Mr. Mayne’s advances, but did not complain about his behavior to anyone at FMBC. Ms. Rivera alleges that she was terminated for refusing to engage in a sexual relationship with Mr. Mayne. Ms. Rivera claims that after she was fired, Mr. Mayne sent her inappropriate sexual messages, pictures, and a video through social media. It is undisputed that, to the extent this claim is true, it happened well after Ms. Rivera was terminated from FMBC. Ms. Rivera submitted a Technical Assistance Questionnaire (TAQ), dated April 9, 2020, to FCHR, which initiated an investigation into her complaints against FMBC. In the TAQ, Ms. Rivera set out the events that occurred during her time at FMBC that she believed to be discriminatory. The majority of Ms. Rivera’s complaint was based on what appears to be allegations of disability discrimination. The only mention of sexual harassment was at the conclusion of her statement. Therein, she stated: “Now present day Mike Mayne is harrassing me by pursuing me thru social media planforms, sending inappropriate images (private part) to try to get me to engage is some type of sexual relationship & offering support to me.” (errors in original). Ms. Rivera’s allegations that Mr. Mayne was sexually harassing her through social media were described as occurring “now” in the “present day,” which, at that time, would have been nearly a year after she was terminated from FMBC. Ultimate Findings of Fact Ms. Rivera’s testimony that Mr. Mayne sexually harassed her while she worked at FMBC is not credible. Ms. Rivera failed to prove that Mr. Mayne sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated for not acquiescing to quid pro quo sexual harassment. Accordingly, Ms. Rivera failed to meet her burden of proving that FMBC committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Rivera’s Petition for Relief. DONE AND ENTERED this 10th day of May, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Zandro E. Palma, Esquire Zandro E. Palma, P.A. Suite 1500 9100 South Dadeland Boulevard Miami, Florida 33156 Suzanne M. Boy, Esquire Boy Agnew Potanovic, PLLC 4415 Metro Parkway, Suite 110 Fort Myers, Florida 33916-9408 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue is whether Respondent is guilty of discrimination in employment based on Petitioner's pregnancy and sexual harassment, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Respondent is a family-owned business engaged in the retail sales of wine, spirits, cigars, specialty gourmet foods, and party favors. Respondent operates about 28 stores, mostly in south Florida. Respondent employs at least 225 employees. Its chief executive officer is Paul (Bubba) Kassal. Other executive officers, superior to Bubba Kassal, are his brother Michael, who also serves as vice-president of personnel, and their father, who, with his father, started the company in 1955. Respondent hired Petitioner on October 13, 2003, as a human resources manager. As such, Petitioner reported to the human resources director. At the time of hiring Petitioner, Bubba Kassal informed her, presumably secretly, of his intent to fire the existing human resources director. Six months later, after the termination of the human resources director, Respondent promoted Petitioner to the position. As human resources director, Petitioner's primary duties were to ensure that all of Respondent's employees were paid, file all reports with the appropriate agencies, prepare internal employment policies, train managers in good hiring practices, run background checks, ensure compliance with all safety, workers' compensation and Family Medical Leave Act (FMLA) issues, terminate employees, counsel employees, file unemployment compensation reports, and participate in the strategic planning for new stores. The Kassals were satisfied with Petitioner's work performance during her entire employment with Respondent. Respondent's main offices are located in Ft. Lauderdale. While working for Respondent, Petitioner commuted over one hour each day from her home in Port St. Lucie to her office in the corporate headquarters. The issues in this case divide neatly into the claims of a hostile work environment and sex discrimination due to pregnancy. The claim of a hostile work environment pertains to Petitioner's first two years with Respondent, which were from late 2003 through late 2005. The claim of discrimination due to pregnancy pertains to Petitioner's last months with Respondent, which were from spring 2008 through fall 2008. As noted below, there is evidence supportive of a claim of a hostile work environment, although this evidence fails to establish such a claim for the reasons explained below. However, the limited evidence of a hostile work environment is in no way linked to the termination of Petitioner's employment in 2008 while she was pregnant. This termination, which was due to complications associated with her pregnancy, was essentially by mutual agreement and in no way was due to some form of quid pro quo sex discrimination or retaliation for her failure to reciprocate Michael Kassal's flirtation or infatuation. Petitioner's version of events for 2003-05 is credited because Michael Kassal did not testify. Petitioner's version of events for 2008 is largely uncredited due to some inconsistencies in her testimony where she implies, for instance, that she understood that Respondent might not keep open her existing job until after she delivered. Petitioner's version of events for 2008 is less than the more plausible testimony of Bubba Kassal and Respondent's outside counsel, Amy Galloway. Shortly after starting work, Petitioner began receiving unwelcome attention from Michael Kassal, whose office was near Petitioner's office. Michael Kassal, who was married at all material times, routinely complimented Petitioner's hairstyle, teeth, shoes, and clothes. When Respondent sponsored a wine tasting at its Port St. Lucie store, Michael Kassal invited Petitioner to attend. Michael Kassal repeatedly asked Petitioner to lunch or dinner. Petitioner went to lunch with Michael Kassal only a couple of times because she was uncomfortable with the level of attention that she was receiving. During her first year of employment, Petitioner was preoccupied with the demands of her job and largely ignored the uninvited attention that Michael Kassal directed toward her. During her second year of employment, Petitioner initiated corporate-wide training sessions in sexual harassment. She used these occasions to remind Michael Kassal, when he made her uncomfortable with his comments or behavior, that he knew better and he needed to stop such inappropriate behavior. Undeterred, Michael Kassal instead confided in Petitioner that he felt trapped in his marriage, could not leave his wife due to their two children, and believed that he would have been much happier if he had met Petitioner a couple of years earlier because they would have been so good together. Michael Kassal said that his wife, who was, at times, an employee of Respondent, was an alcoholic. Petitioner suggested that Michael Kassal or his wife take advantage of Respondent's employee assistance program. Michael Kassal rejected this advice and instead stated that, if Petitioner would not go out with him, he would go out with a woman at the gym where he worked out. On Petitioner's birthday, Michael Kassal routinely gave her a card. Petitioner kept only two of the cards and could not identify the years that they were received. One card contains a handwritten note: "And I need you more than want you[,] and I want you til the end of all time." Michael Kassal printed his name at the bottom of the note, adding a heart- shaped symbol in place of the dot over the "i." The other birthday card states: Dear Angella, It[']s presently July 10th and you are in India and I am wishing I were with you riding on Elephants and protecting you from the dangers so far from home. I must tell you we all miss you and only have kind thoughts about how professionally you have with us with Cami and Johanna. You have always blessed us with organization and administrative magic. I sit here and count the days before I can smell Victor[i]a's Secret Rapture perfume. Thank you for your intervention. You have been a breath of fresh air. I know it[']s been a whirlwind to some of us to catch up but it[']s worth the effort. I always have your back. I hope this year[']s birthday brings happiness and fills your heart with songs and sunshine. I hope you get a new pair of shoes and a toothbrush. Thanks again for all your loyalty and dedication. Sincerely, Michael Kassal. The "i" in "Michael" bears no dot or other symbol. Bubba Kassal testified that Michael sent birthday cards to all of the employees of the company and that this was part of the family atmosphere that characterizes the company, which continues a tradition of family picnics, employee fitness programs, and comprehensive fringe benefits. Bubba Kassal also testified that he and his brother kiss each morning. However, Bubba Kassal did not testify that the contents of the birthday cards quoted above resemble the contents of the birthday cards that Michael Kassal sends to, say, the company truck drivers or warehouse workers. The thoughtfulness that Michael Kassal extends daily to his brother and annually to his employees is distinct from the intimacies inherent in the shorter birthday card and the reference to smelling Petitioner's perfume again. These intimacies corroborate the portion of Petitioner's testimony that describes an inappropriate level of emotional attachment from Michael Kassal toward Petitioner; the inference easily follows that this level of emotional attachment is atypical of the conventional employer-employee relationship at Respondent. Three omissions loom large in Petitioner's proof of her claim of a hostile work environment. These omissions are considered in ascending order of significance. First, at no time during her employment with Respondent did Petitioner complain to anyone about Michael Kassal's behavior. She testified that she believed a complaint would be futile because Michael Kassal was the boss. Respondent countered with evidence that complaints about Michael Kassal's wife led to her termination and argument that Petitioner's complaints would likewise have received a fair hearing. Respondent's contention overlooks the fact that Michael's wife was convicted of driving under the influence, and her continued operation of a company vehicle presented an insurance problem for Respondent that could not be ignored. Petitioner is right on this point--her complaint would have been futile. Bubba Kassal was not in a position to control his brother, and, on this record, their father does not seem to have been playing a prominent role in the business during the time in question. Factually, the failure to lodge a contemporaneous objection to unwelcome sexual behavior in the workplace may sometimes undermine the credibility of the complainant. This is not the situation here, though, because, as noted above, Petitioner's version of events from 2003-05 is unrebutted and confirmed by two birthday cards. Legally, the failure to lodge a contemporaneous objection to unwelcome sexual behavior in the workplace may sometimes preclude a finding of notice to the employer, so as to preclude a conclusion of vicarious liability. This is not the situation here, though, because, as discussed in the Conclusions of Law, Michael Kassal was Respondent for purpose of establishing notice and concluding vicarious liability for his behavior. The second omission is that nothing in the record establishes that the behavior of Michael Kassal impeded Petitioner's work performance. As discussed in the Conclusions of Law, this omission is not outcome-determinative, but, as noted above, Petitioner's work was always satisfactory, at least until her health deteriorated during her pregnancy, which is discussed below. The third omission is that the evidence fails to establish that Michael Kassal continued to lavish inappropriate attention on Petitioner after the end of 2005. The record is silent as to the nature of the relationship between Michael Kassal and Petitioner for the two and one-half years from the end of 2005 until the disclosure of her pregnancy in the spring of 2008. It is at least as plausible that, unfueled by any encouragement from Petitioner, Michael Kassal's infatuation with her tapered off after a couple of years, rather than burned with the same intensity for four and one-half years. The behavior of Michael Kassal from late 2003 through late 2005 suggests nothing more than an infatuation with Petitioner, which, however inappropriate, excludes the sexually charged actions of offensive touching or sexually explicit invitations or comments. The behavior in this case is limited to unaccepted invitations to lunch, dinner, and dates, inappropriate revelations about Michael Kassal's personal life, and transparent attempts at flattery that, at their best, suggest a failure to recognize boundaries and, at their worst, wander between the narcissistic and infantile. The record is not especially rich in detailing Petitioner's response to the inappropriate attention lavished on her by Michael Kassal, except that there is no indication whatsoever that Petitioner welcomed the attention, reciprocated in any fashion, or was in any way flattered by Michael Kassal's two-year infatuation. There is some evidence that the attention made Petitioner embarrassed and somewhat uncomfortable, but this evidence is insufficient to establish that Petitioner's subjective reaction took the form of a feeling that she was physically threatened or personally humiliated or that she was laboring under an alteration of her working conditions. Such reactions, if they had occurred, would have been disproportionate to the level of attention that Michael Kassal directed toward Petitioner. Except for the frequency of comments about attire or appearance, which may have occurred on a daily basis, the record fails to establish the frequency of the invitations to lunch, dinner, and dates or the inappropriate revelations about Michael Kassal's personal life, but these occurrences were probably infrequent. Objectively considered, none of Michael Kassal's behavior was physically threatening or humiliating, none of his behavior was so pervasive or severe as to alter the conditions of Petitioner's employment, and none of his behavior could reasonably have adversely affected Petitioner's work performance. Based on these findings and the Conclusions of Law below, Petitioner has failed to prove a hostile work environment from 2003-05. The inception of the claims arising out of Respondent's treatment of her pregnancy is March or April 2008, when Petitioner learned that she was pregnant and due to deliver in November. In June, Petitioner decided to reveal her pregnancy to family, friends, and Respondent. On the morning that Petitioner had decided to inform Respondent of her pregnancy, the first person who came to her office was Bubba Kassal. He congratulated Petitioner, laughingly saying, in a manner that did not offend Petitioner, that he did not know that she had a boyfriend. Bubba Kassal then spoke of his two boys and added that he was sorry that Petitioner's mother was no longer alive to support her at this time. Bubba Kassal called his mother and told her, and she called Petitioner the next day and congratulated her. The record does not disclose whether Petitioner told Michael Kassal at this time, or, if she did, the nature of his response. A short while later, on June 13, Petitioner had an office visit with her physician, who became concerned about her high blood pressure. The physician asked if Petitioner could work at home, and Petitioner assured him that she could. The physician wrote a note to this effect. Driving back to the office, Petitioner called Ms. Galloway, with whom Petitioner had worked on human-resource issues. Petitioner told Ms. Galloway about her pregnancy, the health risks, and the support that she had already received from "the Kassals." Ms. Galloway advised Petitioner just to go in and tell them that she needed to work at home. Toward this end, Petitioner arranged a meeting with Michael and Bubba Kassal on June 18. At the meeting, Petitioner gave the Kassals a copy of her physician's note. Petitioner acknowledged that she had been with Respondent a long time, and she thanked them for the work that she had been allowed to do. She mentioned her pregnancy complications, which included blacking out and falling--these made the long drive between work and home especially dangerous. Petitioner offered to recruit someone to replace her, but she wanted to be kept on the payroll in return for performing various human resource duties as best as she could, mostly from home. Michael Kassal reacted to the request poorly. He replied that it had not been his idea to purchase a house so far from the office in Port St. Lucie, and the human resources director needed to be onsite. Notwithstanding Michael Kassal's reaction, Respondent accepted Petitioner's request, as Bubba Kassal and Petitioner generally agreed to an arrangement in which Petitioner would continue to be paid her normal salary through delivery in return for working on human resources matters on a limited basis. An important component of the understanding reached at the June 18 meeting was its term, which was through the birth of the baby. Bubba Kassal asked what would happen if, after baby was born, Petitioner decided not to return to work. Petitioner was unable to promise that she would return to work, but replied that she needed to work, and she could bring her aunt from Jamaica to watch the baby. Bubba Kassal asked when the work-at- home arrangement would go into effect, and Petitioner replied it was intended to go into effect right away, but she would try to work with them and offered to help find someone to perform her duties in her absence. Bubba Kassal replied that he had someone in mind. Petitioner herself testified that Bubba Kassal asked what would happen if they liked the replacement, and Petitioner replied that she understood that they had a business to run, implying that, consistent with this understanding, they might not have a position for her after the baby were born, just as she might not want to return to work with Respondent. Bubba Kassal promised to memorialize the understandings reached at the meeting. Despite the doctor's orders, Petitioner continued to report to the office until the July 4 weekend. At that time, she asked Bubba Kassal about the document to memorialize their understandings, and he said that Amy Galloway was working on it. On July 7, Ms. Galloway emailed to Bubba Kassal a draft letter agreement, which, among other things, confirmed that neither party was committing to Petitioner's ongoing employment after the birth of the baby. On July 8, Petitioner sent an email to Bubba and Michael Kassal and Ms. Galloway advising them that she was on bed rest and would submit FMLA paperwork as soon as possible. For some reason, the recipients did not receive this email, so they were unaware in early July of the status of Petitioner, who, understandably, did not undertake any unnecessary communications during her period of bed rest in order to save the baby. On July 11, Petitioner visited the doctor, who found that her blood pressure had soared to 200/100. Petitioner talked him out of ordering an ambulance to take her to the hospital, but the doctor ordered bed rest for Petitioner. By this time, Petitioner realized that, for the remainder of her pregnancy, she would not be able to perform even at the limited level that she had said she would work at the June 18 meeting. From this point forward, the June 18 understanding was superseded by Petitioner's medical issues. On July 11, Petitioner returned to the office briefly to advise her staff that she would be going home for the time being. While at the office, she saw an invoice from Ms. Galloway's law firm that reflected legal research conducted a couple of days after the June 18 meeting and concerned the Title VII ramifications of Petitioner's situations. Petitioner assumed that Respondent was terminating her and began to cry. On the same day, Petitioner returned to the doctor's office and had him complete the FMLA paperwork, which Petitioner had previously thought was unnecessary. The necessity for FMLA paperwork was as much Petitioner's realization, on July 11, that she could not perform even the limited duties contemplated by the June 18 understanding as her discovery, also on July 11, that Respondent had ordered its counsel to research Title VII. Later on July 11, Petitioner returned to the office with the completed FMLA paperwork and left it for Bubba Kassal. Pursuant to this paperwork, the FMLA period, during which Respondent would have to keep open her job, expired before the projected delivery date. On July 14, Petitioner returned a telephone call of Ms. Galloway and updated her on her condition. As Ms. Galloway confirmed in an email of the same date to Bubba Kassal, Petitioner wanted to take her FMLA time and understood that she would not be able to perform the transitioning tasks contemplated in the June 18 understanding. Ms. Galloway promised Petitioner that she would discuss with Bubba Kassal a reworking of her benefits, including maintaining present health benefits and obtaining disability benefits. On August 5, Petitioner sent an email to Bubba and Michael Kassal advising that she had not received her paycheck on August 2 and stating that she "continued" to be available to perform her end of the June 18 understanding. This is an attempt to document a fact that was untrue: Petitioner had not been able to perform her responsibilities under the June 18 understanding at any time after July 11. Ten minutes after receiving the email, Bubba Kassal emailed Ms. Galloway stating that they would proceed by paying Petitioner disability benefits through the birth, paying the company's portion of the health insurance until the birth, and giving Petitioner access to her company laptop computer and cellphone until October 1 in return for a release, presumably from any employment-related liability claims. It is impossible to infer that Bubba Kassal was miffed at Petitioner's misstatement, but it is likely that the misstatement motivated Bubba Kassal to define the status of Petitioner's employment relationship. By letter dated August 5 from a human relations employee to Ms. Galloway, the position of Respondent was documented, at least internally. This letter states that Petitioner's FMLA start date is July 11, 2008, and end date is October 4, 2008. This letter restates the undertakings that Bubba Kassal detailed in his August 5 email and notes that Petitioner has exhausted all of her sick and vacation time. The letter notes that the June 18 understanding was superseded by Petitioner's subsequent incapacitation. On August 14, Ms. Galloway emailed a letter to Petitioner reiterating much of the contents of the August 5 email and noting that, due to Petitioner's emergent health needs, Respondent had hired an acting human resources director on July 28. Ms. Galloway's letter restates the conditions set forth in Bubba Kassal's email of August 5, adding only that there is no expectation that Petitioner can perform any human resource duties and omitting the request for a release. A couple of weeks later, Petitioner emailed a brief message to Ms. Galloway acknowledging receipt of the letter and thanking her for all that she "does," but not otherwise responding to the letter. On October 8, Ms. Galloway sent another letter to Petitioner noting that the FMLA period had expired and that Respondent continued to perform the conditions detailed in the August 14 letter. The letter asks for the return of the laptop computer and cellphone. On November 5, Petitioner delivered her baby. One month later, she spoke with Ms. Galloway exploring, in Ms. Galloway's opinion, the possibility of returning, if her replacement were not working out, or obtaining additional severance pay. Ms. Galloway explained the company's view that the termination was voluntary, not involuntary. Eventually, Respondent agreed to pay Petitioner another week's salary, through July 18, and extended her insurance through December 31, so that Petitioner would have another chance to exercise her COBRA rights. Respondent advised that it was treating Petitioner's termination date as October 4, which was when the FMLA period had expired. There is no evidence of discrimination in Respondent's handling of Petitioner's pregnancy. Respondent assigned no role of substance in the 2008 events to Michael Kassal, whose objections to the June 18 understanding were completely ignored. There is no evidence that the company's actions in 2008 were influenced in any way by Michael Kassal's 2003-05 infatuation. Petitioner testified to a 4-6 week period during which she had previously worked at home. However, this earlier period of working at home was when Petitioner was engaged in the solitary task of converting payroll systems on the computer, and she needed a quiet place to work. Working at home under these conditions is entirely appropriate. During this period, Petitioner was working exclusively on this task, leaving her other human resources duties to others or deferring them until the conversion was finished. Any insistence by Respondent in 2008 that Petitioner work in the office is justified because Petitioner's duties generally required her to be in the office, where she would be available for, among other things, drop-in visits by corporate management needing assistance in the wide range of personnel matters that arise daily in a business of this size. However, Petitioner's claim of discriminatory treatment regarding working at home misses the larger point that, in the June 18 understanding, Respondent allowed her to work at home for the duration of her pregnancy. This understanding was defeated, not by Respondent's insistence that she work in the office, but by Petitioner's deteriorating medical condition. Petitioner also testified that Respondent allowed other managers to work at home. Again, this proof overlooks the fact that Respondent also allowed Petitioner to work at home under the June 18 understanding, and her subsequent inability to do so was due to her deteriorating health, not the demands of Respondent. Also, the other situations are distinguishable, even if Respondent had prohibited Petitioner from working at home. While one district manager's wife recovered from a broken leg and another district manager recovered from a heart attack and stroke, they worked in some fashion, either with reduced hours in the office or reduced hours from home. Petitioner's situation was different in the nature of her duties, which were corporate-wide, not district-wide; the fact that she was completely unavailable for an extended period of time; and probably for the fact that, for a substantial period of time, she failed or was unable timely to communicate her situation to Respondent. Based on these findings, Petitioner has failed to prove any form of sex discrimination in Respondent's handling of her pregnancy in 2008.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of June, 2010, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2010 . COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert A. Bogdan, Esquire Robert Anthony Bogdan, P.A. 410 Southeast 1st Terrace Pompano Beach, Florida 33060-7108 Salvatore H. Fasulo, Esquire Trip Scott, P.A. 110 Southeast Sixth Street, 15th Floor Fort Lauderdale, Florida 33301
The Issue Whether Respondent, Fort Walton Beach Medical Center (FWBMC), engaged in employment discrimination and, thus, violated the Florida Civil Rights Act(FCRA), section 760.10, et seq., Florida Statutes, by: (a) failing to accommodate Petitioner, Jennifer L. Landress, because of her alleged disability; (b) subjecting Ms. Landress to a hostile work environment on the basis of her sex; (c) constructively discharging Ms. Landress from employment; and (d) retaliating against Ms. Landress, and, if so, the appropriate penalty.
Findings Of Fact FWBMC hired Ms. Landress on October 31, 2005, and employed her for approximately 14 years as a Cardiovascular Services Specialist. Ms. Landress resigned her employment with FWBMC on October 4, 2019. During her employment with FWBMC, Ms. Landress reported to either Ms. Ristom, Vice President of Quality and Risk Management, or Rob Grant, the former Director of Cardiovascular Services. Between August 30, 2018, and October 4, 2019, FWBMC also employed Ms. Sanders, Human Resources Business Partner, and Ms. Clark, Cardiovascular Tech. FWBMC never employed Dr. Al-Dehneh (or the other physicians who testified at the final hearing—Dr. Sandwith and Dr. Chen). Dr. Al-Dehneh has privileges to use FWBMC to provide services to the patients who come to FWBMC to receive care. Neither Dr. Al-Dehneh nor any of the physicians who testified at the final hearing were supervisors of Ms. Landress. Further, Dr. Al-Dehneh: never had a role in Ms. Landress’s discipline or schedule; never evaluated her performance; and did not exercise any control over Ms. Landress or affect the terms or conditions of her employment with FWBMC. FWBMC’s Policies Concerning Discrimination and Sexual Harassment FWBMC has a policy entitled “Equal Employment Opportunity/Harassment,” which is included in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Equal Employment Opportunity/Harassment” policy states, in part: Equal employment opportunities are provided to all employees and applicants for employment without regard to race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, genetic information, or protected veteran status with applicable federal, state and local laws. This policy applies to all terms and conditions of employment, including, but not limited to, hiring, placement, promotion, termination, layoff, transfer, leaves of absence, compensation and training. * * * Any form of unlawful employee harassment based on race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, protected veteran status or any other status in any group protected by federal, state or local law is strictly prohibited. Improper interference with the ability of employees to perform their expected job duties is not tolerated. Each member of management is responsible for creating an atmosphere free of discrimination and harassment, sexual or otherwise. Further, employees are responsible for respecting the rights of their co- workers. The following is prohibited: Unwelcome sexual advances, requests for sexual favors, and all other verbal or physical conduct of a sexual or otherwise offensive nature …. Behaviors that engender a hostile or offensive work environment will not be tolerated. These behaviors may include, but are not limited to, offensive comments, jokes, innuendos and other sexually oriented or culturally insensitive/inappropriate statements, printed material, material distributed through electronic media or items posted on walls or bulletin boards. FWBMC also has a policy entitled “Complaint Procedures,” which is contained in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Complaint Procedures” policy states, in part: If you experience any job-related harassment based on race, national origin, religion, gender, gender identity, color, disability, age or other factor prohibited by federal, state or local statute, or you believe you have been treated in an unlawful, discriminatory manner, promptly report the incident to your manager or Human Resources, who will investigate the matter and take appropriate action. If you believe it would be inappropriate to discuss the matter with your manager or Human Resources, you may bypass your manager or Human Resources and report it directly for investigation at The Ethics Line at [phone number]. Ms. Landress testified that she received a copy of the employee handbook, read the policies contained in it—including the policy concerning “Equal Employment Opportunity/Harassment” and “Complaint Procedures”—and knew of and utilized them. Ms. Sanders testified that if FWBMC, after investigation by its human resources department, substantiates a claim of harassment or discrimination by a physician, it would provide its investigative findings to the medical staff office, who would then refer the physician to a peer review process that could culminate in an appropriate action with respect to that physician’s hospital privileges. The undisputed evidence at the final hearing revealed that Ms. Landress reported to FWBMC’s human resources department that she was subjected to discrimination and harassment in August 2018, and again in March 2019. Allegations of Harassment and Hostile Work Environment Ms. Landress testified that Dr. Al-Dehneh began sexually harassing her starting in 2013. On August 30, 2018, she met with Ms. Sanders and Ms. Ristom and discussed this allegation. Ms. Sanders testified of the allegations made by Ms. Landress at the August 30, 2018, meeting: That Dr. Al-Dehneh had asked Rob to find women for him and to get Ms. Landress to sleep with him. She also indicated that Dr. Al-Dehneh was listening to her conversations via some sort of recording or monitoring device in her computer. She felt that Dr. Al-Dehneh had bugged her home through Siri and had accessed her medical records here at the facility. She was afraid for her life and had a gun. She also felt that Dr. Al-Dehneh was watching her home and that she told us a story about a lady on a bike who said that she was dead to her. She was afraid to go to the police about Dr. Al-Dehneh because she had been told that he was a mobster. And then she did admit to us at one point that she had started developing feelings for Dr. Al-Dehneh. Ms. Ristom also testified concerning the allegations made by Ms. Landress at the August 30, 2018, meeting: She said that Dr. Al-Dehneh had said to her to let him know when she was ready to get married. She said that Rob was tasked with getting women and obtaining sex for Dr. Al-Dehneh. And, you know, during that time Jennifer told me that – told Julie Sanders and I that she had started developing feelings for him, for Dr. Al-Dehneh. And in addition, she felt like her neighbor was watching her and providing information back to Dr. Al-Dehneh about her activities at home. Also, she said that she was afraid to report him because she felt like she – she understood him to be a mobster. She said he was listening to her through a listening device when she was at home through, like, a Siri, a radio kind of device because he would say things that he would only know if he was able to hear her at home. She told us about a heavyset lady on a bicycle who told her that she was a dead lady, that Jennifer was a dead lady, but that that woman was not going to be the one to kill her because Jennifer had been nice to her. She said that she was afraid to go to the police because she believed Dr. Al-Dehneh to be a mobster and that he owned the police and the hospital as well. She said that she was defending herself – felt like she needed to defend herself and had been carrying a gun and keeping it on her nightstand as well. She told us that she hadn’t slept in months, that she was taking medication to help her but that she was having difficulty concentrating. The testimony of Ms. Landress more or less confirmed that she made those allegations that Ms. Sanders and Ms. Ristom testified were made at the August 30, 2018, meeting, and that those allegations formed the basis for her Petition for Relief. She added that Dr. Al-Dehneh “constantly” harassed her, that she believed he started a rumor at the hospital that she had herpes, and that he had her “followed” to a local mall. Ms. Landress denied that she had romantic feelings for Dr. Al-Dehneh, but stated that she “had a great working relationship with him for a long time.” Dr. Al-Dehneh testified and denied all of Ms. Landress’s allegations, including: asking Ms. Landress to let him know when she was ready to get married; offering to “buy” Ms. Landress from her husband; threatening to have Ms. Landress fired; having Ms. Landress followed; putting a “hit” out on Ms. Landress; making comments about Ms. Landress to other physicians; spreading a rumor that Ms. Landress had herpes; calling Ms. Landress’s treating physician, Dr. Chen, for information about her; and accessing Ms. Landress’s medical records. According to Ms. Landress, Dr. Sandwith and Ms. Park were witnesses who could corroborate many of her allegations concerning Dr. Al-Dehneh. Both denied each and every allegation. Dr. Sandwith testified that he never saw Ms. Landress and Dr. Al-Dehneh together; denied talking to Dr. Al-Dehneh about Ms. Landress; denied ever seeing or hearing Dr. Al-Dehneh harass or act inappropriately with Ms. Landress or any other hospital staff; and denied hearing rumors concerning Ms. Landress, Dr. Al-Dehneh, their alleged relationship, or that Ms. Landress had herpes. Ms. Park, who worked with Ms. Landress: testified that she never heard any rumors that Dr. Al-Dehneh was having sexual relationships with other women; denied witnessing Dr. Al-Dehneh tell Ms. Landress that he was going to call Ms. Landress’s husband and offer $5,000 for her; denied talking with Ms. Landress about being sexually harassed; denied hearing rumors about Ms. Landress and Dr. Al-Dehneh; denied hearing rumors that Ms. Landress had herpes; and denied telling Ms. Landress to stay away from Dr. Al-Dehneh. According to Ms. Landress, she also discussed her allegations of sexual harassment with her orthopedic physician, Dr. Chen, on numerous occasions. Dr. Chen testified that during one of Ms. Landress’s appointments, I recall you telling me just occurrences at home, of what happened in the workplace between yourself and a certain physician on staff at the – at the Walton Beach Medical Center. Yeah, and there was situations or there were occurrences that were – upsetting to you and they were providing some sorts of distress. He further testified that Ms. Landress “spoke … about the herpes.” Dr. Chen testified that he may have heard FWBMC staff discussing the alleged herpes rumor, but could not recall from whom he heard those rumors, and admitted that the rumors could have come from Ms. Landress herself. Dr. Chen testified that he never witnessed Dr. Al-Dehneh acting inappropriately towards Ms. Landress, and that he never heard any other physician at FWBMC discuss any rumors concerning Ms. Landress or Dr. Al-Dehneh. FWBMC Investigation of Complaint of Harassment and Hostile Work Environment At the conclusion of the August 30, 2018, meeting, Ms. Sanders immediately investigated Ms. Landress’s claims by interviewing Dr. Al-Dehneh that same day, and by interviewing other employees who could potentially substantiate Ms. Landress’s claims. However, Ms. Sanders was unable to find any witness who corroborated any of Ms. Landress’s allegations. Ms. Sanders testified, as part of her investigation, that she determined that Dr. Al-Dehneh did not have any remote access or log-in capabilities to access Ms. Landress’s computer. Ms. Sanders further testified, as part of the investigation, that she confirmed that Dr. Al-Dehneh never had access, nor tried to access, Ms. Landress’s medical records. During the investigation, Ms. Ristom testified that she offered to move Ms. Landress’s office to distance her from the individuals allegedly involved, including Dr. Al-Dehneh. Ms. Landress declined this offer. Ms. Sanders completed her investigation of Ms. Landress’s claims of sexual harassment and hostile work environment on September 18, 2018, and informed Ms. Landress that FWBMC could not substantiate her claims. Subsequent Events On September 20, 2018, Ms. Landress suffered an anxiety attack and went home from work early. When Ms. Sanders and Ms. Ristom learned of the anxiety attack, they attempted to speak with Ms. Landress in her office and told her to take the weekend off to deal with her anxiety. Both Ms. Sanders and Ms. Ristom testified that Landress did not attribute her anxiety attack to the alleged past sexual harassment incidents with Dr. Al-Dehneh, nor any new incidents of harassment. Ms. Landress’s testimony concerning the anxiety attack and subsequent leave was as follows: Predominately because I really wanted to come home and take medication because I couldn’t stand – I – I just couldn’t get past people in the hospital constantly talking about me having herpes. I mean, it’s kind of like if you were walking in the building and that’s all you heard, you want to get out of there. As previously noted, the FWBMC investigation did not substantiate Ms. Landress’s allegation concerning hospital rumors that she had herpes. Further, there was no testimony or evidence presented at the final hearing, outside of Ms. Landress’s testimony, that confirmed this allegation. Ms. Landress soon returned to work and did not report another incident of harassment until March 2019. On March 1, 2019, Ms. Landress reported that a nurse practitioner, who she claimed worked for Dr. Al-Dehneh, took a photo of Ms. Landress on her cellphone when she walked by Ms. Landress’s office. Ms. Landress testified that she “assumed” the nurse practitioner took the photo for Dr. Al-Dehneh. Ms. Landress further testified that she never saw the photo. Ms. Ristom and Ms. Sanders met with Ms. Landress concerning this allegation, and Ms. Sanders investigated it. Ultimately, FWBMC was unable to substantiate this claim or that she was being harassed by Dr. Al-Dehneh or his nurse practitioner. Ms. Landress did not report any other incidents of harassment after March 1, 2019. Leave(s) of Absence FWBMC approved Ms. Landress for a paid leave of absence from June 10, 2019, until she resigned on October 4, 2019. FWBMC granted this leave for two separate reasons: for an orthopedic condition, and for a mental health condition. Initially, Ms. Landress was placed on leave for her claims of stress, anxiety, and post traumatic stress disorder related to the alleged harassment. Then, on September 9, 2019, Ms. Landress submitted a separate claim because of pain in her right elbow. Dr. Chen, Ms. Landress’s treating orthopedic physician, informed FWBMC that her anticipated return work date was October 7, 2019, with restrictions, such as “no repetitive use of right arm to include typing, mouse use, [and] writing.” After Dr. Chen cleared Ms. Landress to return to work, with restrictions, Ms. Sanders reminded Ms. Landress that she could not return until her mental health counselor also cleared her. Ms. Landress’s mental health counselor never cleared her to return to work. In July 2019—during her leave of absence for a mental health condition—Ms. Landress requested, to Ms. Ristom, the opportunity to work from home. FWBMC denied Ms. Landress’s accommodation request; Ms. Sanders testified: At that time we weren’t able to accommodate the work from home request. There was concerns around protecting patient medical records and her ability to work with the staff and the physicians when she needed to ask questions. On September 20, 2019, while Ms. Landress remained on leave, Ms. Ristom received an email from Q-Centrix, a third-party data management provider that collaborates with healthcare providers, such as FWBMC. The September 30, 2019, email requested that FWBMC terminate Ms. Landress as an employee so that Q-Centrix could employ Ms. Landress in a full-time position. Ms. Ristom forwarded this email to Ms. Sanders to investigate and did not reply to the September 20, 2019, email from Q-Centrix until FWBMC could confirm from Ms. Landress that it was her intention to resign her position with FWBMC. On September 27, 2019, Q-Centrix emailed another request to FWBMC to terminate Ms. Landress. Ms. Sanders testified that she spoke with Ms. Landress about this request. On October 4, 2019, Ms. Landress—who still had not received clearance to return to work at FWBMC from her mental health counselor— submitted a letter of resignation to Ms. Sanders. Her letter of resignation stated that she and her mental health counselor agreed that her “PTSD is too great to return.” Her letter further stated that because FWBMC denied her request to work from home, she had accepted a position with “another company.” The October 4, 2019, letter of resignation attached four additional pages of what Ms. Landress contends were the events that led her to resign. The first page listed the allegations of sexual harassment by Dr. Al-Dehneh that Ms. Landress discussed with Ms. Sanders and Ms. Ristom during the August 30, 2018, meeting. The remaining three pages listed various allegations that Ms. Landress did not report to FWBMC and did not include in her charge of discrimination with FCHR. Findings of Ultimate Fact Ms. Landress presented no persuasive evidence that FWBMC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by sex-based or disability-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sex-based or disability-based discrimination. Ms. Landress presented no persuasive evidence that FWBMC’s actions subjected her to harassment based on sex. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sexual harassment. Ms. Landress presented no persuasive evidence that FWBMC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Landress presented no persuasive evidence that FWBMC’s actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of hostile work environment. Finally, Ms. Landress presented no persuasive evidence that her working conditions at FWBMC were so intolerable that a reasonable person in her condition would have been compelled to resign. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of constructive discharge.
Conclusions For Petitioner: Jennifer L. Landress 7758 Ramona Drive Navarre, Florida 32566 For Respondents: Cymoril M. White, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Jennifer L. Landress’s Petition for Relief. DONE AND ENTERED this 29th day of December, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 29th day of December, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Tracey K. Jaensch, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 Jennifer Lynn Landress 7758 Ramona Drive Navarre, Florida 32566 Cymoril M. White, Esquire Ford & Harrison, LLP 101 East Kennedy Boulevard Suite 900 Tampa, Florida 33602
The Issue Whether Respondent, the Agency for Persons with Disabilities (Respondent or the Agency), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Sharon Douse (Petitioner), during her employment with the Agency and then by terminating her employment, based upon her disability, marital status, sex, color, race, age, and the national origin of her spouse, and by illegally retaliating against her.
Findings Of Fact Sunland Center in Mariana, Florida, is operated by the Agency as an intermediate-care facility for developmentally- disabled individuals. Connally Manor is a residential setting within Sunland Center for 16 developmentally-disabled individuals with significant behavioral and medical involvement. Petitioner began her employment with the Agency on July 15, 2011, until her dismissal on January 5, 2012. During her employment, she was classified as career-service employee, Human Services Worker II, assigned to provide direct care for residents in Connally Manor. As a career-service employee, Petitioner was required to serve a one-year probationary period, during which she was subject to termination at will. While employed with the Agency, Petitioner had a number of performance deficiencies and conflicts with her co-workers and supervisors. On July 22, 2011, Petitioner attended training for the treatment and care of residents. Shortly thereafter, however, Petitioner mishandled residents on at least two occasions. As a result, Joe Grimsley, a senior human services support supervisor for the Agency, suspended Petitioner from working independently with residents, and asked Petitioner to work closely with her peers to learn appropriate care procedures. On August 25, 2011, because of excessive absences and failure to perform duties in a timely manner, Petitioner received counseling from Mr. Grimsley and Agency behavior program supervisor Scott Hewett. Petitioner was counseled for excessive absences because, from July 18 through August 22, 2011, Petitioner took a total of 48 hours of leave time, which was greater than the Agency's policy of no more than 32 hours in a 90-day period. Although Petitioner discussed most of those absences with her supervisor prior to taking the time off, as a result of her absences, Petitioner missed some of her initial training, including professional crisis management training. During the August 25, 2011, counseling session, Mr. Grimsley and Mr. Hewett also discussed other issues of concern with Petitioner, including resident care, following chain of command, team work, proper parking, and data collection sheets. As a follow-up, on the same day as the August 25th counseling, Petitioner received some in-service training regarding proper log book documenting, proper use of active treatment sheet, and unauthorized and excessive absences. Mr. Grimsley permitted Petitioner to go back to her duties of working directly with residents after she received additional training on August 27, 2011. On September 8, 2011, Petitioner's supervisors once again found it necessary to counsel Petitioner regarding resident care, chain of command, teamwork, parking, and data collection, as well as to address two incidences of unsafe handling of residents, and Agency policy regarding food in the bedrooms, and class and work schedules. Because of Petitioner's continued performance deficiencies, on October 5, 2011, Mr. Grimsley wrote an interoffice memorandum to his supervisor, Agency residential services supervisor, Julie Jackson, recommending Petitioner's termination. The memorandum stated: Mrs. Jackson: I am writing to you in regard to Mrs. Sharon Douse HSW II Second Shift Connally Manor Unit 3. Mrs. Douse came to us July 15, 2011, since then she has had three employee documented conferences, due to poor work habits, resulting in corrective action, including retraining. These deficiencies include and are not limited to data collection, excessive absences, and unsafe handling of residents. This past week she was insubordinate to her immediate supervisor by refusing to answer the phone after being requested to do so twice, and being directed that it is part of her job. [Mr. Hewett] as well as my self [sic] has made every effort to help Mrs. Douse achieve her performance expectation; however these attempts have been met with resistance as Mrs. Douse openly refuses to take direction from her supervisors and also to seek the assistance of her peers, who have many years of experience working with the Connally Manor population. Mrs. Douse has not met probationary period. Her continual resistance to positive mentoring and her confrontational attitude and demeanor towards her supervisors and coworkers is creating an increasingly difficult work environment, not only on Connally Manor, but also on the other houses within the unit. It is apparent that Mrs. Douse lacks the willingness to improve her overall poor work performance. I am formally requesting Mrs. Douse to be terminated from her employment here in Unit 3. Mr. Grimsley's testimony at the final hearing was consistent with the above-quoted October 5, 2011, interoffice memorandum, and both his testimony and memorandum are credited. Upon receiving Mr. Grimsley's memorandum, Ms. Jackson submitted a memo dated October 26, 2011, to the Agency's program operations administrator, Elizabeth Mitchell, concurring with the request for Petitioner's termination. In turn, Ms. Mitchell agreed and forwarded her recommendation for termination to Sunland's superintendent, Bryan Vaughan. Mr. Vaughan approved the recommendation for termination, and, following implementation of internal termination proceedings, Petitioner was terminated on January 5, 2012, for failure to satisfactorily complete her probationary period. Petitioner made no complaints to Mr. Grimsley or anyone else in the Agency's management until after Mr. Grimsley's October 5, 2011, memorandum recommending Petitioner's termination. Petitioner's Charge of Discrimination filed with the Commission on March 29, 2012, after her termination, charges that she was "discriminated against based on retaliation, disability, marital status, sex, color, race and age." The evidence adduced at the final hearing, however, failed to substantiate Petitioner's allegations. In particular, Petitioner's Charge of Discrimination2/ alleges that Mr. Grimsley discriminated against her because of her age by "not providing [her] with the same training as offered the other employees -- [professional crisis management training] was offered to the younger employees who were hired at or around the same time [as Petitioner]." The evidence at the final hearing, however, showed that Petitioner was scheduled for, but missed professional crisis management training, because of her absences early in her employment. The evidence also showed that professional crisis management training was not necessary for the position for which Petitioner was hired. Nevertheless, the evidence also demonstrated that, if Petitioner had not been terminated, the Agency intended to provide her with that training. Petitioner's Charge of Discrimination also asserts that Mr. Grimsley discriminated against her by "[n]ot allowing [her] to have . . . scheduled time off . . . [and taking away her] scheduled time off August 12th & 13th and [giving it to a] Caucasian female." The evidence did not substantiate this allegation. Rather, the evidence demonstrated that Petitioner had extraordinary time off during her first two months of employment. Next, Petitioner's Charge of Discrimination states that Mr. Grimsley did not follow up on her written concerns and verbal complaints to the "depart[ment] head" regarding the welfare of the disabled residents. Petitioner alleges that she was terminated as a result of her complaint that Mr. Grimsley "sat in the kitchen and baked cookies with the staff who were neglecting disabled residents." Petitioner, however, failed to present any evidence at the final hearing with regard to this allegation. Rather, the evidence showed that, while employed, Petitioner never reported any instances of abuse, neglect, or exploitation to the Florida Abuse Registry, as required by her training. And, there is no evidence that she reported any such concerns to any outside agency prior to her Charge of Discrimination. Petitioner otherwise presented no evidence suggesting that she was terminated in retaliation for engaging in any protected activity. Petitioner's Charge of Discrimination further states that she was discriminated against on the basis of her disability because Mr. Grimsley did not allow her to be properly monitored by her physician, and that when she would bring in her doctor's notes, Mr. Grimsley would refuse to put them in her personnel file. The only support for this claim were two medical reports on Petitioner, one prepared in April 2011, and one prepared in October 2011. According to Petitioner, she gave the reports to someone at the Agency's human resources office. She could not, however, identify the person to whom she gave the reports. Also, according to Petitioner, it was in November 2011, after she was recommended for termination, that she gave her medical reports to the Agency to be filed. Considering the circumstances, the undersigned finds that Petitioner's testimony regarding this allegation is not credible. In addition, the evidence did not show that Petitioner ever asked the Agency for an accommodation for her alleged disability. Rather, based upon the evidence, it is found that Petitioner never advised the Agency, and the Agency was unaware, that Petitioner had a disability. It is also found that Petitioner never asked the Agency for an accommodation for her alleged disability. Petitioner, in her Charge of Discrimination, further contends that part of the employee counseling session documented on employee-documented conference forms dated August 25, 2011, and all of the counseling session documented in a September 8, 2011, employee-documented conference form, were held without her, and that some of the concerns expressed on those documents were fabricated. There were two forms documenting discussions from the August 25th session that were submitted into evidence — - one was signed by Petitioner, the other was not. The employee-documented conference form from the September 8, 2011, session was signed by Petitioner's supervisors, but not Petitioner. Mr. Grimsley, who was present for all of the counseling discussions with Petitioner documented on the forms, testified that the documented discussions occurred, but that he just forgot to get Petitioner's signatures on all of the forms. During the final hearing, Petitioner acknowledged most of the documented discussions, including two incidents of mishandling residents and the resulting prohibition from working with residents imposed on her until she received additional training. Considering the evidence, it is found that all of the counseling discussions with Petitioner documented on the three forms actually took place, and that they accurately reflect those discussions and the fact that Petitioner was having job performance problems. Petitioner's Charge of Discrimination also alleges that a fellow employee discriminated against her because of her age and race based on an incident where, according to Petitioner, a co-worker screamed and yelled at her because Petitioner had not answered the house telephone. At the hearing, Petitioner submitted into evidence affidavits regarding the incident from the co-worker and another worker who observed the incident. Neither of the affidavits supports Petitioner's contention that she was discriminated against. Rather, they both support the finding that Petitioner had trouble getting along with co-workers and accepting directions from Agency staff. Further, according to Petitioner, after she talked to Mr. Grimsley about the incident, he spoke to both Petitioner and the co-worker, and their conflict was resolved. The incident occurred after Mr. Grimsley had already recommended that Petitioner be terminated. Finally, Petitioner alleges in her Charge of Discrimination that Mr. Hewett discriminated against her based upon her marital status, race, and the national origin of her spouse. In support, Petitioner contends that Mr. Hewett "made rude comments about art work on my locker that Scott knew my husband had drawn[,]" asked, "[do] blacks like classical music?" and, upon seeing Petitioner's apron that was embroidered with a Jamaican flag, Mr. Hewett said, "You can't trust things from overseas," when he knew that her husband was Jamaican. Petitioner also stated that Mr. Hewett "bullied her" about answering the telephone. While Petitioner testified that she wrote to Agency management regarding these comments and the alleged bullying by Mr. Hewett, she did not retain a copy. The Agency claims that Petitioner never complained about these alleged comments or Mr. Hewett's alleged bullying while she was an employee. Considering the evidence presented in this case, and Petitioner's demeanor during her testimony, it is found that Petitioner did not raise these allegations against Mr. Hewett until after her termination from the Agency. It is further found that if Mr. Hewett made the alleged comments, as described by Petitioner during her testimony, Mr. Hewett's comments were isolated and not pervasive. Further, Petitioner's testimonial description of Mr. Hewett's comments did not indicate that his comments were overtly intimidating, insulting, or made with ridicule, and the evidence was insufficient to show, or reasonably suggest, that Mr. Hewett's alleged comments made Petitioner's work environment at the Agency hostile or intolerable. In sum, Petitioner failed to show that the Agency discriminated against Petitioner by treating her differently, creating a hostile work environment, or terminating her because of her disability, marital status, sex, color, race, age, or her spouse's national origin. Petitioner also failed to show that the Agency retaliated against her because of any complaint that she raised or based upon Petitioner's engagement in any other protected activity.
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 Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 7th day of February, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 7th day of February, 2013.
The Issue The issue is whether Respondent engaged in an unlawful employment practice in violation of Section 760.10, Florida Statutes (2009),1 by discriminating against Petitioner based on her gender and by allowing her to be sexually harassed.
Findings Of Fact Respondent is a for-profit Florida corporation owned by Robert J. Morrisseau, Sr. Even though he was Respondent's president, Mr. Morrisseau, Sr., was not usually involved in the company's day-to-day operations. Robert J. Morrisseau, Jr., is Respondent's vice- president. Mr. Morrisseau, Jr., was primarily responsible for the company's operation. He also served as crew supervisor. Most of Respondent's work, which involved installing carpeting and tile in commercial facilities, was performed in locations that required the work crew to travel. Respondent's crew often had to stay in motels. Respondent contracted with an employee leasing company to handle Respondent's payroll and workers' compensation administration. All employees filled out an application provided by the employee leasing company, but Respondent made all hiring and firing decisions. Respondent did not give its employees information regarding Respondent's human resource policies and procedures. Employees were not told what to do when they believed someone in the company was discriminating against them. Petitioner is a female who dated Mr. Morrisseau, Jr., in the fall of 2008. While they were dating, Mr. Morrisseau, Jr., told Petitioner he would give her a job and teach her to lay tile. Petitioner and Mr. Morrisseau, Jr., stopped dating in December 2008. However, Mr. Morrisseau, Jr., made good on his promise to Petitioner, hiring her as a laborer on January 26, 2009. In January 2009, Mr. Morrisseau, Jr., wanted to reestablish a personal relationship with Petitioner. Mr. Morrisseau, Jr., hoped giving Petitioner a job would facilitate that goal. Petitioner was thankful for the job, but she did not want to date Mr. Morrisseau, Jr., again. At all times material here, Mr. Morrisseau, Jr., was Petitioner's supervisor. He also employed and supervised Petitioner's sister and her boyfriend and Petitioner's daughter and her boyfriend. Off and on in January 2009 through March 2009, Mr. Morrisseau, Jr., supervised a crew laying carpet and tile in Spanish Fort, Alabama. Petitioner and Petitioner's daughter and sister and their boyfriends were also part of the crew on at least two trips to Alabama. Mr. Morrisseau, Jr., rented three motel rooms for the Alabama job. He took one room with one bed. The other two rooms had two beds. On one occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep in the room with him or with her sister and the sister's boyfriend or the other male employees. On another occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep with her daughter and her daughter's boyfriend or the other male employees. On both occasions, Petitioner chose to sleep on the extra bed in a room with one of the couples. Mr. Morrisseau, Jr., never threatened Petitioner, directly or indirectly, with consequences if she did not choose to stay in his room. There is no evidence that Petitioner felt Mr. Morrisseau, Jr., was giving her a quid pro quo choice. Petitioner's job responsibilities included driving company vehicles, preparing floors for tile, and learning to lay tile. She was not expected to carry 40-foot rolls of carpet or to carry heavy loads of tile up three flights of stairs. However, Petitioner was willing to help any way she could. One time in Alabama, Petitioner and her daughter were on their knees, preparing a floor for tile. Mr. Morrisseau, Jr., took pictures of the women from the back and made a comment about the daughter's backside, stating it was as big as a man's. Respondent also had a job in Daytona Beach, Florida. Petitioner was part of the crew that worked in Daytona Beach, along with Mr. Morrisseau, Jr., and several male employees during the weeks of February 27, 2009, and March 2, 2009. Once again, Mr. Morrisseau, Jr., rented three motel rooms. He gave Petitioner the option of staying in the room with him or with the other men. Mr. Morrisseau, Jr., did not think anything of asking Petitioner if she wanted to stay in the room with him because he and Petitioner had stayed in the same hotel room previously on other occasions. During the weeks of February 27, 2009, and March 2, 2009, Petitioner elected to stay in the room with her co-workers rather than in the room with Mr. Morrisseau, Jr. There is no evidence that Petitioner believed Mr. Morrisseau, Jr., was giving her a quid pro quo choice. On one trip to Daytona Beach, Florida, Mr. Morrisseau, Jr., and another male employee bought cocaine and brought it back to the motel. Petitioner does not deny that she used some of the cocaine that night. The next morning, the crew, including Petitioner, went back to work at 7:30 a.m. On March 11, 2009, Respondent fired Petitioner. During the hearing, Mr. Morrisseau, Jr., testified that he did not fire Petitioner because she used drugs in Daytona Beach. This testimony is contrary to a statement made by Mr. Morrisseau, Sr., in an e-mail dated December 7, 2009. During the hearing, Mr. Morrisseau, Jr., testified that Petitioner was not fired because she was a woman and inadequate to perform the work. However, Petitioner and other employees heard Mr. Morrisseau, Sr., and Mr. Morrisseau, Jr., state that Petitioner and her daughter, as females, were inadequate for the job and/or that women did not need to work out of town. According to Mr. Morrisseau, Jr., he fired Petitioner because, after returning from Daytona Beach, Petitioner's work was not satisfactory. He claims that she failed to report for work because she was using illegal drugs with her boyfriend. He also claims that Petitioner was fighting with other employees, referring to an alleged altercation between Petitioner and her daughter. Mr. Morrisseau, Jr., admitted during the hearing that he had no first-hand knowledge that Petitioner continued to use drugs after returning from Daytona Beach. He did not see Petitioner fighting with other employees. Mr. Morrisseau, Sr., testified at hearing that he had no issue with Petitioner's work the one weekend he went to the Alabama job. According to Mr. Morrisseau, Sr., Petitioner "worked her little tail off" that weekend. The reason Mr. Morrisseau, Jr., gave for terminating Petitioner's employment is not credible. The most persuasive evidence indicates that Mr. Morrisseau, Jr., terminated Petitioner's employment because she was a woman and, in his opinion, inadequate to do the job. Respondent also fired Petitioner's daughter on March 11, 2009. However, Respondent rehired the daughter on March 20, 2009. The daughter worked for Respondent until the company went out of business in June 2009. The jobs in Alabama and Florida were not done properly. Mr. Morrisseau, Sr., had to bring in another company to redo and complete at least five jobs. Mr. Morrisseau, Sr., closed down the business and let all employees go in June 2009. Petitioner was unemployed from March 11, 2009, through January 1, 2010. She is entitled to lost wages for that period of time. However, Petitioner failed to present any evidence regarding the amount of lost wages during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order, directing Respondent to cease violating Section 760.10, Florida Statutes. DONE AND ENTERED this 16th day of June, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2010.
The Issue Whether Petitioner failed to timely file her Petition for Relief following the Florida Commission on Human Relations' No Cause Determination? Whether Petitioner failed to timely file a charge of discrimination with the Florida Commission on Human Relations with respect to her claim of harassment? Whether Respondent promptly and thoroughly investigated Petitioner's claim of sexual harassment? Whether Respondent took measures reasonably calculated to end and prevent any alleged sexual harassment? Whether Petitioner suffered from a disability, and, if so, what was the nature of her disability. Whether Respondent provided Petitioner with a reasonable accommodation for her alleged disability? Whether Respondent discriminated against Petitioner on the basis of her sex and/or disability? Whether Respondent retaliated against Petitioner for complaining of sexual harassment?
Findings Of Fact Petitioner filed her Charge of Discrimination against Respondent on August 29, 2002. FCHR issued a No Cause Determination and Notice of Determination: No Cause on May 12, 2003. Petitioner filed her Petition for Relief on June 20, 2003. This was 39 days after the No Cause Determination was issued. Petitioner failed to show good cause for the delay in filing. Petitioner worked as an apprentice operator at Respondent's Stanton Energy Center ("Energy Center"), during the relevant time period, under the supervision of Wade Gillingham ("Gillingham"), manager of Operations for the Energy Center. Respondent is an employer under the FCRA. On or about July 5, 2001, Petitioner expressed some concern to Gillingham about a co-worker, Tim Westerman ("Westerman"), potentially hurting himself or others. More specifically, Petitioner told Gillingham that she was concerned Westerman was going to hurt himself or her. Upon learning of Petitioner's concerns, Gillingham notified Respondent's Human Resources Department, and he scheduled a follow-up meeting with Petitioner on Monday, July 9, 2001. Lou Calatayud ("Calatayud") from Human Resources also attended this interview. During these initial meetings, Petitioner did not complain of any inappropriate touching or sexual contact between herself and Westerman. Following her meeting with Calatayud and Gillingham, German Romero, director of Human Resources, held a second interview with Petitioner to discuss her concerns about Westerman. Thereafter, Respondent conducted a thorough investigation into Petitioner's allegations. During the course of the investigation, Petitioner was interviewed twice and Westerman was interviewed twice. Both Westerman and Petitioner admitted to voluntarily participating in several telephone calls with each other, with some lasting as long as two hours. Petitioner did not appear upset or concerned after these calls. Human Resources also interviewed Terry Cox and Tom Dzoba, both watch engineers to whom Petitioner claimed she reported complaints regarding Westerman. Neither Cox nor Dzoba was Petitioner's direct supervisor. Petitioner told Cox that she had issues with another employee. However, she refused to provide Cox with the other employee's name and insisted on handling the matter on her own, despite Cox's asking her for the name of the person. Dzoba has no knowledge of Petitioner ever complaining about any problems with another employee in the workplace. The first person to whom Petitioner reported Westerman's name was her supervisor, Gillingham, who immediately reported Petitioner's complaints to Human Resources. Westerman was not Hanson's supervisor. Westerman never expressed any romantic interest in Petitioner; however, Petitioner had expressed interest in meeting Westerman outside the workplace for dinner. Additionally, Petitioner used to write Westerman "cheer-up notes" while at work. In fact, the only touching that Petitioner later referred to were hand or arm rubbing during voluntary personal conversations with, and counseling or consoling of, Westerman. Similarly, the only touching Westerman recalls was possibly rubbing up against Petitioner in the workplace or maybe putting his hand on her shoulder when they were talking. Westerman never kissed or attempted to kiss Petitioner. In addition to the above, no other employees were able to identify any inappropriate contact between Petitioner and Westerman. After completing its investigation in early August 2001, Respondent determined that sexual harassment had not occurred but instructed Westerman, verbally and in writing, not to have any further contact with Petitioner. Prior to Respondent's instruction, sometime between May and July 2001, Petitioner personally asked Westerman to stop calling her, a request he complied with generally. At the same time, Respondent instructed Petitioner to discontinue counseling employees to protect against any future incidents or allegations of sexual harassment. It is the policy and practice of Respondent to treat all employees equally regardless of their gender and/or disability. Respondent developed and distributed to its employees, via an Employee Handbook, an Equal Opportunity Policy and Policy Against Harassment. Following the conclusion of Respondent's investigation into Petitioner's complaints of sexual harassment, on or about August 6, 2001, Petitioner requested a medically-supported leave of absence for 30 days. This leave was granted by Respondent. However, Petitioner later requested to return to work nearly ten days ahead of schedule, on August 27, 2001, submitting a release from her doctor. Because Petitioner was seeking to return to work so far ahead of schedule, Petitioner was evaluated by Respondent's occupational medical director, Jock M. Sneddon, M.D., before she was released to return to work. Petitioner returned to work in the same position and rate of pay as before her leave. Additionally, Petitioner received disability benefit payments covering the entire duration of her leave. More than seven months later, Petitioner called in sick on April 6 through 8, 2002, after sustaining a house fire at her personal residence. Following the use of 16 hours or more of sick time, employees are required to return to work with a doctor's note authorizing their absence. Here, it was determined that Petitioner was not sick during this time, nor was she even evaluated by a physician. Based on similar previous problems, for which she was twice verbally reminded of Respondent's policy regarding sick leave, Petitioner received a disciplinary write-up. In addition to Petitioner's two verbal reminders, on or about January 7, 2002, Gillingham issued a memorandum to all operations employees, including Petitioner, detailing Respondent's sick leave policy. On or about June 7, 2002, Petitioner and a male co-worker, Tom Moran, were written up by Gillingham for neglect of their job duties as the result of an incident that occurred at the Energy Center on May 14, 2002. More specifically, both Petitioner and Moran were deemed responsible for failing to make sufficient rounds to discover a mechanical failure, which led to severe flooding of a sump basement in the coal yard, causing more than $12,000 in damages. Gillingham estimated it would have taken between six to eight hours to fill the 60-foot by 20-foot sump basement with the seven feet of water that was found the following morning. Although Moran was an auxiliary operator, both "operators," including Petitioner, an apprentice operator, have the same responsibilities and were responsible for making the necessary rounds to ensure that a mechanical failure of this nature is promptly discovered and repaired. In accordance with Respondent's policy, employees with active discipline in their files are not eligible for promotions or transfer. The written discipline Petitioner and Moran received for the May 14, 2002, sump incident remained active in their employee files for nine months. During her employment at the Energy Center, Petitioner's performance evaluations remained relatively unchanged, receiving a "meets" or "good" rating on each evaluation. Additionally, Petitioner received all regularly scheduled wage increases, until she topped out at the salary for her position. Petitioner received the same wage increases as similarly-situated male employees. Further, on or about April 2, 2003, Gillingham notified Human Resources that the discipline in her file had expired, and Petitioner was promoted to auxiliary operator, with the commensurate increase in pay. Petitioner started at the same rate of pay as three of the four other male employees placed in the apprentice operator position at that time. The fourth male employee, David Ziegler, started at a higher rate of pay based on his five years of previous experience working for a contractor at the Energy Center. Further, because of the credit Ziegler was given for his previous work experience, he was promoted to auxiliary operator ahead of Petitioner and all of the other apprentice operators who started at the same time. Vasquez was promoted to auxiliary operator on the standard two-year schedule on or about August 12, 2002; however, Petitioner was not eligible for promotion at that time because of the active discipline in her file. Petitioner failed to prove that she suffered from a recognized disability or that Respondent failed to make a reasonable accommodation for her alleged disability. Petitioner failed to prove that Respondent discriminated against her on the basis of her sex. Petitioner failed to prove that Respondent retaliated against her for complaining of the alleged sexual harassment which occurred in the Summer of 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing with prejudice the Petition for Relief in DOAH Case No. 03-2306, FCHR Case No. 22-02718. DONE AND ENTERED this 31st day of October, 2003, 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 31st day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ellen Edith Hanson 5355 Rambling Road St. Cloud, Florida 34771 David C. Netzley, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes, (2010), by discriminating against Petitioner on the basis of sex through the creation of a hostile work environment or through constructive discharge, and if so, what remedy should be ordered.
Findings Of Fact Respondent Department of Corrections (Department) is an agency of the State of Florida responsible for the custody of inmates in state prisons. It operates the Reception and Medical Center in Union County, Florida, to process newly committed inmates into the state prison system and provide primary medical care to inmates. The Department employs over 15 employees. The Department has a policy, Procedure #208.052, which instructs all employees regarding the proper filing and processing of discrimination complaints. The Department has a Sexual Harassment Rule, Procedure or Policy, COER-1, which instructs all employees regarding their responsibility in reporting and filing discrimination complaints. The Department has a policy, Procedure #602.008, which instructs all employees on how to take appropriate action to report inappropriate inmate behavior. Ms. Stephanie Neff,1/ Petitioner in this case, is a woman who first began working for the Department as a Certified Nursing Assistant in March of 2008. On July 15, 2008, she submitted a letter of resignation because she was planning to leave her husband and return to South Florida due to marital problems. However, she and her husband sought marriage counseling and on July 24, 2008, she rescinded her resignation. She stayed on for over a year until she resigned in August of 2009. She was subsequently re-employed on March 19, 2010, as a clerk specialist for the period of employment at issue here, until she again quit her job on or about July 1, 2010. When Ms. Neff began her employment on March 19, 2010, she received an anti-discrimination information sheet, referencing the Department's Sexual Harassment Brochure, COER-1, and advising that complaints could be filed with the Senior Personnel Manager of Employee Relations at the appropriate service center or with the Supervisor of the Employee Relations and Program Section of the Bureau of Personnel, which she signed. When Ms. Neff began her employment on March 19, 2010, she also received and signed an Equal Opportunity and Anti- Harassment Statement advising that complaints could be filed with the Senior Personnel Manager of Employee Relations at the appropriate service center or with the assistant chief of the Employee Relations and Program Section of the Bureau of Personnel in Central Office, and advising her that complaints could also be filed with the Florida Commission on Human Relations or the Equal Employment Opportunity Commission. When Ms. Neff began her employment on March 19, 2010, she received Department policies which detailed her responsibilities regarding sexual harassment in the workplace and signed a receipt for those policies. Through Ms. Neff's receipt of the Sexual Harassment Brochure, COER-1, she became aware of her reporting responsibilities in relation to acts of sexual harassment in the workplace. When Ms. Neff commenced her employment on March 19, 2010, she received Department policies which detailed her responsibilities regarding Non-Security Staff Instructions for Reporting Inappropriate Inmate Behavior and signed a receipt for those policies. As an employee of the Respondent, Ms. Neff had access to the Department's forms, rules, and procedures through the Department's computer system. Ms. Judith Nader was Ms. Neff's supervisor and next in her chain of command. Ms. Nader, retired from the Department at the time of the hearing, worked for the Department for over 18 years. When Ms. Nader commenced her employment with the Department she received Department policies detailing her responsibilities regarding sexual harassment in the workplace and signed a receipt for those policies. No responsibility is placed on supervisors to report harassment, but "management" is given such a responsibility. Ms. Nader received Department policies which detailed her responsibilities regarding Non-Security Staff Instructions for Reporting Inappropriate Inmate Behavior and signed a receipt for those policies. As an employee of the Department, Ms. Nader had access to the Department's forms, rules, and procedures through the Department's computer system. Ms. Shea Dicks was Ms. Nader's supervisor and next in her chain of command. Ms. Dicks received Department policies which detailed her responsibilities regarding Non-Security Staff Instructions for Reporting Inappropriate Inmate Behavior and signed a receipt for those policies. As an employee of the Department, Ms. Dicks had access to the Department's forms, rules, and procedures through the Department's computer system. In addition to these formal notifications of Department policies on sexual harassment, employees had meetings at which the topics of sexual harassment and reporting procedures were discussed. The Department's sexual harassment policies have not been adopted by rule, are slightly inconsistent, and are not well understood or followed by the Department's employees. On March 26, 2010, Sgt. Patrick Pierce, a Corrections Officer employed by the Department, made comments to Ms. Neff which she has identified as inappropriate. On that day, about a week after Ms. Neff had begun her employment, she had gone outside with another person to smoke a cigarette. They did not have a lighter, so they went to "J-Dorm" (the infirmary) to borrow a lighter from one of the nurses. None of the nurses had one. As they were leaving, Sgt. Pierce asked them what they were looking for, and they replied that they were looking for a lighter. He did not have one, but got one for them from back in the inmate area. After using the lighter, they returned it and Ms. Neff went back to her office located in the portion of the hospital known as "Two West." Only a couple of minutes after Ms. Neff returned to her desk, the phone rang. She answered the phone, "Two West, Neff." The male voice on the telephone said, "Just who I was looking for." She said, "Who is this? How can I help you?" He replied, "You know who this is." She said, "No I don't. I'm really busy, how can I help you?" He said, "You need to bring that view back out here more often. You livened up the scenery." She said, "What are you talking about?" He said, "You need to bring that view back out here more often and if you'll back that ass up, I'll touch it. But you have to back it up because that's the only way I can touch it without getting in trouble." Ms. Neff replied, "The only person I back my ass up to is my husband. Have a nice day." She then hung up the phone. The comment to Ms. Neff on the telephone was sexual in nature and was inappropriate and unwelcome. Ms. Neff then called the J-Dorm nurses station to see if she could identify the caller. The nurse on duty told Ms. Neff that Sgt. Pierce was the only male on duty at the time. Ms. Neff testified at hearing that she immediately reported this incident to Ms. Nader and asked what she should do about it. She testified that Ms. Nader told her that that depended on how badly she wanted her job, telling her, "If you don't rile security they won't mess with you." Sgt. Pierce made one additional comment to Ms. Neff which she identified as inappropriate. Ms. Neff was sent back to J-Dorm to make some photocopies a couple of weeks later. Sgt. Pierce came in and went to the back desk to make a phone call. After the phone call, he closed the door, propped himself against the front desk and said, "So are you going to back that ass up to me now? I can smack it now. No one can see us, we are all alone." Ms. Neff now felt sure that Sgt. Pierce had made the earlier comments, because they were so similar. Ms. Neff testified that she said, "I forgot something" or offered some other excuse to leave the room, and went to the nurses' station. A nurse that was not busy accompanied Ms. Neff back to the room while she finished the copying. When they returned to the room, Sgt. Pierce left without saying anything. Sgt. Pierce's comments to Ms. Neff in the J-Dorm were sexual in nature and were inappropriate and unwelcome. Ms. Neff told Ms. Nader about the incident and asked Ms. Nader what she should do. Ms. Nader again advised Ms. Neff that if she wanted to keep her job, she should keep her mouth shut. She said, "Don't jack with security and they won't jack with you." Ms. Nader said she just would not send Ms. Neff back to J-Dorm anymore. Ms. Neff was the only source of income for her family; she needed her paycheck and decided not to report the incident. Ms. Nader did not report the incident to her superiors either. Ms. Nader's testimony at hearing was somewhat confused. She believed there was only one incident involving Ms. Neff and Sgt. Pierce, rather than two. She testified that at the time Ms. Neff told her about Sgt. Pierce's comment, she did not think that it constituted sexual harassment. She said that Ms. Neff did not seem that upset and that it appeared that Ms. Neff had appropriately handled the situation. Ms. Nader testified that she told Ms. Neff not to say anything because she was trying to protect Ms. Neff. She admitted advising Ms. Neff not to make an accusation against a Security Officer under the circumstances and further testified: Q: Is there an understanding at the DOC that you're not supposed to mess with security? A: There is in my book. There is – the way I look at it, if you don't mess with security . . . now, that's my understanding. Whether or not everybody else understands that, I don't know. But that is the way that I look at it. I can't tell you what other people think or don't think, but I would never mess with them. But, you know, I can't speak for the whole place. Ms. Nader went on to testify that had Ms. Neff stated that she had been sexually harassed, that then, whether Ms. Nader thought it was sexual harassment or not, "we would have sat down and pulled out the policies and procedures" and figured out what to do next. Ms. Neff was never physically touched by Sgt. Pierce and never witnessed him physically touch anyone else. Ms. Neff's total interaction with Sgt. Pierce involved two incidents: one on the telephone and one while she was making copies in J-Dorm. Petitioner was subjected to unwelcome sexual harassment. Petitioner was the object of harassment because of her gender. A couple of weeks later Ms. Tammy Jo Laney, a temporary Health Support Aide at the Reception and Medical Center, called Ms. Neff from the parking lot. Ms. Laney told Ms. Neff that she did not want to go to work because she was scheduled to work in J-Dorm and the security officer that worked there was making comments to her that made her feel very uncomfortable. Ms. Neff advised Ms. Laney to go to work and say nothing. Ms. Neff told her it would not do any good to say anything, because they would just tell her that if she wanted to keep her job, she should keep her mouth shut. Ms. Laney did not follow Ms. Neff's advice. On April 23, 2010, Ms. Laney made a complaint of sexual harassment against Sgt. Pierce. The complaint was made to Ms. Dicks. Ms. Laney explained to Ms. Dicks that she wanted to talk about sexual harassment and then began to cry. Ms. Dicks immediately left the office and returned with a Health Services Administrator and Lieutenant Driggers to continue the meeting. Ms. Laney advised Ms. Dicks that Sgt. Pierce had told her she had pretty eyes and that that had made her uncomfortable. Ms. Laney told Ms. Dicks that a couple of days earlier when she had told Sgt. Pierce that she was going to the doctor, Sgt. Pierce had replied, "You are too sexy to be going to the doctor." Ms. Laney named numerous other women who had told Ms. Laney that Sgt. Pierce had made inappropriate sexual remarks or innuendos to them. Ms. Dicks called Ms. Emmelhainz, the Senior Personnel Manager, and put her on the phone with Ms. Laney, and then left the room so that Ms. Laney could have some privacy when talking with Ms. Emmelhainz. Ms. Laney then went to the Personnel Office to file a complaint with Ms. Emmelhainz. When Ms. Emmelhainz receives a sexual harassment complaint, she sends it to the Central Office Employee Relations Section, which turns it over to the Inspector General's Office for an investigation. The report then goes to the Warden. If discipline is warranted, the Warden then coordinates with Ms. Emmelhainz in the Personnel Office and with the legal office. Between April 23 and April 26, 2010, the Department moved Sgt. Pierce from the RMC Main Unit to the RMC West Unit. Following Sgt. Pierce's move from the Main Unit to the West Unit, Ms. Neff did not have to work with or see him again while working for the Department. After Sgt. Pierce had been moved to the West Unit, Ms. Nader again assigned Ms. Neff some clerking duties at J-Dorm in the evenings. On Monday, April 27, 2010, Ms. Neff was sent to J-Dorm to work. While she was there, Nurse Kristina Imler, LPN, told her about a conversation that Nurse Imler had had with a paraplegic inmate, Ernest Horton. As relayed by Nurse Imler, inmate Horton had asked Nurse Imler who Ms. Neff was. When Nurse Imler said, "That's Neff," inmate Horton replied, "Oh, my boy Pierce told me that she was the one who had turned him in." Nurse Imler further relayed to Ms. Neff that everyone was talking about her. There was some discrepancy between Ms. Neff's hand- written incident report of April 30, 2010, the audio recording she made on June 14, 2010, and her later testimony at hearing on June 1, 2012, as to exactly what she was told by Nurse Imler. Her two accounts from 2010 are more consistent with Nurse Imler's hearing testimony and with Nurse Imler's 2010 written statement. Ms. Neff's earlier accounts have been credited over Ms. Neff's testimony at hearing. Ms. Neff was concerned that inmate Horton believed she was the person who had reported Sgt. Pierce's conduct. She considered inmate Horton's remark as threatening, and advised Ms. Nader what she had been told. Ms. Neff testified that Ms. Nader told her that she would report it to Ms. Dicks. Ms. Nader did not recall talking with Ms. Neff about inmate Horton, but did remember telling someone that Ms. Neff did not have anything to do with turning in Sgt. Pierce, that it was somebody else, and that Horton "had his story wrong." Ms. Neff has never spoken directly to inmate Horton nor heard him make any reference to Sgt. Pierce. When Ms. Neff heard the statements allegedly made about her by inmate Horton she did not complete a Disciplinary Report. Meanwhile, after her meeting with Ms. Laney, Ms. Dicks had begun to contact the women that Ms. Laney had named who were also Ms. Dick's subordinates to ask them if they had also been subjected to inappropriate sexual comments from Sgt. Pierce. She contacted Ms. Neff and asked to talk with her. On April 28, 2010, Ms. Neff met with Ms. Dicks in her office and Ms. Neff told her about the telephone incident, the copier incident, and the more recent remark attributed to inmate Horton. Ms. Dicks told Ms. Neff that the advice Ms. Nader had earlier given her to stay silent to keep her job was not acceptable. Ms. Dicks told Ms. Neff to complete an Incident Report but to return it to Ms. Dicks rather than send it up the security chain. Ms. Dicks also advised Ms. Neff to call Ms. Emmelhainz because in addition to the comment from inmate Horton there was possible sexual harassment. Ms. Dicks did not advise Ms. Neff to fill out an actual Complaint for sexual harassment. When Ms. Nader next came on shift, Ms. Dicks talked to her about Ms. Nader's response when Ms. Neff had reported Sgt. Pierce's comments. Ms. Nader admitted telling Ms. Neff to just forget it and do her job. Ms. Dicks told Ms. Nader that Ms. Nader could not do that and told her that even if Ms. Neff did not want to come forward, that Ms. Nader, as her supervisor, had a duty to report such incidents. It was Ms. Dick's understanding that before inmate Horton became a paraplegic, he had been very violent. Ms. Dicks went to Nurse Imler and asked her to file an incident report regarding her conversation with inmate Horton. Ms. Dicks also talked with Major Willie Smith about the incident involving inmate Horton, and Major Smith told her that he would handle it. On or about April 29, 2010, Ms. Imler completed an incident report concerning statements made by inmate Horton. On or about April 29, 2010, an investigation was initiated into allegations that Sgt. Pierce sexually harassed the Department's employees, identified as Case No. 10-2-5291. Prior to April 29, 2010, and the initiation of the investigation into allegations that Sgt. Pierce sexually harassed the Department's employees, Ms. Neff did not do any of the following in accordance with Department Procedure 208.052: File a complaint of discrimination by contacting the Assistant Chief of Employee Relations and Programs Section in the Bureau of Personnel; File a complaint of discrimination by contacting the Florida Commission on Human Relations; File a complaint of discrimination by contacting the Equal Employment Opportunity Commission; File a complaint of discrimination through the Department's internal formal procedure; File a complaint of discrimination through the Department's internal informal procedure. On April 30, 2010, Ms. Neff filed an Incident Report alleging Sgt. Pierce sexually harassed her. Ms. Neff completed her Incident Report and brought it directly to Ms. Dicks, as she had been instructed. Ms. Dicks immediately delivered the Incident Report directly to the Warden's office. Warden Riedl did not sign off on the Incident Report at the bottom as he customarily does. Warden Riedl testified that he believed the Incident Report had been dropped off at his office, but that due to its confidential nature it had then been immediately faxed to Personnel and the Inspector General's office. Warden Riedl identified a FAX number printed on the top of the incident report as the FAX number from his office. Under Department Policies, as testified to by Warden Riedl, sexual harassment should not be reported using an incident report filed through chain of command channels, but rather should be filed as a discrimination Complaint with an "intake officer" through Personnel, and sent from there to the Inspector General to conduct an investigation. Ms. Neff testified that subsequently she overheard Corrections Officers talking about her. They would say things such as, "Oh, that's Neff. You have to watch out for her." She testified that officers would not go into stairwells with her or get into the elevator with her. She testified that she was being treated as if she were the one who had done something wrong. She testified that these comments upset her. She noted that she depended on Corrections Officers for security and that she was worried that they might not protect her if she needed their help. Petitioner stated that she did not want to go to work, that a job that she had once enjoyed became a job she hated. It became "just a way to earn a paycheck." On May 6, 2010, Ms. Dicks sent a memo requesting discipline of Ms. Laney for having 17 unscheduled callouts, 3 tardies, and for leaving early on 3 occasions from February through April. Ms. Dicks testified that she submitted documentation on each of the unscheduled call-outs along with her request for discipline. This information was supplied by Ms. Nader and others on the shift. Ms. Emmelhainz received the recommendation for discipline against Ms. Laney. Ms. Emmelhainz testified that the attached documentation had been made by various individuals at the time of the unscheduled call out or early departure, but had been forwarded to Ms. Dicks at later dates. All were signed by Ms. Dicks on dates after the complaint of sexual harassment had been filed. Ms. Emmelhainz testified that it was not unusual for a supervisor to accumulate notes and memos and send them up only when they were seeking discipline. Ms. Emmelhainz testified that 17 incidents over a 90 day period was "a lot." At the time she received the request for discipline on Ms. Laney, she remembered that Ms. Laney had filed a sexual harassment claim earlier. Ms. Emmelhainz remembered discussing with corrections officials whether or not Ms. Laney should be disciplined in light of the recent complaint: And I said if we would normally discipline the person, we should not let the sexual harassment complaint interfere with it. We're not going to treat anybody any different, but if we would – anybody else, if we would treat them and do discipline, then we need to do discipline on her. The sexual harassment complaints should not interfere with that. Ms. Emmelhainz testified that termination was appropriate for a temporary OPS employee with attendance problems such as those reflected in the documentation on Ms. Laney. On May 27, 2010, Ms. Laney received a Letter of Termination of her employment from the Florida Department of Corrections signed by Warden Riedl. In the Inspector General's Report of the investigation, it is recorded that Ms. Neff stated she "knows why Nurse Laney got fired but it was convenient that it happened like it did." Ms. Laney testified that she did not have 17 unexcused absences. She stated there were two occasions when she called in to say she was sick and could not come to work. Ms. Laney testified that she believed she was fired because she filed a Complaint about sexual harassment. On or about June 8, 2010, Inspector Marrell Sercy of the Inspector General's Office initiated his investigation into Ms. Laney's complaint of sexual harassment. He interviewed Ms. Laney on June 9, Ms. Dicks on June 10, Nurse Johns and Nurse Holmes on June 11, Ms. Neff and Nurse Imler on June 14th, Ms. McKee and Officer Prevatt on June 15, Sgt. Pierce on June 18, Warden Riedl on June 29, Officer Owens on July 19, and Nurse O'Neal and Sgt. Pierce again on July 21, 2010. Meanwhile, on July 6, 2010, Ms. Nader left a message for Ms. Neff on her cell phone because on July 1, 2010, Ms. Neff had left work early on a family emergency and had not been back since. Ms. Neff called back about 5:00 pm to say that due to her family situation and for her personal safety it was necessary for her to leave the state and that she would not be coming back to work. Ms. Neff said that she was sorry it had to be that way but that it was necessary. Ms. Nader then transferred the call to Ms. Dicks. Ms. Nader documented this phone conversation on a form DC2-610. Ms. Neff told Ms. Dicks that she had talked with a staff person on July 2, 2010, and told them she would not be in to work that day. She went on to say that due to a personal matter she was going to move out of state and that she was resigning from her job. Ms. Dicks documented this phone conversation on a form DC2-610. The investigation into Ms. Laney's complaint of sexual harassment was completed on or about July 22, 2010. As was usual in complaints of employment discrimination, no recommendation was made, but records of the interviews and information were compiled. Based upon information contained in the Inspector General's Office investigation into Ms. Laney's allegations of sexual harassment, Inspector Stacy Fish of the Inspector General's Office opened an investigation into whether or not Ms. Nader failed to report allegations of sexual harassment that had been made to her. Inspector Fish listened to the interview of Ms. Neff, but was unable to interview her again because she had resigned and no one had any information on how to contact her. On October 22, 2010, Inspector Fish interviewed Ms. Nader, who stated that she did not remember Ms. Neff ever reporting to Ms. Nader that she had been sexually harassed by Sgt. Pierce. Almost four months after Ms. Neff quit her job, and while Sgt. Pierce was still working in the West Unit, there was another incident involving Sgt. Pierce. On October 29, 2010, Sgt. Gillian Scott, a female Corrections Officer, filed a Department of Corrections Discrimination Complaint, form DC2-881, accusing Sgt. Pierce of sexual harassment. Sgt. Scott alleged that Sgt. Pierce had exposed himself to her and crudely asked her to perform sexual acts. On October 29, 2010, through letter signed by Warden Riedl, Sgt. Pierce was placed on administrative leave "pending investigation of charges which could result in your dismissal." Another Inspector General investigation, Case No. 10- 2-10464, was commenced against Sgt. Pierce based upon Sgt. Scott's allegations. Sgt. Pierce was issued a Permanent Status Career Service Extraordinary Dismissal Letter dated February 2, 2011. The Extraordinary Dismissal Letter to Sgt. Pierce stated that the investigation into complaint #10-2-5291 filed by Ms. Laney had determined that Sgt. Pierce made unwanted sexual comments and sexual innuendos to Tammy Laney, Stephanie Neff, Charity Johns, Elizabeth Holmes, Kristina Imler, and Barbara McKee. It further stated that investigation into complaint #10- 2-10464, filed by Sgt. Scott, had determined that Sgt. Pierce had exposed himself and crudely solicited Gillian Scott to masturbate him and engage in oral sex with him. The Extraordinary Dismissal Letter was signed by Warden Riedl. Ms. Neff filed a complaint with the Florida Commission on Human Relations on June 16, 2011. The complaint was in letter form, signed by the complainant and verified, and was sufficiently precise to identify the parties and to describe generally the action or practice complained of. The FCHR Charge Form was signed by Ms. Neff on July 26, 2011. The Commission issued a Determination of No Cause on January 13, 2012, and Ms. Neff filed her Petition for Relief alleging an unlawful employment practice on February 8, 2012. On February 10, 2012, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge. The hearing was held on June 1, 2012. In her testimony at hearing, Ms. Neff attempted to connect her references to "family situation" and "personal matter" that she gave as the reasons for her resignation in July 2010, to her subsequent complaint of sexual harassment. She stated, I no longer trusted the people I was supposed to trust to protect me. It was causing problems at home. The hang-up phone calls. The stress. The yelling at my kids because they were five minutes late walking from the bus stop. My husband told me it was either quit my job with the Department or our marriage was going to end. I quit my job with the Department. However, Ms. Neff's explanation at hearing that she had actually been referring to the sexual harassment at work when she explained why she was leaving was not credible, and Ms. Neff did not demonstrate that she resigned because work conditions were intolerable. The comments of Correctional Officers made in Ms. Neff's presence that "we need to watch out for her" or words to that effect were hurtful, but were not directly threatening. Under all of the circumstances, an objective person would not conclude that the Corrections Officers making them would not protect her if an inmate attempted to hurt her in some way. There was no evidence that any Corrections Officer other than Sgt. Pierce ever sexually harassed Ms. Neff or any other person at the reception and Medical Center. It is not reasonable to assume they were all guilty of such conduct and were therefore afraid of Ms. Neff also turning them in. An objective person would instead conclude that being unaware of the true facts about Sgt. Pierce's behavior, security personnel were concerned that they not be wrongly accused by Ms. Neff. Ms. Neff's belief that these security personnel were unhappy that Ms. Neff (as they erroneously thought) had turned in Sgt. Pierce for sexual harassment was reasonable under the circumstances; her further conclusion that they would therefore want her to be hurt and so would not do their duty to protect her against physical injury from an inmate was not warranted. At hearing Ms. Neff testified that she did not leave work early before the end of her shift on July 1, 2010. She testified that she did not leave for a family emergency. Ms. Neff testified that she left the State and went to Alabama with her daughter but without her husband. She stated, "He stayed in Florida and took care of our stepson and his pregnant girlfriend. She could not leave the state due to prenatal care. I had just met my biological father a year and a half before. My daughter and I went to vacation with him for the summer so I could get to know him." Petitioner is a member of a protected class. Sgt. Pierce's statements, the remark by inmate Horton, and the comments by Corrections Officers were constituent parts of one broader working environment. The sexual harassment Of Ms. Neff was not so severe or pervasive that it altered the interpersonal climate of the workplace or created an objectively abusive and hostile atmosphere. The facts do not support the conclusion that the Department of Corrections discriminated against Ms. Neff on the basis of sex.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaints. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2012
The Issue Whether Respondent committed the unlawful employment practices alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. The County Park and Recreation Department (Department) is a department of County government. At all times material to the instant case, Carolyn Gibson was a Region Manager with the Department, having ultimate supervisory authority over the operations at the County parks in her region (Region 2), including Arcola Park and West Little River Park. At all times material to the instant case, Rhonda Ham was a Recreational Specialist 2/Service Area Manager with the Department, who was based at Arcola Park and worked under the immediate supervision of Ms. Gibson. Ms. Ham has been married to her husband Earl for the last 13 or 14 years. Although Ms. Gibson considers Ms. Ham to be a friend,4 her friendship with Ms. Ham has not prevented her from taking disciplinary action against Ms. Ham when the "facts" have warranted. Petitioner is a single, custodial father of three children (two daughters and son) aged three, five, and seven. He is now, and was at all times material to the instant case, "the sole support of these children." Unlike Ms. Ham, Petitioner is college educated. He attended the University of Miami and Clarksdale Community College in Clarksdale, Mississippi, before receiving his Bachelor of Arts degree from Virginia State University (VSU) in 1993. After finishing his undergraduate studies, he spent a year in graduate school at VSU. Petitioner played football in college, and he went on to play the sport professionally after being selected in the National Football League (NFL) draft. One of Petitioner's teammates on the University of Miami football team was James Stewart.5 As teammates, Petitioner and Mr. Stewart "got along with one another and communicated from time to time," but they were not "close friends" and did not "hang out" together. Mr. Stewart also went on to play in the NFL. Following his playing career, he was convicted of a felony, and, in 2001, began serving a five-year prison sentence. He was released from prison in 2006 and is currently on probation. From March 20, 2006, until December 14, 2006, Petitioner was employed by the County as a Park and Recreation Manager 1 at West Little River Park. In that capacity, he had supervisory authority over the other Department employees assigned to work at the park. At all times during his employment with the County, he was a probationary employee with no entitlement to continuing employment.6 Ms. Ham was Petitioner's immediate supervisor for the duration of Petitioner's employment with the County except for a three-week period in April and/or May 2006.7 Her office (at Arcola Park) was located approximately two miles from Petitioner's office (at West Little River Park). Ms. Ham had the authority to monitor and evaluate Petitioner's job performance and to counsel and reprimand Petitioner, both verbally and in writing. The authority to terminate Petitioner's employment resided, not with Ms. Ham, but with Ms. Gibson. It was Ms. Gibson who hired Petitioner. She did so after reviewing Petitioner's application and interviewing him. Petitioner had applied for the position on or about March 2, 2006, by submitting a filled out and signed County employment application form. By signing the application, he "certified," among other things, the following: I certify that to the best of my knowledge and belief, all of the statements contained herein, and any attachments, are correct, complete and made in good faith. I understand that a background check will be conducted and that should an investigation disclose any misrepresentation, I may be subject to dismissal. The application form had an "Employment History" section, which contained the following instructions: List previous employment history, starting with your current or most recent employment. If you have held more than one position within the same organization, list each position as a separate period of employment. Be sure to indicate where employment may be verified. Please include job-related volunteer, temporary, part-time work and military experience. On his application, Petitioner knowingly failed to disclose that he had been employed from May 30, 2005, to September 17, 2005 as a Recreation Aide V with the City of Miami Parks and Recreation Department, working under the supervision of Lewis Mahoney, who was the Park Manager at Gibson Park. As a City of Miami Parks and Recreation Department employee, Petitioner had had a poor work record and had not gotten along with Mr. Mahoney. He undoubtedly knew, at the time he filled out the County employment application form in March 2006, that Mr. Mahoney, if contacted by the County, would not have good things to say about him. Ms. Gibson did not find out about Petitioner's failure to disclose his employment with the City of Miami on the County employment application form until after she had terminated Petitioner. Had she known about this non-disclosure, she would have never hired Petitioner and allowed him to work for the County. As part of the application and hiring process, Petitioner signed various forms in addition to the County application form. One of these forms was an Oath on Outside Employment for Full-Time Employees form that Petitioner signed on March 2, 2006. It read as follows: I, Damacio Green, a full-time employee of Miami-Dade Park and Recreation Department, certify that I am not engaged in any type of outside employment. I certify that I am not paid by, nor do I receive any equivalent gratuities from, any employer for any of my services except as performed during the normal course of my employment with the Miami-Dade Park and Recreation Department. I certify that before accepting outside employment, I will submit a complete record of intended outside employment to my Department Director for approval. I will abide by the Department Director's decision on the matter. I further certify that I fully understand the County policy on outside employment outlined below. MIAMI-DADE COUNTY POLICY ON OUTSIDE EMPLOYMENT (SEC. 2-11 OF THE CODE OF METROPOLITAN DADE COUNTY, FLORIDA) No full-time County employee shall accept outside employment, either incidental, occasional or otherwise, where County time, equipment or material is to be used or where such employment or any part thereof is to be performed on County time. A full-time County employee may accept incidental or occasional outside employment so long as such employment is not contrary, detrimental or adverse to the interest of the County or any of the department and the approval required in subsection (C) is obtained. Any outside employment by any full-time County employee must first be approved in writing by the employee's department head who shall maintain a complete record of such employment. Any employee convicted of violating any provision of this section shall be punished as provided in Section 1-5, and, in addition thereto, shall be subjected to dismissal by his Department. (Ord. No. 58-5, Sec. 25.01, 2-18-58) When Petitioner "first started working" for the County, he asked Ms. Gibson if, under the County's Policy on Outside Employment, he would be able to operate his mobile food service business, Damacio's Mr. Tasty, LLC, while employed with the County. Ms. Gibson responded to Petitioner's inquiry by telling him, "You can't do it." On at least two occasions during his employment with the County, Petitioner operated his mobile food service business without Departmental approval, despite knowing that doing so was in violation of the County's Policy on Outside Employment. It was not until after Petitioner had been terminated that Ms. Gibson discovered that Petitioner had committed this violation of the County's Policy on Outside Employment. Ms. Gibson would have terminated Petitioner's employment had he still been employed with the County at the time she learned of the violation. Among the other forms that Petitioner signed during the application and hiring process was an Acknowledgment of Receipt of the County's Unlawful Harassment Policy (Administrative Order No. 7-37). He signed this form on March 2, 2006. By doing so, he acknowledged the following: I have received a copy of this Unlawful Harassment Policy and understand that it contains important information on filing a complaint of harassment with my department or the Office of Fair Employment Practices. I will familiarize myself with the Unlawful Harassment Policy and understand that I am governed by its contents. If I have questions about the policy I can contact my Department Affirmative Action Officers Yolanda Fuentes-Johns or William Lindley at (305)755-7866 or the Office of Fair Employment Practices at (305)375-2784. The County's Unlawful Harassment Policy (which was printed on the form) provided, in pertinent part, as follows: POLICY The policy of Miami-Dade County is to ensure that all employees are able to enjoy a work environment free from all forms of discrimination, including harassment, on the basis of race, sex, color, national origin, religion, retaliation, age, disability, ancestry, marital status, pregnancy, sexual orientation, or the exercise of their constitutional or statutory rights. Administrative Order 7-28 was adopted in 1987 specifically to protect County employees from sexual harassment. Administrative Order 7-28 and Administrative Order 7-6, Personnel Policy on Equal Employment Opportunity, have since been interpreted to extend similar protection to employees who believe they have been harassed for unlawful reasons other than sex. This Administrative Order is intended to make clear that all County employees who believe they have been unlawfully harassed must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and may file a complaint for prompt and proper investigation. Employees who are found guilty of unlawfully harassing other employees shall be subject to appropriate sanctions, depending on the circumstances. These may range from counseling up to and including termination. Miami-Dade County will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. The County, in exercising reasonable care to prevent and promptly correct harassment or retaliation for reporting harassment, will protect victims from further unlawful harassment and retaliation. * * * COMPLAINT PROCEDURE Employees who believe they have been the subject of harassment prohibited by this Administrative Order, must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and, if they choose, may file a formal complaint with the County's Office of Fair Employment Practices. Employees may, if they desire, also report such incidents of unlawful harassment to their supervisor but are under no obligation to do so. Employees are encouraged to report harassment before it becomes severe or pervasive. This will facilitate early mediation and effective resolution of potential unlawful harassment complaints. All complaints of harassment, subsequent investigations and corrective actions shall be handled on a confidential basis to the extent possible under the law. Protective measures will be instituted to protect the complainant. Miami-Dade County has established procedures for resolving, filing and processing complaints of unlawful harassment. If the investigation confirms the existence of unlawful harassment, the Fair Employment Practices Office will pursue prompt corrective action, including remedial relief for the victim, and appropriate disciplinary action against the offender. * * * At no time during his employment with the County did Petitioner complain, in accordance with the "complaint procedure" described in the County's Unlawful Harassment Policy, that he was being, or had been, sexually harassed by Ms. Ham. During much of the time that Petitioner worked under Ms. Ham's immediate supervision, the two had an amicable relationship--so amicable that on one occasion, without being asked by Ms. Ham, Petitioner gave her a check in the amount $125.00 to help her purchase a dance outfit for her daughter. What started out as a friendly, non-physical relationship evolved into a sexual one, in which both Petitioner and Ms. Ham freely and willingly participated. They engaged in sexual activity on three separate occasions--once in Petitioner's office at West Little River Park and twice in Ms. Ham's office at Arcola Park. The first of these consensual sexual encounters occurred in August 2006. The third and final encounter was in October 2006. On each occasion, Petitioner was the one who initiated the physical contact. "[A]shamed and embarrassed" by her conduct, Ms. Ham decided to put an end to her adulterous affair with Petitioner. There was no further sexual activity between Ms. Ham and Petitioner after October 2006. Ms. Ham oversaw a Children's Trust-funded after-school program at Arcola Park in which Petitioner's daughter, DK, was registered. It was Ms. Ham's responsibility to make sure that children in the program were picked up from their respective schools at the end of the school day and transported to Arcola Park. After the end of the school day on November 6, 2006, Petitioner received word from DK's school that DK had not been picked up and was still at school. Petitioner ultimately telephoned Ms. Gibson on her cell phone and, in a "very loud" tone of voice, said, "Ms. Ham left my daughter, she didn't pick my daughter up from school, what are you going to do about it?" Ms. Gibson later met with Petitioner and Ms. Ham to discuss the matter and try to sort things out. During the meeting, Petitioner was, in Ms. Gibson's eyes, "irate" and "out of control." He told Ms. Gibson that she "couldn't tell him anything" because she did not "have any kids" and she "kn[e]w nothing about parenting." Ms. Gibson sensed from Petitioner's and Ms. Ham's "body language" and the way that they were "glaring at each other" at the meeting that they might be involved in a non-work- related relationship. She therefore asked them, before they left, whether they had "crossed the line." They both denied that there was anything going on between them. A few days later, Petitioner came into Ms. Gibson's office and asked her, rhetorically, "Do you think I'm interested in Ms. Ham?" He then told her, "Well, Ms. Gibson, I'm not interested in Ms. Ham, I'm interested in you." Ms. Gibson's response to this come-on was to direct Petitioner to "get out of [her] office." Petitioner was due to be evaluated on or about September 24, 2006, but it was not until November 17, 2006, that he received his first Management Performance Evaluation. This November 17, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater") with input from Ms. Gibson (who signed the evaluation as the "reviewer"). The overall rating was unsatisfactory. The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Unsatisfactory Mr. Green, you entered this department on March 28, 2006 as a Park & Recreation Manager 1 at West Little River Park. From your inception there has been an increase in participant enrollment in spring and summer camp, and [the] after school program. However, there has been a decrease in registration/attendance in your sports development program, which is the region's primary program. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, over the past 6 months I have had the opportunity to observ[e] your decision- making skills and often times your decisions are hasty. At your level you should take the opportunity to first identify the problem, gather the facts and make decisions based on facts and not what you are feeling at the time, i.e. sending part-timers home and then call[ing] them back to work within the hour.[8] Also, it is important that you understand parents are our customers, they might not always be right in their actions. However, as professionals we must always maintain our composure by allowing them to vent and then by explaining the circumstances rather than trying to talk over them and suggesting they bring a spouse to deal with the situation instead, as you have done.[9] PERSONAL DEVELOPMENT RATING: Satisfactory Mr. Green, you have a solid educational foundation and you have taken the initiative to enroll in PAR training to aid you in better understanding the payroll attendance record. You are currently involved in the recreation modular training. However, being new to the department it is extremely important that you make a concentrated effort to enroll in trainings in the following areas[:] time management and dealing with conflict in the workplace, progressive discipline and a host of other trainings relative to your professional development. You need to encourage your subordinate staff to enroll in training to improve their knowledge and skills. PLANNING AND ORGANIZING RATING: Needs Improvement Mr. Green, during your first six months in the department you have not taken the initiative to plan, organize or implement any special events, activities or sporting events.[10] You have not shown any creativity or enthusiasm. INTERPERSONAL SKILLS RATING: Needs Improvement Mr. Green, your relationship with your subordinate staff has been less than cohesive. There have been instances of verbal conflict and derision between you and Mr. Morgan and Ms. Johnson,[11] a seasonal employee[,][12] and several parents of patrons that you were not able to resolve satisfactorily as the leader. Although we have discussed strategies on how you can improve in this area improvement is still needed to foster the teamwork ethic at West Little River Park. You have not made an effort to understand[] how the chain of command works. It is very important that you understand your first point of contact is your Service Area Manager. If we cannot resolve the situation at my level and if you're not satisfied with the resolution, you can then request a meeting with the next level in the chain of command. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, your very limited knowledge of the computer has been a hindrance for you as a Park & Recreation Manager 1. It is very important for you to have a basic working knowledge of the computer. The computer is an essential tool that is used everyday. Our reliance on them is an ever increasing fact. Mr. Green, you are not taking the initiative to learn what you need to know in order to function in your capacity as a manager. During our regional staff meetings you are not attentive and you do not take notes, yet you come back to me with questions that were covered during the staff meetings.[13] I have been supportive by consistently aiding you with your assignments. However, in many instances you have not comprehended the information well and have looked to me for more than just support. You are now faced with spreading your part- time budget and coming up with goals and objectives. You have missed every deadline given. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Needs Improvement Mr. Green, an improvement is needed in the area. You have been encouraged to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. However, you have been challenged in your role as a leader in applying them in the daily operations of the park and rapport with your staff and patrons. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Re-evaluate in 1 1/2 months/ Is employee eligible for permanent status? N/A IN WHAT WAYS CAN OR MUST THE EMPLOYEE IMPROVE PERFORMANCE? Mr. Green, to improve your overall performance, concentrate on the following: Increase participant registration/ attendance in the Sports Development Program which has declined under your supervision. Demonstrate more leadership before subordinate staff. Enroll in department management courses. They will help in your professional growth. Enroll for "Service Excellence" training to enhance you customer service skills with patrons. Plan, organize and market at least 2 annual special events at West Little River Park. Enroll [in] computer courses to be more proficient in the use of the personal computer. Follow the chain of command as mandated by our Regional Manager and your immediate supervisor. You will be re-evaluated in the next 1 1/2 months. If there has been no substantial improvement stronger measures will be made. Petitioner prepared a written rebuttal to his November 17, 2006, evaluation, which he provided to Ms. Ham and Ms. Gibson on or about November 27, 2006. It read as follows: SECTION 2: DECISION MAKING AND JUDGMENT: RATING: NEEDS IMPROVEMENT In the subject of decision-making and judgment, I received a rating of need[s] improvement. I totally feel that this rating is unfair because of one incident that happened in a six-month period. However, the situation with the parent being treated unprofessionally is completely wrong. The parent made the statement to me of having her husband deal with the issue rather than herself. I simply responded, "If you feel that this is necessary for your spouse to speak with me rather than you, then I have no problem with it. I will be here in my office whenever he ha[s] time to speak with me." The entire ordeal was handled totally in a professional manner. SECTION 4: PLANNING AND ORGANIZING: RATING: NEEDS IMPROVEMENT In the area of planning and organizing, I received a rating of need[s] improvement, which I feel is totally unfair and incorrect. During the entire six month[] period, I never once received a memo or any corresponden[ce] to the effect that my planning and organizing skills was not up to par.[14] When I received this position on March 21st, 2006, I was given a brief overview pre-training of my duties and responsibilities i.e., administrative paper work, sports development participation, seasonal camp programming, after school daily programming and maintenance responsibilities. Special events were never mentioned. My facility participated in spring break and summer camps in which we increase[d] the numbers a great deal from past history. We also participated in every sport development cycle. According to the directions I was given, I felt as if I was totally within my responsibilities. Now to receive an impromptu surprise that I am not on task is not only incorrect but also absolutely unprofessional. SECTION 5: INTERPERSONAL SKILLS: RATING: NEEDS IMPROVEMENT I feel that this rating, needs improvement, is unfair and incorrect. During my first six months, I've had two situations with parents that are sisters, which was a misunderstanding about the kids coming into the facility unsupervised. After explaining the danger of that to the parents, they both agreed with me. The second situation had already been explained in section 2 when a parent felt she would like for her husband to address the issue rather than herself. At that time the situation was resolved without further discussion. The issues that I had with Mr. Morgan, I feel personally w[ere] created by Mrs. Ham by allowing him to break the chain of command by calling you without discussing anything with me first was wrong. When I give Mr. Morgan an assignment that he does not like, he feels that he could call you to change it. Must I remind you that Ms. Gibson warned you about this behavior during summer camp. Ms. Gibson also stated to you, "Rhonda, this is wrong! You wouldn't want Mr. Green to do this to you with me." This is not the support I expected from my immediate supervisor. I feel sabotaged, betrayed and set up for failure. In my evaluation, you mentioned me breaking the chain of command and asked me to call my immediate supervisor about any issue before contacting the regional manager. If I remained unsatisfied, what did I violate if you were contacted twice, you were told that I was unhappy with your answer and I needed immediate attention? This would mean that I followed the chain of command to the letter. SECTION 6: COMMUNICATIONS: RATING: UNSATISFACTORY The rating that I received in section 6 communication: Unsatisfactory, I feel that it is unfair and incorrect. I have basic knowledge of the computer and can perform all of my duties as a Park and Recreation Manager 1. During our regional staff meetings, I did not always take written notes because at times I recorded the meetings. However, I feel my immediate supervisor should be someone I can go to for clarity which is not outside of her responsibilities. On top of this, I was faced with spreading a part-time budget in this department for the very first time and was left hanging out to dry by Mrs. Ham. I received very little directions and had to look toward other colleagues for help. Mrs. Ham set meeting dates when I asked for help and never met them. When she finally did show, she took the work that I had already done and said, "I'll handle it from this point." Mrs. Ham may have her method of assisting her staff but I feel the more hands on involvement I have with the new work and assignments will make me effective in learning the process and being more self- sufficient with the budget assignments as well as other paper work. However, I received no correspondence or memos of any type reflecting how off the mark I was in the area of communication during the entire six months. As a matter of fact, I felt the communication between Mrs. Ham and I was great. It was so great that I had no problem doing financial favors for her when she needed it. Now for everything to turn so bad so fast, I have no choice but to feel it is retaliation [for] the call made to Ms. Gibson on the day my daughter was an hour and a half late being picked up from her school which was supposed to be done by one of Mrs. Ham's staff workers which I had to do myself because of the number of calls I received from her school. This is pertaining to the issue of the broken chain of command. SECTION 7: ADMINISTRATIVE POLICIES AND PROCEDURE: RATING: NEEDS IMPROVEMENT I received a rating of need[s] improvement, which I feel it is only natural that a new employee to need improvement in this area if it is based on the knowledge of the manual instead of knowing where to go in the manual to retrieve the information. However, I will continue to read through my operation manual and my personal handbook in my sp[are] and down time. Overall, I feel this evaluation was a personal attack for some personal reason, i.e. contacting Ms. Gibson after trying to resolve the issue with Mrs. Ham to no satisfaction. This is when I first found out I was doing such a poor job as a manager and feel th[ere] will be more retaliation. While Petitioner's written rebuttal contained various accusations against Ms. Ham of supervisory wrongdoing, it was devoid of any allegation that Ms. Ham had subjected Petitioner to any type of sexual harassment.15 On November 30, 2006, after it had been brought to her attention that Petitioner was having his subordinates complete for him written assignments that Petitioner was supposed to be doing himself for a Department-sponsored management training class he was taking, Ms. Ham sent the following memorandum to Petitioner: I was informed by your PSA Jerome Jamison that you have been delegating your Recreation Module Training assignments to him and PSA Tremaine Morgan to complete. If this is correct, please stop this immediately. The training series that you have been recommended to participate [in] requires you to complete these assignments. These exercises [are] a part of your development and training as a manager. On December 5, 2006, Ms. Ham sent another memorandum to Petitioner. This memorandum was about an incident that had occurred the previous day. It read as follows: On Monday, December 4, at approximately 2:18 p.m. you called to let me know that the key for the West Little River Park's van was misplaced and that you could not find the key. I asked you why you were just now reporting this when your driver is scheduled to be at your first scheduled pickup point at 2:00 p.m. You began to yell in a loud voice at me, "You were the one that told me to schedule my driver to report at 2 p.m." I responded that you needed to lower your voice and that you were being insubordinate and that this is my last warning. Your statement was untrue as well. I directed you to schedule your staff to report at least one half hour prior to the first pick up anticipating travel time and to inspect the van. This is not the first instance of offensive conduct to me and I am aware that you acted similarly toward our Region Manager. I have discussed your conduct with you before. Mr. Green, there must be an immediate and sustained improvement in your performance or more serious disciplinary action will result. I need the Unusual Incident Report detailing the details on the missing van keys today. On December 5, 2006, in response to the November 30, 2006, and December 5, 2006, memoranda he had received from Ms. Ham, Petitioner sent a memorandum of his own to Ms. Ham. He provided a copy of this memorandum to Ms. Gibson. The memorandum read as follows: Ms. Ham, pertaining to the memo I received on Nov. 30, 2006, stating you were told by Mr. Jamison that I was delegating my module training to him and Mr. Morgan. That alleged statement you claimed Mr. Jamison made after speaking with Mr. Jamison, he stated that it was not true. Mr. Jamison stated that he was only inquiring more about the module. Now, let me tell you what really happened. What I simply did was shared the information that was in the module training with my staff because of their daily hands on with the participants. I felt as the Park Manager that I was well within my rights to discuss the information with my staff and ask for feedback w[hether] it was verbal or written. The reason I did this was because the questions in the training w[ere] not only rel[evant] to me but to them as well because of their dealings with the participants on a daily basis. When I told them why I was doing this, they both agreed. Mr. Jamison and Mr. Morgan also told me that the few questions they went over [were] not only intriguing but also very helpful in dealing with some of the issues they encounter with some of the participants. By the way Mrs. Ham, I was told in a discussion with Mr. Jamison that the question about the module was asked three weeks ago prior to [the] Nov 30, 2006 memo I received from you. My question to you is why give me a memo pertaining to this now. Pertaining to the memo I received today on my alleged conduct on December 4, 2006 is not only unfair but also untrue that I was yelling at you when I called about the missing key. I deplore that statement. What is true that I did do the right thing by notifying and informing you about the missing key. What is also true is that contrary to popular opinion, you were the one that became angry with me because I was asking you what else could I do in terms of getting my after school participants picked up. I also asked you should I go in my personal van to make sure that they were all picked up in a timely manner. You then started . . . yelling at me in sequence, "when did you first notice that the key was missing, Mr. Jamison must be just getting to work, what time do[es] he come in and why is he coming in at 2 p.m. when he has a 2 o'clock pick-up.["] I simply stated to you that "you were the one that made me change his scheduled time to come in from 1 o'clock to 1:30 p.m. to now 2:00 p.m." which was all I said in return with my regular tone of voice. Then you replied "you better watch [your] tone of voice with me. This is your last warning about that tone of voice." When in fact, you were the one that was doing all of the yelling and I have a witness to prove it. As I stated in my rebuttal to my regretful performance evaluation which came a week later after my call to our Regional Manager when I was doing so well before then. "I feel that th[ere] will be more retaliation to come" and it is now clear that I was right. You are doing just that because of my phone call to our Regional Manger about my daughter being an hour and a half late picked up by one of [your] subordinates which I had to do myself. In his memorandum, Petitioner alleged retaliation only for his having complained to Ms. Gibson about Ms. Ham's not having picked up his daughter on time. He made no allegations of sexual harassment. On December 5, 2006, Petitioner attended a Department- sponsored training class, the title of which was "How to Maintain a Harassment Free Work Environment." The class was lead by Beatriz Lee, the Department's Human Resources Manager and its Affirmative Action Officer. In her introductory remarks, Ms. Lee told the class "what [her] role [was with] the [D]epartment." The class lasted approximately three hours, during which Ms. Lee discussed, among other things, the County's Unlawful Harassment Policy, including how to file an unlawful harassment complaint. After the class ended Petitioner walked up to Ms. Lee and indicated that he wanted to talk to her. Ms. Lee took Petitioner into her office so that they could converse in private. Petitioner told Ms. Lee that he was "having problems with his supervisor," Ms. Ham, and then showed Ms. Lee the November 17, 2006, evaluation he had received. Ms. Lee asked Petitioner why he thought these "problems" existed. Petitioner replied that he and Ms. Ham were "tight" and were "good friends" and that he "didn't understand why [Ms. Ham] was being so demanding with him, because he had even helped her out financially." During their conversation, Petitioner told Ms. Lee about Ms. Gibson's having asked him and Ms. Ham if they had "crossed the line." Ms. Lee then inquired why Ms. Gibson would ask such a question. Petitioner responded, "I guess because we were so close. Because we-–you've got to understand me and Rhonda [Ham] are very tight . . . ." Petitioner crossed his middle finger over his index finger to show Ms. Lee how "tight" he and Ms. Ham were. At no time during his talk with Ms. Lee did Petitioner claim he had been sexually harassed by Ms. Ham. On Thursday, December 14, 2006, less than one and a half months after receiving his first Management Performance Evaluation, Petitioner received his second (and last) Management Performance Evaluation. This December 14, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater"). Ms. Gibson was on vacation, so Bobby Johnson signed the evaluation as the "reviewer" in her stead. Ms. Gibson, however, "concur[ed] with the statements contained in this performance evaluation" and had already decided that Petitioner's "probation [would] be failed." The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Satisfactory Mr. Green, the sports development program registration increased by 4, however you need to continue this effort by better utilizing your present staff and by developing a recruitment strategy. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, your continued effort is still needed for your improvement in this area. Please follow the recommendations given to you in your last performance evaluation. PERSONAL DEVELOPMENT RATING: Unsatisfactory Mr. Green, you completed the recreation module training, although I had to advise you that you are not allowed to delegate any of the related assignments to your subordinate staff.[16] You have enrolled for department training as I recommended. Remember, you need to encourage your subordinate staff to enroll in training likewise to improve their knowledge and skills. Your effort to recruit satisfactory seasonal and year round part-time staff has been a challenge for you. I recommended that you visit the local colleges for satisfactory applicants, however, thus far you have resisted my suggestions.[17] PLANNING AND ORGANIZING RATING: Unsatisfactory Mr. Green, there have no special events, activities or sporting events implemented by you for West Little River Park or as a regional event. On December 6 during the trial budget reviews with the Region Manager it was noted that you had set a goal of forming a basketball league to operate from January-May 2007. However in your planning you failed to include adequate time for publicizing the event in the community. You should have routed all your budget related items through your Service Area Manager. INTERPERSONAL SKILLS RATING: Unsatisfactory Mr. Green, improvement is still needed to foster teamwork at West Little River Park. During this rating period you were verbally reprimanded for your unprofessional conduct when speaking to me and our Region Manager, during presentation of your 6 month performance evaluation for a merit increase, during a phone conversation with me about a missing van key and during a phone conversation with Ms. Gibson. You have also reacted defensively when receiving constructive criticism from your supervisor. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, use of the computer and related programs has been a challenge for you. Your registration paper work was not organized as I had directed and as a result the input of West Little [River Park] Program registrants into the CITRIX system has not been completed.[18] As I stated in your earlier evaluation, the computer is an essential tool and our reliance on them is an ever increasing fact. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Satisfactory Mr. Green, I encourage you to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Not Granted. Is employee eligible for permanent status? Not Granted. Because she considered Petitioner to be a "substandard employee" who had performed poorly during his probationary period (and for this reason alone), Ms. Gibson decided to "fail [Petitioner's] probation" and terminate his employment with the County. Ms. Gibson's decision was based on: (1) Ms. Ham's evaluation of Petitioner's performance; (2) information provided to Ms. Gibson by other employees about Petitioner's performance19; and (3) Ms. Gibson's "independent observations of [Petitioner's] performance." On the evening of December 14, 2006, after having been presented with his second Management Performance Evaluation, Petitioner was advised that he was being terminated. Later that evening, Petitioner telephoned a friend of his, Jennifer Williams. (Ms. Williams taught reading to Petitioner's daughter DK and to the other children in the Children's Trust-funded after-school program at Arcola Park.) Petitioner began his conversation with Ms. Williams by telling her, "That bitch fired me," referring to Ms. Ham. He then asked if he could come by Ms. Williams' home. Ms. Williams told him that he could. Petitioner arrived at Ms. Williams' home shortly thereafter, and Ms. Williams invited him in. They went to the den, sat down, and talked. Petitioner again explained to Ms. Williams that "Ms. Ham had terminated him." He then told Ms. Williams that Ms. Ham had been "harassing him sexually." When Ms. Williams heard this she "just started laughing." Having seen Petitioner and Ms. Ham and "their interactions," she "could not believe" that Ms. Ham had sexually harassed Petitioner. Petitioner then asked Ms. Williams "to help him type up a letter" (on Ms. Williams' computer) describing "exactly what [had] happened between [Petitioner] and Ms. Ham." Ms. Williams agreed to provide such help. Following Petitioner's directions, Ms. Williams typed a letter addressed to Ms. Gibson, which read as follows: Subject: Wrongful Conduct from Immediate Supervisor This letter is in reference to the meeting that took place yesterday on December 7, 2006 around 3:00 p.m. at the region office.[20] You stated to me that you have a problem with me not being truthful about things that have happened between Mrs. Ham and I. As I indicated to you "yes, you are right! I have not told you everything that has happened." I feared that if I had told you Ms. Gibson about the constant request for money as well as the constant request for sexual favors that I would be terminated. Mrs. Ham has explained to me on several occasions that I can be terminated anytime she felt like it and it would be nothing I could do about it, each time before financial and sexual favors were requested. Mrs. Ham and I have been sexually involved over 10 times. These sexual acts have taken place at West Little River and Arcola Park. Also, at times when Mrs. Ham has told me to take her [to] lunch she has then pulled into a nearby motel and again requested sexual favors. Many times I wanted to tell you about these issues between Mrs. Ham and me, however, I feared for my job and I wanted to pass probation so that I could then start denying Mrs. Ham of these favors. Sincerely Damacio Green Petitioner asked Ms. Williams to "backdate the letter" to December 8, 2006, and Ms. Williams complied. The following day, Friday, December 15, 2006, Petitioner (or someone acting on his behalf) went to the Region 2 office to return his Department uniforms and, while there, surreptitiously placed in Ms. Gibson's desk an envelope containing the backdated "Wrongful Conduct from Immediate Supervisor" letter Jennifer Williams had typed the evening before. Ms. Gibson was not in the office that day, and her administrative secretary, Debbie Williams,21 was on break when the envelope was placed in Ms. Gibson's desk. Later that day, Petitioner telephoned Ms. Lee, complaining that Ms. Ham had sexually harassed him and had "fired" him because he had refused to "put up with it any more." Ms. Lee asked Petitioner why he had not said anything to her previously about Ms. Ham's sexually harassing him. Petitioner responded that he "had been afraid" and thought he might "lose [his] job." During his conversation with Ms. Lee, Petitioner falsely told her that, prior to his termination, he had "provided a letter to Ms. Gibson telling her that [Ms. Ham] had been forcing him to engage in sex." Ms. Lee asked Petitioner to send her a copy of that letter. At approximately 3:00 p.m. on December 15, 2006, Petitioner faxed to Ms. Lee a copy of the backdated "Wrongful Conduct from Immediate Supervisor" letter that Jennifer Williams had typed for Petitioner the evening of December 14, 2006. Ms. Lee showed the letter to her supervisor, Yolanda Johns, who subsequently telephoned Ms. Gibson to inquire about the matter. Ms. Gibson informed Ms. Johns that she did not know anything about a "Wrongful Conduct from Immediate Supervisor" letter addressed to her from Petitioner. Ms. Johns then faxed a copy of the letter to Ms. Gibson, who was at Martin Luther King Park attending a Christmas party. After reviewing the letter, Ms. Gibson confirmed that she had never seen it before. On Monday, December 18, 2006, Ms. Gibson (who was on leave) came by her office and discovered the letter inside an envelope in her desk drawer (where it had been placed on December 15, 2006, the day after Petitioner's termination). Ms. Lee conducted an investigation of Petitioner's allegations of sexual harassment. As part of her investigation, she interviewed Petitioner and numerous other individuals. Based on the information she obtained, Ms. Lee determined (correctly, as it turns out) "that Mr. Green and Mrs. Ham not only engaged in a consensual sexual relationship, but . . . Mr. Green was persistent in pursuing Mrs. Ham to engage in such activity." Consequently, Ms. Lee concluded that Petitioner's allegations of sexual harassment were unfounded. Ms. Lee issued her investigative report in February 2007. In her report, Ms. Lee recommended that Ms. Ham be suspended 30 days without pay for her "lack of judgment in succumbing to the pursuit of a subordinate." By letter dated March 15, 2007, Ms. Ham was given "formal notification" that she was being "suspended without pay for four (4) weeks to be served beginning Monday, April 9, 2007 through Sunday May 6, 2007," for having "engaged in a consensual sexual relationship with a subordinate employee, Mr. Damacio Green, former Park and Recreation Manager 1, which affected [her] ability to properly supervise this employee."
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 the County not guilty of the unlawful employment practices alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009.
