93-001558 Margarita Coll vs. Martin-Marietta Electronics, Information And Missiles Group Status: Closed Recommended Order on Tuesday, April 26, 1994.

Summary: Petitioner failed to prove national origin discrimination or sexual harass- ment or retaliation; respondent ""employer"" under facts of this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARITA COLL, )

)

Petitioner, )

)

vs. ) Case No. 93-1558

)

)

MARTIN-MARIETTA ELECTRONICS )

INFORMATION AND MISSILES GROUP, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the

Division of Administrative Hearings by its duly designated Hearing Officer,

Daniel M. Kilbride, on December 7, 8 and 22, 1993 in Orlando, Florida. The

following appearances were entered:

APPEARANCES

For Petitioner: James Sweeting, III, Esquire

2111 East Michigan Street, Suite 100

Orlando, Florida 32806

For Respondent: Kay L. Wolf, Esquire

GARWOOD & MCKENNA, & MCKENNA, P.A.

815 North Garland Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether the Respondent intentionally committed an unlawful employment

practice against the Petitioner on the basis on her national origin/Hispanic

(Puerto Rican) or gender/female (sexual harassment).

Whether Petitioner, a member of a protected class, was removed from her

position with the Respondent in retaliation for her filing of a sexual

harassment complaint with the Florida Commission on Human Relations on March 12,

1992.

PRELIMINARY STATEMENT

Petitioner filed a Petition for Relief from an Unlawful Employment Practice

with the Florida Commission on Human Relations on March 17, 1993. The matter

was referred to the Division of Administrative Hearings for a hearing de novo

and the submission of a recommended order to the Florida Commission on Human

Relations.

The original "Charge of Discrimination" was filed on March 12, 1992, with

the City of Orlando Human Relations Department. The matter was deferred to the

Florida Commission on Human Relations who conducted an investigation and issued

a determination.

Respondent filed its Answer and Affirmative Defenses and discovery ensued.

Following continuances requested by the parties in order to permit new counsel

to prepare for hearing, a formal hearing was conducted in Orlando, Florida on

December 7-8, and 22, 1993. At the hearing, Petitioner testified on her own

behalf, called three witnesses, Samuel Cortez, Linda J. Reilly, and Walter B.

DuBose, and offered three exhibits in evidence. Respondent offered the

testimony of three witnesses, and also offered nine exhibits in evidence. Upon

conclusion of the testimony on December 22, 1993, the record of proceedings was

kept open in order for the deposition testimony of Sharon Savage to be taken.

Her deposition was taken on January 13, 1994. The transcript of the hearing was

filed on January 12, 1994 and the transcript of the late filed deposition was

filed on February 10, 1994. The record was then closed and the parties provided

an opportunity to submit proposed findings of fact and conclusions of law and

legal argument in support of their respective positions within twenty days of

the filing of the deposition. On February 18, 1994, counsel for Petitioner

moved for an extension of time in which to file proposed findings. Respondent

did not object. The motion was granted, in part, and Petitioner was directed to

file her proposals by March 15, 1994. Respondent filed its proposed

recommended order on March 1, 1994. Petitioner filed her proposed findings on

March 23, 1994. The proposals of the parties have been given careful

consideration and have been adopted in substance when supported by the greater

weight of relevant evidence. My specific ruling on the proposals appear in the

Appendix attached hereto.

From the record of the proceedings as a whole, including the transcript of

the deposition held on January 13, 1994, inclusive of the exhibits admitted into

evidence and specifically weighing the testimony of the witnesses and their

credibility, the following findings of fact are determined:

FINDINGS OF FACT

1. The Division of Administrative Hearings has jurisdiction over the

subject matter of these proceedings and the parties involved. All procedural

prerequisites and requirements have been duly accomplished or satisfied.

2. Respondent, Martin-Marietta Electronics Information and Missiles Group,

is a foreign corporation licensed to do business in Florida which employs more

than fifteen employees. Respondent is an "employer" within the definition found

in Section 760.02(6), Florida Statutes.

3. Petitioner, Margarita Coll, is a female, hispanic, citizen of the

United States who resides in the State of Florida. Petitioner is a member of a

protected class.

4. Petitioner was an employee of Hi-Tec Associates, Inc., during all

relevant periods, and was a de facto employee of Respondent for approximately

four and one-half years.

5. Petitioner was employed at Respondent company through a temporary

agency called Associated Temporary Services and placed with the Respondent on

January 5, 1987 as a receptionist/secretary in Martin-Marietta's Fleet

Administration Department off Sand Lake Road, Orlando, Florida. Her

responsibilities included record keeping, filing and helping Respondent's

employees with company vehicles. Petitioner reported to the Respondent's Fleet

Manager, Linda Reilly. Her day to day work assignments and supervision were

received exclusively from the Fleet Manager. Petitioner worked in her position

at the pleasure of the Respondent. She was assigned a "buyer" at Martin-

Marietta who worked with the requesting department to fashion a position to meet

the department's needs. The work was bidded out and awarded to the temporary

employment agency who best met Respondent's criteria, on an annual basis.

6. Over time, Petitioner assumed additional job responsibilities and in

June, 1988 received a commendation for exceptional performance from Respondent's

supervisors. In an effort to reward her efforts, Reilly successfully upgraded

her position, first to Administrative Assistant and then to Fleet Analyst. When

she was reclassified as a Fleet Analyst, the contract for her position was

awarded to Hi-Tec Associates, Inc., since Associated Temporary Services did not

provide technical employees under their contract with Respondent.

7. Petitioner always worked at Martin-Marietta as a temporary employee and

was never employed as a regular employee of the company. As such, she had no

company benefits; she was classified as a contract laborer and her services were

purchased by purchase order. Petitioner completed no company employment

application, was not subject to Martin-Marietta performance appraisals and had

no Martin-Marietta employment records or personnel file, other than her contract

labor time slips. Petitioner received her pay from Hi-Tec.

8. In June, 1990, Marilyn Quinonez was placed in the Fleet Administration

Department as a Fleet Administrative Assistant by a temporary employment agency.

Friction quickly developed between Petitioner and Quinonez. Petitioner believed

that Quinonez was hired to assist her and became upset when she would not follow

Petitioner's supervision or directions. Quinonez understood that she was to

report to the Fleet Manager, and objected to the way Petitioner treated her.

9. On November 15, 1990, Reilly was laid off by Respondent as part of a

reduction in force and was replaced by Joseph LaPak. LaPak observed the

bickering between Petitioner and Quinonez and that it continued to escalate over

time. In December, 1990, the temporary positions in the department were

reevaluated and the contract requirements for both positions were rewritten.

The titles of both Petitioner and Quinonez were changed to that of Fleet

Administrative Assistant. Any language in the contract which called for

Petitioner to direct the clerical duties of the department were eliminated.

10. In the fall of 1991, Quinonez met with LaPak and Wally DuBose to

clarify her reporting responsibilities. It was confirmed that Quinonez and

Petitioner were to report to the Fleet Manager, and that Petitioner did not have

supervisory authority over Quinonez.

11. Nevertheless, disputes between Petitioner and Quinonez continued.

Attempts by management to resolve the problems were unsuccessful.

12. On February 17, 1992, during the normal lunch hour, an altercation

occurred between Petitioner and Quinonez. When Quinonez returned from lunch,

she found Petitioner at her computer terminal. Quinonez asked for it back.

Petitioner refused and an argument ensued. The two women became so angry and

loud that a neighboring supervisor had to come over and separate them. Wally

DuBose sent both Petitioner and Quinonez home for the day. Petitioner's

immediate supervisor, LaPak was not in the office at the time.

13. DuBose then discussed the matter with his supervisor, Paul Smilgen,

and it was decided that Petitioner would be removed from the contract for her

failure to work with fellow employees and management, and for general

insubordination. LaPak was not involved in the decision to remove Petitioner.

14. The decision was communicated to Hi-Tec. They, in turn, notified

Petitioner that same evening that she was being replaced on the contract and not

return to the Fleet Administration Department. Hi-Tec offered to attempt to

place Petitioner elsewhere at Martin-Marietta but Petitioner refused because the

openings available at the time paid less that the Fleet Administrative Assistant

position.

15. When LaPak first became the Fleet Manager in November of 1990,

Petitioner and Quinonez worked in a very small work space. While Petitioner was

training LaPak and working on the computer, LaPak's body was frequently close to

Petitioner's and she felt pinned in a corner by him. After the initial working

relationship was established and LaPak came into Petitioner's work area, he

would touch her on her arms or shoulder in order to get her attention.

16. In December, 1990, Petitioner complained to DuBose about LaPak

touching her and making her uncomfortable. Both Petitioner and DuBose talked to

LaPak about the fact that Petitioner did not want LaPak to touch her. LaPak

honored that request and did not touch her again. He made every reasonable

effort to get her attention when he needed to talk to her without touching her.

17. In October, 1991, Petitioner complained to the Martin-Marietta EEO

office that LaPak was sexually harassing her by inappropriate touching.

Respondent then conducted an immediate investigation into the allegations and

attempted to resolve the matter through internal mediation.

18. Petitioner's testimony and other witnesses' testimony concerning

sexual comments, innuendoes or propositions and inappropriate touching allegedly

made by LaPak that occurred between December, 1990 and October, 1991 were

inconsistent and are not credible.

19. Petitioner presented no relevant or material evidence to show that

Petitioner was the victim of national origin discrimination.

20. Respondent's articulated reason for its decision to remove Petitioner

from her contract labor position was not based on gender discrimination or

national origin discrimination, nor was it pretextual.

21. Petitioner failed to prove that her termination of employment at the

Respondent's company was in retaliation for her complaints of sexual harassment

or national origin discrimination.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding, and the parties thereto, pursuant to

subsection 120.57(1), Florida Statutes and Rule 60Y-4.016(1), Florida

Administrative Code.

23. The State of Florida, under the legislative scheme contained in

Chapter 760, Florida Statutes, incorporates and adopts the legal principles and

precedents established in the federal anti-discrimination laws specifically set

forth under Title VII of the Civil Rights Act of 1964 as amended, 42 USC Section

2000e et seq. The Florida law prohibiting retaliation is found in Section

760.10(7), Florida Statutes, which essentially narrows the "opposition clause"

of the retaliation prohibition found in Section 704(a) of Title VII.

I.

24. The predicate issue that must be resolved in this case, before

addressing the merits of Petitioner's discrimination charge, is whether Coll

meets the definition of an employee under Title VII. An employee for purposes

of Title VII is "an individual employed by an employer . . . ." The definition

of the term employee is not restrictive and must turn on the facts of that

particular case. E.E.O.C. v. Pettegrove Truck Service, Inc., 716 F.Supp. 1430

(S.D. Fla. 1989). In Pettegrove the court explained that an "economic

realities" test is used to determine employee status. Under the test, one

important factor for the court to consider is the amount of control the worker

has over his or her job. Other relevant considerations include the kind of

occupation, whether the work is usually done under a supervisor or is done by a

specialist without supervision; the skill required; who furnished the equipment

used in the place of work; method of payment; and benefits accumulated.

Pettegrove at 1433.

25. In Barnes v. Colonial Life and Acc. Ins. Co., 818 F.Supp. 978 (N.D.

Tex. 1993) the court ruled that the evidence did not establish that an insurance

agent was an "employee of the company, thereby barring an employment

discrimination claim under Title VII." In Barnes, the court considered the

following factors when deciding whether Plaintiff was an employee under Title

VII;

(1) kind of occupation, with reference to

whether the work is done under the direction

of a supervisor or is done by a specialist

without supervision;

(2) skill required in the particular

occupation;

(3) source of payment for the office and

equipment;

(4) length of time the claimant has worked;

(5) method of payment, whether by time or by

the job;

(6) manner in which the work relationship is

terminated, whether by one or both parties;

with or without notice and explanation;

(7) availability of annual leave;

(8) nature of the work, whether an integral

part of the defendant's business;

(9) accumulation of retirement benefits;

(10) payment of social security taxes; and

(11) intention of the parties.

Barnes at 980. Florida case law is compatible. Magarian vs. Southern Fruit

Distributors, 1 So.2d 858 (Fla. 1941).

26. In the instant case, Petitioner was a temporary contract employee and

not a regular Martin Marietta employee. Therefore, in order for Coll to

maintain an action for discrimination against the Respondent, she must show that

an employment relationship with Martin Marietta existed, based on the above

listed factors.

27. The evidence establishes that the Petitioner was a temporary contract

employee with Martin Marietta, whose services were purchased via a purchase

order on a year-to-year basis. When the Petitioner began working at Martin

Marietta she was placed there by her employer, Associated Temporary Services, a

temporary agency, and later became employed by Hi-Tec Associates, Inc., another

temporary agency. Petitioner never completed an employment application for

Martin Marietta, she received no employee benefits while associated with Martin

Marietta and she could be removed from the contract position at any time, based

on the terms of the contract between the temporary agency and the Respondent.

In addition, Petitioner's wages were not paid by Martin Marietta; the Respondent

did not pay any social security or federal withholding taxes; and Petitioner

recognized that she was not considered an employee of the Respondent and when

Martin Marietta asked Hi-Tec Associates, Inc. to remove Petitioner from their

contract position in Fleet Administration, Petitioner did not cease to be an

employee of Hi-Tec. Following her removal, Hi-Tec offered to attempt to place

Petitioner elsewhere, but because all their available openings at the time paid

less than what she had been earning while placed at Martin Marietta, Petitioner

refused.

28. However, in looking at the work actually performed by Petitioner, it

is apparent that the job description for a Fleet Administrative Assistant was

created exclusively for the benefit of Respondent and was an integral part of

the Respondent's business; the work performed by Petitioner was at Respondent's

facility, using equipment furnished by it, and supervised exclusively by

employees of Respondent; and Petitioner worked in the same basic job category

for five years. Her position was not simply a temporary fill-in position.

29. Based on the above factors, Petitioner is an employee as defined by

Title VII, and Chapter 760, Florida Statutes, and therefore, has standing to

maintain a discrimination charge against the Respondent.

II.

30. Petitioner alleges that she was discriminated against in violation of

Title VII based on her national origin/hispanic (Puerto Rican), her sex/female

(sexual harassment) and retaliation under 704(a). The Florida Human Relations

Act prescribes that employment decisions are to be made without regard to an

employee's sex, race, color, religion, national origin or handicap. Section

760.10(1), Florida Statutes (1991) also makes it an unlawful employment practice

for an employer to discriminate against a person because of that person's race,

color, religion, sex, national origin, handicap, or marital status. Chapter

760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of

1964, 42 U.S.C. Section 2000 et. seq. School Board of Leon County v. Harris, 400

So.2d 103, 108n.2 (Fla. 1st DCA 1981). As such, federal precedent construing

the similar provisions of Title VII, should be accorded great deference. Pasco

County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979).

31. The applicable model of proof in Title VII discrimination cases is a

judicially created scheme established in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 95 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

32. Under the McDonnell Douglas model, the Petitioner bears the initial

burden of establishing, by a preponderance of the evidence, a prima facie case

of discrimination proscribed by Title VII. Petitioner's prima facie case for

unfair treatment in discharge from employment, which is the closest scenario to

the action taken in this case, i.e. the removal of the Petitioner from a

contract position, is formulated as follows:

(1) An employee was a member of a protected

class;

(2) the employee was performing in her

position to the legitimate expectations and

requirements of her employer; i.e., the

employee was qualified to remain in her

position;

(3) the employee was terminated from

employment (or, as in this case, removed from

the position);

(4) and other non-protected employees

similarly situated with comparable work

performance were not terminated (or removed).

33. If the Petitioner can show a prima facie case, it is the first step in

the proof process, and raises a refutable inference as to the alleged

discrimination. If the Petitioner succeeds in showing a prima facie case, then

the burden shifts to the Respondent, who must present some legitimate,

nondiscriminatory reason for Plaintiff's removal (from the contract position).

The employer can meet this burden of production by articulating a legitimate,

nondiscriminatory reason that is clear, reasonably specific, and worthy of

credence. The employer's burden of rebuttal at step two in the proof process is

one of production only and the employer does not have to persuade the fact

finder that it was actually motivated by the proffered reason.

34. Once the employer satisfies this burden of articulating the legitimate

nondiscriminatory reason, then the focus shifts back to the employee who must

then prove, by a preponderance of the evidence, that the legitimate reasons

offered by the Respondent were not its true reasons, but were a pretext for

discrimination. However, a showing of pretext, without more, will not support a

finding of discrimination.

III.

35. In the instant case, the essential question, is whether the Petitioner

has demonstrated, by a preponderance of the evidence, that the true reason for

her removal from the contract position was intentional sex or national origin

discrimination or retaliation. This burden of proof was best stated in the case

of Nix v. WLCY Radio, 738 F.2d 1183, 35 Fep. Cases 1104, reh. denied 747 F.2d

710 (11th Cir. 1984), as follows:

Title VII is not a shield against harsh

treatment in the work place [citation omitted]

nor does the statute require the employer to

have good cause for his decisions. The

employer may fire an employee for a good

reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as

long as its action is not for a discriminatory

reason [citations omitted]. While an

employer's judgement or course of action may

seem poor or erroneous to outsiders, the

relevant question is simply whether the given

reason was a pretext for illegal

discrimination. The employers stated

legitimate reason . . . does not have to be

a reason the judge or jurors would act on or

approve. [citations omitted].

36. The holding from the above-cited Nix decision was recently reaffirmed

by the U.S. Supreme Court in St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742

(1993). In Hicks, the U.S. Supreme Court ruled that a plaintiff is not entitled

to judgment as a matter of law simply because she proves her prima facie case,

which shows that the employer's proffered reasons for her discharge are false.

The Hicks court held that the plaintiff has the ultimate burden of persuading

the fact finder that the employer intentionally discriminated against the

plaintiff, and that this ultimate burden remains at all times with the plaintiff

(Id at 2747).

37. In the instant case, Petitioner's claims of national origin

discrimination, sex discrimination, and retaliation all fall under the above

cited legal standards for proving intentional employment discrimination. It is

questionable that Petitioner has a prima facie case, which is necessary as step

one in the proof process for employment discrimination. Although, for the

purposes of this hearing, Petitioner was an employee of Respondent, she was not

performing up to the legitimate expectations required by Respondent. There is

substantial record evidence showing that Petitioner did not get along with

Marilyn Quinonez, another temporary employee in her department. The differences

that the Petitioner had with Quinonez began soon after she came into the

Petitioner's department. There is conflicting testimony between the Petitioner

and the co-worker as to whose fault it was or why they did not get along.

Managers of the department held several meetings with the Petitioner and

Quinonez to direct them to improve their working relationship or be replaced.

Petitioner, during those meetings, stated that they would not be able to improve

their working relationship. Petitioner was encouraged to reconsider her

position and to work things out with Quinonez. Notwithstanding this warning,

Petitioner's relationship with her co-worker continued to deteriorate until the

situation boiled over on February 17, 1992. On that day, Petitioner and

Quinonez engaged in a verbal altercation about the Petitioner's refusal to leave

her co-worker's desk and to stop working on Quinonez's computer when she

returned from lunch. Based on that incident, DuBose, their second level

supervisor, decided to remove the Petitioner from the Hi-Tec contract because of

the disruption that she continued to cause in the department.

38. The above facts concerning the removal of Petitioner from the Hi-Tec

contract position show that the Petitioner was not performing in her contract

position to Martin Marietta's legitimate expectations, and that the Respondent

had a legitimate, nondiscriminatory reason for removing her from the contract.

39. Based on these factors, it is the Petitioner's burden of proof to show

that the Respondent was motivated by intentional discrimination when she was

removed from the contract position. The evidence from the hearing fails to

support Petitioner's allegations that she suffered intentional national origin

or sex discrimination, and the evidence does not directly or circumstantially

prove the Respondent removed her from the contract position on account of her

allegations. Therefore, Petitioner has failed to satisfy her burden of proof

for proving discrimination, and her claims should be dismissed.

IV.

40. The claim of sexual harassment in violation of Title VII is based on

two types of conduct:

1) Quid pro quo sexual harassment which occurs when submission to sexual

conduct is made a condition of employment; and

2) hostile work environment harassment, which exists when sexual conduct

has the purpose of effect of unreasonably interfering with an employee's work

performance or creating an intimidating, hostile, or offensive working

environment.

Jones v. Wesco Investments, Inc., 846 F.2d 1154 (8th Cir. 1988). Meritor Sav.

Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)

(quoting 29 CFR Section 1604.11(a)(3)(1985).

41. In Meritor the U.S. Supreme Court held that an employee may establish

a violation of Title VII by proving that an employee's employer engaged in

discrimination based on sex, including sexual harassment, by showing a hostile

or an abusive work environment. Under Meritor, the employee asserting a claim

of hostile working environment sexual harassment must prove the following in

order to establish a prima facie case:

1. That the employee belongs to a protected

group,

2. That the employee was subject to

"unwelcome" sexual harassment.

3. That the harassment complained of was based

on sex, and

4. that the harassment complained affected a

"term, condition, or privilege" of employment

and that it was "sufficiently severe or

pervasive to alter the conditions of [the

victim's] employment and create an abusive

working environment."

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987) citing

Meritor, 106 S.Ct. at 2406.

42. Recently, in Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 126

L.Ed.2d 295 (1993), the U.S. Supreme Court again addressed the standard for what

constitutes an abusive work environment sufficient to show sexual harassment.

In Harris, the U.S. Supreme Court, citing Meritor, held that a "hostile" or

"abusive" work environment can only be determined by looking at all of the

circumstances in the case. The factors that the Harris court listed to

determine whether or not a hostile or abusive work environment exists, include:

frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating or a mere offensive utterance; and whether it

unreasonably interferes with the employee's work performance.

43. In the instant case, Petitioner has failed to prove a prima facie case

of hostile working environment sexual harassment, and there is no evidence or

even allegations which would indicate that Petitioner was subjected to the quid

pro quo form of sexual harassment. The sexual harassment that the Petitioner

testified she was subjected to generally concerns whether her supervisor was too

close to her or touched her on her shoulders, arms and back, while he was near

her. Petitioner testified that her supervisor's closeness was uncomfortable for

her and that she was "disgusted" when he touched her. Most of the Petitioner's

testimony about her supervisor's touching concerned incidents which allegedly

occurred in late 1990 and early 1991, before the Petitioner confronted Joe

LaPak, her supervisor, and requested that he refrain from touching her. The

only other alleged incident that Petitioner testified about concerned an

allegation that Petitioner's supervisor grabbed her waist and touched her back

side while she was filing documents. This alleged incident occurred when the

supervisor tried to pass behind Petitioner while she was filing, instead of

waiting until her filing was finished. In addition to the alleged touchings,

Petitioner alleges that her supervisor made some sexual remarks and that he

indirectly inquired about going out with the Petitioner when she was separated

from her husband.

44. The Petitioner's testimony about the alleged incidents of sexual

harassment was unspecific, inconsistent and unsupported by the testimony of

other credible witnesses at the hearing.

45. Under the Meritor and Harris standards for sexual harassment, the

Petitioner has failed to show a prima facie case. The alleged conduct occurred

infrequently, if it occurred at all; it was inoffensive as it generally

concerned the mere touching of the Petitioner's shoulders, back and arms, and

there is no evidence that it interfered with Petitioner's work performance.

Therefore, Petitioner's claim of hostile work environment sexual harassment must

be dismissed.

46. In certain instances, several alleged incidents of sexual harassment

have been found not to be severe or pervasive enough to create an abusive

working environment, therefore barring an employee's Title VII claim. In Weiss

v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333 (7th Cir. 1993), an employee

filed a sex discrimination claim against her former employer and former

supervisor under Title VII and the Equal Pay Act. The Plaintiff claimed that

her supervisor asked her for dates, called her a "dumb blonde", put his hand on

her shoulder several times, placed "I love you" signs in her work area and

attempted to kiss her in a bar. The court held that the employee failed to

state an actionable claim under Title VII with regard to discharge or sexual

harassment. The court reached its holding by concluding that the alleged acts

of sexual harassment were not severe or pervasive enough to alter the conditions

of the victim's employment and/or to create an abusive working environment. The

court deemed the incidents in the case to be relatively isolated and, even if

taken as true, not enough to support the standard for actionable sexual

harassment.

47. Even if the Petitioner's allegations in the instant case are true,

there is still not enough evidence to meet the standard for actionable sexual

harassment, based on the above cited case law. In the instant case,

Petitioner's only consistent and clear testimony claimed that LaPak would get

too close to her and touched her on her shoulders, arms and back, and in the one

instance, he allegedly briefly grabbed her waist as he walked behind her. If

those incidents occurred as the Petitioner claimed, they would be considered

isolated occurrences during a fourteen (14) month period, from November 1990

through February 1992. Thus, given the incidents' brevity, lack of severity and

small number, Petitioner's claim for sexual harassment must be dismissed.

V.

48. In determining whether an employer's response to a hostile environment

sexual harassment claim was "prompt and adequate", courts consider several

factors. First, they examine whether the employer investigated the alleged acts

of harassment and the type of investigation that the employer conducted. In

addition, the courts consider the post-investigation remedial steps that the

employer took concerning the alleged harassment. Another factor considered by

the courts when determining sexual harassment liability is the existence of a

grievance procedure and a policy against sexual harassment. Giordano v. William

Paterson College, 804 F.Supp. 637 (D.N.J. 1992) Citing Meritor, 477 U.S. at 72,

106 S.Ct. at 2408.

49. In the instant case, Respondent can not be found liable for hostile

environment sexual harassment based on the Respondent's timely investigation of

the Petitioner's sexual harassment claims. There is no evidence in the record

which would show that the Respondent ignored or failed to investigate

Petitioner's alleged discrimination. Petitioner alleges to have complained to

management and to the company's EEO office about the alleged harassment.

Petitioner's allegations were investigated by the Respondent, and meetings were

held with the appropriate management officials who reaffirmed the company's

sexual harassment policy and warned LaPak of the consequences of such touching

as had been alleged by the Petitioner. The Respondent's investigation of the

alleged harassment determined that there was no merit to the Petitioner's

claims. In addition, the Respondent followed up with the Petitioner after its

investigation to ascertain whether the alleged harassment had discontinued, at

which time the Petitioner assured the Respondent's EEO officials that the

harassment had stopped. Therefore, based on the Respondent's response to the

allegations of sexual harassment, there is no basis to find the Respondent

liable for sexual harassment.

50. Thus, there is no evidence that the Petitioner was treated any

differently from employees who had not engaged in protected activity. For this

reason, a causal connection has not been established between the filing of the

Petitioner's charge and her subsequent discharge.

VI.

51. Furthermore, the Petitioner apparently relies upon the fact that her

termination occurred in the course of events after her filing of a charge. As

proof of retaliation, however, such circumstances and even a relatively short

passage of time between the filing and the subsequent termination is not

sufficient without more to meet the causal link requirement of the prima facie

case. McNeil v. Greyhound Line, 31 FEP Cases 1068 (S.D. Fla. 1983). The

Company has provided substantial and relevant evidence to establish a valid

business and nondiscriminatory reason for its decision to terminate the

Petitioner and under the McDonnell Douglas-Burdine test, the burden of proof

shifts to Petitioner to establish by a preponderance of the evidence that the

Respondent's proffered reason for its adverse personnel action (termination) is

pretextual. The Petitioner has failed to do so. The Petitioner did not

establish that she was treated differently or less favorably than other

employees in the same or similar circumstances. She was likewise unable to

establish any other evidence or inference which would tend to prove that the

reasons and purposes articulated by the Respondent were other than as presented.

It follows then that Petitioner has failed to establish the requisite causal

connection between her protected activity of filing a claim on sexual

harassment/national origin discrimination and her subsequent termination from

employment.

RECOMMENDATION

Based upon the testimony and evidence submitted on the record in the formal

hearings on this matter and by application of the relevant or governing

principles of law to the findings of facts established on such record, it is

RECOMMENDED:

That a Final Order be issued in which the Charge of Discrimination is

DENIED and the Petition for Relief is DISMISSED.

DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Leon

County, Florida.

_____________________________________

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of April, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with Section

120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings of Fact.

Accepted in substance: Paragraphs 1, 2, 3, 4, 5(in part), 6(in part), 7(in

part), 8(in part), 9(in part), 10(in part), 13, 14(except as to date of hire),

15(in part), 16(in part), 18(except as to the date of the counseling session),

19(except as to the date of the counseling session), 20, 21(in part).

Rejected as against the greater weight of evidence: paragraphs 5(in part:

Petitioner was first a contract employee with Associated Temporary Services),

6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 15(in part), 16(in

part), 17.

Rejected as immaterial, irrelevant or subsumed: paragraphs 11, 12, 21(in

part).

Respondent's Proposed Findings of Fact:

Accepted in substance: paragraphs 1, 2, 3, 4(in part), 5, 6(in part), 7,

11(in part), 12, 13, 14(in part).

Rejected as argument or a conclusion of law: paragraphs: 9, 10, 15, 16,

17.

Rejected as irrelevant, immaterial or subsumed: paragraphs 4(in part), 8,

11(in part), 14(in part).

Rejected as against the greater weight of evidence: paragraph 6(in part).

COPIES FURNISHED:

Kay L. Wolf, Esquire

John M. Finnigan, Esquire

GARWOOD, MCKENNA & MCKENNA, P.A.

815 North Garland Avenue

Orlando, Florida 32801

James Sweeting, III, Esquire

2111 East Michigan Street

Suite 100

Orlando, Florida 32806

Sharon Moultry, Clerk

Human Relations Commission

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire

General Counsel

Human Relations Commission

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.