00-004633 Allison M. Huth vs. National Admark Corporation Status: Closed Recommended Order on Wednesday, May 30, 2001.

Summary: Petitioner not entitled to relief where there is no proof that Respondent knew or should have known of misconduct of one of its employees and no proof that Petitioner was an employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLISON M. HUTH, )

)

Petitioner, )

)

vs. ) Case No. 00-4633

)

NATIONAL ADMARK CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 30, 2001, at Fort Lauderdale, Florida, before

Administrative Law Judge Michael M. Parrish of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Lee Friedland, Esquire

Downs & Associates

101 Madeira Avenue

Coral Gables, Florida 33134

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent committed

an unlawful employment practice and, if so, determination of the

relief to which the Petitioner is entitled.

PRELIMINARY STATEMENT

On December 8, 2000, counsel for the Respondent served a

Notice of Withdrawal, by means of which it withdrew from further

representation of the Respondent. No successor counsel has

filed an appearance on behalf of the Respondent. At the final

hearing on January 30, 2001, there was no appearance by anyone

on behalf of the Respondent.

The Petitioner appeared at the final hearing and testified

on her own behalf. The Petitioner did not present the testimony

of any other witnesses. The Petitioner offered nine exhibits

that were received in evidence. The Petitioner had a tenth

exhibit marked for identification. The Petitioner's counsel

requested leave to late-file the tenth exhibit. The request was

granted, but, as of the date of this Recommended Order,

Petitioner's Exhibit 10 has not been filed with the Division of

Administrative Hearings.

At the conclusion of the hearing on January 30, 2001, the

Petitioner's counsel stated that a transcript of the hearing

would not be prepared, and he requested ten days from the date

of the hearing within which to file the Petitioner's proposed

recommended order. The request was granted.

The deadline for filing the Petitioner's Exhibit 10 and the

Petitioner's proposed recommended order expired without either

document being filed. The subsequent history of the case is

described in part in an Order Establishing Deadline issued on

March 23, 2001:

On February 20, 2001, at the request of

the undersigned, a telephone call was placed

to the office of Petitioner's counsel to

inquire if Petitioner still intended to file

Petitioner's Exhibit 10 and still intended

to file a proposed recommended order. On

that same day, someone from the office of

Petitioner's counsel left a voice-mail

message to the effect that Petitioner's

counsel had recently had some unidentified

"emergencies," but that he intended to file

the exhibit and the proposed recommended

order by the following Friday. As of the

date of this order, no post-hearing

documents have been filed by or on behalf of

the Petitioner.

The remainder of the Order Establishing Deadline

provided as follows:

In view of all of the foregoing, and in

what is perhaps an overabundance of due

process, it is ORDERED:

1. That the Petitioner is hereby allowed

until Monday, April 2, 2001, within which to

file Petitioner's Exhibit 10 and within

which to file a proposed recommended order.

2. That the deadline established in this

order will not be extended, and the

Recommended Order in this case will be

issued without benefit of the documents

mentioned above if they are not filed by

April 2, 2001.

As of the date of this Recommended Order, the Petitioner

has not filed Petitioner's Exhibit 10 and has not filed a

proposed recommended order. There has been nothing filed on

behalf of the Respondent since the Notice of Withdrawal filed by

the Respondent's counsel.

FINDINGS OF FACT

1. The Petitioner, Allison M. Huth, is an adult female

person. At all times material to this proceeding the Petitioner

has been a resident of the State of Florida.

2. The Respondent, National Admark Corporation, is an

advertising agency and publishing company. At all times

material to this proceeding, the Respondent was doing business

from offices located in Fort Lauderdale, Florida.

3. On the morning of June 12, 1998, a Mr. William Rufrano,

who was at that time a boyfriend of the Petitioner, took the

Petitioner with him to the Fort Lauderdale offices of the

Respondent. At that time, Mr. Rufrano had some type of

arrangement with the Respondent pursuant to which he worked in

the field making sales calls in an effort to sell the

Respondent's products. 1 The Petitioner's reason for going with

her boyfriend to the Respondent's offices on June 12, 1998, was

to find out more about the company in order to decide whether

she wanted to work for the company.

4. Upon arriving at the Respondent's offices on June 12,

1998, Mr. Rufrano introduced the Petitioner to his "boss" and to

several of the other people who worked in the Respondent's

offices. Shortly thereafter, Mr. Rufrano left the Respondent's

offices and spent most of the rest of the day meeting

prospective customers and making sales presentations outside of

the Respondent's offices. The Petitioner remained at the

Respondent's offices for most of the day. The Petitioner spent

the day making calls to prospective customers. She attempted to

have each of the prospective customers make an appointment for a

salesperson to visit and make a sales presentation for the

Respondent's products. 2

5. The Petitioner never signed any paper work with the

Respondent regarding any business relationship between herself

and the Respondent. Specifically, she did not sign or submit an

application for employment with the Respondent, she did not sign

or enter into an employment contract with the Respondent, and

she did not sign or enter into an independent contractor

agreement with the Respondent. The Petitioner did not have an

understanding with the Respondent as to what her hours of work

would be or as to how many hours she would work each day, each

week, or each month. The Petitioner did not have an

understanding with the Respondent as to what her compensation

would be for making telephone calls. 3 In sum: The Petitioner

and the Respondent never entered into any agreement by means of

which the Petitioner became either an employee or an independent

contractor of the Respondent.

6. During the course of her day at the Respondent's

offices, the Petitioner had occasion to seek assistance from

Mr. Anthony Tundo, who was the Respondent's Sales Manager, and

was the person the Petitioner had been told to contact if she

had any questions. Following the Petitioner's request for

assistance, Mr. Tundo engaged in a number of inappropriate,

unwanted, and ungentlemanly acts that caused the Petitioner to

become very upset and uncomfortable. The worst of Mr. Tundo's

acts that day are described as follows in the Petitioner's

Exhibit 8, a letter signed by the Petitioner and her boyfriend a

few days after the events on June 12, 1998:

Mr. Tundo began stroking Allison's

[Petitioner's] head very softly and used the

excuse that he was trying to pick something

out of her hair.

Mr. Tundo trapped Allison against the

coffee counter in the hallway. He then

pressed himself, including his erection [,]

against her body which was against the

counter. He then proceeded to kiss her on

her forehead and cheeks.

When Allison was in Mr. Tundo's office, he

told her to take a look at something he was

doing. Not wanting to go behind the desk,

Allison leaned over the front of the desk to

look. As she did so, Mr. Tundo stared

directly down Allison's blouse and

commented[,] "what a nice pair of tits you

have." Allison quickly stood up, and

proceeded to walk around behind Mr. Tundo's

desk figuring he couldn't look down her

blouse. As she was leaning on his desk

watching what he was doing, he began to

stroke her fingers and hands. He then told

her to turn around. Allison did so thinking

there was a flaw or something wrong with her

outfit. He then grabbed her firmly by the

backs of her arms and positioned her[,]

which made her feel extremely uncomfortable.

After doing so, he uttered the word[,]

"there." He then told Allison[,] "You have

very, very nice legs," and "You have a very

beautiful ass[,]" and proceeded to pat

Allison on her rear end.

When Allison was sitting on the couch in

Mr. Tundo's office, she got up to go to the

ladies' room. Mr. Tundo told her to sit

back down. Presuming Mr. Tundo wanted to

tell her some more things related to

business, she sat back down. Mr. Tundo told

her to "do that again." When Allison

questioned what he meant, Mr. Tundo told her

that he wanted her to uncross her legs (like

she would have to do in order to stand up)

again so he could see what it looks like

inside her legs and up her skirt. Mr. Tundo

was also moving his hands in an outward

motion as he was telling her these things.

After Allison left Mr. Tundo's office, he

continued to follow her around the office

building. As he was following her, he

continually told her that she has "such a

sexy walk," and "such a nice ass." He

followed her into the conference room next

to the coffee maker. He then proceeded to

rub her shoulders, moaning softly and

breathing heavy as he did so. He then told

her that she seemed "tense."

7. There is no competent substantial evidence that

Mr. Tundo had ever previously engaged in conduct such as that to

which he subjected the Petitioner. There is no competent

substantial evidence that Mr. Tundo had ever previously engaged

in any type of conduct that would create a sexually hostile or

abusive work environment. There is no competent substantial

evidence that the Respondent's management had ever been advised

that Mr. Tundo had previously engaged in any conduct that would

create a sexually hostile or abusive work environment. There is

no competent substantial evidence that the Respondent's

management had ever received any prior complaints that Mr. Tundo

had engaged in conduct such as that to which he subjected the

Petitioner, or that he had engaged in any other type of conduct

that would create a sexually hostile or abusive work

environment.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57, Florida Statutes.

9. The statutory basis for the Petitioner's claim for

relief is found at Section 760.10, Florida Statutes, which

provides as follows, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

10. The basic legal principles applicable to a proceeding

of this nature are discussed at length in Elisa L. Scott v.

Michael W. Titze Company, Inc., d/b/a Village Inn , DOAH Case

No. 94-5635 (Recommended Order issued May 24, 1995), where the

Administrative Law Judge included the following in the

conclusions of law:

156. In resolving this dispute, reference

may be made to the precedents set forth in

Title VII of the Civil Rights Act of 1964,

42 U.S.C. s.2000e et seq., through court

cases interpreting that law. This

opportunity exists because Chapter 760,

Florida Statutes, "Florida Civil Rights Act

of 1992", is patterned after federal

legislation. See Florida Dept. of Com.

Affairs v. Bryant , 580 So. 2d 1205 (Fla. 1st

DCA 1991).

157. In the Bryant case the court

indicated that to resolve the issue of

discrimination one must question the facts

presented and that includes dealing with

issues of weight and credibility of the

evidence.

158. Having alleged that the Respondent

maintained a hostile work environment,

Petitioner must offer objective proof about

the environment, together with Petitioner's

subjective perceptions that the environment

was hostile. Moreover, Petitioner must show

that the Respondent or its agents, . . .

knew or should have known of the conduct

constituting the hostile environment and

with that knowledge failed to take

appropriate corrective action. See Meritor

Savings Bank v. Vinson , 106 S.Ct. 2399

(1986).

159. A sexually hostile or abusive

environment exists "when the work place is

permeated with 'discriminatory intimidation,

ridicule, and insult' that is 'sufficiently

severe or pervasive to alter the conditions

of the victim's employment and create an

abusive working environment' . . . ", Harris

v. Forklift Systems, Inc. , 114 S.Ct. 370

(1993). Concerning the alleged victim's

subjective perception about the working

environment, the Harris court stated, "so

long as the environment would reasonably be

perceived and is perceived, as hostile or

abusive, there is no need for it to also be

psychologically injurious". However, the

affect of the alleged discrimination on the

employee's psychological well-being has

relevance in determining whether the

employee perceived that the environment was

abusive.

160. In the Harris opinion, at 114 S.Ct.

at 371, the court described the test for

measuring the quality of the environment and

whether it constituted a sexually hostile or

abusive environment when it stated:

. . . whether an environment is

'hostile' or 'abusive' can be

determined only by looking at all

the circumstances. These may

include the 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 . . . no single factor

is required.

161. Again in the Harris case, at 114

S.Ct. 372, Justice Ginsburg in a concurring

opinion commented on the test for a sexually

hostile or abusive environment in this

manner:

The critical issue, Title VII's

text indicates, is whether members

of one sex are exposed to

disadvantageous terms or

conditions of employment to which

members of the other sex are not

exposed . . . It suffices to prove

that a reasonable person subjected

to the discriminatory conduct

would find, as the Plaintiff did,

that the harassment so altered

working conditions as to make it

more difficult to do the job.

162. Robinson v. Jacksonville Shipyards,

Inc. , 760 F.Supp. 1486 (MD Fla. 1991) speaks

to the nature of the proof that must be

demonstrated by Petitioner to prevail in her

claim where it is stated:

Five elements comprise a claim of

sexual discrimination based on the

existence of hostile working

environment; (1 ) Plaintiff

belongs to a protected category;

(2) Plaintiff was subject to

unwelcomed sexual harassment; (3)

The harassment complained of was

based upon sex; (4) The

harassment complained of affected

a term, condition or privilege of

employment; and (5) Respondeat

superior, that is Defendants knew

or should have known of the

harassment and failed to take

prompt, effective remedial action.

163. Those elements of proof follow the

holding in Jones v. Flagship International ,

793 Fed. 2d 714 (5th Cir. 1986).

164. Verbal abuse in an environment which

allows verbal abuse of a female worker is

not condoned even in the instances where the

individual committing the harassment and the

female worker/claimant do not like each

other. See Burns v. McGregory Electronics

Industries, Inc. , 989 F.2d 959 (8th Cir.

1993) and unwelcomed sexual harassment by a

co-worker cannot be justified even in the

instances where the Claimant is "unlady

like". See Carr v. Allison Gas Turbine

Division, General Motors Corp. , 32 F.3d 1007

(7th Cir. 1994).

165. As a female Petitioner belongs to a

protected category.

11. The l egal principles quoted above are equally

applicable to the facts in this proceeding. When so applied, it

becomes clear that the relief requested in the petition in this

proceeding must be denied because the evidence in this

proceeding is insufficient to support a conclusion that the

Respondent engaged in an unlawful employment practice. While

the conduct of Mr. Tundo was unwanted and unwelcomed sexual

harassment, which was based upon sex, there is no showing that

the Respondent's management knew or should have known about the

harassment. Absent such a showing, there is no basis upon which

to conclude that the Respondent committed an unlawful employment

practice.

12. The petition in this proceeding must also be dismissed

for yet another reason. The evidence in this case is

insufficient to show that the Petitioner ever applied to become

an employee of the Respondent or that she ever became an

employee or an independent contractor of the Respondent. Absent

a showing that she was an applicant for employment or that she

became an employee, the Petitioner lacks a statutory basis for

seeking relief from an unlawful employment practice. See Faye

Musgrove v. Suwannee County and Suwannee County Sheriff's

Department , DOAH Case No. 98-0175 (Recommended Order of

Dismissal, May 20, 1998).

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED

that the Florida Commission on Human Relations issue a Final

Order in this case dismissing the Petition for Relief and

denying all relief sought by the Petitioner.

DONE AND ORDERED this 30th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of May, 2001.

ENDNOTES

1/ The record in this case contains very little information

about the nature of Mr. Rufrano's relationship with the

Respondent, other than the fact that he worked in the field

making sales calls. It is not clear whether Mr. Rufrano was an

employee or an independent contractor.

2/ The record in this case contains very little information as

to how the Petitioner came to be making these telephone calls or

on whose behalf she was making the calls. It is possible that

she was making the calls on behalf of the Respondent, and that

any appointments arranged by the Petitioner were to be given to

any salesperson chosen by the Respondent. It is also possible

that the Petitioner was making the telephone calls on behalf of

her boyfriend and that any appointments arranged by the

Petitioner were to be given to Mr. Rufrano. The record does not

contain sufficient information upon which to determine who

arranged for the Petitioner to spend the day making telephone

calls or to determine on whose behalf the calls were being made.

3/ The only thing the Petitioner recalls being discussed

regarding compensation was that if any appointments she

scheduled resulted in a sale of the Respondent's products, the

Petitioner would be paid a percentage of the proceeds of the

sale. The Petitioner does not recall what percentage of the

sales proceeds were to be paid to her. It is also unclear

whether any such payment was to be made by the Respondent or by

the salesperson who made the sale.

COPIES FURNISHED :

Jack Brown

National Admark Corporation

730 Northwest 57th Place

Fort Lauderdale, Florida 33309

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Lee Friedland, Esquire

Downs & Associates

101 Madeira Avenue

Coral Gables, Florida 33134

Dana A. Baird, General Counsel

Florida Commission on Human Relations

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 within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.