03-002457 Rose Youngs vs. Toucan`s Restaurant Status: Closed Recommended Order on Thursday, December 4, 2003.

Summary: Petitioner failed to prove essential element required to establish her claim for sexual harrassment. Recommend that the charge of discrimination be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSE YOUNGS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2457

)

TOUCAN'S RESTAURANT, 1/ )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuan t to notice by video

teleconference, on September 25, 2003, in Tallahassee and

Daytona Beach, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Matthew E . Romanik, Esquire

Johnson, Gilbert & Romanik

444 Seabreeze Boulevard, Suite 430

Daytona Beach, Florida 32118

For Respondent: Mary Ann Pistilli, pro se

2526 Glenhaven Street

New Smyrna Beach, Florida 32168

STATEMENT OF 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.

PRELIMINARY STATEMENT

On January 16, 2001, Petitioner, Rose Youngs, filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR) which alleged that Respondent, Toucan's

Restaurant, n/k/a Skylark's S ports Shack, violated Section

760.10, Florida Statutes, by discriminating against her on the

basis of sex. The Charge of Discrimination alleged that

Petitioner was sexually harassed by the restaurant manager's

husband.

The allegations were investigated an d on May 23, 2003, FCHR

issued its Determination: Cause. On June 6, 2003, FCHR issued

its Notice of Determination: Cause.

A Petition for Relief was timely filed by Petitioner on

June 19, 2003. FCHR transmitted the case to the Division of

Administrative Hearings (Division) on or about July 3, 2003.

On July 18, 2003, Petitioner filed a Motion for Joinder

seeking the joinder as Respondents, Craig and Mary Ann Pistilli.

The motion alleged that the Pistillis were the former owners of

Toucan's Restaurant and that Joseph Della Valla, owner of the

building which was formerly Toucan's Restaurant, now known as

Skylark's Sports Shack, was not in possession of the building at

the time of the alleged incident giving rise to this case.

On August 5, 2003, an Order was issued pursuant to Rule 28 -

106.109, Florida Administrative Code, notifying Craig Pistilli

and Mary Ann Pistilli of this proceeding and that their

substantial interests may be affected. The Order gave the

Pistillis an opportunity to be joined as partie s of record with

a deadline of August 19, 2001. No response was filed to the

Order. Despite not having filed a response to the August 5,

2003, Order, Mary Ann Pistilli appeared at the final hearing on

behalf of Respondent, Toucan's Restaurant.

On August 5, 2003, a Notice of Hearing was issued setting

the case for formal hearing on September 25, 2003, by video

teleconference.

At hearing, Petitioner presented the testimony of Rene

Brewer and testified on her own behalf. Petitioner offered

Exhibit No. 1, which was admitted into evidence without

objection. Respondent presented the testimony of Teresa Woods

and Mary Ann Pistilli. Respondent did not offer any exhibit

into evidence.

On October 10, 2003, I.J. Wesley Ogburia, Esquire, filed a

Notice of App earance on behalf of Respondent. A Transcript,

consisting of one volume, was filed on November 10, 2003.

Petitioner timely filed a Proposed Recommended Order which has

been considered in the preparation of this Recommended Order.

Respondent did not file any post - hearing submission.

FINDINGS OF FACT

1. 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.

2. The r ecord 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.

3. There is n o 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. Accordi ng to Rene Brewer, a bartender at the

restaurant, Mr. Pistilli "wasn't there a lot."

4. 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 l iquor 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.

5. 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. F or example, when a male patron would put money

in the side of his mouth, she would take it with her teeth.

6. Petitioner's dancing was not sexual in nature but was

more in the nature of a fun part of the Karaoke.

7. 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 c ame 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

w as 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 da nce

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 sh oved 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 . . . .

8. 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

react ion to the incident is deemed to be credible.

9. Petitioner sustained physical injuries as a result of

this incident with Mr. Pistilli. 2/

10. Ms. Brewer was behind the bar on Petitioner's last day

of employment. She saw Mr. Pistilli come into the restau rant

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. Pis tilli on other occasions. She also saw Petitioner hug

restaurant patrons on other occasions.

11. 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 th e 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.

12. Mrs. Pistilli was not at t he 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 be come 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 an d 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 husb and 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.

13. While Mrs. Pistilli was generally aware of an ongoing

workers' compensation claim by Petitioner against th e

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.

14. 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.

15. Petitioner acknowledged that other than the incident

on March 18, 2000, Mr. Pistilli did n ot make any references to

Petitioner about her body during her employment at the

restaurant.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569, 120.57, and 760. 11, Fla. Stat. (2000).

17. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discriminate against an individual on the basis of

sex.

18. To establish a prima facie case o f sexual harassment

as a result of a hostile work environment, the employee must

prove the following by a preponderance of the evidence:

(a) that she is a member of a protected group; (b) that she was

subjected to unwelcome harassment; (c) that the h arassment

complained of was based on sex; (d) that the harassment

complained of was sufficiently severe or pervasive to alter a

term, condition, or privilege of employment by creating an

abusive working environment; and (e) respondeat superior, that

is, th at the employer knew or should have known of the

harassment in question and failed to take remedial action.

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

1987); Henson v. City of Dundee , 682 F.2d 897, 905 (11th Cir.

1982). 3/

19. The U nited States Supreme Court has described the test

for measuring the quality of the work environment and whether it

constitutes a sexually hostile or abusive environment:

So, in Harris , we explained that in order to

be actionable under the statute, a sexu ally

objectionable environment must be both

objectively and subjectively offensive, one

that a reasonable person would find hostile

or abusive, and one that the victim in fact

did perceive to be so. 510 U.S. at 21 - 22,

114 S. Ct., at 370 - 371. We directed courts

to determine whether an environment is

sufficiently hostile or abusive by 'looking

at all the circumstances,' including the

'frequency of the discriminatory conduct;

its severity; whether it is physically

threatening or humiliating, or a mere

offens ive utterance; and whether it

unreasonably interferes with an employee's

work performance.' Id. , at 23, 114 S. Ct.,

at 371.

Faragher v. City of Boca Raton , 524 U.S. 775 at 787, 118 S. Ct.

2275 at 2283(1998), quoting Harris v. Forklift Systems, Inc,

Inc. , 114 S. Ct. 370 (1993).

20. A hostile work environment claim requires a showing of

severe or pervasive conduct. Burlington Industries v. Ellerth ,

524 U.S. 742, 743 (1998). Conduct must be so extreme to amount

to a change in the terms and conditions of e mployment. Faragher

supra , 118 S. Ct. 2275 at 2284. Isolated incidents, unless

extremely serious, do not amount to discriminatory changes in

the terms and conditions of employment. Id.

21. The facts in this case support the conclusion that

Petitioner m et the first four elements necessary to establish a

prima facie case: (a) Petitioner belonged to a protected class

or group; (b) she was subjected to unwelcome harassment on

March 18, 2000; (c) the harassment was based on sex; and

(d) while the evide nce does not support a conclusion that

Mr. Pistilli's actions were pervasive, 4/ his actions on March 18,

2000 were severe enough to meet the definition of hostile work

environment set out in Faragher , supra .

22. However, Petitioner has not met the fifth element

required to establish a prima facie case of hostile work

environment, i.e. , respondeat superior . Petitioner has not

offered any citation which persuades the undersigned that the

case law regarding liability of employees as a result of actions

of their supervisors applies under this factual circumstance.

That is, Mr. Pistilli was neither a president, owner, partner,

corporate officer, or even an employee of Respondent. See

generally , Faragher , 118 S. Ct. 2275 at 2284 (Court cited cases

in which e mployer was held liable for conduct of persons in

various capacities).

23. An employer is not automatically liable for harassment

by a supervisor who creates the requisite degree of

discrimination. Faragher 118 S. Ct. 2275, 2291 relying on

Meritor Saving s Bank, FSB v. Vinson , 477 U.S. 57, 106 S. Ct.

2399 at 2286. As a general proposition, only a supervisor, or

other person acting with the authority of the employer, can

cause an injury that results in an adverse tangible employment

action. Ellerth at 762 . In the instant case, Mr. Pistilli was

not a supervisor or employee of Respondent. Further, he did not

take any adverse employment action ( i.e. , he did not fire

Petitioner or take any other action regarding her employment.)

Accordingly, there is no auto matic liability imputed to

Respondent. See Ellerth , 524 U.S. 742 at 763; and Faragher ,

524 U.S. 775 at 790.

24. An employer can be liable for the sexual harassment of

a supervisor if the employer knew or should have known about the

conduct and failed to stop. Ellerth , 524 U.S. 775 at 758. The

evidence is clear that Mrs. Pistilli did not know about

Mr. Pistilli's inappropriate actions on March 18, 2000, until

well after the fact and well after Petitioner left the

employment of Respondent. Moreover, Petitioner did not report

the incident to Mrs. Pistilli.

25. Further, the evidence does not support a conclusion

that Mrs. Pistilli should have known about Mr. Pistilli's

behavior toward Petitioner on March 18, 2000. The evidence does

not establish t hat his behavior was pervasive enough to

establish constructive knowledge on behalf of Mrs. Pistilli.

See Farley v. American Cast Iron Pipe Company , 115 F.2d 1548,

1553 (11th Cir. 1997).

26. Accordingly, even if Mr. Pistilli were considered to

be a sup ervisor or someone within the authority of Respondent,

Petitioner did not prove that the employer knew or should have

known about the complained - of behavior. Mrs. Pistilli did not

have any opportunity to take preventative or corrective

opportunities of an y offensive behavior of her husband. See

Faragher , 524 U.S. 775 at 807.

27. In summary, while Mr. Pistilli's conduct toward

Petitioner on March 18, 2000, was unwanted and unwelcome

harassment based upon her sex, there is no showing that

Respondent's manag ement knew or should have known about the

behavior. Accordingly, as a matter of law, there is no basis

upon which to conclude that Respondent committed an unlawful

employment practice.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conc lusions

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.

ENDNOTES

1/ On September 23, 2003, correspondence was filed by Neil S.

Schecht, Esquire, who appeared specially on behalf of Skylark's

Sport s Shack and its owner, Joseph Della Valle, seeking to

dismiss Skylark's Sports Shack and Mr. Della Valle from the

case. Attached to the request for dismissal of Skylark's Sports

Shack and Mr. Della Valle was a copy of an Asset Purchase

Agreement which was signed on January 4, 2001 by Mary Ann

Pistilli individually and as Vice - President of Kara Corporation

of Volusia County, Inc., designated as the "Seller" and Joseph

Della Valle as Managing Member of Skylark Sports LLC designated

as "Buyer." This matter w as addressed at the commencement of

the hearing, and upon consideration of the above correspondence

and the agreement of the remaining parties, the request seeking

to dismiss Skylark's Sports Shack and Mr. Della Valle as its

owner was granted.

2/ Petitio ner's Exhibit 1 is a copy of a stipulation for

settlement in Petitioner's workers' compensation claim against

Respondent. Petitioner asserts that it is a self - authenticating

document pursuant to Section 90.092(2), because it had been

approved by a workers ' compensation judge. However, the judge's

order was not offered into evidence. There is no certification

from the court of compensation claims on the stipulation showing

that it had been filed. Accordingly, it does not fit within the

parameters of Sect ion 90.092(2) and Petitioner's argument is

rejected. Moreover, Petitioner's argument that Exhibit 1

constitutes an admission against interest pursuant to Section

90.803(18) is also rejected. Accordingly, while Petitioner's

Exhibit 1 is admissible pursuan t to Section 120.569(1)(g), it

does not establish Respondent's admission of Petitioner's

allegations and is not sufficient to support such a finding.

§ 120.57(1)(c), Fla. Stat. (2000).

3/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Brand v.

Florida Power Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA

1994).

4/ Petitioner presented hearsay testimony regarding isolated

i nstances of comments Mr. Pistilli allegedly made to other

female employees. However, those statements attributable to

Mr. Pistilli are not sufficient to support a finding, as

contemplated by Section 120.57(1)(c), that he made such comments

to other employ ees and certainly are not sufficient to support a

finding that his comments were pervasive.

COPIES FURNISHED :

Matthew Romanik, Esquire

Johnson, Gilbert & Romanik, P.A.

444 Seabreeze Boulevard, Suite 430

Daytona Beach, Florida 32118

I.J. Wesl ey Ogburia, Esquire

934 N. Magnolia Avenue, Suite 308

Orlando, Florida 32803

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commissi on on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

INFORMATIONAL COPY:

Neil S. Schecht, Esquire

3630 West Kennedy Boulevard

Tampa, Florida 33609 - 2906

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit w ritten exceptions within

15 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.