03-003145 Julie Hembrough vs. Sikorsky Support Services Status: Closed Recommended Order on Monday, April 26, 2004.

Summary: The evidence was insufficient to demonstrate sexual harrassment or retaliation when Petitioner was terminated for refusing the required random drug test at a specified time, even though she changed her mind two to three hours later.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIE HEMBROUGH, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3145

)

SIKORSKY SUPPORT SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Diane

Cleavinger, Administrative Law Judge with the Division of

Administrative Hearings, on February 2 and 3, 2004, in

Pensacola, Florida.

APPEARANCES

For Petitioner: Debra Cooper, Esquire

Law Offices of Debra Cooper

1008 West Garden Street

Pensacola, Florida 32501

For Respondent: Gregor J. Schwinghammer, Esquire

Gunster, Yoakley & Stewart, P.A.

Phillips Poi nt, East Tower

777 South Flagler Drive, Suite 500

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issues in this proceeding is whether Petitioner was the

subject of unlawful sexual harassment by Respondent and whether

Petitioner was subjected to unlawful retaliation for

participation in an activity protected under Chapter 760,

Florida Statutes.

PRELIMINARY STATEMENT

On October 1, 2002, Petitioner, Julie Hembrough

(Petitioner), filed a Char ge of Discrimination against

Respondent, Sikorsky Support Services (Sikorsky or Respondent).

The Charge alleged that she was subjected to sexual harassment

during her employment with Sikorsky, and further alleged that

after complaining about the alleged h arassment, she was

terminated in retaliation for making such a complaint.

Respondent denied the allegations in the Charge.

The allegations of sexual harassment and retaliation were

investigated by the Florida Commission on Human Relations

(FCHR). On July 28, 2003, FCHR issued its determination,

finding “no cause.” On August 29, 2003, Petitioner filed a

Petition for Relief. The Petition reiterated the allegations in

her Charge; Respondent denied the allegations contained in the

Petition.

At the final h earing, Petitioner testified in her own

behalf, and called two witnesses. Additionally, Petitioner

offered three exhibits into evidence. Respondent called six

witnesses to testify, and offered eight exhibits into evidence.

Respondent filed a Proposed Re commended Order on March 12, 2004.

Petitioner did not submit a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Julie Hembrough, was a female employee of

Respondent, Sikorsky Support Services. She was employed as a

senior calibration tec hnician at the Pensacola Naval Air Station

(Pensacola NAS). As part of her duties she was in charge of

monitoring the quality of the work her section performed and the

employees who performed that work. Petitioner came to work at

Pensacola NAS with Sikor sky’s predecessor, Lear Siegler (LSI).

2. Sikorsky is a “drug free” workplace and has a written

policy, entitled "Sikorsky Support Services, Inc. Strike

Pensacola, Florida Drug - Free Work Force and Work Place Manual,”

as part of its collective bargain ing agreement. The drug free

workplace policy requires periodic random drug testing of

employees. The policy states:

An employee who refuses to take a drug test

under Section . . .V.5 Random Testing will

be terminated for violation of this policy.

3. Petitioner went through an initial drug test when

Sikorsky took over the Pensacola NAS maintenance contract and

hired the LSI workers. Petitioner was aware that random drug

testing occurred and was required by Respondent. She knew that

there had be en previous random drug tests at the Pensacola NAS.

4. Petitioner was considered a hard worker and competent

technical leader of her calibration section. However, there

were personality conflicts throughout the section in which

Petitioner worked. The problems in the section stemmed from a

weak supervisor, who was eventually terminated, who did not hold

employees to the performance standards for the section, and who

did not support the technical leaders, like Petitioner, when

they tried to enforce those performance standards. The

supervisory problems resulted in various factions in the work

place. The factions were comprised of both male and female

employees.

5. Petitioner had particular conflicts with two employees,

Roger York and Leon Mi lls. Petitioner herself testified that

her conflicts with Roger York stemmed from a work disagreement

regarding the repair of certain Navy radios. Mr. Mills did not

want to perform certain tests on Navy radios that Petitioner

thought were required for th orough testing of the radios.

Petitioner also felt, with some factual basis, that Mr. Mills

was not honest with her when he represented to her that he had

performed such tests. Petitioner’s problems with Leon Mills

were of a similar nature to those with Mr. York. However,

Mr. Mills accused Petitioner of fraud in relation to trying to

get rid of him. The evidence did not demonstrate that any of

the difficulties with these men were related to Petitioner’s

gender, but what little unspecified name - calling o r derogatory

statements there were was the result of animosity toward

Petitioner and her supervisory role. Some workers considered

Petitioner a “spy” for the Respondent. Other workers accused

Petitioner of trying to “get rid of” Leon Mills through

fraudu lent means. Indeed Mr. Mills complained to the union

about Petitioner and that he thought she was trying to get rid

of him. Feelings against Petitioner were so strong that, even

though she was a member of the union, she was asked by the union

shop stewar d to not attend a union meeting. Respondent had no

input or control over the union’s request to Petitioner.

6. In September 2000, Petitioner orally complained to her

manager, Joe Diehl, that another male worker used the word

"bitch" and talked about his sex life and that someone else told

her to put on some makeup. The details of the facts surrounding

these comments were not introduced into evidence. Therefore, it

is unclear if they were harassing in nature. Petitioner was

never physically grabbed or groped by anyone at Sikorsky, was

not sexually propositioned, and no one ever threatened her with

adverse action if she refused to perform any type of sexual

activity. She did not see open pornography in the workplace.

Moreover, such sporadic comment s do not constitute sexual

harassment. She again complained in August 2001. The actual

written complaints were not introduced into evidence. In

essence, the bulk of the oral complaints revolved around the

work problems in the section and the multi - gende r employee

animosity toward Petitioner.

7. Sikorsky took Petitioner’s complaints seriously and

investigated the complaints.

8. During the investigation, people from the “upper

echelon” of the company were brought in to investigate.

However , the investigators could not corroborate Petitioner’s

claims of sexual harassment. They did find that the section had

various problems as described above. Nevertheless, to make sure

that everyone understood the seriousness of sexual harassment

issues, t he site manager held a training session on Sikorsky’s

sexual harassment policies. Petitioner attended the training

session. The site manager also personally delivered the

findings of the investigators to Petitioner, to show he was

involved and to make Pe titioner understand that Sikorsky was

taking the issue seriously. Petitioner was invited to come

forward with any complaints she may have at any time. After

advising Petitioner of the results of the investigation, the

site manager spoke to her several ti mes encouraging her to come

forward with any issues. He stopped by Petitioner’s work area

in the section and asked if she was having any problems.

Petitioner told him things were going okay and that she was not

having any problems.

9. Petitioner testified that sometime in May, she advised

her supervisors that she intended to file another internal

complaint because of actions by the union and because she had

found “hot sauce” on her vehicle. Petitioner complained that

the union accused her of comm itting fraud and that she was

excluded from a union meeting. However, as indicated above, it

was the union steward, not Sikorsky, that asked Petitioner not

to attend the union meeting. Sikorsky was not involved in the

union meeting or any accusations of fraud by the union against

Petitioner. These facts do not support a finding of sexual

harassment by Sikorsky.

10. The “hot sauce” incident occurred while her vehicle

was parked in an open, unfenced parking lot owned by the U.S.

Navy. The Navy was r esponsible for security in the parking lot.

Petitioner discovered that someone had poured hot sauce over her

vehicle. Upon seeing the substance, Petitioner got in her

vehicle and drove home. She called her manager from her vehicle

to inform him about th e incident. He advised her it was

probably “too late” to do anything since she had left the scene.

Petitioner did not see anyone put the substance on her vehicle,

and does not know who did it, although she strongly suspects it

was a particular coworker. Petitioner never reported the

incident to Navy security. Without more detail and given the

animosity in the workplace with allegations of spying and fraud,

the incident does not support any finding that Petitioner was

sexually harassed or that Sikorsky w as responsible for such

alleged harassment.

11. On May 6, 2002, seventeen Sikorsky employees were

selected for random urinalysis at Sikorsky; five employees were

selected as alternates. Petitioner was one of the employees

selected.

12. Sikor sky employs a third - party contractor,

Professional Health Examiners (PHE), to select the individuals

to be drug tested and to administer the drug test. PHE and

Sikorsky use a “name blind” system to select individuals for

testing. Before a test day, Sikor sky’s administrative manager

sends a list of partial social security numbers to PHE.

Sikorsky does not give names to PHE, but only partial social

security numbers. PHE then inputs the partial social security

numbers into a computer program, which randoml y selects a

percentage of the numbers. Once the numbers are selected, PHE

sends the list of numbers to Sikorsky. The administrative

manager then matches the selected numbers with an employee list

to determine the employees named. On the day of the test, those

selected are called to take the test at a specific time and

location.

13. Petitioner was notified of her selection at

approximately 7:15 a.m. and told to immediately report to the

test site to take the test. She did not go to the drug test

site, but went directly to the office of her manager, Joseph

Diehl. Petitioner refused to take the drug test at the time the

test was scheduled. At the time, Petitioner had no knowledge of

the drug testing selection procedures and did not ask what the

pr ocedures were; she also wanted to speak with her attorney.

Joseph Diehl called the administrative manager. At

approximately 7:30 a.m., the administrative manager went to

Diehl’s office. Since neither had been confronted with a

situation similar to this one, Diehl and the manager allowed

Petitioner to call her lawyer. However, her lawyer was

unavailable.

14. The morning of the drug test, the site manager and

Diehl’s supervisor, Joe Colbert, had jury duty and had not

arrived. Therefore, Mr. Diehl called Dan Pennington, the

program manager, for guidance. Mr. Pennington stated in more

colloquial language, that Petitioner must either immediately

submit to the drug test per corporate policy or be terminated.

Mr. Diehl, again in more colloquial langu age, passed the direct

order to Petitioner to take the test or face termination.

Petitioner said she would not take the test without calling her

lawyer.

15. Later in the morning, Petitioner spoke with Michael

Neri, her supervisor, and told him she was quitting. Mr Neri

had been hired only three weeks earlier and was familiar with

the drug test policy. Mr. Neri told Petitioner to take the

test, and that if she did not take the test, she would be

terminated.

16. Petitioner met with the sit e manager, Joe Colbert,

after 9:00 a.m. He told her to take the test or she would be

terminated. He told her that once she took the test, her lawyer

could take whatever steps she wanted to take, but that she

needed to take the test.

17. All of Pe titioner’s supervisors wanted Petitioner to

take the test because she was a good employee whom they did not

want to terminate.

18. Petitioner did not take the test. Mr. Colbert then

suspended Petitioner and gave her a letter of suspension,

pending termination. The letter stated that the reason for the

suspension was her refusal to take the drug test at the

appointed time. Because Petitioner suggested that she had been

targeted for selection for the drug test, Mr. Colbert assigned

one of his manag ers, Frank Eggleton, to conduct an investigation

of the procedures. Mr. Colbert told Petitioner that if the

investigation came back clean, she would be terminated. Later

in the morning, at approximately 11:00 a.m., on May 6, 2002,

Petitioner called Joe D iehl and informed him that she had spoken

to her lawyer and was willing to participate in the random drug

testing. However, it was too late. Mr. Colbert refused to

allow Petitioner to take the test at that time because she had

already been suspended. Mr . Colbert testified that Petitioner

had had her opportunity more than once to participate. He was

concerned that if he made exceptions to the mandatory random

drug testing policy, then it would open the door for everyone to

seek to defer taking a random d rug test. This rationale was

reasonable and not pretextual.

19. Mr. Colbert told Mr. Eggleton to investigate how

individual employees were selected for the random drug test and

to determine if Petitioner had somehow been targeted.

Mr. Colbert did n ot pressure Mr. Eggleton to reach any

particular conclusion and told him to conduct a thorough, open

investigation. Mr. Eggleton visited the facilities of PHE to

determine how individuals were selected. After conducting his

investigation, Mr. Eggleton re ported to Mr. Colbert that the

drug - testing contractor used a name - blind system for selection

and that there was no indication that Petitioner had been

targeted. PHE had nothing to do with the decision to terminate

Petitioner and Sikorsky did not pressure PHE to select

Petitioner for the drug test. In fact, there was no evidence at

the hearing that Petitioner was targeted for drug testing.

20. After receiving the investigation report, Mr. Colbert

decided to terminate Petitioner’s employment based on her

refusal to take the drug test at the appointed time. He

obtained the approval of the necessary authorities at Sikorsky.

On May 10, 2002, Petitioner’s employment was terminated.

21. In April 2002, e mployee Brian McHenry was selected for

rando m drug testing. Mr. McHenry, prior to discovering he was

going to be drug tested, used the restroom just before he was

told of the drug test. As a result, Mr. McHenry was unable to

produce a sufficient urine sample to allow PHE to perform a the

test. He took part, tried to produce a sample, and actually

produced a urine sample, but it was not enough for testing

purposes. After a few hours of drinking fluids Mr. McHenry

still could not produce a sufficient urine sample. Mr. Colbert

wanted Mr. McHenry to stay late until he could provide a sample,

but Mr. McHenry had a serious child care problem that day and

needed to pick up his child in Alabama. Because Mr. McHenry had

tried to complete the drug test, and because of the child care

problem, Mr. Colbert t old Mr. McHenry to go to the test facility

in the morning. Unlike Petitioner, McHenry did not refuse the

drug test; he could not provide a sufficient urine sample. The

McHenry case is not similar to Petitioner’s situation.

Moreover, Mr. Colbert testifie d that if Mr. McHenry had refused

to take the test, he would have been fired.

22. Likewise, there was no evidence at the hearing that

Petitioner was terminated because of her previous internal

complaints. There was no evidence Petitioner was selec ted for

drug testing because of her previous complaints. In fact

Mr. Colbert did not have knowledge of Petitioner’s two

complaints, since both complaints were handled by the previous

site manager. Mr. Colbert was aware of Petitioner's complaint

about hot sauce thrown on her car, but said he did not even

consider it a sexual harassment issue.

23. Petitioner did not put forth sufficient evidence to

prove a claim of sexual harassment. She did not introduce

evidence that any conduct she complained of w as severe or

pervasive, or that the allegedly harassing conduct was because

of her gender, as opposed to some other reason such as thinking

she was a spy. Likewise, Petitioner failed to establish that

she was terminated for any complaints she had made to

Respondent. Therefore, the Petition for Relief should be

dismissed.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

cause. § 120.57(1), Fla. Stat.

25. Under the provisions of Section 760.10(1), Florida

Statutes, it is 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, c onditions,

or privileges of employment, because of such

individual’s race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) . . . to discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice

under this section, or because that person

has made a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or hearing under

this section.

26. FCHR and the Florida courts have det ermined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes. See

Brand vs. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); Florida Dept. of Community Affairs vs. Bryant , 5 86 So. 2d

1205 (Fla. 1st DCA 1991).

27. The Supreme Court of the United States established in

McDonnell - Douglass Corp. vs. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be use d in cases alleging discrimination

under Title VII, which are persuasive in cases such as the one

at bar. This analysis was reiterated and refined in St. Mary’s

Honor Center v. Hicks , 509 U.S. 502 (1993).

28. Pursuant to this analysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate, non -

discriminatory reason for the action taken against Petit ioner.

Once this non - discriminatory reason is offered by Respondent,

the burden then shifts back to Petitioner to demonstrate that

the offered reason is merely a pretext for discrimination. As

the Supreme Court stated in Hicks , before finding

discriminati on, “[t]he fact finder must believe the plaintiff’s

explanation of intentional discrimination.” Hicks , 509 U.S. at

519.

29. In Hicks , the Court stressed that even if the fact -

finder does not believe the proffered reason given by the

employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id .

30. Petitioner complains of retaliation by Sikorsky after

she complained about “harassment.” To establish a prima facie

case of retaliation , Petitioner must show that: (1) she engaged

in statutorily protected activity; (2) an adverse employment

action occurred; and (3) the adverse action was causally related

to her protected activities. Little vs. United Technologies ,

103 F.3d 956, 959 (11t h Cir. 1997).

31. Petitioner has failed to make out a prima facie case

of retaliation. First, it is unclear she engaged in statutorily

protected activity. Section 760.10, Florida Statutes, provides

that it is unlawful to discriminate “against any person because

that person has opposed any practice which is an unlawful

employment practice under this section, or because that person

has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this

section.” Here, Petitioner did not offer her underlying

complaints into evidence. Her testimony suggested that many of

the complaints dealt with work - related issues, such as some of

the technicians not doing their jobs properly.

32. Petitio ner’s retaliation claim also fails because she

has failed to offer any evidence of a causal connection between

her complaints and the adverse action. Petitioner’s only

testimony as to why she believed she was targeted was that three

women were selected fo r drug testing. There is no evidence of

any link between Petitioner’s complaints and either her

termination or her selection for drug testing.

33. Moreover, even assuming Petitioner made out a prima

facie case, Sikorsky articulated a legitimate, n on - retaliatory

reason for her termination. She refused to take a random drug

test, as required by company policy. Mr. Colbert, the site

manager, along with other managers, repeatedly told Petitioner

to take the test or be fired, but she would not take th e test.

After over two hours, Mr. Colbert suspended Petitioner, pending

investigation into the selection procedures. The reason for her

termination was not pretextual, and therefore her retaliation

claim fails.

34. Petitioner attempted two argume nts regarding the drug

test, but neither changes the result. First, she argued that

she did not “refuse” the drug test, but merely asked for more

time. Her argument seems to be that, because she arguably did

not refuse, she did not violate the Sikorsky d rug policy. The

issue is whether Petitioner was terminated because of her

complaints, or whether she was terminated for her actions

regarding the drug test. The question of whether her refusal

fits the definition in Sikorsky’s drug test policy is a

manag ement decision for Sikorsky, and is not the type of

decision that courts second - guess. See Mitchell v. USBI, Co. ,

186 F.3d 1352, 1354 (11th Cir. 1999) (“This Court repeatedly has

stated that it will not second - guess a company’s legitimate

assessment of wh ether an employee is qualified for a particular

position.”); Elrod v. Sears, Roebuck and Co. , 939 F.2d 1466,

1470 (11th Cir. 1991) (courts are not super - personnel

departments that reexamine an entity’s business decisions; the

only question is whether the e mployer gave an honest explanation

of its behavior.)

35. Petitioner makes a related argument that she

eventually agreed to take the test, but was refused.

Mr. Colbert would not change his decision because it would have

created a bad precedent in t he workplace and undermine the

mandatory random nature of the testing. These are the types of

decisions managers make. There was no evidence that

Mr. Colbert's decision was pretextual.

36. Petitioner also suggests that Sikorsky’s stated reason

is pretextual because another employee, Brian McHenry, was

permitted to take a random drug test on another day. However,

the facts of the McHenry test are not similar to Petitioner's

refusal to take the random drug test at her appointed time.

Mr. McHenry d id not refuse testing, took part in the test at the

time the test was scheduled, tried to produce a sample, and

actually produced a urine sample, but it was not enough for

testing purposes.

37. Petitioner’s claim seems to rely on the fact that she

complained and was later terminated as her causal nexus.

However, Petitioner cannot rely on "mere curious timing coupled

with speculative theories" to show awareness of protected

expression. Raney v. Vinson Guard Service, Inc. , 120 F.3d 1192,

1197 (11th Cir. 1997). Such timing alone does not support a

finding of retaliation.

38. Petitioner admits she was not subject to quid pro quo

harassment, in that no one ever demanded sexual favors in

exchange for job benefits or threatened her with job detrime nts

unless she engaged in sexual conduct. From Petitioner’s

testimony, her complaints were in the nature of a “hostile work

environment.” To prove actionable sexual harassment based on a

hostile work environment, Petitioner must prove that “the

workplace 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. ,

510 U.S. 17, 21 (1993). In order to establish a prima facie

case of a hostile work environment, Petitioner must show that:

(1) She belongs to a protected group.

(2) She was subject to unwelcome

harassment.

(3) The harassment was based on her gender.

(4) Th e harassment was sufficiently severe

or pervasive to alter the terms and

conditions of employment and create a

discrimatorily abusive working environment.

(5) The employer is responsible for such

environment under either a theory of

vicarious or of dir ect liability. Miller v.

Kensworth of Dothan Inc. , 277 F.3d 1269,

1275 (11th Cir. 2002); Succar v. Dade Cty

Sch. Bd. , 229 F.3d 1343, 1344 - 45 (11 th Cir.

2000).

39. In this case, Petitioner has failed to provide

evidence that any alleged harassment was based on her sex, that

the alleged harassment was sufficiently severe or pervasive to

alter the terms and conditions of her employment, and that

Sikorsky should be responsible.

40. To prove harassment, Petitioner must show that her

employer, “th rough sexually - oriented conduct, created an

intimidating, offensive, or hostile working environment.”

Chestnut v. Department of Corrections , DOAH Case No. 01 - 0604,

2002 Fla. Div. Adm. Hear. LEXIS 140, *15 (DOAH Feb. 1, 2002)

(citing Henson v. City of Dund ee , 682 F.2d 897 (11th Cir.

1982)). Sexual harassment involving a “hostile work

environment” is based on “bothersome attentions or sexual

remarks that are sufficiently severe or pervasive so as to

create a hostile work environment.” Colon v Environmental

Technologies Inc. , 15 Fla. L. Weekly Fed. D34 (M.D. Fla. Nov. 5,

2001) (citing Burlington Industries Inc. v Ellerth , 524 U.S.

742, 751 (1998)).

41. In order to prevail in a sexual harassment action of

this nature the Eleventh Circuit requires a Pe titioner to

demonstrate that “but for the fact of her sex, she would not

have been the object of harassment.” Colon Gupta v. Board of

Regents , 212 F.2d 571, 582 (11th Cir. 2000). Further, “personal

animosity is not the equivalent of sexual discrimination and is

not proscribed by Title VII. . . [T]he plaintiff cannot turn a

personal feud into a sex discrimination case.” Colon (citing

McCollum v. Bolger , 794 F.2d 602, 610 (11th Cir. 1986)). In

short, Title VII is not a shield against harsh treatment in th e

workplace. Succar , 229 F.3d at 1345.

42. To prevail in a hostile work environment claim, a

Petitioner must show that any abuse was so severe and pervasive

as to alter the terms, conditions, or privileges of employment.

Faragher v. City of Boca Raton , 524 U.S. 775, 118 S. Ct. 2275

(1998). The court must assess whether the alleged harassment is

offensive on both subjective and objective levels. Colon .

Harassment is subjectively offensive when the victim in fact

perceived the harassment to be ho stile or abusive. Id.

Harassment is objectively offensive when a reasonable person

would have found the alleged harassment hostile and abusive.

Id. In determining whether the conduct at issue is objectively

severe and pervasive, the court must look at the “totality of

the circumstances.” Id. The Supreme Court has established the

following factors for evaluating the totality of the

circumstances:

(1) The frequency of discriminatory

conduct.

(2) The severity of the discrimination.

(3) Whether the conduct is physically

threatening or humiliating or a mere

utterance.

(4) Whether the conduct unreasonably

interferes with the plaintiff’s performance

at work. Id. Faragher , 524 U.S. 775

(1998).

These standards for judging hostility are suffi ciently demanding

to ensure that Title VII does not become a general civility

code. Faragher , supra . These standards filter out complaints

attacking the ordinary tribulations of the workplace, such as

the sporadic use of abusive language, gender - related jokes and

occasional teasing. Faragher . In this case, the evidence

demonstrates that the conduct of Petitioner’s co - workers at

Sikorsky was not so objectively offensive that a reasonable

person would have found the alleged harassment hostile and

abusive. Indeed, the evidence demonstrates only sporadic

incidents of behavior which could arguably be considered related

to sex.

43. Even if the Petitioner were to claim that the conduct

constituting her claims of discrimination occurred frequently,

the Eleventh Circuit has held that such frequent conduct does

not constitute actionable sexual harassment. Colon (offensive

utterances occurring on a daily basis for three months was not

objectively severe and pervasive)(citing Mendoza v Borden Inc. ,

195 F.3d 1238 (11th Cir. 1999)).

44. Petitioner’s sexual harassment claim also fails

because she failed to show that any negative conduct was because

of her gender. She described arguments with co - workers, but

they involved work issues. Other witnesses t estified that there

were problems in the workplace, but that they were not caused by

sexual harassment, but by a weak supervisor who did not enforce

standards, and that some employees thought Petitioner was a spy

and/or trying to get rid of a fellow employ ee. As a result of

weak supervision, there were various factions in the workplace

that did not get along. The arguments were not just men versus

women, but different groups of people at odds with other groups

of people. In short, the problem was not bas ed on gender.

Thus, there was no evidence that any negative conduct was

“because of” Petitioner’s gender.

45. The evidence also showed that Sikorsky took action

when Petitioner complained. After Petitioner complained in

2001, the site manager himse lf called a meeting and personally

discussed the policies against sexual harassment in the

workplace. After that, when the site manager walked through the

work area, he would speak to Petitioner and ask her if she was

having any problems. These facts do not place responsibility on

Respondent for the individual conduct of its employees towards

another co - worker. Therefore, Petitioner’s claims of

retaliation and sexual harassment are not supported by a

preponderance of the evidence, and the Petition for Re lief

should be dismissed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is,

RECOMMENDED:

That the FCHR enter a final order dismissing the Petition

for Relief.

DONE AND ENTERED this 26th day of April, 2 004, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SU NCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of April, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalac hee Parkway, Suite 100

Tallahassee, Florida 32301

Gregor J. Schwinghammer, Esquire

Gunster, Yoakley & Stewart, P.A.

Phillips Point, East Tower

777 South Flagler Drive, Suite 500

West Palm Beach, Florida 33401

Debra Cooper, Esquire

Law Offices of Debra Cooper

1008 West Garden Street

Pensacola, Florida 32501

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right t o submit written 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.