04-001051 Evelyn E. Ferranti vs. United Dominion Realty Trust, Inc. Status: Closed Recommended Order on Friday, July 9, 2004.

Summary: Petitioner, who claimed sexual, religious, and ethnic harassment, failed to present a prima facie case; claim was time-barred because it was filed with Florida Commisson on Human Relations more than 365 days after the alleged discriminatory incident(s).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN E. FERRANTI, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1051

)

UNITED DOMINION REALTY TRUST, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursu ant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on June 4, 2004, in Viera, Florida.

APPEARANCES

For Petitioner: Evelyn E. Ferranti, p ro se

2370 Oak Creek Circle

Melbourne, Florida 32935

For Respondent: Juan C. Lopez - Campillo, Esquire

Fisher & Phillips, LLP

1250 Lincoln Plaza

300 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Respondent, United Dominion Realty Trust, Inc.,

violated the Florida Civil Rights Act of 1992, as amended, as

alleged in Petitioner's Petition for Relief.

PRELIMINARY STATEMENT

On March 22, 2004, Petitioner, Evelyn E. Ferranti, filed

her Petition for Relief with the Florida Commission on Human

Relations alleging that her employer, Respondent, United

Dominion Realty Trust, Inc., had discriminated against her in

violation of the Florida Civil Rights Act of 1992, as amended,

through acts of its employee(s) which essentially constituted

sexual, religious, and ethnic harassment.

On March 25, 2004, the Florida Commission on Human

Relations transmitted the Petition for Relief to the Division of

Administrative Hearings. On the same day, an Initial Order was

sent to both parties. On April 2, 2004, the case was scheduled

for final hearing in Viera, Florida, on June 4, 2004. The case

was presented as scheduled on Jun e 4, 2004; however, the case

began at 2:00 p.m. to accommodate Petitioner, who was not

available until that time.

Petitioner testified on her own behalf. She did not

present any documentary evidence. At the close of Petitioner's

case, Respondent moved to dismiss the Petition for Relief, which

was accepted as a Motion for a Recommended Order of Dismissal.

The undersigned reserved ruling on Respondent's motion.

Respondent presented three witnesses: David Morenti, Kathy

Ratchford, and Kelli Brain. Responde nt offered 11 exhibits

which were received in evidence without objection and marked

Respondent's Exhibits 1, 2, and 4 through 12. The Transcript of

Proceedings was filed on June 17, 2004. Respondent filed a

Proposed Recommended Order on June 18, 2004.

FIN DINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of facts are made:

1. Petitioner became an employee of Respondent on

September 25, 2000, as a marketing associate at Respondent’s

LakePointe Ap artment Homes.

2. On September 25, 2000, as a part of employee

orientation, Petitioner received a copy of Respondent’s

Associate Manual, which contains Respondent's non - discrimination

and anti - harassment policies. On June 1, 2001, Petitioner

received a r evised copy of Respondent’s Associate Manual, which

also contains Respondent's non - discrimination and anti -

harassment policies. In addition to the foregoing written

documents, Petitioner indicated that she was aware that she had

24 - hour access to Responde nt’s internal website wherein

Respondent maintains online copies of its Associate Manual.

3. The foregoing manuals and website outlined a "chain of

command" of management employees who were available for

reporting incidents of sexual, religious, and ethni c harassment

and obligated employees to report perceived incidents of

unlawful workplace harassment.

4. The referenced manuals assert Respondent's stated

policy that it will not tolerate any harassment in the

workplace. No evidence was presented that sug gests that

Respondent did not actively pursue the stated anti - harassment

policy.

5. Petitioner voluntarily resigned her employment with

Respondent on June 9, 2003. No evidence was presented that

indicated that any of Respondent's employees coerced or in any

way pressured Petitioner into resigning her employment with

Respondent.

6. Petitioner did not report any acts of discrimination or

harassment during the time she was employed by Respondent.

After her resignation, she complained that she had observed what

she considered to be inappropriate sexual contact between two

employees and that a co - employee had made inappropriate comments

about whether or not she was wearing undergarments and had

commented on her "wearing her rosary." Nothing in Petitioner's

t estimony indicates that the purportedly offensive conduct was

pervasive or that it created a "hostile workplace."

7. Petitioner reports that these perceived incidents of

harassment occurred prior to the replacement of Mary Snyder by

Kelli Brain as Communi ty Director in March of 2002. It is,

therefore, Petitioner's testimony that she continued to work in

a non - hostile environment for 14 months until she felt compelled

to resign in June 2003. Petitioner's Charge of Discrimination

was filed with the Florida Commission on Human Relations on

October 12, 2003, more than 18 months after the alleged

harassment had last occurred according to Petitioner's

testimony.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction of the subject matte r of and the parties to this

proceeding. § 120.57(1), Fla. Stat. (2003).

9. Subsection 760.10(1)(a), Florida Statutes (2003),

provides that it is an unlawful employment practice for an

employer:

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.

10. Florida cour ts have determined that federal

discrimination law should be used as a guidance when construing

provisions of Section 760.10, Florida Statutes (2003). Harper

v. Blockbuster Entertainment Corp. , 139 F.3d 1385 (11th Cir.

1998); Florida Department of Communi ty Affairs v. Bryant ,

586 So. 2d 1205 (Fla. 1st DCA 1991).

11. The United States Supreme Court established, in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973) and

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

(1981), the anal ysis to be used in cases alleging discrimination

under Title VII, which is persuasive in the instant case, as

reiterated and refined in the case of St. Mary's Honor Center v.

Hicks , 509 U.S. 502 (1993).

12. This analysis illustrates that a petitioner has the

burden of establishing, by a preponderance of evidence, a prima

facie case of discrimination. If that prima facie case is

established, the respondent must articulate a legitimate, non -

discriminatory reason for the action taken. The burden then

shifts back to the petitioner to go forward with evidence to

demonstrate that the offered reason is merely a pretext for

unlawful discrimination. The Supreme Court stated in Hicks ,

before finding discrimination in that case, that:

[T]he fact finder must believe the

plaintiff's explanation of intentional

discrimination.

509 U.S. at 519.

13. In the Hicks case, the Court stressed that even if the

fact finder does not believe the proffered reason given by the

employer, the burden still remains with the petitioner to

demonstrate a discriminatory motive for the adverse employment

action taken.

14. To prove a prima facie case of sexual harassment

involving a hostile work environment, Petitioner must allege and

prove the following: (a) she belongs to a protected clas s;

(b) she experienced unwanted sexual advances; (c) the harassment

was based on her sex; (d) the harassment affected a term,

condition, or privilege of her employment; and (e) Respondent

knew or should have known about the harassment and failed to

take p rompt remedial action. Henson v. City of Dundee , 682 F.2d

897, 903 - 905 (11th Cir. 1982).

15. Petitioner has failed to present evidence of

harassment or that Respondent knew or should have known of the

existence of the harassment. Accordingly, she has fa iled to

present a prima facie case. In addition, she did not pursue

appropriate reporting of the alleged improper conduct until she

had resigned from employment with Respondent.

16. Section 760.11(1), Florida Statutes (2003), provides

as follows, in pert inent part:

(1) Any person aggrieved by a violation

of ss. 760.01 - 760.10 may file a complaint

with the commission within 365 days of the

alleged violation . . .

17. Petitioner filed her Charge of Discrimination with the

Florida Commission on Human R elations on October 12, 2003. By

Petitioner's own testimony, any alleged discriminatory conduct

took place before April 2002. Any alleged discriminatory act

that occurred on or before October 12, 2002, is time - barred.

Therefore, Petitioner's claim is ti me - barred. Thompson v.

Orange Lake Country Club, Inc. , 224 F. Supp. 2d 1368, 1374 - 75

(M.D. Fla. 2002); Caraballo v. South Stevedoring. Inc. , 932 F.

Supp. 1462, 1464 (S.D. Fla. 1996).

18. Assuming arguendo that there was evidence that

supported Petitioner 's allegations that there was work - place

discrimination, Respondent has satisfied the Faragher - Ellerth

affirmative defense.

According to the Supreme Court, if a

plaintiff shows that the supervisor effected

a tangible employment action against

plaintiff, th en the corporate defendant is

liable for the harassment. Faragher , 524

U.S. at 807 - 08, 118 S. Ct. 2275; Burlington

Indus., Inc. v. Ellerth , 524 U.S. 742, 765,

118 S. Ct. 2257, 141 L.Ed.2d 633 (1998);

Miller , 277 F.3d at 1278. Where, however,

the plaintif f does not show that the

supervisor took a tangible employment

action, the employer may raise an

affirmative defense that it: 1) exercised

reasonable care to prevent and promptly

correct the harassing behavior, and 2) that

the plaintiff unreasonably faile d to take

advantage of any preventative or corrective

opportunities the employer provided or to

avoid harm otherwise. Miller , 277 F.3d at

1278 (citing Faragher , 524 U.S. at 807, 118

S. Ct. 2275; Ellerth , 524 U.S. at 765, 118

S. Ct. 2257.

Lawrence v. Wa l - Mart Stores, Inc. , 236 F. Supp. 2d 1314, 1326 - 27

(M.D. Fla. 2002) (citing Faragher v. City of Boca Raton , 524 U.S.

775 (1998) and Burlington Indus., Inc. v. Ellerth , 524 U.S. 742

(1998)); Walton v. Johnson & Johnson Serv., Inc. , 203 F. Supp.

2d 1312, 1319 - 20 (M.D. Fla. 2002), aff’d , 347 F.3d 1272 (11th

Cir. 2003), cert. denied , 124 S.Ct. 1714 (2004)(citing same);

Carter v. America Online, Inc. , 208 F. Supp. 2d 1271, 1277 (M.D.

Fla. 2001) .

19. In the instant case, Respondent exercised reasonable

care to prevent harassment by having in place a meaningful anti -

harassment policy. Petitioner failed to avail herself of the

established procedures set forth in the anti - harassment policy.

It was literally impossible for Respondent to implement

corrective action , assuming such action was needed, if

Petitioner failed to complain appropriately.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissin g Petitioner's Petition for Relief

for failure to present a prima facie case and because it is

time - barred.

DONE AND ENTERED this 9th day of July, 2004, in

Tallahassee, Leon County, Florida.

JEFF B. CLARK

Administrati ve 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 Administra tive Hearings

this 9th day of July, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Evelyn E. Ferranti

2370 Oak Creek Circle

Melbourne, Florida 3 2935

Juan C. Lopez - Campillo, Esquire

Fisher & Phillips, LLP

1250 Lincoln Plaza

300 South Orange Avenue

Orlando, Florida 32801

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 323 01

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to 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.