04-003184 Michael J. Welch vs. Rural Metro Of North Florida, Inc. Status: Closed Recommended Order on Thursday, February 24, 2005.

Summary: Petitioner failed to prove that he was the victim of sexual harassment and retaliation leading to the termination of his employment with Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. WELCH, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3184

)

RURAL METRO OF NORTH FLORIDA, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This ca use came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on December 13, 2004, in Pensacola,

Florida.

APPEARANCES

For Petitioner: Michael J. Welch, pro se

2060 Burjonik Lane

Navarre, Florida 32566 - 2118

For Respondent: John Bawick, Esquire

Shell, Fleming, Davis & Menge

Post Office Box 1831

Pensacola, Florida 32591 - 1831

STATEMENT OF THE ISSUE

The issue is whether Respondent, Rural Metro of North

Fl orida, Inc., violated the Florida Civil Rights Act of 1992, as

amended, Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On July 14, 2003, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

("FCHR"), allegin g that he was discriminated against because of

his gender, in contravention of the Americans With Disabilities

Act, ADA, Section 760.10, Florida Statutes, and Title VII of the

Federal Civil Rights Act of 1992. Petitioner alleged that he

had suffered sexua l harassment by Respondent by being placed

with a female co - worker, and was subject to retaliatory conduct

by his supervisor, ultimately leading to his dismissal from his

employment as a paramedic.

On July 28, 2004, Petitioner received a Notice of

Determi nation: No Cause from the FCHR which provided him with a

35 - day window in which to challenge the FCHR's determination.

Petitioner filed a petition for Relief with the FCHR on

September 1, 2004, which was transmitted to the Division of

Administrative Heari ngs on September 3, 2004. The case was

assigned to the undersigned Administrative Law Judge, and

proceeded to hearing on December 13, 2004, in Pensacola,

Florida.

At the hearing, Petitioner presented the testimony of Lori

Bovee - Welch, testified himself, a nd offered Exhibit Nos. 1

through 6, and 8 through 12 into evidence. Respondent presented

the testimony of Kristy Lloyd Bradberry (via deposition), James

Chalmers, Tina Richardson Dunsford, Natashia Duke, Chris Rucker,

and Marlene Sanders Tompkins, and of fered Exhibit Nos. 1 through

7 into evidence.

A Transcript was filed on January 20, 2005. After the

hearing, Petitioner filed a Proposed Recommended Order on

January 3, 2005, then filed a second Proposed Recommended Order

on January 28, 2005. Responden t filed Proposed Findings of Fact

and Legal Conclusions on February 3, 2005.

References to statutes are to Florida Statutes (2004),

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner was hired by Respondent on October 11, 1999,

as an Emergency Me dical Technician Basic, until July 2001 when

he was reclassified with Respondent as an Emergency Medical

Technician Paramedic, until his termination from employment with

Respondent on April 16, 2003.

2. In July 2001, Petitioner told his then manager, Dom inic

Persichini, that he no longer wanted to work with his partner,

Marlene Sanders, and he requested a transfer.

3. Petitioner gave as his reason for the transfer that

Ms. Sanders was interested in him in an inappropriate way which

disrupted his family life. He never actually heard Ms. Sanders

make any inappropriate sexual remarks directed at him.

4. Ms. Sanders accused Petitioner of allowing his wife to

interfere with their working relationship and to involving

herself in Ms. Sanders' personal life, which made her

uncomfortable working with Petitioner.

5. On March 27, 2002, Stephen Glatstein, Respondent's new

General Manager, wrote a letter to Petitioner in which he

acknowledged that problems had occurred between Petitioner and

Ms. Sanders, that the two of them would be separated and

reassigned to new shifts, and that Petitioner was being

reassigned to the B - shift rotation (1800 - 0600 hours), which

conflicted with his family duties.

6. Petitioner received a good evaluation and a pay raise

dated Febr uary 15, 2003, in which his supervisor, Ryan Jenkins,

stated that "Michael's abilities meet or exceed industry

standards. Michael keeps current by completing CEU's and taking

refresher classes. There is one new Corrective Action Notice in

his file since last year involving a post move. The incident

was on 08 - 07 - 02 and to my knowledge there have not been any

further problems since." Further, the evaluation reads that

"Michael shows a great attitude and appears to really enjoy his

job. This makes him ver y easy to work with. Michael's good

personality and working knowledge of E.M.S. is a benefit to the

customers that he serves. It is clear that we should be proud

to have Michael as part of our team."

7. Petitioner received letters of commendation from h is

supervisors and letters of thanks from patients and their

families he had served.

8. In April 2003, Natashia Duke, a new employee with

Respondent, went to the General Manager, Mr. Chalmers, and

accused Petitioner of having made statements of a sexual n ature

to her and of touching her inappropriately. Ms. Duke provided a

written statement to Mr. Chalmers who forwarded the information

to the Division General Manager, Chris Rucker.

9. Mr. Rucker advised Mr. Chalmers to place Petitioner on

paid administra tive leave pending the outcome of an

investigation concerning Ms. Duke's complaint. Mr. Chalmers

followed this instruction and placed Petitioner on leave.

10. Mr. Rucker traveled to Pensacola to meet with

Mr. Chalmers and Ms. Duke. At this meeting, Ms. Duke reaffirmed

what she had written in the complaint against Petitioner and

told Mr. Rucker and Mr. Chalmers about another employee she

believed had been sexually harassed by Petitioner, Kristy

Bradberry.

11. The next day, Mr. Rucker and Mr. Chalmers in terviewed

Ms. Bradberry who informed them that she had been sexually

harassed by Petitioner. She provided a written statement which

described the alleged harassment in detail. Ms. Bradberry told

the interviewers of another person she believed had suffere d

sexual harassment by Petitioner, Tina Dunsford (Tina Richardson

at the time of her complaint).

12. Mr. Rucker and Mr. Chalmers next interviewed

Ms. Dunsford who confirmed that Petitioner had sexually harassed

her as well by making sexual comments and p ropositions to her,

and by touching her inappropriately.

13. After Ms. Dunsford's interview, Ryan Jenkins, another

of Respondent's employees, reported that Ms. Dunsford had

complained to him of sexual harassment by Petitioner a few

months earlier. Mr. Je nkins had failed to take any action on

the previous complaint.

14. After interviewing the three complainants, Ms. Duke,

Ms. Bradberry, and Ms. Dunsford, Mr. Rucker and Mr. Chalmers met

with Petitioner. At that meeting, Petitioner denied all of the

allega tions made by the three female co - workers and gave no

explanation for what they alleged had happened.

15. Mr. Rucker believed the statements given by the three

female co - workers who complained of sexual harassment by

Petitioner were credible.

16. Mr. Ru cker made the decision with Mr. Chalmers to

terminate Petitioner's employment.

17. Respondent had no prior history of problems with any

of the three female co - workers who complained of sexual

harassment by Petitioner.

18. Petitioner believes the sexual harassment charges were

trumped up against him so that Respondent could fire him, since

he was beyond the company probationary period and therefore

could be terminated only for a business purpose pursuant to the

company employee handbook. No evidence was produced at hearing

to support a violation of company policy by Respondent in

Petitioner's termination.

19. At the time of hearing, Petitioner was employed with

the Escambia County E.M.S.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearing s has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), and 760.01 et seq. , Fla.

Stat.

21. The Florida Civil Rights Act of 1992 (the "Act") is

codified in Sections 760.01 through 760.11, Florida Statutes ,

and Section 509.092, Florida Statutes. "Because th[e] [A]ct is

patterned after Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e - 2, federal case law dealing with Title VII is

applicable." Florida Department of Community Affairs v. Bryant ,

58 6 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

22. Among other things, the Act makes certain acts

"unlawful employment practices" and gives the FCHR the

authority, if it finds, following an administrative hearing

conducted pursuant to Sections 120.569 and 120.5 7, Florida

Statutes, that such an "unlawful employment practice" has

occurred, to issue an order "prohibiting the practice and

providing affirmative relief from the effects of the practice,

including back pay." §§ 760.10 and 760.11(6), Fla. Stat.

23. The "unlawful employment practices" prohibited by the

Act include those described in Section 760.10(1)(a) and (7),

Florida Statutes, which provide as follows:

It is an unlawful employment practice for an

employer:

(1)(a) To discharge or to fail or refuse t o

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

sta tus.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization 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.

24. "Sexual harassment can constitute discrimination base d

on sex for purposes of [Section 760.10(1)(a), Florida Statutes].

Generally, sexual harassment comes in two forms: harassment

that does not result in a tangible employment action

(traditionally referred to as 'hostile work environment'

harassment), and harassment that does result in a tangible

employment action (traditionally referred to as ' quid pro quo '

harassment). All harassment by co - workers necessarily falls

into the first . . . class, as co - workers cannot take employment

actions against each othe r. Harassment by supervisors, on the

other hand, can fall into either category." Johnson v. Booker

T. Washington Broadcasting Service, Inc. , 234 F.3d 501, 508

(11th Cir. 2000)(citations omitted).

25. "Sexual harassment, like any other claim under

[Secti on 760.10(1)(a), Florida Statutes], is a claim based on

intentional discrimination." Pospicil v. Buying Office, Inc. ,

71 F. Supp. 2d 1346,1356 (N.D. Ga. 1999); see also Downing v.

Board of Trustees of University of Alabama , 321 F.3d 1017, 1024

(11th Cir. 2003)("Since Cross holds that the elements of a

sexual harassment claim under Title VII and the Equal Protection

Clause are the same -- meaning that the employee must prove that

the state actor intended to discriminate because of the

employee's sex -- we disce rn no principled basis for holding that

the Equal Protection Clause is implicated in a case of opposite -

sex discrimination but not in a case of same - sex

discrimination.").

26. "To demonstrate sexual harassment, [a complainant]

must show: (1) that 'she [o r he] belongs to a protected group';

(2) that she [or he] 'has been subject to unwelcome sexual

harassment, such as sexual advances, requests for sexual favors,

and other conduct of a sexual nature'; (3) that the harassment

was 'based on [his] sex . . .'; (4) 'that the harassment was

sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive

working environment'; and (5) 'a basis for holding the employer

liable.'" Johnson v. Booker T. Washington Broadcasting Service,

Inc. , 234 F.3d at 508, quoting from, Mendoza v. Borden, Inc. ,

195 F.3d 1238, 1245 (11th Cir. 1999).

27. It has been said that "[t]he fourth element -- that the

conduct complained of was 'sufficiently severe or pervasive to

alter the conditions of employment and create an abusive

work[ing] environment" -- is the element that tests the mettle of

most sexual harassment claims.'" Gupta v. Florida Board of

Regents , 212 F.3d 571, 583 (11th Cir. 2000). To establish the

existence of this "fou rth element" a complainant " must establish

not only that she subjectively perceived the environment as

hostile and abusive, but also that a reasonable person would

perceive the environment to be hostile and abusive." Id. "In

evaluating the objective seve rity of the harassment, [one must]

consider, among other factors: (1) the frequency of the

conduct; (2) the severity of the conduct; (3) whether the

conduct is physically threatening or humiliating, or a mere

offensive utterance; and (4) whether the condu ct unreasonably

interferes with the employee's job performance." Miller v.

Kenworth of Dothan, Inc. , 277 F.3d 1269, 1276 (11th Cir. 2002).

28. With respect to the "fifth element" required to make a

prima facie case of sexual harassment, employer liabilit y, "[a]n

employer 'is subject to vicarious liability to a victimized

employee for an actionable hostile environment created by a

supervisor with immediate (or successively higher) authority

over the employee.' The employer will be strictly liable for

the hostile environment if the supervisor takes tangible

employment action against the victim. However, when an employee

has established a claim for vicarious liability but where no

tangible employment action was taken, a defending employer may

raise as an af firmative defense to liability or damages: '(a)

that the employer exercised reasonable care to prevent and

correct promptly any . . . harassing behavior, and (b) that the

plaintiff employee unreasonably failed to take advantage of any

preventive or correct ive opportunities provided by the employer

or to avoid harm otherwise.'" Miller v. Kenworth of Dothan,

Inc. , 277 F.3d at 1278 (citations omitted). "While proof that

an employer had promulgated an anti - harassment policy with

complaint procedure is not nec essary in every instance as a

matter of law, the need for a stated policy suitable to the

employment circumstances may appropriately be addressed in any

case when litigating the first element of the defense. And

while proof that an employee failed to fulf ill the corresponding

obligation of reasonable care to avoid harm is not limited to

showing an unreasonable failure to use any complaint procedure

provided by the employer, a demonstration of such failure will

normally suffice to satisfy the employer's bur den under the

second element of the defense. No affirmative defense is

available, however, when the supervisor's harassment culminates

in a tangible employment action, such as discharge, demotion, or

undesirable reassignment." Burlington Industries, Inc. v.

Ellerth , 118 S. Ct. 2257, 2270 (1998); and Faragher v. City of

Boca Raton , 118 S. Ct. 2275, 2293 (1998).

29. To prove a prima facie case of retaliation, Petitioner

must show the following: (a) he engaged in statutorily

protected expression; (b) he su ffered an adverse employment

action such as demotion and/or assignment to a position with

less responsibility; and (c) the adverse employment action was

causally related to the protected activity. See Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 13 85, 1388 (11th Cir.

1998).

30. In this case, Petitioner has failed to show that he

suffered an adverse employment action for making a complaint

against Ms. Sanders. Although he was reassigned to the B - shift,

which he found to be less desirable due to h is family

obligations, he was neither docked in pay, demoted, nor

terminated from his employment. The greater weight of the

evidence indicates that Petitioner was fired because his

employer accepted the truthfulness of the allegations made by

Petitioner's three female co - workers that he had made

inappropriate sexual advances toward them. The evidence

produced by Petitioner at hearing fails to support his claim of

sexual harassment by his co - worker, Ms. Sanders. He "believed"

she was harboring inappropria te thoughts toward him, yet he

never actually heard her make remarks of a sexual nature

directed at him.

31. Other than his own testimony, Petitioner provided no

corroborating evidence for any of his allegations of sexual

harassment by Ms. Sanders. Furth er, Petitioner failed to prove

that his employment was terminated due to retaliation by

Respondent as a result of Petitioner's going over his

supervisor's head to complain to the General Manager about the

alleged sexual harassment by Ms. Sanders. Responde nt

articulated the basis for Petitioner's termination, namely, that

three female co - workers complained of sexual harassment by

Petitioner against them in the workplace. Petitioner's

supervisors believed the statements of the three female co -

workers to be credible. Petitioner's testimony and the evidence

he produced at hearing fail to overcome Respondent's

justification for his termination. Further, Petitioner has been

able to find employment as a paramedic in his same county, and

cannot therefore claim n or did he prove at hearing, that

Respondent's actions have caused him financial harm.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is,

RECOMMENDED that the Florida Commission on Human Relations

enter a Final Order dismissi ng Petitioner's claim for relief.

DONE AND ENTERED this 24th day of February, 2005, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 24th day of February, 2005.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael J. Welch

2060 Burjonik Lane

Navarre, Florida 32566 - 2118

John Bawick, Esquire

Shell, Fleming, Davis & Menge

226 Palafox Place

Post Office Box 1831

Pensacola, Florida 32591 - 1831

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 to submit written exc eptions 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.