05-001920 Jennifer Peavy vs. B Lay Enterprises, Llc, D/B/A Bargain Barry`s Status: Closed Recommended Order on Tuesday, October 4, 2005.

Summary: Petitioner was not subjected to a hostile sexual work environment. Recommend that petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER PEAVY, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1920

)

B LAY ENTERPRISES, LLC, d/b/a )

BARGAIN BARRY'S, )

)

Respondent. )

)

RECOMMENDED O RDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Ocala, Florida, on August 2, 2005. The following appearances

were entered:

APPEARANCES

For Petitioner: Kenneth M. Hesser, Esquire

Seven East Silver Springs Boulevard

Suite 300

Ocala, Florida 34470

For Respondent: Gary R. Wheeler, Esquire

McConnaughhay, Duffy, Coonrod

Pope and Weaver, P.A.

Post Office Box 550770

Jacksonville, Florida 32255 - 0770

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was

subjected to an unlawful employment practice by Respondent,

specifically sex discrimination in the form of sexual harassment

due to Petitioner's gender in violation of Section 760.10, Florida

Statutes.

PRELIMINARY STATEMENT

P etitioner filed a Charge of Discrimination against

Respondent with the Florida Commission on Human Relations (FCHR)

on December 27, 2004, alleging discrimination through sexual

harassment on the basis of her gender.

On or about April 18, 2005, the FC HR issued its

determination: No Cause.

On or about May 20, 2005, Petitioner filed a Petition for

Relief with the FCHR. Subsequently, on or about May 24, 2005, the

case was forwarded to DOAH for formal proceedings.

During the final hearing, Peti tioner testified in her own

behalf. Respondent presented testimony of seven witnesses and one

exhibit , which was admitted into evidence.

A transcript of the final hearing was filed on August 19,

2005. At hearing, the parties requested and were granted leave to

file proposed recommended orders 20 days after the filing of the

transcript with DOAH. By order dated August 30, 2005, the parties

were granted further leave to file proposed recommended orders no

later than September 16, 2005. Both parties time ly filed P roposed

R ecommended O rders , which have been reviewed and considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent employed Petitioner, a Caucasian female,

from sometime in December of 2003 until termination of her

employment on June 21, 2004. Petitioner worked in Respondent’s

warehouse facility from December, 2003 until sometime in

February, 2004, when she was transferred to one of Respondent’s

retail stores, the Ocala store, where she worked until she was

t ransferred back to the warehouse at the end of May or beginning

of June, 2004.

2. Petitioner conceded at hearing that she was terminated

after she argued with her supervisor and called her a bitch.

Petitioner does not believe that she was terminat ed on the basis

of her sex.

3. During the course of her employment, Petitioner alleges

that Respondent’s president, Barry Lay, made inappropriate

comments to her of a sexual nature and touched her in an

inappropriate way twice. All alleged sexually in appropriate

conduct occurred from December of 2003 through February of 2004,

during the period of time Petitioner worked in Respondent's

warehouse facility.

4. Petitioner testified that Barry Lay engaged in the

following inappropriate conduct:

(a) At the end of her initial employment interview

when she was hired, and out of the presence of other witnesses,

Barry Lay allegedly said to her, “If we were to fuck that’s

nobody’s business but ours.” In her charge of discrimination,

Petitioner alleged that this statement was “said in front of

witnesses.” Due to Petitioner's inconsistencies in testifying,

her demeanor while testifying and Barry Lay's candid testimony

of denial with regard to making such statements to Petitioner at

any time, Petitioner's all egation is not credited.

(b) Petitioner testified that, right before Christmas

of 2003, Barry Lay told her , "if I would let him eat me out just

one time I wouldn't think about any other man." (T. 23).

Petitioner testified that other witnesses, includ ing her mother,

were sitting nearby at a processing table when this comment was

made. No witnesses corroborated Petitioner's testimony on this

allegation and, coupled with Barry Lay's denial testimony,

Petitioner's allegation is not credited.

(c) Pet itioner testified that Barry Lay grabbed her

face and tried to kiss her about the same time as he allegedly

made the comment discussed above. Again, Petitioner alleges

that witnesses were present, but all witnesses testifying in the

matter, including Barr y Lay, denied that such an incident

occurred. Petitioner's testimony on this point is not credited.

(d) Petitioner also testified that Barry Lay grabbed

her hips and tried to pull her from behind when she was bent

over at a refrigerator. The allegati on was denied by Lay and no

corroborating testimony was presented. Petitioner's allegation

is not credited.

5. On one occasion, Barry Lay overheard conversation

between Petitioner and her mother regarding their breast size

and that they could form the “little titty committee.” Lay

commented to the duo that both of them could be president of the

committee.

6. Barry Lay never attempted to initiate a romantic

relationship with Petitioner and never threatened her with job

transfer or termination if she failed to provide sexual favors.

7. On one occasion during the course of Petitioner's

employment, when employees were discussing a rumor that Barry

Lay was having an affair with several people at one time, he

overheard the discussion, became irritated, and addressed the

employees as a group saying, “It doesn’t matter if I’m fucking

you, you, you, or you, it’s none of your business.”

8. Petitioner was transferred to the Ocala Store during

the course of her employment to assist her in getting her

chil dren to day care on time. Additionally, the store hours

were more suitable to her schedule at the time.

9. Petitioner made sexual remarks, participated in

discussions of a sexual nature, or participated in sexual

horseplay in the workplace during the c ourse of her employment

with Respondent. Petitioner was heard and observed to smack or

slap Barry Lay’s bottom and say, “I want a piece of that.”

Barry Lay did not do anything to provoke Petitioner’s conduct,

but responded by saying , “if you did, you’d n ever go back to

your boyfriend.”

10. While at work Petitioner discussed having oral sex

with her boyfriend and the length and frequency of those

encounters.

11. During Petitioner's assignment to the Ocala store, she

developed problems with absentee ism from the job. She quit

calling in when she unable to work and demonstrated a poor

attitude when she was at work. As a consequence, Petitioner was

transferred back to Respondent's warehouse, where any

absenteeism by the Petitioner would result in less of a hardship

to operations. The transfer occurred at the end of May or

beginning of June, 2004.

1 2 . After Petitioner was transferred back to the

warehouse, she continued to exhibit a poor attitude and

unacceptable conduct while at work. In June of 2004, just

before she was terminated, Petitioner screamed at her supervisor

that she was not going to perform a requested task due to

medical restrictions. The supervisor informed Petitioner that

she was not being asked to perform the task by herself, but

simply to assist. Petitioner began using abusive language t o

the supervisor, calling her a “bitch . ” Petitioner was asked to

leave, but replied that she would not unless and until the

supervisor “fucking” fired her. Petitioner pushed the

supervisor and call her a “fucking whore” and “bitch.”

Eventually, after using further epithets, Petitioner left the

premises.

13. Barry Lay did not witness the argument between

Petitioner and the supervisor, but when he was later informed he

instructed the superv isor to tell Petitioner that her employment

was being terminated.

1 4 . The decision to terminate Petitioner’s employment was

communicated to her the next day. Petitioner's stated response

to the supervisor, before walking away, was “get fucked . ”

CON CLUSIONS OF LAW

15 . The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these proceedings.

§§ 120.56(9) and 120.57(1), Fla. Stat.

1 6 . Chapter 760, Florida Statutes, the "Florida Civil

Rights Act of 1992," provides security from discrimination based

upon race, color, religion, sex, national origin, age, handicap,

or marital status.

1 7 . The burden of proof rests with Petitioner to show a

prima facie case of employment discrimination. After such a

showing by Petitioner, the burden shifts to Respondent to

articulate a nondiscriminatory reason for the adverse action.

If Respondent is successful and provides such a reason, the

burden shifts again to Petitioner to show that the proffered

reason for adverse action is pre - textual. School Board of Leon

County v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

1 8 . Provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. Sections 2000e, et seq . See Department of Corrections

v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991). Further,

decisions construing Title VII are applicable in evaluating a

claim brought under the Florida Civil Rights Act of 1992, as

amended, Sections 760.01 through 760. 11, Florida Statutes.

Harper v. Blockbuster Entertainment Corporation , 130 F.3d 1385,

1387 (11 th Cir. 1998) (citing Ranger Insurance Company v. Bal

Harbour Club, Inc . 549 So. 2d 1005, 1009 (Fla. 1989)).

19 . Title VII states that it is an unlawful employ ment

practice for an employer "to fail or refuse to hire or to

discharge any individual, or otherwise discriminate against any

individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's race,

c olor, religion, sex, or national origin." 42 U.S.C. § 2000e -

2(a). Sexual harassment is a form of sex discrimination

prohibited by Title VII. See Meritor Savings Bank, FSB v.

Vinson , 477 U.S. 57, 64, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49

(1986) (stating that "the phrase 'terms, conditions, or

privileges of employment' evinces a congressional intent 'to

strike at the entire spectrum of disparate treatment of men and

women'").

2 0 . There are two types of sexual harassment cases: (1)

quid pro quo , which ar e "based on threats which are carried out"

or fulfilled, and (2) hostile environment, which are based on

"bothersome attentions or sexual remarks that are sufficiently

severe or pervasive to create a hostile work environment."

Burlington Industries, Inc. v . Ellerth , 524 U.S. 742, 751, 118

S. Ct. 2257, 2264, 141 L. Ed. 2d 633 (1998). There is no

credible evidence in the record of the instant case to support a

claim of quid pro quo sexual harassment. Barry Lay never tried

to initiate a romantic relationship with Petitioner, nor did he

proposition her. He never threatened to transfer Petitioner if

she failed to do something in particular for him. Therefore,

any discussion of Petitioner’s sexual harassment claim focuses

on her theory of hostile environment s exual harassment.

2 1 . The Eleventh Circuit Court set forth in Mendoza v.

Borden, Inc ., 195 F.3d 1238 (11th Cir.1999)(en banc), the

elements that an employee must establish to support a hostile

environment claim under Title VII based on harassment by a

su pervisor. An employee must establish: (1) that he or she

belongs to a protected group; (2) that the employee has been

subject to unwelcome sexual harassment, such as sexual advances,

requests for sexual favors, and other conduct of a sexual

nature; (3) th at the harassment must have been based on the sex

of the employee; (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 h olding the employer liable. Id. at 1245. Requiring

proof that the conduct complained of was "sufficiently severe or

pervasive to alter the conditions of employment and create an

abusive work environment , " is the element that tests the mettle

of most sexu al harassment claims. The necessity for a

complainant to prove that the harassment is severe or pervasive

ensures that Title VII does not become a mere "general civility

code." Faragher v. City of Boca Raton , 524 U.S. 775, 788, 118 S.

Ct. 2275, 2283 - 84, 1 41 L. Ed. 2d 662 (1998). This requirement

is regarded "as crucial, and as sufficient to ensure that courts

and juries do not mistake ordinary socializing in the workplace -

- such as male - on - male horseplay or intersexual flirtation -- for

discriminatory 'condi tions of employment.' " Oncale v.

Sundowner Offshore Services, Inc ., 523 U.S. 75, 81, 118 S. Ct.

998, 1003, 140 L. Ed. 2d 201 (1998).

2 2 . As to the fourth element, it is settled that

“[e]stablishing that harassing conduct was sufficiently severe

or perv asive to alter an employee’s terms or conditions of

employment includes a subjective and objective component.”

Mendoza v. Borden, Inc ., 195 F.3d 1238, 1245 (11th Cir.1999).

If the complainant does not subjectively perceive the

environment to be abusive, the conduct has not actually altered

the conditions of the plaintiff’s employment, and there is not

Title VII violation. Harris v. Forklift Systems, Inc ., 510 U.S.

17, 21 - 22, 114 S. Ct. 367 (1993). “In looking at the entire

context of the alleged harassm ent, a plaintiff’s provocative

speech or dress may be relevant.” Morgan v. Fellini’s Pizza,

Inc ., 64 F. Supp. 2d 1304, 1309 (N.D. Ga. 1999); Balletti v.

Sun - Sentinel Co. , 909 F. Supp. 1539, 1547 (S.D. Fla. 1995)

(“Where a plaintiff’s action in the workpla ce shows that she was

a willing and frequent participant in the conduct at issue,

courts are less likely to find that the conduct was ‘unwelcome’

or ‘hostile.’”).

2 3 . In Mangrum v. Republic Industries, Inc., et al. , 260

F. Supp. 2d 1229, 1237 (N.D. Ga. 2003), the court held that a

plaintiff could not succeed on her hostile environment claims

because she participated in and, in some instances, initiated

inappropriate language and activity in the workplace. The court

held this despite conceding that the alleged harasser engaged in

such inappropriate behavior as: on two different occasions,

saying to the Plaintiff "stretch out on the desk, lay back on

the desk, we'll knock out a little piece right quick" ; asking

for a “blow job” in exchange for a favor; an d exposing his penis

to plaintiff. Id. The court indicated that there was

significant evidence, including the plaintiff’s own admissions,

that the plaintiff had participated in the sexual banter, had

used bad language, and “was one of the guys . . . in t here with

the best of them talking trash” throughout her employment. Id.

at 1238. Plaintiff also admitted that she “participated in a

lot of the things which were said there[,]” and that she “sat in

other employees’ laps and rubbed their shoulders and th at she

gave scalp, neck, and back massages to various employees and

would scratch their backs and ask for the same in return.” Id.

2 4 . A complainant must establish not only that she

subjectively perceived the environment as hostile and abusive,

but al so that a reasonable person would perceive the environment

to be hostile and abusive. See Mendoza , 195 F.3d at 1246;

Faragher , 524 U.S. at 788, 118 S. Ct. at 2284 (explaining that

the objective component of the "severe and pervasive" element

prevents "the ordinary tribulations of the workplace, such as

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

occasional teasing" from falling under Title VII's broad

protections).

2 5 . Although examination must be made of the statements

and conduct c omplained of collectively to determine whether they

were sufficiently pervasive or severe to constitute sexual

harassment, see Mendoza , 195 F.3d at 1242, the statements and

conduct must be of a sexual or gender - related nature -- "sexual

advances, requests fo r sexual favors, [or] conduct of a sexual

nature," Id. at 1245 , before they are considered in determining

whether the severe or pervasive requirement is met. Innocuous

statements or conduct, or boorish ones that do not relate to the

sex of the actor or of the offended party, are not counted.

Title VII, as it has been aptly observed, is not a "general

civility code." Faragher , 524 U.S. at 788, 118 S. Ct. at 2283 -

84; Gupta v. Florida Bd. of Regents , 212 F.3d 571, 582 - 583 (11th

Cir. 2000).

2 6 . The Gupta c ourt stated that if complained of conduct

is of a gender - related or sexual nature, or arguably so, then

four factors are applied to determine if the complained of

conduct was objectively severe and pervasive enough to alter an

employee’s terms and conditio ns of employment: “(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 conduct

unreasonably interferes with the employee’s j ob performance.”

Id. (citing Mendoza v. Borden, Inc. , 195 F.3d 1238 (11th Cir

1999)).

2 7 . Viewed from either the complainant's subjective

perspective or from the objective perspective of a reasonable

person, Petitioner has not established that harassing conduct

was sufficiently severe or pervasive to alter the terms or

conditions of her employment.

2 8 . Here Petitioner participated in sexual banter or

horseplay in the workplace. While Petitioner’s voluntary

participation in such conduct does not prec lude her from

demonstrating a sexually hostile work environment, it does

suggest that when, or if, she was on the receiving end of

similar conduct, such conduct was not unwelcome or hostile.

Balletti v. Sun - Sentinel Co. , 909 F. Supp. 1539, 1547 (S.D. Fla .

1995) (“Where a plaintiff’s action in the workplace shows that

she was a willing and frequent participant in the conduct at

issue, courts are less likely to find that the conduct was

‘unwelcome’ or ‘hostile.’”). Petitioner did not subjectively

perceive her work environment as hostile or abusive.

29 . Even if Petitioner did subjectively perceive that the

work environment was hostile and abusive, Petitioner has not met

her burden of establishing that, from an objective perspective,

harassing conduct wa s sufficiently severe or pervasive to alter

the terms or conditions of her employment.

3 0 . Petitioner failed to establish a prima facie case of

hostile work environment due to sexual harassment.

RECOMMENDATION

Based on the foregoing Findings of F act and Conclusions of

Law, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Relief.

DONE AND ENTERED this 4th day of October 2005, in

Tallahassee, Leon County, Florida.

S

DON W. DAVI S

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 October , 2005.

COPIES FURNISHED :

Kenneth M. Hesser, Esquire

Seven East Silver Springs Boulevard

Suite 300

Ocala, Florida 34470

Gary R. Wheeler, Esquire

McConnaughhay, Duffy, Coonrod

Pope and Weaver, P .A.

Post Office Box 550770

Jacksonville, Florida 32255 - 0770

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relat ions

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 O rder should be filed with the agency that

will issue the final order in this case.