06-000583 Keneka Jones vs. General Aviation Terminal, Inc. Status: Closed Recommended Order on Tuesday, November 28, 2006.

Summary: Petitioner proved that Respondent is liable for harassment and a hostile work environment based on her disability of mental retardation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENEKA JONES , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0583

)

GENERAL AVIATION TERMINAL, )

INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 15 and

26, 2006, and August 4, 2006, in Tallahassee, Florida , before

Suzanne F. Hood, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Carolyn D. Cummings, Esq uire

Cummings, Hobbs and Wallace, P.A.

462 West Brevard Street

Tallahassee, Florida 32301

For Respondent: Joanne B. Lambert, Esquire

Jackson Lewis, LLP

Post Office Box 3389

Orlando, Florida 32802 - 3389

STATEMENT OF THE ISSUES

The issues are whether Respondent General Aviation

Terminal, Inc. (Respondent) discriminated against Petitioner

Keneka Jones (Petitioner) based on h er sex, gender, and/or

disability and retaliated against her for complaining about said

discrimination in violation of Section 760.10, Florida Statutes

(2005).

PRELIMINARY STATEMENT

On July 29, 2005, Petitioner filed an Amended Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR). Petitioner alleged that Respondent discriminated

against her based on her sex, gender, and disability by

subjecting her to disparate treatment, harassment, and a hostile

work environment and retaliate d against her for complaining

about the discrimination by terminating her employment.

On January 6, 2006, FCHR issued a Determination: No Cause.

On February 10, 2006, Petitioner filed a Petition for Relief,

which FCHR referred to the Division of Admini strative Hearings

on February 14, 2006.

A Notice of Hearing dated February 27, 2006, scheduled the

case for hearing for May 4, 2006.

On April 24, 2006, Petitioner filed an Unopposed Motion for

Continuance. On April 29, 2006, the undersigned issued a n Order

Granting Continuance and Rescheduling Hearing for June 15, 2006.

During the three - day hearing, Petitioner testified on her

own behalf and presented the testimony of two witnesses.

Petitioner offered nine exhibits, which were received into

evide nce.

Respondent presented the testimony of four witnesses.

Respondent offered eight exhibits, which were received into

evidence.

At the close of the hearing, the parties requested leave to

file post - hearing submissions 30 days after the filing of th e

hearing transcript. For good cause shown, the undersigned

granted the request on the record.

The fifth and final volume of the Transcript was filed on

August 23, 2006.

On September 22, Petitioner timely filed her Proposed

Recommended Order. On Se ptember 27, 2006, Respondent filed an

Unopposed Motion for Enlargement of Time, Nunc Pro Tunc, to File

Proposed Findings of Fact and Conclusions of Law. An Order

Granting Extension of Time gave Petitioner and Respondent an

opportunity to file a proposed o rder or an amended proposed

order respectively no later than October 13, 2006.

On October 13, 2006, Petitioner filed an Amended Proposed

Recommended Order and Respondent file its Proposed Findings of

Fact and Conclusions of Law.

FINDINGS OF FACT

1. Re spondent is a foreign corporation that is licensed to

do business in Florida. Respondent is an employer under the

Florida Civil Rights Act of 1992, Sections 760.01 through

760.11, Florida Statutes (2006).

2. Respondent provides contract services to airp orts and

airlines around the country. The services include aircraft

cleaning, baggage handling, and other services.

3. Respondent calculated its bid for the Delta Air Lines,

Inc. (Delta) cabin cleaning service at the Tallahassee Regional

Airport, Tall ahassee, Florida, based on eventual staffing of six

full - time dedicated cabin service ramp agents (cabin service

agents). The contract required Respondent to service the daily

inbound flights with each employee having two days off each

week. The contract required Respondent to have the cabin

service up and running by the end of January 2006. The contract

did not include the additional costs and hiring delays that

Respondent would have incurred if it created a part - time for one

employee, then looked for a second part - time employee in order

to fill one of the six full - time positions. Respondent could

not perform its contractual obligation to Delta with a part - time

cabin service ramp agent.

4. Petitioner, a black female, is a resident of the State

of Fl orida. She has a learning disability that made her

eligible for exceptional student education (ESE) classes in

public school. Petitioner was retained in the 1st grade, the

9th grade, and the 12th grade. She received a special high

school diploma but was unable to attend college because of her

inability to pass the graduate education diploma (GED)

examination.

5. At some point in time, the Federal Social Security

Administration determined that Petitioner suffered from mental

retardation. Based on that determination, Petitioner became

eligible for a monthly Social Security Disability (SSD) check.

No health care provider has diagnosed Petitioner as having a

disability that prevents her from working a full - time position.

6. At times Petitioner suffers what she describes as

anxiety or panic. However, there is no competent evidence that

Petitioner suffers from panic attacks as a disability, which

prevents her from working on a full - time basis. According to

Petitioner, she takes medication and splashes water on her face

when she begins to feel anxious. The only time Petitioner

referred to her anxiety at work was when she came out of the

restroom on one occasion and told a co - worker that she had just

had a panic attack.

7. To the extent that Petitione r suffers from anxiety

attacks, her medication appears to quickly correct any

impairment she may suffer. There is no competent evidence that

the alleged anxiety substantially limits Petitioner’s major life

activities.

8. Petitioner has a noticeable spe ech impediment. The

speech impairment is not so severe as to interfere with

Petitioner’s ability to work.

9. Respondent employed Petitioner in Tallahassee, Florida,

as a full - time cabin service agent from January 7, 2005, until

February 28, 2005. Peti tioner’s primary job duty was to clean

and service the interior cabins of airplanes, owned and operated

by Delta at the Tallahassee Regional Airport. Petitioner was

also expected to perform general maintenance of the restrooms

inside Respondent's break ro om and other airline offices,

including emptying garbage cans and dusting between arrivals of

the various flights at least two times a day.

10. Petitioner's job required her to clean and service

four to six daily inbound flights. As a general rule, th e

flights were spaced out by one or more hours, depending on the

schedule.

11. Petitioner worked with two other full - time cabin

service agents: (a) Stacy Bennett, lead agent and Petitioner’s

direct supervisor; and (b) co - worker, Hillary Bennett.

12 . Respondent’s contract with Delta required each

aircraft cabin to be serviced in approximately seven minutes.

Over the course of an eight - hour shift, Petitioner and the two

other employees in her position worked a total of only two to

three hours. Duri ng the five to six hours of each shift that

Petitioner was not required to perform any work duties, she was

free to watch television, talk with co - workers, eat, or engage

in other activities of her choosing , as long as she remained on

the airport premises. Petitioner was qualified to perform her

job duties without the need for any accommodation.

13. The station manager, Cory Howell, interviewed and

hired Petitioner. During the interview, Petitioner told

Mr. Howell that she wanted to work part - time bec ause she

received SSD benefits and full - time work would cause her to make

too much money, subjecting her SSD benefits to reduction or

termination. Petitioner did not tell Mr. Howell that she needed

part - time work as an accommodation for a disability such as

panic attacks, mental retardation, or speech impairment.

14. Petitioner's request for part - time work is consistent

with her application in November 2004. However, the most

persuasive evidence indicates that Petitioner accepted a full -

time position with the understanding that Respondent did not

have any positions for part - time ramp agents at that time.

Mr. Howell did not promise Petitioner part - time work in the

future but said he would see what he could do to honor her

request.

15. Due to a cleric al error that affected the records of

several full - time employees, Petitioner's personnel records

erroneously indicate that Respondent hired her on a part - time

basis. Despite the clerical error, Petitioner began working a

full - time schedule on or about Ja nuary 12, 2005.

16. On her first day at work, Petitioner worked until 6:00

p.m. On her first or second day at work, Mr. Beitzel told

Petitioner which two days a week would be her regular days off,

and which five days a week she would be scheduled to w ork.

Petitioner told Mr. Beitzel that she did not want to work full -

time. Mr. Beitzel told Petitioner to speak with Mr. Howell.

17. Later in January, Petitioner spoke to Mr. Howell on

several occasions about her desire to work part - time. She told

hi m she did not want to make too much money because she would

lose her SSD benefits. She did not tell him that working full -

time was causing her to have anxiety attacks or that she needed

to work part - time as an accommodation for any disability, other

than to preserve her SSD benefits. Mr. Howell consistently told

Petitioner there were no part - time ramp agent positions.

18. Respondent has employment practices prohibiting

discrimination based on sex, gender, handicap, or retaliation

for complaining about any type of discrimination. When

Respondent hired Petitioner, she received copies of these

policies as well as Respondent's policies regarding reasonable

accommodation of disabilities.

19. Petitioner read these policies and solicited help from

other p eople on parts she did not understand. The policies

state that employees should report any concerns regarding

perceived harassment/discrimination or failure to provide a

disability accommodation to their immediate supervisor or

Respondent's human resource s director. At all times material

here, Dawn Middleton served as Respondent's Director of Human

Resources.

20. Petitioner had an opportunity to meet Ms. Middleton

during the first few weeks of Petitioner's employment. During a

lengthy conversation, Ms . Middleton explained her job

responsibilities in detail. Petitioner did not tell

Ms. Middleton that Petitioner was unhappy with her job in any

respect.

21. Respondent posted the daily flight schedule of

aircraft that Petitioner and the other cabin se rvice agents

would need to service in the break room on a daily basis.

Ms. Bennett also informed Petitioner about the daily schedule.

On several occasions, Petitioner was not immediately available

when an aircraft arrived for service.

22. Because her mother was dead, Petitioner had custody of

her younger sister, who was pregnant when Petitioner went to

work for Respondent. Mr. Howell told Petitioner in advance that

she would not be able to miss any work due to the baby's

impending birth.

23. Earl y one morning about two weeks after beginning her

employment, Petitioner took her sister to the emergency room

with symptoms that turned out to be false labor. Petitioner

followed correct procedure by calling Mr. Beitzel, Respondent's

training supervisor and second - in - command at the Tallahassee

office, as soon as possible , to let Respondent know about the

emergency and that she would be late to work.

24. That same morning, Ms. Bennett complained to

Mr. Howell that Petitioner had missed or been late to service a

scheduled aircraft and that Petitioner was not assisting with

cleaning the restrooms. When Petitioner arrived at work,

Ms. Bennett and Mr. Howell, in the presence of Mr. Beitzel,

verbally counseled Petitioner, informing Petitioner that her

perfo rmance needed to improve. During this counseling,

Petitioner was loud, argumentative, and refused to accept

responsibility for her poor performance.

25. After the counseling session, Petitioner's performance

improved for a short time. However, Petiti oner began having

problems with her co - workers. At times, Petitioner and other

employees would yell at each other. On one occasion, Mr. Howell

was aware of verbal conflict between Petitioner and other

employees sufficient to make him leave his office and enter the

break room to inquire whether anything was wrong. Petitioner,

in the presence of her co - workers, denied that there were any

problems.

26. It is clear that Mr. Howell was aware that Petitioner

was having problems with some of the male employ ees because she

complained on several occasions that the male employees were

“ messing ” with her. However, other than the one inquiry

reference above, Mr. Howell took no steps to verify or disprove

Petitioner's complaints.

27. The male employees routin ely joked about Petitioner

amongst themselves. They said she must have taken ESE classes,

that she was special, and that she was a slow learner. The men

told each other that Petitioner was a “ pretty - ass girl ,” until

she opens her mouth. They joked about having sex with

Petitioner if she were not "a little bit off." These types of

comments were made when Petitioner was in the same room. The

greater weight of the evidence is that Petitioner heard at least

some, if not all, of the inappropriate comments a bout her mental

disability. Petitioner was embarrassed and humiliated by the

comments she heard and the knowledge that the men were making

fun of her mental disability even when she could not hear

precisely what they were saying.

28. The men asked Pet itioner whether she had ever taken

English classes, sarcastically referring to her inability to

speak properly. They told Petitioner someone needed to teach

her how to speak correctly.

29. Some of the male employees had crushes on Petitioner

but did n ot want the other men to know their feelings for fear

of being teased. Sometimes a man would tell Petitioner that she

looked good. Occasionally, Petitioner would smile at and flirt

with the men.

30. One day Petitioner arrived at work with her hair in

disarray. The men laughed among themselves, when one of them

stated that Petitioner must have been out F ------ all night.

The greater weight of the evidence indicates that Petitioner did

not hear this inappropriate comment.

31. The most persuasive ev idence indicates that Mr. Howell

was aware that Petitioner was mentally retarded/learning

disabled. In view of the close proximity of the break room to

Mr. Howell's office, his ability to overhear discord among the

employees, and Petitioner's complaints t hat the men were picking

on her, Mr. Howell knew or should have known that the male

employees were routinely harassing Petitioner, joking about her

mental disability, and thereby creating a hostile work

environment for Petitioner.

32. On February 28, 2 006, Petitioner and her supervisor,

Ms. Bennett ate breakfast in the break room. They quietly began

watching television after finishing their meal. After 30 or 40

minutes, Carlos Byrd, a male employee, entered the break room

and began playing cards with another male employee. Next,

Terryl Crenshaw (nicknamed Bama) entered the break room and

asked Mr. Byrd what game they were playing. After Mr. Byrd

responded, Mr. Crenshaw told Petitioner to move over.

Petitioner knew Mr. Crenshaw wanted her to move so that he could

play cards with Mr. Byrd and the other male employee.

33. When Petitioner did not move, Mr. Byrd ordered

Petitioner to "move your ass over." Petitioner continued to

ignore the men. Mr. Crenshaw then abruptly shoved Petitioner's

chair fro m behind , causing her to fall out of her chair.

Petitioner got up yelling profanities at Mr. Crenshaw, telling

him that he had no right to touch her chair.

34. Mr. Howell, who was in his office, heard the men order

Petitioner to move over. Mr. Howell did not hear Petitioner

respond until he heard the chair being shoved.

35. Mr. Howell entered the break room as Petitioner and

Mr. Crenshaw exchanged hostile words. Because Petitioner was

crying and obviously emotionally upset, Mr. Howell told

Petitio ner to calm down and to go into his office.

36. Petitioner was very agitated and continued to express

her feelings in a loud voice. Petitioner told Mr. Howell that

he favored the male employees over her and that he always took

their side rather than h ers. Petitioner continued to shout at

Mr. Howell when Mr. Beitzel entered the office.

37. Mr. Howell could not get Petitioner to calm down.

Instead she called Mr. Howell an "asshole" and a "mother -

f_____," daring him to fire her. All of the employee s in the

break room could hear Petitioner's tirade.

38. Mr. Howell finally told Petitioner to hand over her

security badge and leave the premises because she was

terminated. Petitioner refused to surrender her badge or leave

until a security officer ar rived to escort her out of the

building.

39. Mr. Howell verbally counseled Mr. Crenshaw for his

part in the disturbance. He took no other disciplinary action

against Mr. Crenshaw.

40. If Petitioner had calmed down as requested, Mr. Howell

would hav e verbally counseled her without terminating her

employment. Competent evidence indicates that use of profanity

was common in the workplace. The male employees and the

management joked with each other, had dinner together on out - of -

town trips, and routin ely used r ough language amongst

themselves, but never in an angry, hostile, or insubordinate

manner like Petitioner's extended outburst. The only time a

similar incident occurred in the past, Mr. Howell fired a male

employee.

41. Petitioner's personnel records erroneously indicate

that she was discharged for unsatisfactory work performance.

Petitioner's continued disruptive behavior and her profane and

abusive language was insubordinate, leaving Mr. Howell with no

choice but to terminate her employment .

42. After her termination, Petitioner worked for a single

day at a nursing home. Petitioner resigned that job, at least

in part, because she did not want to lose her SSD benefits.

There is no evidence that Petitioner has ever maintained a full -

time or part - time job for a significant period of time. Sh e

certainly did not make a good - faith effort to mitigate her

damages in this case.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the parties and the subject mat ter of this

proceeding pursuant to Sections 120.569, 120.57(1), and 760.11,

Florida Statutes (2006).

44. Petitioner alleges that Respondent discriminated

against her based on her sex/gender and disability by subjecting

her to disparate treatment, haras sment, and a hostile work

environment. Petitioner also alleges that Respondent retaliated

against her when it unlawfully terminated her employment.

45. FCHR and the Florida courts have determined that

federal discrimination law should be used for guida nce when

construing the Florida Civil Rights Act of 1992, Sections 760.01

through 760.11, Florida Statutes (2005). See Brand v. Florida

Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1991).

46. Section 706.10(1)(a), Florida Statutes (2005),

provides th at 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

because of such individual's race, color, religion, sex,

national origin, age, handicap or marital status."

47. Florida law also prohibits retaliation against any

person who opposes an unlawful employment practice or because a

person complains about such a practice. See § 7 60.10(7), Fla.

Stat. (2005).

Handicap Discrimination

48. Petitioner 's claim that Respondent committed an

unlawful employment practice based on her disability involves

two theories of discriminatory conduct. First, Petitioner

alleges that Respondent failed to accommodate her alleged

anxiety/panic attacks by not providing her with part - time work.

Second, Petitioner alleges that Respondent is responsible for

harassment and a hostile work environment that she experienced

due to her mental retardation and/or speech impediment.

49. In regards to Petitioner's claim of failur e to

accommodate, she has the burden of proving the following prima

facie case by a preponderance of the evidence: (a) she suffers

from a disability of anxiety or panic attacks; (b) she was

qualified for her position and able to satisfactorily perform

her work with or without an accommodation; (c) Respondent knew

or had reason to know about her disability and refused a

requested reasonable accommodation. See Hilburn v. Murata

Electronics North America, Inc. , 181 F.3d 1220 (11th Cir. 1999).

50. If Petit ioner meets this initial burden, Respondent

must show that absence of the handicap is a bona fide

occupational qualification (BFOQ). See § 760.10(8), Fla. Stat.

(2005); Andrews v. Albertson's Inc. , 11 FALR 4874 (FCHR 1989).

In the alternative, Respondent must demonstrate that it made a

good - faith attempt to accommodate the handicap or that the

business would experience an undue hardship in providing the

requested accommodation. See Id. Respondent is not required to

make fundamental alterations to its pr ogram to accommodate

Petitioner's disability. See Brand at 633 So. 2d 511 - 512.

51. A disability is a "physical or mental impairment that

substantially limits one or more of the major life activities of

[an] individual." See 42 U.S.C. § 12102(2)(A). M ajor life

activities include "functions, such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working." See 29 C.F.R. § 1630.2(i).

Moreover, to be substantially limited, a person must be either

unable to perform a major life function or be "significantly

restricted as to the condition, manner or duration" under which

the individual can perform a particular function, as compared to

the average person in the general population. See 29 C.F.R. §

16 30.2(j). Any determination of a disability must take into

account any remedial measures, such as medication, that correct

the impairment. See Sutton v. United Air Lines, Inc. , 527 U.S.

471 (1999).

52. Petitioner has not met her burden of proving that

Respondent "failed to accommodate" her alleged anxiety/panic

attacks. Indeed, she did not present competent evidence that

she suffers from such a disability as defined by the FCRA and

federal law. It follows that she did not present competent

evidence th at any anxiety she experiences substantially limits

her major life activities, including the ability to work full -

time. To the extent that Petitioner receives medical treatment

for anxiety, her medication easily corrects any impairment she

suffers.

53. Petitioner never reported any anxiety disability to

Mr. Howell, Mr. Beitzel, or Ms. Middleton and never requested

part - time work as an accommodation. As far as management knew,

Petitioner wanted part - time work so she would not lose SSD

benefits.

54. O n the other hand, Respondent demonstrated that

Petitioner was able to perform her job responsibilities without

any accommodation for anxiety or mental retardation. Thus a

part - time schedule was unnecessary to allow Petitioner to

perform the essential func tions of her job. Moreover, the job

was essentially part - time by its very nature.

55. Respondent has never hired part - time workers to be

cabin service ramp agents. Filling one full - time position with

two part - time positions was unreasonable and would ha ve caused

an undue hardship on Respondent. Some of Respondent's labor

cost s would have doubled with two part - time employees, including

unemployment taxes, workers' compensation premiums, uniform

costs, badge and access fees, and other miscellaneous items.

56. As to Petitioner's claim that she was harassed and

experienced a hostile work environment due to her mental

retardation and/or speech impediment, Petitioner's prima facie

case involves proving the following: (a) she was disabled; (b)

she was subje cted to unwelcome harassment or a hostile work

environment; (c) the harassment or hostile work environment was

based on her disability ; (d) the harassment or hostile work

environment was sufficiently severe or pervasive to alter her

working conditions and create an abusive environment ; and (e)

Respondent knew or should have known of the harassment or

hostile work environment , failed to correct the harassment, and

therefore is liable under a theory of direct or vicarious

liability. See Razner v. Wellington Regional Medical Center,

Inc. , 837 So. 2d 437 (Fla. 4th DCA 2002); Miller v. Kenworth of

Dothan, Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002).

57. The evidence here demonstrates that Petitioner suffers

from a noticeable speech impediment. However, there is no

competent evidence that Petitioner's speech impairment

substantially limits her ability to speak. To the contrary,

Petitioner is able to express herself more than adequately when

she understands the subject matter of a conversation.

Therefore, the following analysis will focus on Petitioner's

mental retardation.

58. To prove a harassment claim, Petitioner must show that

she subjectively perceived the harassment to be severe or

pervasive, and that objectively, a reasonable person in her

position w ould consider the harassment likewise. See Johnson v.

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

509 (11th Cir. 2000). The objective prong of the test requires

consideration of the following four factors: (a) the frequency

of the con duct; (b) the severity of the conduct; (c) whether the

conduct is physically threatening or humiliating, or a mere

offensive utterance; and (d) whether the conduct unreasonably

interferes with the employees job performance. Mendoza v.

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

59. The conduct at issue must be so extreme as to "amount

to a change in terms and conditions of employment." See

Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998).

60. Petitioner did not present competent evidence tha t her

mental retardation substantially limited one of her major life

functions, such as her ability to work on a full - time basis.

However, Petitioner proved that she is mentally retarded based

on her history as an ESE student and a recipient of SSD

benefi ts. Additionally, it is clear that Petitioner's co -

workers regarded her as having such impairment and that her

supervisors were aware of that perception. By proving two out

of three of these factors, Petitioner met her burden of proving

that she was ment ally disabled as defined under state and

federal law. See Gordon v. E.L. Hamm and Associates , 100 F.3d

907, 911 (11th Cir. 1996).

61. Petitioner presented persuasive evidence that she was

subjected to unwelcome harassment based on her mental

retardatio n and that the harassment altered her working

conditions and created an abusive environment. Petitioner knew

or should have known that the male employees routinely made fun

of her because she was slow. As a result of their constant

jokes, Petitioner was subjectively embarrassed, humiliated,

distracted, and unable to get along with her co - workers. The

harassment was sufficiently frequent, severe, and humiliating to

qualify as creating a hostile work environment under any

objective standard.

62. Mr. How ell knew or should have known that the men were

picking on Petitioner because she was mentally disabled.

Mr. Howell and Ms. Bennett were aware of Petitioner's on - going

problems with the male employees and that the problems were

interfering with Petitioner 's ability to focus on her work.

Despite Petitioner's complaints, Mr. Howell took no action other

than to enter the break room on one occasion to ask Petitioner

if anything was wrong. Confronted in the presence of her co -

workers, Petitioner understandabl y denied that she was having a

problem.

63. Because the evidence supports Petitioner's allegations

relative to harassment and a hostile work environment,

Respondent can only avoid liability by satisfying the Faragher -

Ellerth affirmative defense, which sta tes as follows:

According to the Supreme Court, if a

plaintiff shows that the supervisor effected

a tangible employment action against

plaintiff, the corporate defendant is liable

for the harassment. Faragher , 524 U.S. at

807 - 08, 118 S. Ct. 2275; Burlin gton 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

plaintiff does not show that the supervisor

took a tangible employment action, the

employer may raise an affirmative d efense

that it: 1) exercised reasonable care to

prevent and promptly correct the harassing

behavior, and 2) that the plaintiff

unreasonably failed to take advantage of any

preventative or corrective opportunities the

employer provided or to avoid harm

oth erwise. Miller v. Kenworth of Dothan,

Inc. , 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).

See Lawrence v. Wal - Mart Stores, Inc. , 236 F. Supp. 2d 1314,

1327 (M.D. Fla. 2002).

64. Resp ondent had a policy prohibiting discrimination of

any kind in the workplace. However, Mr. Howell never conducted

an appropriate investigation to ensure that Petitioner was not

being harassed or subjected to a hostile work environment.

After her complaint s were totally ignored by Mr. Howell,

Petitioner cannot be faulted for failing to complain to

Ms. Middleton as suggested by Respondent's anti - discrimination

policy. Therefore , Respondent is subject to vicarious liability

for subjecting Petitioner to haras sment and a hostile work

environment based on her mental retardation.

Sexual Discrimination

65. As to the alleged sex discrimination, Petitioner has

to prove a prima facie case of sexual harassment involving the

following elements: (a) she was subject to unwelcome

harassment; (b) the harassment was based on her sex as a female;

(c) the harassment was sufficiently severe or pervasive to alter

her working conditions and create an abusive environment; and

(d) Respondent knew or should have known of the har assment and

failed to correct it. See Mendoza v. Borden, Inc. , 195 F.3d at

1245.

66. The severity or pervasiveness of the conduct "is the

element that test s the mettle of most sexual harassment claims."

See Gupta v. Florida Board of Regents , 212 F.3d 571 (11th Cir.

2000). Just as in her claim of disability discrimination,

Petitioner must show that she subjectively perceived the

harassment to be severe or pervasive, and that objectively, a

reasonable person in her position would consider the harassment

to be severe or pervasive. See Johnson , 234 F.3d at 509.

67. Title VII of the Civil Rights Act of 1964, 42 U.S.C.

Section 2000e - 2 et seq. , is not a "general civility code" for

the workplace. See Oncale v. Sundowner Offshore Svcs. , 523 U.S.

75, 80 (19 98). Offhand comments and isolated incidents, unless

extremely serious, will not amount to discriminatory changes in

the terms and conditions of employment. See Harris v. Forklift

Systems, Inc. , 510 U.S. 17, 21 (1993). The "severe or

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 protections. See Faragher , 524 U.S. at 788.

68. The incidents of sexual dis crimination that Petitioner

described during the hearing are insufficient to support a claim

of harassment or hostile work environment for two reasons.

First, persuasive evidence indicates that Petitioner did not

hear most of the comments. The male emplo yees made the comments

among themselves and not directly to Petitioner. The greater

weight of the evidence shows that Petitioner heard the male

employees make sporadic sexual comments and/or gender - related

jokes that at best constitute "ordinary tribulati ons of the

workplace."

69. Second, there is no persuasive evidence that

Mr. Howell or other members of management ever heard the male

employees make sexual comments about Petitioner. Petitioner's

testimony that she specifically described the derogatory sexual

comments to Mr. Howell is not credible. Therefore, Mr. Howell

did not know or have reason to know that the male employees were

making inappropriate sexual comments about Petitioner. For

these reasons, Petitioner has not proved her initial burden

involving harassment or a hostile work environment based on

sexual discrimination.

Gender Discrimination

70. A complainant alleging discrimination based on

disparate treatment bears the burden of proof established in

McDonnell Douglas v. Green , 411 U.S. 792 (1973), and in Texas

Dept. of Community Affairs v. Burdine , 450 U.S. 248 (1981). In

this case, Petitioner bears the burden of establishing a prima

facie case of gender discrimination based on disparate treatment

by demonstrating the following: (a) s he is a member of a

protected group (female); (b) she was qualified for the

position; (c) she was subject to an adverse employment action;

and (d) Respondent treated similarly situated male employees

more favorably. See Maniccia v. Brown , 171 F.3d 1364, 1 368

(11th Cir. 1999); Holifield v. Reno , 115 F.3d 1555, 1562 (11th

Cir. 1997).

71. If Petitioner meets her initial burden, then

Respondent must articulate a legitimate, non - discriminatory

reason for the adverse employment. See Dept. of Corrections v.

C handler , 582 So. 2d 1183 (Fla. 1st DCA 1991). If Respondent

meets its burden of production, Petitioner bears the ultimate

burden of persuasion, showing that Respondent's proffered reason

is a pretext for intentional discrimination. See Id.

72. Petitio ner has not met her initial burden of proving

that Mr. Howell treated her less favorably than Mr. Crenshaw

when it discharged her. Mr. Crenshaw was not similarly situated

to Petitioner because there is no evidence that he continued to

participate in the d isturbance after Mr. Howell entered the

break room. Mr. Crenshaw's behavior prior to that time was

certainly rude, aggressive, and a serious violation of workplace

ethics. However, Mr. Crenshaw did not continue to aggravate the

situation once Mr. Howell intervened. Petitioner, on the other

hand, could not control her anger and refused to calm down as

requested.

73. Mr. Howell intended to talk to Petitioner in his

office after she had a chance to quit crying and calm down in

his office. He had no inte ntion of firing Petitioner when he

asked Petitioner to talk to him privately. If Petitioner had

been able to comply with his request, Mr. Howell would have

verbally counseled Petitioner about the disturbance , as he did

with Mr. Crenshaw later that day.

74. Mr. Howell presented persuasive testimony that he

fired Petitioner, not because of the incident in the break room,

but because of Petitioner's angry, profane, and insubordinate

behavior in the office. Mr. Beitzel corroborated Mr. Howell's

unsuccessfu l attempt to get Petitioner to discuss the situation

in a civil manner.

75. Petitioner failed to identify a single male employee

who engaged in the same behavior toward a manager without being

terminated. Respondent's reason for firing Petitioner was n ot a

pretext for intentional discrimination based on her gender.

Retaliation

76. Petitioner claims that Respondent unlawfully

terminated her employment in retaliation for objecting to the

alleged disability and sexual harassment by male employees.

This claim follows the sequence regarding burden of proof set

forth in McDonnell Douglass , 411 U.S. at 792, and Texas Dept. of

Community Affairs , 450 U.S. at 248.

77. Petitioner first must prove that she engaged in a

statutorily protected activity, that she suffered an adverse

employment practice, and that a causal link exists between the

protected activity and the adverse action. See Bass v. Bd. of

County Commissioners , 256 F.3d 1095, 1119 (11th Cir. 2001),

citing , Gupta , 212 F.3d at 590; Little v. United Technologies ,

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

78. Petitioner complained to Mr. Howell that the male

employees were mistreating her under circumstances that he knew

or should have known involved her mental disability. Petitioner

suffered an adverse employment action when Mr. Howell fired her.

Even so, there is no persuasive evidence of a causal link

between Petitioner's complaints and the termination of her

employment.

79. To the extent that Petitioner met her prima facie

burden, Respondent prese nted evidence that it fired Petitioner,

not because she complained about the male employees, but because

she was profane and insubordinate in Mr. Howell's office. The

circumstances of this case prove that Respondent's reason for

discharging Petitioner wer e not a pretext for retaliation.

80. Petitioner did not make an effort to mitigate her

damages after being discharged. Therefore, jurisdiction is

reserved for the determination of reinstatement, back pay, and

appropriate attorney's fees and costs in th is proceeding if the

parties cannot agree.

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 finding that Respondent discriminated agai nst Petitioner

based only on her mental disability relative to harassment and a

hostile work environment .

DONE AND ENTERED this 2 8 th day of November , 2006 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Adminis trative 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 Admin istrative Hearings

this 2 8 th of November , 2006 .

COPIES FURNISHED :

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 Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Carolyn D. Cummings, Esquire

Carolyn Davis Cummings, P.A.

462 West Brevard Street

Tallahassee, Florida 32301

Joanne B. Lambert, Esquire

Jackson Lewis LLP

Post Office Box 3389

Orlando, Florida 32802 - 3389

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.