06-000677 James E. Gonzales vs. Pepsi Bottling Group Status: Closed Recommended Order on Friday, September 29, 2006.

Summary: Petitioner failed to establish a hostile working environment and did not establish a prima facie case as to alleged sexual harassment using either direct or circumstantial evidence. Most of the complaints were non-jurisdictional due to the lapse of time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES E. GONZALES , )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 0677

)

PEPSI BOTTLING GROUP , )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing, as noticed, before

P. Michael Ruff, duly - designated Administrative Law Judge of the

Division of Administrative Hearings. The hearing was conducted

in Orlando , Florida , on May 2, 2006 . The appearances were as

follows:

APPEARANCES

For Pet itioner: James E. Gonzales , pro se

oon Avenue

Sorrento , Florida 32757

For Respondent: Nicole Alexandra Sbert , Esquire

Jackson Lewis LLP

390 North Orange Avenue

Orlando, Florida 32802

STATEMENT OF THE ISSUE

The issues to be resolved in this proceeding concern

whether the Petitioner was subjected to sexual harassment in the

form of a sexually hostile work environment and was retaliated

against for complaining about the alleged harassment in

violation of Chapter 76 0, Florida Statutes.

PRELIMINARY STATEMENT

This cause was initiated upon the Petitioner's termination

from his employment with the Respondent, the Pepsi Bottling

Group of Central Florida, and his resultant filing of a charge

of discrimination. He alleges in the charge of discrimination

that he was subjected to sexual harassment amounting to a

hostile working environment and that he was retaliated against

for complaining of that circumstance and condition. The Florida

Commission on Human Relations investig ated the matter and

ultimately determined that there was no reasonable cause to

believe a discriminatory employment practice had occurred.

After the entry of that determination by the Commission, the

Petitioner filed a Petition for Relief essentially char ging the

same discriminatory acts or circumstances . T he cause was

transmitted to the Division of Administrative Hearings and

ultimately to the undersigned Administrative Law Judge for a

formal proceeding and adjudication.

The cause came on for hearing a s noticed. At the hearing

the Petitioner presented one witness and Exhibits A through H

which were admitted into evidence . The Respondent presented

eight witnesses and Exhibits 1 through 26, and 29 through 34,

which were admitted into evidence.

Thereafte r the parties, or at least the Respondent , ordered

a transcript of the proceedings and requested the opportunity to

file proposed recommended orders. After stipulating to an

extension of time for submission of the proposed recommended

orders, a Proposed R ecommended Order was submitted by the

Respondent on July 17, 2006. The Proposed Recommended Order has

been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1 . The Petitioner, James E. Gonzales, is a male person who

was hired by th e Respondent, Pepsi Bottling Group, on March 13,

1995. He was hired as a route sales trainee in the Central

Florida marketing unit of that employer. The Pepsi Bottling

Group (Pepsi) is responsible for the manufacture sale and

delivery of Pepsi products t o its vendors. Over the last three

years the Central Florida unit has been the foremost marketing

unit in the United States. T he management of the Central

Florida Marketing Unit has been rated by its employees as being

the top management team in the coun try for Pepsi.

2. The Petitioner applied for a Pre - sale Customer

Representative (CR) position on March 27, 2003. On April 21,

2003, the Petitioner was assigned to a P re - S ell (CR) position.

As a P re - S ell CR, the Petitioner was responsible for serving h is

own accounts ; creating and maintaining good will with all

customers; ordering customer ' s products in advance; and

developing all assigned accounts relative to sales volume,

market share, product distribution, space allocation and

customer service . He w as responsible for solicitation of new

business; selling and executing promotions; soliciting placement

of equipment; selling sufficient inventory ; and utilizing point

of purchase materials to stimulate sales. He was also charged

with maintaining "shelf f acings" cleaning and shelving and

rotating product and merchandising product sections and building

displays to stimulate sales. Additionally, he was required to

complete and submit all related paperwork regarding sales and

promotional operations in an acc urate and timely manner.

3. The Petitioner's direct supervisor initially was David

Lopez . H e was replaced by Wanzell Underwood in approximately

August 2003.

4. On December 5, 2002, the Petitioner received the

Respondent's employee handbook. The handb ook contains the

Respondent's Equal Employment Opportunity Policy and Sexual

Harassment Policy. The Equal Employment Opportunity Policy

prohibits discrimination on the basis of race, color, religion,

gender, age, disability, etc. including sexual orientat ion. It

encourages employees to immediately report any complaint,

without fear of retaliation, to the Human Resources Manager or

Human Resources Director. The Respondent's policy has a zero

tolerance for retaliation and forbids any retaliatory action to

be taken against an individual who in good faith reports a

perceived violation of that policy. Employees who feel they

have been retaliated against are required to report such

retaliation to the Human Resources Manager or Director.

5 . The sexual haras sment policy of the Respondent

prohibits all forms of harassment and clearly sets out complaint

procedures for employees to follow in the event they have

experienced harassment. They are directed to report any

complaint immediately to the Human Resources Manager or

Director.

6. Throughout his employment the Respondent received

numerous customer complaints regarding the Petitioner's poor

performance . The Petitioner received five disciplinary actions

against him from the period 2003 through 2005. These "write -

ups" were for failing to service customers according to the

Respondent's standards and were dated August 2003, April 2004,

September 2004, October 2004, and May 2005.

7. On August 1, 2003, the Petitioner received a documented

verbal warning after the Respondent received a complaint from a

customer regarding the amount of out - of - date product in his

store and the poor level of service he was receiving from the

Petitioner .

8. On April 9, 2004, the Petitioner received a documented

verbal warning fo r his failure to prepare his three Circle K

stores for a " customer tour ," although he had assured his direct

supervisor, Mr. Underwood, and the Key Account Manager, Eric

Matson, that the store would be ready. The Petitioner's failure

to prepare his Circle K stores for the customer's tour

embarrassed both his supervisor and the Key Account Manager.

9 . On June 23, 2004, the a ssistant m anager at ABC Liquor,

a store Gonzales was responsible for, sent an e - mail to Eric

Matson complaining about the lack of ser vice provided by

Gonzales and requested a new CR to service his store. The

customer stated that Gonzales had given nothing but "crappy"

service, bad attitude, and sometimes no service.

10 . On September 21, 2004, Eric Matson received an e - mail

regarding the Petitioner's failure to order product for the Mt.

Dora Sunoco store. The Petitioner's supervisor, Wanzell

Underwood, visited the Mt. Dora S u noco store and confirmed the

manager ' s complaints. The Petitioner received a written warning

for not properly servicing the Mt. Dora S u noco store. In the

Petitioner's contemporaneous written comments in opposition to

the written warning he failed to not e that the manager of the

Mt. Dora Sunoco was purportedly sexually harassing him.

11 . On October 11, 2004, t he Petitioner received a final

written warning and one - day suspension after his direct

supervisor re - visited the same Mt. Dora S u noco store that

complained previously. The Petitioner was warned that a similar

problem in the future would lead to his termin ation. Again, in

the Petitioner's written comments in opposition to his written

warning , he made no mention that the manager of the Mt. Dora

S u noco store was sexually harassing him.

12 . On October 11, 2004, after the Petitioner was

suspended for one day , he requested that the Human Resources

Manager, Christopher Buhl, hold a meeting. During the meeting

he complained for the first time to the Unit Sales Manager,

Howard Corbett, the Sales Operations Manager, Tom Hopkins, and

Mr. Buhl , that three years pre viously, in 2001, one person had

told the Petitioner that everyone thought he was " gay " (meaning

co - employees). One person asked him if he was gay , according to

the Petitioner's story , and one person said, "W e all know you're

gay," before he became a Pre - Sell CR. The Petitioner, however,

refused to cooperate with Mr. Buhl in obtaining information

regarding his complaints. At no time during the meeting did the

Petitioner complain about being sexually harassed by the m anager

of the Mt. Dora S u noco store.

13 . During the October 11, 2004, meeting the Petitioner

claimed his supervisor, Wanzell Underwood, threatened him.

However, the Petitioner conceded during the meeting that the

alleged statement made by Mr. Underwood was made to a group of

Customer Repres entatives, to the effect that he would "kill you

guys if you do not make the sales numbers." Mr. Underwood

denied ever threatening to kill the Petitioner. During the

meeting the Petitioner also complained that his route was to o

large and he requested tha t it be reduced.

14 . At no time during that October 11, 2004, meeting did

the Petitioner complain that he was sexually harassed by Alice

Marsh, the Mt. Dora S u noco m anager. His extensive notes and

comments on his Disciplinary Action Reports did not do cument any

such complaint.

15 . In November 2004, the Petitioner was asked to go to K -

Mart and place an order, but the Petitioner failed to follow

instructions and visit the store. Instead, the Petitioner

placed the order over the phone. The manager of the store

called the Respondent three times to complain about the poor

service provided by Mr. Gonzales.

16 . Each year the Respondent changes its delivery routes.

During the end of 2004 or the beginning of 2005, the Respondent

re - routed all of its Pre - s ell CR route s . The Respondent reduced

the Petitioner's route as he had requested and in conformity

with its route standards. Despite the Petitioner's allegation

to the contrary, in fact the Petitioner's route was not reduced

by as much as 50 percent.

17 . In May 2005, Key Account Manager, Mike Lewis, visited

the Petitioner's K - Mart store to conduct a "Look at the Leader"

audit. The Petitioner had been trained and was responsible for

preparing the K - Mart for the audit. When Mr. Lewis arrived at

the stor e, the store did not meet the Respondent's standards.

Additionally, required product was missing from the displays.

Mr. Lewis called Howard Corbett to inform him of the problems.

Mr. Corbett called the Petitioner to ask about the missing

product. The P etitioner assured him that the product was in the

store and on display. The missing product was not displayed,

however, and was later found in the back room of the K - Mart

store.

18 . On May 18, 2005, the Respondent received another e -

mail from Charles Pi ppen, District Manager for Sunoco,

complaining of the Petitioner's poor service at the Mt. Dora

Sunoco store. He claimed that the Petitioner did not reply t o

phone calls and rarely ordered enough product.

19 . On May 19, 2005, the Territory Sales Manage r, John

York, followed up on that complaint by visiting the Mt. Dora

Sunoco store and meeting with the Manager, Alice Marsh.

Mr. York was substituting for Mr. Underwood who was out on

medical leave. During the meeting , Ms. Marsh complained that

the Petit ioner did not order the quantity of product she

requested, failed to provide adequate signage, and refused to

place product where she requested. While at the Mt. Dora Sunoco

store, Mr. York observed the problems about which Ms. Marsh had

complained.

20 . After meeting Ms. Marsh, Mr. York spoke with the

Petitioner to inform him of Ms. Marsh's complaints. During his

conversation with Mr. York, the Petitioner admitted to failing

to service the account by not placing the product by the gas

pumps as request ed, not ordering the amount of product

requested, and not hanging certain signs. Later in this

conversation with Mr. York, the Petitioner informed Mr. York

that he believed that the Sunoco Manager's reason for

complaining about his service was that he had refused her sexual

advances. The Petitioner did not tell Mr. York what the alleged

advances consisted of or when they might have occurred. Mr.

York, however, in fact was never the Petitioner's supervisor.

21 . The Petitioner was responsible for two C VS stores in

Mt. Dora. On Friday, May 20, 2005, the Petitioner made an

unusual request of his temporary Manager, Dan Manor, for a

Saturday delivery to his CVS stores. The Respondent does not

normally schedule Saturday deliveries for such "small format"

s tores like CVS.

22 . When Mr. Manor approved the Saturday delivery, he

specifically instructed the Petitioner that must meet the bulk

delivery driver at the stores to " merchandise " the product,

because bulk delivery drivers do not merchandise the product

delivered and Mr. Manor did not have a merchandiser assigned to

the Mt. Dora stores. The Petitioner agreed to meet the bulk

delivery driver at the CVS stores on Saturday.

23 . The Petitioner did not advise his supervisor that he

had made arrangements wit h the CVS store manager or a

merchandiser regarding alternate arrangements for the Saturday

delivery . T he supervisor would have expected the Petitioner to

do so .

24 . On Saturday, May 21, 2005, the Petitioner failed to

meet the bulk driver to assist in m erchandising the orders at

the two CVS stores as instructed. The customer refused to take

delivery of the product until a merchandiser was present to

merchandise the product.

25 . Mr. Manor was unable to reach the Petitioner by

telephone because the Peti tioner was at Sea World with his

family. Mr. Manor had to send a merchandiser from Longwood in

order to merchandise the product that the Petitioner had ordered

for the CVS stores.

26 . On May 23, 2005, the Petitioner failed to attend a

weekly mandatory 5:00 a.m. meeting. He did not call his

supervisor advising of his unavailability. The Petitioner did

call Mr. Manor at about 6:15 a.m. and told him that he had

overslept. When Mr. Manor questioned the Petitioner about why

he did not meet the bulk driver on Saturday, he said that " he

did not get a chance to make it out on Saturday. "

27 . On May 23, 2005, Mr. Corbett decided to terminate the

Petitioner based on his very poor performance. That decision to

terminate him was approved by the Respondent's Hum an Resources

Department.

28 . On May 26, 2005, the Respondent terminated the

Petitioner for failing to service the CVS stores at a critical

time, for the services issues at the Sunoco and the K - Mart, and

for failing to attend the Monday morning meeting.

29 . At the time of his termination the Petitioner was on a

final warning and had been advised that he could be terminated.

The Petitioner never alleged during his termination meeting that

he was being sexually harassed.

30 . Howard Corbett provided the Petitioner with documents

to file an internal appeal on the day he was terminated. The

Petitioner, however, did not appeal his termination as permitted

by the Respondent's policy.

31 . The Petitioner claims he was the victim of sexual

harassment by being subjected to (1) homosexual related comments

made in 2001, and (2) alleged sexual overtures by the Sunoco

Manager, Alice Marsh, in 2003.

32 . According to Ms. Marsh, she was never interested in

the Petitioner sexually. She did not socialize with the

Pet itioner, and did not want a relationship with him. She did

not touch him and did not state that she wanted the Petitioner

fired. She also testified that she never stated that she wanted

a sexual relationship with the Petitioner.

33 . The Petitioner's al legations regarding sexual

harassment by Ms. Marsh related the following behaviors:

a. She touched his back and arm;

b. She was too close to him when he was

around;

c. She was nice to him until informed that

he was married;

d. She suggested sexual inte rest by her

body language and eyes; and

e. She wor e provocative clothing.

34 . David Lopez supervised the Petitioner for

approximately two years in the 2001 to 2003 time period. During

this time period the Petitioner never complained to Mr. Lope z

that he had been sexually harassed. Mr. Lopez did not witness

the Petitioner being harassed while working with the Respondent

either.

35 . Wanzell Underwood supervised the Petitioner for

approximately two years in the 2003 to 2005 time period. During

this ti me, the Petitioner never complained to Mr. Underwood that

he had been sexually harassed . Mr. Underwood did not witness

the Petitioner being harassed while he worked for the

Respondent.

36 . The Petitioner never made a compliant regarding the

alleged sexu al harassment by the Sunoco Manager, Alice Marsh, to

the Human Resources Department , in accordance with the

Respondent's policy. He d id not explain the nature of any

sexual harassment , even when he finally claimed that he was

being harassed.

37 . The Res pondent would have terminated the Petitioner

for his poor performance regardless of whether he engaged in the

purported protected activity by complaining of sexual

harassment.

38 . The Petitioner alleges he was terminated for reasons

other than complainin g about sexual harassment, including his

alleged knowledge of theft in Lake County. In any event, on

July 15, 2005, the Petitioner filed the Charge of Discrimination

with the Commission and the resulting dispute and formal

proceeding ensued.

CONCLUSIONS OF LAW

39 . The D ivision of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (200 5 ).

40 . Section 760.10(1)(a), Florida Statutes (2005),

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 individuals race, color,

religion, sex, national origin, age, handicap, or marital

status. Chapter 760, Florida Statutes, known as the Florida

Civil Rights Act (FCRA) was patterned after Title VII of the

Civil Rights Act of 1964 . 42 U.S.C. § 2000E, et . seq . Florida

court's have held that federal cases interpreting Title VII are

persuasive and may be applied when analyzing claims under the

FCRA. See Harper v. Blockbuster Entertainment Corp. , 139 F.3d

1385 (11th Cir. 1998); Florida State University v. Sondel , 685

So. 2d 923, 925 ( Fla. 1st DCA 1996).

The Hostile Work Environment - Sexual Harassment Claim

41 . In accordance with the procedural requirements of

Chapter 760, Florida Statutes, an aggrieved person must file a

charge with the Commission within 365 days of the alleged

conduc t. See § 760.11(1), Fla. Stat. In a hostile work

environment claim, the entire period of the hostile environment

may be considered by a court for the purposes of determining

liability provided that an act contributing to the hostile work

environment occu rred during the filing period. AMTRAK v.

Morgan , 536 U.S. 101 (2002). However, the acts about which an

employee complains must be part of the same actionable hostile

work environment claim. Id .

42 . The Petitioner filed his charge of discrimination wit h

the Commission on July 15, 2005. Accordingly, all incidents

alleged prior to July 15, 2004, are time - barred under the FCRA.

The Petitioner's hostile work environment claim consists of

homosexual related comments purportedly made in 2001 and sexual

over tures allegedly made by the Respondent's customer, Alice

Marsh, in 2003. The Petitioner does not allege that any acts

contributing to his alleged hostile work environment claim

occurred on or after July 15, 2004. Therefore, the Petitioner's

entire hostil e work environment claim is outside the limitation

period for the FCRA and the claim is therefore time - barred.

The Prima Facie Case

43 . Even if it were not determined that the allegations

were time - barred , the Petitioner did not establish a prima facie

c ase of hostile work environment sexual harassment. To

establish such a prima facie case under Title VII or the FCRA,

an employee must show the following: (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)

that the harassment must have been based on the sex of the

employee; (4) that the harassment was sufficiently severe or

pervasive to alter th e terms and conditions of employment and

create a discriminatorily abusive working environment; (5) a

basis for hold ing the employer liable. Mendoza v. Borden, Inc. ,

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

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

element that tests the mettle of most sexual harassment claims."

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

2000). A party must show that he or she subjectively perceived

the harassment to be severe or pervasive, and that, objecti vely,

a reasonable person in the employee's position would consider

the harassment to be severe or pervasive. Johnson v. Booker T.

Washington Broadcasting Service, Inc. , 234 F.3d 501, 509 (11th

Cir. 2000). In considering the objective prong of this test,

the courts consider four 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 conduct unreasonably

interferes wit h the employee's job performance." Mendoza v.

Borden, Inc. , supra , at page 1246.

45 . Title VII is not a "general civility code" for the

workplace. Oncale v. Sundowner Offshore Services , 523 U.S. 75,

80, (1998); Faragher v. City of Boca Raton , 524 U.S. 775, 778,

(1998). Offhand comments and isolated incidents, unless

extremely serious, will not amount to discriminatory changes in

the terms and conditions of employment. 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. Faragher v. City of Boca Raton , supra , 775,

788.

The Se vere or Pervasive Standard:

46 . The incidents described by Petitioner as "harassment"

are simply insufficient to support a hostile work environment

claim because they are not sufficiently severe or pervasive to

alter the terms and conditions of his emplo yment. First, the

Petitioner claims that he was sexually harassed because his co -

workers allegedly questioned his sexuality in 2001. His entire

claim consists of one person telling the Petitioner that

"everyone" thought he was gay, one person asking him if he was

gay, and one person saying, "we all know your gay." The

Petitioner did not complain about these alleged comments until

approximately three years later on October 12, 2004, during a

post - disciplinary meeting. These alleged comments, even if

made , are insufficient to establish a hostile work environment

but rather may be considered offensive, but not severe or

persuasive . See Baskerville v. Culligan Int'l Co. , 50 F.3d 428,

431 (7th Cir. 1995) (holding remarks innocuous or merely mildly

offensive when delivered in a public setting as opposed to the

suggestive isolation of a hotel room).

47 . The Petitioner's hostile work environment claim also

consists of alleged harassm ent by Alice Marsh, the Sunoco

m anager in 2003. The Petitioner claims Ms. Mar sh touched his

back and arm, stood to close to him when he was around, was nice

to him until he informed her that he was married, and suggested

sexual interest by her body language and eyes and the wearing of

provocative clothing. Ms. Marsh and other witn esses adamantly

denied those allegations. The Petitioner did not complain about

this alleged harassment until May 19, 2005, during another

disciplinary interview, approximately two years after the

alleged harassment purported occurred. The Petitioner adm its

that when he asked Ms. Marsh to stop touching him in 2003, she

stopped.

48 . Even if it is assumed that the allegations are true,

the totality of the circumstances related to these untimely

complaints of sexual harassment d o not rise to a sufficient

l evel of severity or pervasiveness to constitute a sexually

hostile work environment. See Faragher , supra at 2284 ;

Baskerville v. Culligan Int'l Co. , supra at 430 (finding that a

Petitioner who was hired as a secretary and assigned to work for

a newly hire d manager was not subjected to hostile work

environment when the manager made numerous sexually suggestive

comments); Koelsch v. Beltone Elec. Co. , 46 F.3d 705, 708 (7th

Cir. 1995) ( finding that a supervisor who told the Petitioner he

found her attractive, asked her out on dates, stroked her leg on

one occasion and grabbed her buttocks on a separate occasion did

not commit acts that were severe or pervasive enough to survive

summary judgment); Weiss v. Coca - Cola Bottling Co. of Chicago ,

990 F.2d 333, 337 (7 th Cir. 1993) (holding a supervisor who

jokingly called a Petitioner a "dumb blond," placed his hand on

her shoulder several times, placed "I love you" signs in her

work area, attempted to kiss her, and asked her out on dates did

not create a hostile work environment); Jones v. Clinton , 990 F.

Supp. 657, 675 (E.D. Ark. 1998) .

49 . I n light of these rather interesting decisions, it is

obvious that the actions about which the Petitioner complains do

not rise to the legal standard for a hostile work environme nt of

sexual harassment in that they are not sufficiently pervasive

and se vere as to constitute a hostile environment or to change

the terms and conditions of the Petitioner's employment. Even

if they occurred, which is not likely , given the totality of t he

persuasive , credible evidence, the actions were not sufficiently

sever e or pervasive to alter the terms and conditions of

employment.

The Respondent's Knowledge

50 . In order to establish a prima facie case of a hostile

work environment, the Petitioner must demonstrate a basis for

holding the employer liable. When, as in this case, the alleged

harassment is committed by co - workers or third parties if it

occurred at all, a p etitioner must show that the employer either

knew of the harassment , had actual notice, or should have known

by having constructive notice, and then failed to take immediate

and appropriate corrective action. Watson v. Blue Circle, Inc. ,

324 F.3d 1252, 1259 (11th Cir. 2003). Actual notice is

established by proof that management knew of the harassment.

Id. When an employer has a clear and published policy that

outlines the procedures an employee must follow to report

suspected harassment and the complaining employee follows those

procedures, actual notice is established. Id. Const ructive

notice, on the other hand, is established when the harassment

was so sever e or pervasive that management reasonably should

have known of it. Id.

51 . The Respondent has a sexual harassment policy that

strongly prohibits all forms of harassment an d sets out

complaint procedures for employees to follow in the event they

feel they have experienced such harassment. The policy

encourages employees to report any complaint to their Human

Resource manager or director. Retaliatory action is forbidden

aga inst an individual who in good faith reports a perceived

violation of the policy. In that policy t he Respondent assures

that all complaints will be investigated promptly and fully.

52 . The Petitioner was given a copy of this policy through

the employee handbook when he came to employment with the

Respondent. The Respondent also posts the policy on bulletin

boards throughout the company. The Petitioner, however, failed

to follow the reporting procedures outlined in the sexual

harassment policy and faile d to participate in the Respondent's

investigation. Additionally, the Petitioner complained to

management approximately three years after the alleged conduct

took place. The failure to complain in a timely manner was such

that the Respondent did not have actual notice of the conduct

and hence did not know of the alleged sexual harassment.

Furthermore, the alleged sexual harassment was not so sever e or

pervasive, so that the Respondent should have reasonably known

about it by way of constructive notice.

53 . The Respondent first became aware of the Petitioner's

allegations that co - workers questioned his sexuality on

October 12, 2004 . When the Respondent attempted to investigate

the complaint , the Petitioner did not cooperate. He refused to

disclose the specifics of his complaint, including the names of

co - workers who made the alleged comments. The Respondent

informed the Petitioner that if he did not cooperate, his

complaint could not be investigated properly. The Petitioner 's

failure to cooperate mean s that he cannot prove that the

Respondent failed to take immediate and appropriate corrective

action. Indeed, the Respondent exercised reasonable care to

prevent and correct such conduct by implementing and

administering a strict sexual harassment policy and attempting

to investigate the complaints even though the complaints did not

rise to the level of sexual harassment so as to warrant an

investigation. See Keenan v. Allan , 889 F. Supp. 1320, 1376

(E.D. Wash. 1995) (holding that regardless of the truth of the

allegation an employer has no duty to respond to them if they do

not rise to the level of sexual harassment).

54 . The Respondent first learned of the Petitioner's

allegation of the 2003 sexual harassment by Ms. Marsh on May 19,

2005, during a per formance discussion. The Petitioner made the

complaint to Mr. York, who is not his supervisor, while they

were discussing various customer complaints regarding the

Petitioner's poor performance. The Petitioner told Mr. York

that the reason the manager co mplained about his service is

because he had refused her sexual advances. This comment was

the first time the Petitioner had made such an allegation, even

though he had been working with the same manager for years and

had been written up previously based on her complaints about

poor service. The Petitioner never made a complaint regarding

these allegations to the Human Resources Manager or to the Human

Resources Director, as the Respondent's policy required.

Moreover, the Petitioner never then explained what these alleged

sexual advances consisted of, or when they allegedly occurred.

Therefore, the Petitioner failed to follow the policy for

reporting complaints of sexual harassment. The Petitioner's

stale complaint regarding alleged sexual harassment th at

occurred three years earlier did not provide the Respondent with

actual or constructive notice of the hostile work environment

claim, s o that the Respondent cannot be liable as a matter of

law , even if the allegations were not time - barred and

insufficie ntly severe or pervasive.

The Retaliation Claim

55 . In order to establish a prima facie case of

retaliation, the Petitioner must show that "(1) he engaged in a

statutorily protected expression; (2) that he suffered an

adverse employment action; and (3) t here is some causal

relationship between the two events." Johnson v. Booker T.

Washington Broadcasting Service, Inc. , supra . Complaining to a

supervisor about sexual harassment is a statutorily protected

expression.

56 . The Petitioner cannot satisfy th e third element of his

prima facie case of retaliation. To do so, the Petitioner must,

at a minimum, establish that the Respondent was aware of his

protected activity and took an adverse employment action because

of that protected activity. Raney v. Vins on Guard Service , 120

F.3d at 1197, (citing Goldsmith v. City of Atmore , 996 F.2d

1155, 1163 (11th Cir. 1993). The Petitioner must therefore

demonstrate that the Respondent's knowledge of his allegations

and his termination from the company are not wholly unrelated ,

and that there is some causal connection. Simmons v. Camden

County Board of Education , 757 F.2d 1187, 1189 (11th Cir.

(date), cert . denied , 474 U.S. 981 (1985). Additionally, since

corporate defendants act only through authorized agents, the

Petitioner must show that the corporate agen t who took the

adverse action was aware of the Petitioner's protected

expression and acted within the scope of his or her agency

relationship when taking the employment action in question. See

Goldsmith v. City of Atmore , supra .

57 . Based on the Petitioner's own testimony, the only

evidence to support his retaliation claim is that his route was

"cut" and that he was terminated. Other than his own self -

serving and conclusory allegations or opinions, the Petitio ner

has not produce d any evidence of a causal connection between his

complaints of sexual harassment on October 12, 2004, and May 19,

2005, and his subsequent " re - route " and termination. The

Petitioner's route was reduced as part of Pepsi's annual re -

rout ing program, which applied equally to all Pre - sell CRs . T he

Petitioner had requested that his route be reduced. Further,

the Petitioner was terminated because of service deficiencies.

Therefore, the Petitioner can not show the necessary causal

connectio n to satisfy his prima facie case of retaliation.

Respondent's Articulated Reason for the Termination

58 . Even if the Petitioner established a prima facie case

of retaliation, which he did not, the Respondent can still rebut

the presumption of retaliatio n by introducing evidence of

legitimate reasons for the adverse employment action. Sullivan

v. National R.R. Passenger Corp. , 170 F.3d 1056, 1058 - 59 (11th

Cir. 1999). If legitimate reasons are offered by an employer

the presumption of retaliation disappe ars. Raney v. Vinson

Guard Service , supra . The employee must then show that the

proffered reason for taking the adverse action w as actually a

pretext for prohibited retaliatory conduct. Olmstead v. Taco

Bell Corp. , 141 F.3d 1457, 1460 (11th Cir. 1998). The

Petitioner is then required to come forward with some concrete

evidence to establish that the proffered reason is not the true

reason, but rather a pretext for what amounted to discriminatory

conduct , i n this instance retaliation. See Davis v. AT&T , 846

F. Supp. 967, 969 (M.D. Fla. 1993). The Petitioner must at

least establish "sufficient evidence to find that the employer's

asserted justification is false . . ." . Reeves v. Sanderson

Plumbing Products, Inc. , 120 S. Ct. 2097, 2108 (2000). The

ultima te burden of persuading the trier of fact that the

employer intentionally retaliated against the Petitioner (or

that the sexual harassment itself occurred) remains at all times

with the claimant. St. Mary's Honor Center v. Hicks , 509 U.S.

502 (1993) .

59 . In this case, the Respondent has articulated a

legitimate and non - retaliatory business reason for its

termination of the Petitioner's employment. That is, the

Petitioner was written up and ultimately terminated for

continued sub - standard performance. T he Petitioner had a long

documented record of service deficiencies to customers. In

fact, the Petitioner received written discipline five different

times over about a two - year period of his employment for similar

complaints from customers. The Respondent followed its

progressive disciplinary policy in administering discipline to

the Petitioner. In deed , most of the Petitioner's discipline was

i mposed before any of his stale complaints of alleged sexual

harassment were lodged. Moreover, the Petitioner's a llegation

of sexual harassment only arose in response to severe discipline

and possible termination, which ca lls his motivation and

veracity in making the complaints into serious question.

Accordingly, the Respondent's decision to terminate him was the

re sult of a legitimate, non - discriminatory business reason,

wholly unrelated to the complaints about sexual harassment. The

same conclusion holds true for the allegedly retaliatory re -

routing decision.

60 . A plaintiff's "subjective conclusion" that the

d efendant's action was discriminatory, without supporting

evidence, is not sufficient to establish pretext . . . " .

Carter v. City of Miami , 870 F.2d 578, 585 (11th Cir. 1985). A

mere suspicion that the defendant discriminated against the

plaintiff, or th e Respondent against the Petitioner, is

insufficient. Walker v. NationsBank of Florida, N.A. , 53 F.3d

1548, 1558 (11th Cir. 1995). A reason cannot be proved to be "a

pretext for discrimination unless it is shown both that the

reason was false, and that d iscrimination was the real reason."

St. Mary's Honor Center v. Hicks , supra . These same principles

apply to retaliation cases as well. The Petitioner clearly did

not prove that the Respondent's reasons for its decisions were

false or that the Respondent was motivated by illegal

retaliation.

61 . In summary, the Petitioner has not established a prima

facie case with regard to his claim of sexual harassment and his

claim of resulting retaliation. The Respondent , on the other

hand , has adduced an adequate body of evidence of legitimate ,

non - discriminatory business reasons for the employment action it

took , i.e. termination. The Petitioner did not then go forward

with any persuasive evidence other than his own unsupported ,

self - serving opinion, which is no t accepted, which would show

that the stated legitimate , non - discriminatory reason offered by

the employer Respondent was a pretext for what really amounted

to discrimination.

R ECOMMENDATION

Having considered the foregoing findings of fact,

conclusion s of law, the evidence of record, the candor and

demeanor of the witnesses , and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED: That a final order be entered by the Florida

Commission on Human Relations dismissing the Petit ion for Relief

in its entirety.

DONE AND ENTERED this 29th da y of September , 200 6 , in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

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 29th day of September , 200 6 .

C OPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 3 2301

James E. Gonzales

oon Avenue

Sorrento, Florida 32757

Nicole Alexandra Sbert, Esquire

Jackson Lewis LLP

390 North Orange Avenue

Orlando, Florida 32802

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions 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.