06-002815 Ronald J. Clardy vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, March 7, 2007.

Summary: The evidence did not show that Petitioner was discriminated against based on gender or handicap (obesity).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD J. CLARDY , )

)

Petitioner , )

)

vs. ) Case No. 06 - 2815

)

DEPARTMENT OF CORRECTIONS , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing w as conducted in the case on December 7,

2006, in Tallahassee, Florida, before Diane Cleavinger,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Ronald J. Clardy, pro se

115 Siou x Trail

Crawfordville, Florida 32327

For Respondent: Joshua E. Laws, Esquire

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner ha s been the

subject of an unlawful employment practice based on gender or

handicap.

PRELIMINARY STATEMENT

On March 2 8, 2002, Petitioner, Ronald J. Clardy, filed a

Char ge of Discrimination with the Florida Commission on Human

Relations (FCHR). On May 24, 2002, Petitioner filed an Amended

Charge of Discrimination. The Amended Charge of Discrimination

alleged that Respondent had subjected Petitioner to unlawful

employmen t actions based on gender, sexual harassment and

handicap (obesity) against the Respondent.

On January 30, 2004, the FCHR filed a Notice of

Determination: No Cause. Petitioner received a copy of the

Determination and was aware that he had 35 days from the date of

the Notice to file a Petition For Relief. Thereafter, on

March 8, 2004, 38 days after the issuance of the Notice of

Determination, Petitioner filed a Petition for Relief alleging

the same facts as contained in his earlier Charge of

Discriminat ion.

On March 9, 2004 , FCHR properly issued a Final Order of

Di sm issal finding it had no jurisdiction based on the

untimeliness of the Petition For Relief. At some point,

Petitioner provided a postal receipt dated within the 35 - day

time period for filing the Petition For Relief. On March 19,

2004, FCHR issued a Recission of Notice of Dismissal and

reopened Petitioner's case. The matter was referred to the

Division of Administrative Hearings for a formal hearing.

Respondent filed a Motion to Dismiss based on the

untimeliness of the Petition For Relief. An evidentiary hearing

was held on the Respondent's Motion to Dismiss. On May 6, 2004,

an order was entered finding the Petition For Relief untimely

and dismissing same. The matter was transf erred to FCHR.

On August 4, 2004, FCHR issued an Order Remanding the

Petition For Relief From an Unlawful Employment Practice and

jurisdiction was returned to the Division of Admin istrative

Hearings. The matter was set for hearing and Respondent fi led a

Renewed Motion to Dismiss.

Additionally, o n November 5, 2004, Respondent filed a

Petition for a Writ of Prohibition in the First District Court

of Appeal. The Hearing was continued .

On November, 22, 20 0 4 , Responden t's Renewed Motion to

Dis miss was granted based on the earlier order of dismissal.

On December 7, 2004, The Respondent's appeal was

voluntarily dismissed, in part. Eventually, the entire appeal

was dismissed on February 18, 2005.

Simultaneous with the dismissal, Respond ent filed a

Petition to Review Nonfinal Agency Action with the First

District Court of Appeal. The case was placed in abeyance with

a status report required at the conclusion of the appeal.

On September 28, 2005, the District Court remanded the cas e

to FCHR. No opinion was attached to the copy of the remand

filed with the Division of Administrative Hearings.

On May 25, 2006, the case was closed due to inactivity and

the failure to advise the undersigned of the status of the case

or whether furth er proceedings were necessary.

On August 3, 2006, an Order Remanding the Petition was

filed with the Division of Administrative Hearings. The case

was re - opened on August 4, 2006. The case was then set for

hearing.

At the hearing, Petitioner testified in his own behalf and

offered four exhibit s into evidence. Respondent offer ed the

testimony of one witness . Additionally , two joint exhibits were

introduced into evidence.

After the hearing, Petitioner and Respondent filed Proposed

Rec ommended Order s on January 12, 2007 .

FINDINGS OF FACT

1 . Petitioner is a licensed Registered Nurse. He was

hired by Respondent on April 4, 1997, in its medical facility at

Gulf Coast Correctional facility. In 2000, Petitioner's

supervisor was Pamela Spea rs, R.N.

2. At some point , Nurse Spears became friends with Chris

Miles, a Licensed Practical Nurse , who wor ked on Petitioner's

shift. Nurse Spears would sometimes talk with this L.P.N. in

her office. Somehow, Petitioner felt his authority as the s hift

nurse was undermined by this relationship. It was not clear

from the record what the basis of Petitioner's belief was , but

his belief seemed to be related to the fact that Petitioner had

to wait to speak with Nurse Spears .

3. On May 5, 2000, Pe titioner complained to Nurse Miles

that he felt she was being treated with favoritism by Nurse

Spears. Apparently, the discussion caused an uproar at the

shift change and there was some agreement to swap shifts among

the nurses to allow things to cool off .

4. Around May 10 , 2000, Nurse Odom filed sexual harassment

charges against Petitioner for alleged comments and jokes of a

sexual nature ("spanking the monkey", "choking the chicken",

cross - dressing inuendos, use of handcuffs during sex, going to

naked bars ) . In addition Nurse Miles filed a hostile work

environment complaint against Petitioner because he allegedly

threatened to spread rumors about her. Nurse Miles ’ complaint

did not involve sexual harassment. Nurse Nowak filed a sexual

harassmen t complaint against Petitioner, but withdrew her

complaint, indicating that she did not have a complaint with

Petitioner and that she felt pressure to file her complaint.

Nu rse Spears did not file any complaint against Petitioner.

Petitioner testif ied these nurses had been pressured into

filing their complaints. However, he had no independent

personal knowledge of such pressure and other than hearsay,

offered no evidence of such pressure. Respondent, also did not

offer any evidence demonstrating t hat such behavior was sexually

harassing , as opposed to simply vengeful and petty behavior by a

supervisor.

5. On August 15, 2001, Dr. Gilo in front of co - workers and

staff, called Petitioner, who is obese, a “fat lazy bum.”

Petitioner filed a hosti le work environment complaint against

Dr. Gilo and an incident report was filed. The evidence

demonstrated that Dr. Gilo was known for demeaning or belittling

everyone and having a harsh manner. The comment was not related

to any of the earlier complaint s of the nurses, but to Dr.

Gilo's irritation towards Petitioner for calling him at home.

There was no evidence that demonstrated this comment constituted

discrimination or harassment based on Petitioner's obesity.

Likewise, there was no evidence that Pe titioner's obesity was a

handicap or viewed as a handicap by his employer.

6. Respondent pursuant to its policy on sexual harassment

complaints investigated the complaints. Several witness/co -

worker statements were taken during the investigation tha t

indicated Mr. Clardy , along with other employees, had made some

statements or jokes of a sexual nature. The investigation took

a considerable period of time. Again the record was not clear

as to what caused the length of the investigation or whether th e

length of the investigation was unusual. However, on

February 8, 2002, a s a result of the investigation, Petitioner

received a written reprimand for unspecified sexual jokes or

comments . Petitioner filed a grievance regarding the reprimand.

The grieva nce was denied in both Step 1 and Step 2 of the

grievance process. There was no evidence that demonstrated

either the undertaking of this investigation or the

investigation itself constituted sexual harassment.

8. However, on June 10, 2002, Petiti oner filed a sexual

harassment complaint against Respondent, the complaining nurses

and Dr. Gilo for gender and disability discrimination. As with

the nurses ' complaints, the Respondent , pursuant to its policy ,

investig ated Petitioner's complaints.

CONC LUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding . §§ 120.57 and 120.60, Fl a . Stat. (200 7 ), and

§ 760.11, Fla. Stat. (2006).

10. Chapter 760, Florida Statutes, prohibits

discrimination in the workplace based on a person's race,

gender, religion, national origin or handicap.

11. In this cas e , Petitioner does not allege harassment

based on sexual demands or that the terms or conditions of his

employment we re conditioned upon compliance with his employer’s

sexual demands. Burlington Indus, Inc. v. Ellerth , 524 U.S.

742, 753 - 54 (1998). Instead, Petitioner alleges that he was

subjected to a hostile work environment based on other conduct .

12. In orde r to establish a case of discrimination based

on a hostile work environment, Petitioner must prove a hostile

work environment that amounts to an alteration in the terms and

conditions of employment . Mendoza v. Borden, Inc. , 195 F.3d

1238, 1245 (11th Cir. 1999).

13 . Under Mendoza Petitioner must establish five elements

to demonstrate a hostile work environment claim:

(1) That he or she belongs to a protected

group ; (2) That the employee has been

subject to unwelcome sexual harassment, such

as sex ual advances, requests for sexual

favors, and o ther 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 the terms and

conditions of emp loyment and create a

discriminatorily abusive working

environment ; (5) A basis for holding the

employer liable. Id . at 1245. (citing

Henson v. City of Dundee , 682 F.2d 897, 903 -

05 (11th Cir. 1982).

14. Neither Title VII nor Chapter 760 is a federal or

state “civility code” that guarantees every employee a

sanitized, prof essional work environment. The Mendoza Court

stated, “We have never held that workplace harassment, even

harassment between men and women, is automatically

discrimination bec ause of sex merely because the words used have

sexual content or connotations.” Oncale v. Sundowner Offihore

Services, Inc. , 523 U.S. 75, 81 (1998). S imple teasing, offhand

comments, and isolated incidents, unless extremely serious, will

not amount to di scriminatory charges in the terms or conditions

of employment. Faragher v. City of Boca Raton , 524 U.S. 775,

788 (1998). Nor do such comments or workplace harassment

affect s a term, condition, or privilege of employment within the

meaning of Title VII. Meritor Savings Bank, FSB v. Vinson , 477

U.S. 57, 67 (1986). “The critical issue, Title VII’s text

indicates, is whether members of one sex are exposed to

disadvantageous terms or conditions of employment to which

members of the other sex are not exposed. ” Id. (quoting Harris

v. Forklift Systems, Inc. , 510 U.S. 17, 25 (1993) (Ginsburg J.,

concurring). In order to establish that the harm alleged was

based on his sex , Petitioner ”must show that bu t for the fact of

his sex, he would have not been the objec t of harassment.”

Mendoza , 195 F.3d at 1248 n.5 (quoting Henson , 682 F.2d 904).

15 . As indicated above, Petitioner has made no accusations

and offered no proof that he was subject ed to any sexual

advances by any of the Respondent’s employees. Petit ioner only

claims that he was investigated for sexual harassment and that

this investigation equals gender discrimination. In this

regard, Petitioner has not established a prima facie case of

discrimination based on sex .

16. Moreover, the evidence d id not demonstrate that

Petitioner was treated any differently than any other Department

employee. Serious allegations were made against Petitioner,

namely, that he was subjecting his co - workers to unw anted sexual

jok es and comments. Pursuant to Responde nt's policy, the

complaints were taken seriously a nd investigated. Respondent

conducted interviews of the complaining employees and

Petitioner. In r esponse, Respondent issued a written reprimand

to Petitioner. Respondent followed the same process when

P etitioner filed similar allegations against his co - workers.

There was no evidence to suggest that any of the methods

employed by Respondent in its investigation amounted to

discrimination.

17 . Finally, i n hostile work environment claim s , t he

Petiti oner must establish that an employer’s alleged harassing

actions towards an employee are sufficiently severe or pervasive

to alter the conditions of the Petitioner’s working environment.

Mendoza , 195 F.3d at 1245. (citing Meritor , 477 U.S. at 67).

As th e United States Supreme Court held, “When the workplace is

permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently sever e or pervasive to alter the conditions

of the employment and create an abusive working environment,

Title VII is violated.” Harris , 510 U.S. at 21.

18. Establishing that harassing conduct was sufficiently

severe or pervasive to alter an employee’s terms or conditions

of employment contains an objective and a subjective component.

Mendoza , 195 F.3d at 1 246 (citing Harris , 510 U.S. at 21 - 22).

Petitioner must “subjectively perceive” the harassment as

sufficiently severe or pervasive as to alter the terms and

conditions of employment, and this subjective perception must be

objectively reasonable. Mendoza , 195 F.3d at 1246 (citing

Harris , 510 U.S. at 21 - 22). The working environment must be one

that a reasonable person would find hostile or abusive, and that

the victim subjectively perceived to be abusive. Mendoza , 195

F.3d at 1246 ( citing Harris , 510 U.S. at 21) . Further, “the

objective severity of haras sment should be judged from the

perspective of a reasonable person in the plaintiff’s position,

considering all the circumstances.” Mendoza , 195 F.3d at 1246

(citing Oncale , 523 U.S. at 81) (quoting Harri s , 510 U.S. at

23).

19. The United States Supreme Court has identified four

factors to determin e whether harassment has objectively altered

an employee’s terms or conditions of employment: (1) The

frequency of the conduct; (2) The severity of the co nduct; (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 job performance.

Id. (citing Harris , 510 U.S. at 23).

20 . Petitioner com plains that he was investigated and

given a written reprimand. This happened one tim e. This

conduct was not severe ; i n fact, Petitioner never claims it was

severe. The Department was following established polices a nd

procedures that protects both compla inant s and the subject of

the investigation. There was no physically thr eatening or

humiliating conduct by the nurses. The investigation was

conducted by the inspectors in the normal course of business,

and not in front of Petitioner or his co - workers. Likewise, the

comment by Dr. Gilo occurred once and was unrelated to the

nurses complaints. Th e comment did not unreasonably interfere

with the employee’s job performance. See Weiss v. Coca - Cola

Bottling Co. of Chicago , 990 F.2d 333,337 (7th Cir. 1993)

( holding Petitioner’s claims supervisor repeatedly asked about

her personal life, told her how beauti f ul she was, asked her on

dates, called her a dumb blonde, put his hand on her shoulder at

least s ix times, place d “I love you” signs in her work area, and

tried to kiss her once at a bar and twice at work were not

sufficient for actionable sexual harassment); Adusumilli v. City

of Chicago , 164 F.3d 353, 357 (7th Cir. 1998) (holding actions

insufficient to support hostile environment claim where co -

employees teased Petitioner, made sexual jokes aimed at her,

asked her what “putting one rubber band on top and another on

the bottom means,” commented about her low neck tops, repeated

staring at her breasts with attempts to make eye contact, and

four incidents of touching her arm, fingers or buttocks); Quinn

v. Green Tree Credit Corp. , 159 F.3d 759,768 (2nd Cir.

1998)(holding that statement that Petitioner had th e “sleekest

ass” in the office plus sing l e incident of “deliberately”

touching plaintiffs “breast with s ome paper that he was holding

in his hand” were insufficient to alter the terms or conditions

of the plaintiffs employment); Baskerville v. Culligan Int’l

Co. , 50 F.3d 428,430 (7th Cir. 1995) (holding insufficiently

severe or pervasive to support a hostile - environment claim nin e

instances of offensive behavior over seven months including

pretreated references to plaintiff as a “tilly” and a “pretty

girl” and one instance o f simulated masturbation); Sprague v.

Thorn Americas, Inc. , 129 F.3d 1355, 1365 - 66 (10 th Cir. 1997)

(holding five “sexually - oriented, offensive” statements over

sixteen months insufficient to show hostile environment, even

though one of the harasser’s statements occurred while he put

his arm around plaintiff, looked down her dress and said, "Well,

you got to get it when you can"); Galloway v. General Motors

Service Parts Operations , 78 F.3d 1164, 1167 - 68 (7th Cir. 1996)

(holding offensive comments including repeatedly calling the

plantiff a "sick bitch" insufficient under Harris became not

n ecessarily gender - related); Hopkins v. Baltimore Gas &

Electric, Co. , 77 F.3d 745, 753 - 54 (4th Cir. 1996) (holding

evidence that the harasser "bumped into [the plaintiff],

positioned a magnifying glass over the [the plaintiff's] crotch,

flipped his tie ove r to see its label, gave him a congratulatory

kiss in the receiving line at [a] wedding, and stared at him in

the bathroom" insufficient to establish violation of Title VII);

Kidwai v. McDonald's Corp. , No. 93 - 1720, 1994 WL 136971 (45th

Cir. 1994) (holding insufficient under Harris seven incidents,

including one instance in which harasser asked plaintiff whether

"she was in bed with someone"); see also DeAgnelis v. El Paso

Mun. Police Ass'n. , 51 F.3d 591, 593 (5th Cir. 1995) ("A hostile

environment claim em bodies a series of criteria that express

extremely insensitive conduct against women, conduct so

egregious as to alter the conditions of employment and destroy

their equal opportunity in the workp l ace."); Indest v. Freeman

Decorating, Inc. , 164 F.3d 258, 2 63 (5th Cir. 1999) ("All of the

sexual hostile environment cases decided by the Supreme Court

have involved patter n s of allegations of extensive long lasting,

unredressed, and uninhibited sexual threats or conduct that

permeated the plaintiffs' work enviro nment.")

21 . Plaintiff 's claim of discrimination based on handicap

also fails for the same reasons as his claim of sex

discrimination. First , he failed to produce competent

substantial evidence th at his obesity constituted a disability

of handicap u nder chapter 760 or Title VII. The ADA and

subsequent federal regulations define disability as either (1)

physical or mental impairment that substantially limits one or

more major life activities of such individual; (2) a record of a

physical or mental im pairment that substantially limits one or

more major life activity of such individual; or (3) being

regarded as having a physical or mental impairment that

substantially limits one or more major life activities of such

individual. E.g. Carr v. Publix Supe r Markets, Inc. , 170 Fed.

Appx. 56, 58 - 59 (11th Cir. 2006); Hilburn v. Murata Electronics

North America, Inc. , 181 F.3d 1220, 1229 (11th Cir. 1999)

("Regardless of whether [Plaintiff] is proceeding under a

classification or a misclassification theory, the record - of -

impairment standard is satisfied only if she actually suffered a

physical impairment that substantially limited one or more of

her major life activities. The impairment indicated in the

record must be an impairment that would substantially limit one

or more of the individual's major life activities.”) 29 C.F.R. §

1630, App. § 1630.2(k) (1997); Colwell v. Suffolk County Police

Dep't. , 158 F.3d 635, 645 (2nd Cir. 1998); Davidson v. Midelfort

Clinic, Ltd. , 133 F.3d 499, 510 n.7 (7th Cir. 1998); Sher rod v.

American Airlines, Inc. , 132 F.3d 1112, 1120 - 21 (5th Cir. 1998);

West v. Town of Jupiter Island , 146 F. Supp. 2d 1293, 1300 - 01

(S.D. Fla. 2000); 42 D.S.C. Section 12102(2) (2005 ) ; see 34

C.F.R. Section 104.3(j)(1) (2005) ; Bragdon v. Abbott , 524 U.S.

624, 631 (1998); Quick vipp, Scott, Conklin & Smith, P.A. ,

43 F. Supp. 2d 1357, 1366 (S.D. Fla. 1999). As indicated there

was no evidence that Petitioner's obesity limits any major life

activity.

22. Finally, Dr. Gilo's one - time comment simply does not

rise to the level of discrimination. The comment may be rude or

offensive, but it does not demonstrate discrimination based on

Petitioner's obesity. See Higdon v. Jackson , 393 F.3d 1211,

1219 (11th Cir. 2004) ("[Plaintiff] alleges that [co - work er] was

rude, but this court has repeatedly stated that the civil rights

laws were not intended to be a 'civility code.'"); Davis v. Town

of Lake Park, Fla. , 245 F.3d 1232, 1239 (11th Cir. 2001)

("'Title VII is neither a general civility code nor a statute

making actionable the 'ordinary tribulations of the

workplace.'") (citations omitte d); Anderson v. Coors Brewing

Co. , 181 F.3d 1171, 1178 (10th Cir. 1999) (citations omitted).

Given Petitioner's lack of evidence, the Petition For Relief

should be dismiss ed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is, therefore,

RECOMMENDED that Respondent enter a final order affirming

its decision that Petitioner is not eligible for services.

DONE AND ENTERED this 7th da y of March , 2007 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 7th day of March , 2007 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

20 09 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Ronald J. Clardy

115 Sioux Trail

Crawfordville, Florida 32327

Joshua E. Laws, Esquire

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Ord er. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.