07-000496 Nora E. Bartolone vs. Best Western Hotels Status: Closed Recommended Order on Friday, June 8, 2007.

Summary: Petitioner failed to prove her sexual harassment and retaliation claims. Respondent promptly took remedial action in response to Petitioner`s complaints. Recommend that the Petition for Relief be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORA E. BARTOLONE, )

)

Petitioner, )

)

vs. ) Case No. 07 - 0496

)

BEST WESTERN HOTELS, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly - noticed final hea ring was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on March 26 - 27,

2007, in Bartow, Florida.

APPEARANCES

For Petitioner: Nora E. Bartolone, pro se

119 Alachua Drive Southeast

Winter Haven, Florida 33884

For Respondent: Donald T. Ryce, Esquire

908 Coquina Lane

Vero Beach, Florida 32963

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice against Petitioner.

PRELIMINARY STATEMENT

On January 8, 2007, the Florida Commission on Human

Relations (Commission) issued a “no cause” determination on the

employment discrimination complaint filed by Petitioner against

Respondent. On January 22, 2007, Petitioner timely filed a

Petition for Relief (Petition) with the Commission.

On Janu ary 24, 2007, the Commission referred the Petition

to the Division of Administrative Hearings (DOAH) for the

assignment of an Administrative Law Judge to conduct a hearing

on the Petition pursuant to Section 120.57(1), Florida Statutes.

The referral was r eceived by DOAH on January 29, 2007.

The final hearing was scheduled for and held on March 26 -

27, 2007. At the hearing, Petitioner testified in her own

behalf and also presented the testimony of Stephen Zulinski.

Respondent presented the testimony of Lin Whitaker, Karen

Griffin, Kathleen Knorr, Gary Carter, and Jeff rey Vandiver.

Exhibits R1 through R26 were received into evidence.

The three - volume Transcript of the final hearing was filed

on May 21 , 2007. The parties were given 10 days from that date

to file proposed recommended orders (PROs). Petitioner filed

letter s summarizing her position on May 14 and 23 , 2007.

Respondent filed a PRO on May 30, 2007. The parties’ post -

hearing filings have been given due consideration.

All statutory references in this Recommended Order are to

the 2006 version of the Florida Statutes.

FINDINGS OF FACT

1. Respondent operates the Best Western Admiral’s Inn and

Conference Center in Winter Haven.

2. Petitioner worked as a waitress in the hotel’s first

floor restaura nt from March 8, 2005 , through March 18, 2006.

3. Petitioner testified that she was sexually harassed

“for months” by Marcus Owens, a cook who worked with her in the

restaurant. According to Petitioner, Mr. Owens made vulgar and

sexually - explicit comm en ts to her on a number of occasions while

they were working together .

4. Petitioner could not recall precisely when the

harassment started , but she estimated that it started

a pproximat ely two weeks after Mr. Owens started working at the

restaurant.

5. Mr . Owens started working in the restaurant on July 28,

2005, which means that the harassment would have started in mid -

August 2005.

6. Petitioner did not complain about the harassment until

November 9, 2005, when she reported it to her supervisor, Cory

Me eks.

7. This was the first notice that Respondent had about the

alleged harassment. Petitioner’s testimony that she complained

to the hotel’s general manager, Jeff rey Vandiver, about the

harassment several weeks prior to her complaint to Mr. Meeks was

no t persuasive.

8. Petitioner and Mr. Meeks met with the hotel’s human

resource s manager, Lin Whitaker, on the same day that the

complaint w as made , November 9, 2005 . Ms. Whitaker told

Petitioner that she needed to put her complaint in writing for

the ho tel to take formal action. Petitioner refused to do so

because she was scared of retribution by Mr. Owens , even though

Mr. Meeks and Ms. Whittaker assured her that she would be

protected from Mr. Owens .

9. Petitioner asked Mr. Meeks and Ms. Whitaker to address

the situation with Mr. Owens without using her name , which they

did. Mr. Owens denied sexually harassing anyone when confronted

by Mr. Meeks and Ms. Whitaker.

10. On December 2, 2005, Petitioner again complained to

Mr. Meeks about Mr. Owens. She told Mr. Meeks that the

harassment had not stopped and that it had gotten worse through

even more vulgar comments.

11. Petitioner again did not want a formal investigation

into the allegations, but Ms. Whitaker told her that an

investigation was required by company policy sinc e this was the

second complaint.

12. Mr. Owens was immediately suspended without pay

pending the completion of the investigation.

13. The investigation was conducted by Mr. Vandiver, Mr.

Meeks, and Ms. Whitaker on December 7, 2005. They first met

with Petitioner to get her side of the story. Then, they met

separately with Mr. Owens to get his side of the story.

Finally, they interviewed all of the employees who worked with

Petitioner and Mr. Owens.

14. This was the first time th at Petitioner went into

detail about what Mr. Owens had said and done. S he stated that ,

among other things, Mr. Owens asked her whether she had “ever

had a black man” and whether her boyfriend “is able to get it up

or does he require Viagra.” She also st ated that there were no

witnesses to the harassment because Mr. Owens was "discreet "

about making the comments to her when no one else was around.

15. Mr. Owens again denied sexually harassing anyone. He

acknowledged asking Petitioner whether she had ever dated a

black man, but he stated that the question was in response to

Petitioner asking him whether he had ever dated a white woman.

(Mr. Owens is black, and Petitioner is white.)

16. T he other employees who were interviewed as part of

the investig ation stated that they had not witnessed any sexual

harassment or overheard any sexually explicit conversations in

the restaurant.

17. Mr. Vandiver, Mr. Meeks, and Ms. Owens concluded based

upon their investigation that “there is not enough evidence of

sexual harassment to terminate Marcus Owens.” They decided to

let Mr. Owens continue working at the hotel, provided that he

agreed to be moved to the hotel’s second floor restaurant and

that he agreed to attend a sexual harassment training program.

18. On December 8, 2005, Mr. Meeks and Ms. Whitaker

conveyed the results of their investigation and their proposed

solution to Petitioner. She was “fine ” with the decision to

move Mr. Owens to the second floor restaurant where she would

not have contact with him.

19. On that same day, Mr. Meeks and Ms. Whitaker conveyed

their proposed solution to Mr. Owens. He too was “fine ” with

the decision, and he agreed that he would not go near

Petitioner.

20. Mr. Owens came back to work the following day, on

Decembe r 9, 2005.

21. On December 14, 2005, Mr. Owens was involved in an

altercation with Stephen Zulinski, a dishwasher at the hotel and

a close friend of Petitioner’s. The altercation occurred at the

hotel during working hours.

22. Mr. Zulinski testified th at the incident started when

Mr. Owens made vulgar and sexually explicit comments and

gestures about Mr. Zulinski’s relationship with Petitioner. Mr.

Zulinski was offended and angered by the comments, and he cursed

and yelled at Mr. Owens. Mr. Zulinski d enied pushing Mr. Owens

(as reflected on Mr. Zulinski’s Notice of Termination), but he

admitted to putting his finger on Mr. Owen s’ shoulder during the

altercation .

23. Mr. Owens and Mr. Zulinski w ere immediately fired as a

result of the altercation.

24. Petitioner continued to work as a waitress at the

hotel ’s first floor restaurant after Mr. Owens was fired.

25. Petitioner received awards from Respondent for having

the most positive customer comment cards for the months of

October and November 2005 , e ven though according to her

testimony she was being sexually harassed by Mr. Owens during

those months . She testified that her problems with Mr. Owens

affected her job performance only to a “very small degree.”

26. Petitioner had no major problems with h er job

performance prior to December 2005, notwithstanding the sexual

h arassment by Mr. Owens that had been occurring “for months”

according to Petitioner’s testimony.

27. Petitioner was “written up” on a number of occasions

between December 2005 and Febr uary 2 0 06 because of problems with

her job performance . The problems included Petitioner being

rude to the on - duty manager in front of hotel guests; taking too

many breaks and not having the restaurant ready for service when

her shift started; failing to check the messages left for room

service orders; and generating a guest complaint to the hotel’s

corporate headquarters .

28. Petitioner was fired after an incident on March 11,

2006, when she left the restaurant unattended on several

occasions and the man ager - on - duty received complaints from

several hotel guests about the quality of service that they

received from Petitioner that night. Petitioner ended up being

sent home from wo rk that night because, according to her

supervisor, “she was in a crying stat e,” unable to work, and

running off the restaurant’s business.

29. Petitioner’s employment with Respondent was formally

terminated on March 18, 2006. The stated reason for the

termination was “ unsatisfactory work performance ” and “ too many

customer compl aints.”

30. None of the supervisors who wrote up Petitioner were

aware of her sexual harassment complaints against Mr. Owens.

31. Petitioner claimed that the allegations of customer

complaints and poor job performance detailed in the write - ups

were “ ludi crous,” “insane,” “almost a complete fabrication , ” and

“a joke.” Th e evidence does not support Petitioner’s claims.

32. Petitioner admitted to having “severe” bi - polar

disorder, and she acknowledged at the hearing and to her

supervisor that she was havin g trouble with he r medications over

the period that she was having problems with her job

performance. For example , the comment written by Petitioner on

the January 27, 2006, write - up stated that she was “at a loss”

to explain her job performance and that she “hope[d] to have

[her] mental stability restored to what everyone else but [her]

seems normalcy.”

33. Petitioner worked 25 to 30 hours per week while

employed by Respondent. She was paid $5.15 per hour, plus tips,

and she testified that her bi weekly take - home pay was between

$200 and $250.

34. Petitioner applied for unemployment compensation after

she was fired. Respondent did not dispute the claim, and

Petitioner was awarded unemployment compensation of $106 per

week, which she received for a per iod of six months ending in

September 2006.

35. Petitioner has not worked since she was fired by

Respondent in March 2006 . She has not even attempted to find

another job since that time .

36. Petitioner does not believe that she is cap able of

working be cause of her bi - polar disorder. She applied for

Social Security disability benefits based upon that condition,

but her application was denied. Petitioner’s appeal of the

denial is pending.

37. Petitioner testified that one of the reasons that she

h as n o t looked for another job is her concern that doing so

would undermine her efforts to obtain Social Security disability

benefits.

38. Respondent has a general “non - harassment” policy,

which prohibits “harassment of one employee by another employee

. . . f or any reason.”

39. Respondent also has a specific sexual harassment

policy, which states that “sexual harassment of any kind will

not be tolerated.” The policy defines sexual harassment to

include verbal sexual conduct that “has the purpose or effect o f

interfering with the individual’s work performance or creating

an intimidating, hostile, or offensive working environment.”

40. The general non - harassment policy and the specific

sexual harassment policy require the employee to immediately

report the h arassment to his or her supervisor or a member of

the management staff.

41. The Standards of Conduct and the Work Rules adopted by

Respondent authorize immediate dismissal of an employee who is

disrespectful or discourteous to guests of the hotel.

42. Th e Standards of Conduc t also authorize discipline

ranging from a written reprimand to dismissal for an employee’s

“[f]ailure to perform work or job assignments satisfactorily and

efficiently.”

CONCLUSIONS OF LAW

A. Jurisdiction

43. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 760.11( 7 ), Florida Statu t es .

B. Sexual Harassment Claim

44. Section 760.10(1)(a), Florida Statutes, which is part

of the F lorida Civil Rights Act (FC RA) , provides that it is an

unlawful employment practice to “discriminate against any

individual with respect to compensation, terms, conditions, or

privileges of employment, because of such individual's . . . sex

. . . .”

45. The FCRA was patterned afte r Title VII of the federal

Civil Rights Act , so case law construing Title VII is persuasive

when construing to the FCRA. See , e.g. , Castleberry v. Edward

M. Chadbourne, Inc. , 810 So. 2d 1028, 1030 n.3 (Fla. 1st DCA

2002) .

46. Although Title VII and the F CRA do not mention sexual

harassment, it is well - settled that both acts prohibit sexual

harassment. See , e.g. , Mendoza v. Borden, Inc. , 195 F.3d 1238,

1244 - 45 (11th Cir. 1999) (citing Harris v. Forklift Systems,

Inc. , 510 U.S. 17, 21 (1993)) ; Maldonado v. Publix Supermarkets ,

939 So. 2d 290 (Fla. 4th DCA 2006).

47. Petitioner alleges a hostile environment sexual

harassment claim , which is a claim that is based on “bothersome

attentions or sexual remarks that are sufficiently severe or

pervasive to create a hostile work environment . ” Burlington

Industries, Inc. v. Ellerth , 524 U.S. 742, 751 (1998)

(distinguishing hostile environment claims from quid pro quo

sexual harassment claim s).

48. In order to establish a hostile environment sexual

harassment claim , Petitioner must prove:

(1) the employee is a member of a protected

group; (2) the employee was subjected to

unwelcome sexual harassment, such as sexual

advances, requests for sexual favors, and

other conduct of a sexual nature; (3) the

harassment was bas ed on the sex of the

employee; (4) the harassment was

sufficiently severe or pervasive to alter

the terms and conditions of employment and

create a discriminatorily abusive working

environment; and (5) that the employer knew

or should have known about the harassment

and took insufficient remedial action.

Maldonado , 939 So. 2d at 293 - 94 . Accord Hadley v. McDonald’s

Corp. , Order No. 04 - 147 (FCHR Dec. 7, 2004).

49. The requirement that Petitioner prove that the

harassment is sufficiently severe or pervasive ensures that the

anti - discrimination laws do not become “general civility code s .”

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

50. The factors to be considered in determining whether

the harassment is sufficiently severe or pervasive includ e :

1) the frequency of the conduct; 2) severity of the

conduct ; 3) whether the conduct was physically

threatening or humiliating ; and 4) whether the conduct

unreasonably interfered with the employee’s job

performance.

Maldonado , 939 So. 2d at 294 . Accord Hadley , supra .

51. There is an affirmative defense to hostile envi ronment

sexual harassment claims known as the “Faragher - Ellerth defense”

based upon the United States Supreme Court decisions from which

the defense developed. See Baldwin v. Blue Cross /Blue Shield of

Alabama , 480 F. 3d 1287, 1292 (11th Cir. 2007) .

52. An employer can avoid liability for sexual harassment

based upon the Faragher - Ellerth defense if:

(1) it exercised reasonable care to prevent

and correct promptly any sexual harassing

beh avior; and (2) the employee unreasonably

failed to take advantage of any preventive

or corrective opportunities.

Id. at 1303 (internal quotations omitted). See also Maldanado ,

939 So. 2d at 297 - 98 (employer could not be found liable for

sexual harassment where its “corrective action was immediate,

appropriate, and reasonably likely to stop the harassment”).

53. Respondent has the burden to prove the elements of the

Faragher - Ellerth defense. See Baldwin , 480 F.3d at 1303.

54. Applying the se standards to the facts of this case, it

is determined that Petitioner failed to prove her sexual

harassment claim . The evidence fails to establishes that the

sexual harassment described by Petitioner w as sufficiently

severe or pervasive so as to create a hostile wo rk environment

because , among other things, Petitioner testified that the

harassment only affected her job performance to “a very small

degree.” Moreover, the evidence f ails to establish that

Respondent knew or should have known about the harassment prior

to November 9, 2005, and, therefore, its failure to do anything

about the harassment prior to that date was not unreasonable or

inappropriate.

55. E ven if it was determined that Petitioner had

established a prima facie case of sexual harassment, Res ponde nt

met its burden to prove the Faragher - Ell erth defense. The

evidence establishes that the corrective action taken by

Respondent -- both after Petitioner’s initial complaint and

after her second complaint -- was immediate, appropriate, and

reasonabl y like ly to stop Mr. Owens from harassing Petitioner.

Indeed, on both occasions, Petitioner agreed to the corrective

action taken by Respondent.

56. In sum, t here is no basis to impose liability on

Respondent for the sexual harassment allegedly suffered by

Pet itioner.

C. Retaliation Claim

57. Section 760.10(7), Florida Statutes, provides that i t

is an unlawful emp loyment practice to “ discriminate against any

person because that person has opposed any practice which is an

unlawful employment practice under [t he FCRA] . . . . ”

58. To establish a prima facie c ase for retaliation under

Section 760.10(7), Florida Statutes , Petitioner must demonstrate

that (1) she engaged in a statutorily protected activity; (2)

she suffered an adverse employment action; and (3) there is a

causal r elation between the two events. See Hinton v.

Supervision International, Inc. , 942 So. 2d 986, 990 (Fla. 5th

DCA 2006); Guess v. City of Miramar , 889 So. 2d 840, 846 (Fla.

4th DCA 200 4 ) . With respect to the third element, Petitioner

mu st only prove that the protective activity and the negative

employment action “ are not completely unrelated.” See Rice -

Lamar v. City of Ft. Lauderdale , 853 So. 2d 1125, 1132 - 33 (Fla.

4th DCA 2003).

59. If Petitioner establishes a prima facie case, the

b urden shifts to Respondent to proffer a legitimate, non -

retaliatory reason for the adverse employment action. See Rice -

Lamar , 853 So. 2d at 1132 - 33. If Petitioner fails to establish

a prima facie case, the burden never shifts to Respondent.

60. The ulti mate burden of persuasion remains with

Petitioner throughout the case to demonstrate a discriminatory

motive for the adverse employment action. Id. See also Reeves

v. Sanderson Plumbing Products , 530 U.S. 133 (2000); St. Mary's

Honor Center v. Hicks , 50 9 U.S. 502 (1993) .

61. To do so, Petitioner must prove by a preponderance of

the evidence that the reason proffered by Respondent is “false”

or “unworthy of credence” and that the real reason that she was

fired was retaliation for her complaints about the sexual

harassment by Mr. Owens. See St. Mary’s Honor Center , 509 U.S.

at 507 - 08, 515 - 17. P roof that "the employer's proffered reason

is unpersuasive, or even obviously contrived, does not

necessarily establish that the [Petitioner’s] proffered reason

[o f retaliation ] . . . is correct." Id. at 524. It is “ not

enough . . . to dis believe the employer; the factfinder must

believe the [Petitioner’s] explanation” of retaliation. Id. at

519 (emphasis in original).

62. Petitioner proved the first two elemen ts of her prima

facie case. The evidence establishes that Petitioner e ngaged in

a statutorily - protected activity by complaining to the hotel ’s

management staff about Mr. Owens c onduct and that she suffered

an adverse emplo yment action when she was fired b y Respondent.

63. Petitioner failed to prove the third element of her

prima facie case. The evidence fails to establish any

relationship whatsoever between Petitioner’s complaints about

Mr. Owens conduct in November and December 2005 and her firing

in M arch 2006.

64. Even if it was determined that Petitioner had

established a prima facie case, Respondent met its burden to

proffer a legitimate, non - retaliatory reason for the adverse

employment action ta ken against Petitioner. Specifically,

Respondent p r esented credible evidence showing that Petitioner

was fire d for poor job performance, not her complaints against

Mr. Owens.

65. Petitioner failed to prove that the reasons presented

by Respondent for her firing were “false,” “unworthy of

credence,” or otherwise pretextual.

66. In sum, Petitioner failed to prove her retaliation

claim under Secti on 760.10(7), Florida Statutes.

D. Relief

67. Petitioner is not entitled to any relief in this

proceeding because she failed to prove her claims.

68. Even if Petitioner had proved her claims, she would

not have been entitled to an award of mon etary damages because

she made no effort to look for other employment after she was

fired , but rather affirmatively chose not to look for another

job in an effort to b olster her claim for Social Security

disability benefits. See , e.g. , F ord Motor Company v. E.E.O.C. ,

458 U.S. 219, 231 - 32 (1982) (holding that the plaintiff in an

employment discrimination case is required to mitigate her

damages by attempting to obtain o ther suitable employment, and

the failure to do so results in the forfeiture of the right to

back pay) ; Weaver v. Casa Gallardo, Inc. , 922 F.2d 1515, 1527

(11th Cir. 1991); Miller v. Marsh , 766 F.2d 490, 492 (11th Cir.

1985); Champion Intern ational Corp. v . Wideman , 733 So. 2d 559,

561 (Fla. 1st DCA 1999).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Commission issue a final order

dismissing the Petition for Relief with prejudice.

DONE A ND ENT ERED this 8th day of June , 2007, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 8th day of June , 2007 .

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

Donald T. Ryce, Esquire

908 Coquina Lane

Ver o Beach, Florida 32963

Nora E. Bartolone

119 Alachua Drive Southeast

Winter Haven, Florida 33884

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.