07-005677 Michele Price vs. Flagler County Schools Status: Closed Recommended Order on Friday, August 8, 2008.

Summary: Petitioner did not demonstrate that she was subjected to a hostile work environment based on sexual harrassment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELE PRICE, )

)

Petitioner, )

)

vs. ) Case No. 07-5677

)

FLAGLER COUNTY SCHOOLS, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 16-18, and May 21-23, 2008, a hearing was held in

Bunnell, Florida, pursuant to the authority set forth in Sections

120.569 and 120.57(1), Florida Statutes. The case was considered

by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Michele Price, pro se

16 Burma Place

Palm Coast, Florida 32137

For Respondent: Kristy J. Gavin, Esquire

Gobelman, Love, Gavin,

Wasilenko & Broughan, LLC

815 South Main Street, Suite 300

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes (2006),

and if so, what remedy should be ordered?

PRELIMINARY STATEMENT

This case originated with the filing of a complaint with the

Florida Commission on Human Relations (the Commission) asserting

that Flagler County Schools (the School District) discriminated

against Petitioner on the basis of her sex and that she was

constructively discharged as a result of actions taken in

retaliation because she filed a claim of sexual harassment. The

case was forwarded to the Division of Administrative Hearings for

assignment of an administrative law judge on December 13, 2007.

Both parties indicated that three days would be sufficient

for conducting the hearing in this case. Hearing was originally

noticed for February 13-15, 2008. At the request of Petitioner,

the matter was continued and rescheduled for April 16-18, 2008.

On April 9, 2008, both parties filed their witness lists.

On April 10, 2008, Respondent filed a Motion to Quash Subpoenas

Ad Testificandum, requesting that those subpoenas directed toward

students be quashed because they were under eighteen and had not

been interviewed by the Commission during its investigation.

Argument was heard on the Motion at the beginning of the hearing,

and at that time, the Motion was denied. Both parties were

reminded that this is a de novo proceeding, and not an appeal of

the decision of the Commission.

The hearing could not be completed in three days, and an

additional three days was scheduled for May 21-23, 2008. During

the course of the proceedings, Petitioner presented the testimony

of 22 witnesses, including herself. Petitioner's Exhibits

numbered 1-3, 6, 9, 11-12, 14, 16-18, 22-23, and 26 were admitted

into evidence. Petitioner's Exhibits numbered 4-5, 7-8, 10, 13,

15, 19-21, 24-25 were rejected. Respondent presented five

witnesses, and Respondent's Exhibits numbered 1-31 were admitted.

The proceedings were transcribed and the filing of all twelve

volumes of the transcript was completed on June 16, 2008.

On June 19, 2009, Petitioner requested a 30-day extension of

time from the previously established deadline of June 30, 2008,

for filing proposed recommended orders. The Motion indicated

that Respondent was opposed to the extension of time, but no

written opposition was filed. An extension of time was granted

up to and including July 21, 2008.

Both parties timely filed Proposed Recommended Orders. Both

submissions have been carefully considered in light of the

testimony and exhibits submitted in this proceeding in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a female formerly employed by the School

District. From February 2006 to April 18, 2007, she was employed

as a paraprofessional in the special education unit at Flagler

Palm Coast High School.

2. Petitioner is an "aggrieved person" within the meaning

of Section 760.02(6) and (10), Florida Statutes, in that

Petitioner is female and filed a complaint of gender

discrimination and retaliation with the Commission.

3. Respondent is an "employer" within the meaning of

Section 760.02(7), Florida Statutes.

4. From the inception of her employment and until March 13,

2007, Ms. Price was assigned as a paraprofessional (parapro) in

Mr. Robert Rinker's classroom. Ms. Price had not been in the

work force for several years before taking the job at Flagler

Palm Coast High School and was taking classes at night to obtain

her teaching degree.

5. Mr. Rinker teaches in what was described as a self-

contained classroom for students who are classified as

emotionally handicapped in the exceptional education program. At

Flagler Palm Coast High School, at least some of the students in

the program would attend classes in the 300 building of the

campus, and would have fewer classes and teachers compared to a

traditional schedule. However, students would not necessarily be

limited to one classroom all day. They could, for example, have

classes with other special education teachers in the 300

building.

6. Parapros are evaluated by the assistant principal.

While teachers with whom the parapro worked might be asked to

provide input for evaluations, the teachers are not considered to

be their supervisors.

7. Ms. Price was in the classroom with Mr. Rinker during

first and second periods, between classes, and during lunch.

During third and fourth period, Mr. Rinker supervised students in

the gym while Ms. Price remained in the classroom with students

who did not go to the gym.

8. Stan Hall also teaches special education in the 300

building of Flagler Palm Coast High School. During Ms. Price’s

employment, he was assisted by a parapro named Kathy Picano.

Ms. Picano sometimes visited Ms. Price in Mr. Rinker’s classroom.

She is significantly younger than both Ms. Price and Mr. Rinker.

9. Mr. Rinker is a jovial man and a veteran teacher. He

coaches soccer and has coached basketball. He is well liked by

his peers and by the students he teaches. Mr. Rinker often tells

jokes and stories, and sometimes his jokes are “off color” or of

a sexual nature. The jokes and stories are told to both male and

female colleagues and not in the presence of students. No other

staff member had ever told Mr. Rinker that his jokes were

offensive and no one had ever complained to supervisory personnel

that they were offended by Mr. Rinker’s behavior.

10. Mr. Rinker sometimes used the phrase, “a good lovin’ is

the universal cure.” He testified that he had heard this phrase

since his childhood from his older relatives, and simply meant

that when someone is having a bad day, a hug or other

encouragement helps make things better. The remark could be

addressed to students and staff alike. He did not mean anything

sexual by the phrase, and others hearing the phrase did not

interpret it as a sexual remark. Mr. Rinker’s testimony is

credited.

11. Ms. Price, however, was offended by Mr. Rinker’s jokes.

She testified that nearly every conversation with Mr. Rinker

became focused on sex. According to Ms. Price, the first week

she worked with Mr. Rinker, they were discussing mailboxes in the

classroom, and he stated, “let’s talk about the box you are

sitting on.” She understood that he was referring to her vagina.

Ms. Price stated that she was shocked by this statement, but did

not say so because it was her first week on the job. Mr. Rinker

does not remember ever making such a statement. Whether or not

this incident actually happened, it occurred over a year prior to

Ms. Price's complaint to either the School District or the

Commission.

12. Also that first week, Ms. Price mentioned in the

classroom that she had a headache, and in response Mr. Rinker

rubbed her shoulders or neck. Ms. Price was offended but did not

tell Mr. Rinker his touch was unwelcome.

13. Ms. Price claims that while things were not too bad the

first semester she worked with Mr. Rinker, eventually it got to

the point where she was unable to have a conversation with

Mr. Rinker without it focusing on sex. She claimed that he

sometimes purposefully rubbed up against her in the classroom. 1/

In order to avoid talking to him or being physically close to

him, she moved her desk to another part of the room. While she

claimed the situation was intolerable, she did not report

Mr. Rinker’s behavior to any supervisor and did not tell him she

was offended by his conduct.

14. Kathy Picano and Ms. Price sometimes spent time

together in Mr. Rinker’s classroom. Mr. Rinker sometimes told

jokes in Ms. Picano's presence and sometimes “invaded her

personal space.” He acknowledged that he might have patted her

on the back in passing as part of a greeting, but Ms. Picano

described the touch as no different from what she might have

received from her grandmother. Although Ms. Picano did not

particularly care for Mr. Rinker’s jokes, she attributed them to

being “just his personality.” She was not offended by

Mr. Rinker’s behavior and, before being questioned with respect

to Ms. Price's complaint in this case, never complained about it

to him or anyone else in authority at the school. She

acknowledged hearing Mr. Rinker make the “good lovin” comment,

but found it endearing, as opposed to harassing. Ms. Price,

however, was deeply offended by what she viewed as Mr. Rinker’s

behavior toward Ms. Picano.

15. The things with which she took offense did not stop

with Mr. Rinker’s jokes or the attention she perceived that he

gave to Ms. Picano. She did not think that Mr. Rinker or

Mr. Hall did an adequate job of teaching, and was upset that

Mr. Hall’s students were allowed, on occasion, to come to

Mr. Rinker’s classroom to finish assignments because they were

disruptive. She did not appreciate the way Mr. Peacock, the

assistant principal, performed his job and believed there was an

unwritten code where coaches and athletes did not have to follow

the same rules as others on campus.

16. Perhaps most of all, she was offended because students

in Mr. Rinker’s classroom talked about sex too much and she did

not believe that he did enough to stop it. In her view, this was

exacerbated when Mr. Hall’s students were allowed to come over

and finish work. Further, she believed that the students were

using the computers in the classroom to access inappropriate

videos and music that were offensive.

17. Computers were in the classroom for students to

complete assignments and to do research for school projects.

When they were finished with their work, students sometimes

played games on the computers and checked sports sites. Sites

such as “myspace,” however, were blocked in accordance with

school policy. While Ms. Price claimed the students were using

the computers for inappropriate purposes, she admitted that she

could not see what was on the computer screens from where she sat

in the classroom. The testimony of the students did not

corroborate her claim. All stated computers were used for school

work and when school work was finished, to play games as stated

above. Only one student indicated that he watched music videos.

All the others denied doing so.

18. There is no question that the students in Mr. Rinker’s

class sometimes talked about sex and used profanity in the

classroom. 2/ One of the classes was a health class. The

students were teenagers, many of whom had significant emotional

problems with little or no support at home. Some of their

individual education plans addressed the problem of too much use

of profanity, with a goal of reducing its use in the classroom

setting. Staff who testified all stated that trying to eliminate

the use of profanity entirely was probably not a realistic goal,

but modifying behavior to reduce it was. Their testimony is

credited.

19. Ms. Price was not the only one who complained about

students talking about sex in the classroom. Barbara Ryan was

another parapro who sometimes worked in Mr. Rinker’s classroom.

She agreed that the students sometimes talked about sex and

remembered a particular incident where she thought the discussion

was particularly explicit and she said something to Mr. Rinker.

He told the students involved to “knock it off.”

20. In December 2006, an anonymous call came in to Ms. Myra

Middleton at the District office complaining about inappropriate

language used by students in the 300 building. Ms. Middleton

referred the person to Mr. Peacock in accordance with School

District policy. She spoke to Mr. Peacock, who said he would

take care of it. After the phone call, Mr. Peacock went to each

of the classrooms in the 300 building and spoke to the students

about the inappropriateness of using profanity and talking about

sex in the classroom. There was no evidence, however, that the

anonymous call was placed because of conduct occurring in

Mr. Rinker's classroom.

21. The talk by students did not necessarily stop after

Mr. Peacock spoke to the students. However, the more credible

evidence is that these conversations did not involve the entire

class, but rather small groups of students. Several students

testified they never heard talk about sex in the classroom. The

conversations that did occur took place while other conversations

were also taking place. When Mr. Rinker heard the conversations,

he told students to stop. There is no credible evidence that

Mr. Rinker heard each conversation that Ms. Price heard or that

he deliberately chose not to address the students’ behavior. Nor

is there any evidence that the students’ discussions regarding

sex were in any way directed toward her.

22. Mr. Rinker was not particularly computer literate. As

a consequence, Ms. Price entered all of the students' grades in

the computer. She had access to Mr. Rinker’s password and would

print out his e-mail. In early March, 2007, Mr. Rinker received

an e-mail from Mr. Peacock’s secretary directing that he see

Mr. Peacock regarding his evaluation. Ms. Price did not believe

that Mr. Peacock intended to complete the required observation

for Mr. Rinker's evaluation, and this offended her. Ms. Price

answered the e-mail as if she were Mr. Rinker, noting that no

observation had yet taken place. This conduct violated the

written standards applicable to parapros.

23. Mr. Peacock discovered that Ms. Price, and not

Mr. Rinker, had responded to his secretary's e-mail. On March 9,

2007, Mr. Peacock called Ms. Price into his office and told her

that it was improper for her to send e-mails under Mr. Rinker’s

name. During the meeting, Ms. Price explained that she was

inputting grades, attendance and all other computer data.

Mr. Peacock advised that additional training would be made

available for Mr. Rinker, but that she was not to perform his

duties.

24. Ms. Price was under the impression that she was

receiving a reprimand. She also felt that Mr. Rinker, who was

also counseled by Mr. Peacock, did not defend her as vigorously

as he should, and that he was the one who should be in trouble.

In fact, Mr. Rinker told Mr. Peacock that Ms. Price had his

permission to use his password for the computer and that she was

very helpful.

25. Ms. Price’s reaction to this incident was well out of

proportion to the incident itself. Moreover, she did not appear

to recognize that what she did in signing Mr. Rinker’s name to

the e-mail was wrong. She was crying, both after the meeting and

into the next week.

26. The meeting with Mr. Peacock took place on a Friday.

On Monday, Ms. Price was on a previously-scheduled day off. On

Tuesday, she was still upset to the point of tears, and went to

see Sue Marier, the ESE Department head. Although she was told

repeatedly, both by Ms. Marier and by Mr. Peacock, that she was

not being formally reprimanded for the incident, she continued to

believe she was being treated unfairly. She told Mr. Rinker,

Ms. Marier and Mr. Peacock that if she was going down, then so

was Mr. Rinker.

27. The following day, March 14, 2007, Ms. Price went to

the principal, Nancy Willis, and complained that Mr. Rinker had

been sexually harassing her since the beginning of her

employment.

28. Ms. Willis advised Ms. Price to put her complaint in

writing, which she did. The complaint was forwarded immediately

to the district office for investigation. During the

investigation, Mr. Rinker was suspended with pay. Mrs. Willis

also asked Ms. Price if she wanted to be moved to a different

classroom, and Ms. Price indicated she did not want to be around

Mr. Rinker.

29. Mrs. Willis went to Sue Marier, the ESE Department

Head, and asked where there was a need for a parapro so that

Ms. Price could be transferred. At the time of the request,

Ms. Marier did not know that Ms. Price had filed the complaint

regarding sexual harassment and thought Ms. Price was still upset

over the computer e-mail incident. She told Mrs. Willis that the

greatest need was in the class for autistic children, and

Ms. Price was transferred to that class. A decision had been

made to add more staff, including another teacher, for that area,

but positions had not yet been advertised.

30. Parapros do not generally have the right to choose

their assignments. They are placed in the classroom with the

greatest need. At the time of Ms. Price's transfer, the autistic

classroom was the classroom with the greatest need.

31. This transfer did not result in a change in pay or

status. There were significantly fewer students in the autistic

class than in Mr. Rinker's class, and at least one of the

students had a one-on-one aide in the classroom. While there was

a slight change in schedule, it was not significant, and she

remained a parapro at the same rate of pay. Both Sue Marier and

Nancy Willis went by at different times to check on Ms. Price in

her new placement. The more credible evidence indicates that

Ms. Price did not complain about being in this classroom.

32. The School District has two policies that deal with

sexual harassment: Policy number 662, entitled Prohibition of

Sexual Harassment - Employees, and Policy number 217, entitled

Prohibiting Discrimination, Including Sexual and Other Forms of

Harassment. It is unclear why the School District has both at

the same time. The definitions regarding sexual harassment in

both policies are similar, with Policy number 217 being slightly

more detailed. The complaint procedure outlined in Policy number

217 is clearly more detailed, and it cannot be said that it was

followed to the letter in this case. However, Policy number 217

was amended after the investigation took place in this case. No

testimony was presented to show whether the more detailed

procedures presently listed in Policy number 217 were in place at

the time of the investigation. Further, the documents related to

the investigation reference Policy number 662, as opposed to

Policy number 217. It is found that the investigation was

conducted in accordance with Policy number 662, and that to do so

was appropriate.

33. Ms. Price’s complaint of sexual harassment was

investigated by April Dixon and Harriet Holiday. Over the course

of the next several days, both Mr. Rinker and Ms. Price were

interviewed (separately) as well as several other staff members.

Those staff members included Sue Marier, Kathy Picano, Donna

Dopp, Stan Hall, Pat Barile (Sue Marier's assistant), Mr. Tietema

(another teacher), and Barbara Ryan. The investigation conducted

was reasonable, given the allegations by Ms. Price.

34. Ms. Price's written complaint stated that Mr. Rinker

made inappropriate sexual comments; that he rubbed up against her

on numerous occasions; that Mr. Rinker allowed the students to

talk in the classroom using sexually explicit language and had

made no effort to stop it; and that he had made inappropriate

sexual comments to Ms. Picano.

35. Policy number 662 provides in pertinent part:

(2) Sexual harassment consists of unwelcome

sexual advances, requests for sexual favors

and other inappropriate oral, written or

physical conduct of a sexual nature when:

(a) submission to such conduct is made,

either explicitly or implicitly, a term or

condition of employment (or of an

individual's education).

(b) submission to or rejection of such

conduct is used as the basis for an

employment or employment decisions affecting

that individual; or such conduct

substantially interferes with an employee's

work performance, or creates an intimidating,

hostile or offensive work environment.

(3) Sexual harassment, as defined above, may

include but is not limited to the following:

· verbal harassment or abuse;

· pressure for sexual activity;

· repeated remarks to a person with sexual

or demeaning implications;

· unwelcome or inappropriate touching;

· suggesting or demanding sexual

involvement accompanied by implied or

explicit threats concerning one's

employment.

* * *

(5) Procedures. -- Any employee who alleges

sexual harassment by any staff member must

report the incident directly to the building

principal or the employee's immediate

supervisor. Alternatively, the employee may

make the report to the Assistant

Superintendent of Instructional

Accountability. Filing a complaint or

otherwise reporting sexual harassment will

not affect the individual's status, future

employment or work assignments.

The right of confidentiality, both of the

complaint and of the accused will be

respected, consistent with the Board's legal

obligations, and with the necessity to

investigate allegations of misconduct and

take corrective action when this conduct has

occurred.

In determining whether alleged conduct

constitutes sexual harassment, the totality

of circumstances, the nature of the conduct,

and the context in which the alleged conduct

occurred will be investigated. The

Superintendent or designee has the

responsibility of investigating and resolving

complaints of sexual harassment.

(6) A substantiated charge against a Board

employee shall subject such employee to

disciplinary action, including but not

limited to warning, suspension or

termination, subject to applicable procedural

requirements.

36. After investigation of Ms. Price's complaints, April

Dixon discussed her findings with Mr. Delbrugge, the School

District Superintendent. She also turned over to him all of the

transcripts of taped interviews and her conclusions regarding the

investigation. She concluded, and he agreed, that the

investigation showed Mr. Rinker told inappropriate jokes in the

workplace but that in all other respects Ms. Price's complaints

were not substantiated. The investigation also revealed that

Ms. Price also used profanity and occasionally told sexually-

related jokes in the workplace.

37. The Superintendent decided that the appropriate penalty

(in addition to the suspension with pay already imposed) was to

reprimand Mr. Rinker with a letter in his file; to require him to

receive additional training on sexual harassment; to warn him

that further complaints would result in termination; and to place

him on probation for the remainder of the school year. This

discipline was consistent with the School District's collective

bargaining agreement concerning discipline of instructional

staff.

38. Mr. Rinker was informed of this result March 19, 2007,

and completed the sexual harassment training as required.

Ms. Price was notified informally of the results of the

investigation that same day. She received official notification

by letter dated May 3, 2007.

39. Ms. Price was very dissatisfied with the results of the

investigation and the action taken by the School District. She

felt that Mr. Rinker should be fired. It is clear, after

hearing, that nothing less then Mr. Rinker's termination would

appease her.

40. Ms. Price was also unhappy with her new placement. She

did not like being in the classroom with the autistic students

and felt they were dangerous. She felt that she should have been

allowed to remain in her original classroom and Mr. Rinker should

have been removed. After less than three weeks, she tendered her

resignation. This three-week period included one week off for

Spring Break and some personal leave days taken due to

Ms. Price's husband having a stroke. Her resignation is dated

April 18, 2007, but her last day working in the classroom was

approximately April 6, 2007.

41. Ms. Price's resignation was voluntary. While there was

some belief that she left because of her husband's stroke,

Ms. Price disputes that assertion and insists that it was because

of the conditions in the new classroom to which she was assigned.

Her resignation letter, however, references neither reason. It

states:

Dear Ms. Willis:

It is with sincere regret that I am

writing this letter of resignation as an ESE

Para Professional for Flagler Palm Coast High

School. Please accept this as such. I do

apologize for the short notice. I would also

like to take this opportunity to express to

you my appreciation of your handling of my

complaint.

You are the only one who has validated

me as a person and as a worthy employee. I

only had a brief encounter with you but it

was enough for me to know that working

directly under you would have been a pleasure

as well as a great learning experience as I

respect your leadership abilities.

I recognize that this is a trying

situation for all involved and that you have

done your very best to rectify the matter

under the circumstances. It is important for

me to let you know that whatever happens in

the future in regards to my claim, this is no

way a reflection on you. I truly hope that

you can appreciate my position and the

importance of making positive changes for the

future.

42. Based upon the evidence presented, it is found that

Ms. Price resigned for a variety of reasons, including her

husband's stroke and her unhappiness with the new placement.

However, her dissatisfaction with the handling of the complaint

regarding Mr. Rinker and his continued employment was at least a

part of her decision.

43. Ms. Price was not subjected to an adverse employment

action as a result of her complaint. To the contrary, school

officials transferred her to another classroom at her request.

The conditions in the new classroom setting were not onerous.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2008).

45. Section 760.10(1)(a), Florida Statutes (2006), provides

that it is an unlawful employment practice to discriminate

against an individual "with respect to compensation, terms,

conditions, or privileges of employment, because of such

individual's . . . sex." The Florida Civil Rights Act is

patterned after Title VII of the Federal Civil Rights Act, and

case law construing Title VII is persuasive when construing

Chapter 760, Florida Statutes. Castleberry v. Edward M.

Chadbourne, Inc. , 810 So. 2d 1028, 1030 n.3 (Fla. 1st DCA 2002).

46. Both the federal and Florida Civil Rights Acts prohibit

sexual harassment. Mendoza v. Borden, Inc. , 195 F.3d 1238, 1244-

45 (11th Cir. 1999); Maldonado v. Publix Supermarkets , 939 So. 2d

290 (Fla. 4th DCA 2006).

47. There are two types of sexual harassment claims:

1) quid pro quo claims, which are based on threats that are

carried out or fulfilled, and 2) hostile work environment claims,

which are based on "bothersome attentions or sexual remarks that

are sufficiently severe or pervasive to create a hostile work

environment." Maldonado , 939 So. 2d at 293. Petitioner alleges

that she was subjected to sexual harassment through a hostile

work environment.

48. In order to establish a hostile work environment claim

where the alleged harassment is imposed by a co-worker as opposed

to a supervisor or manager, Petitioner must show that 1) the

employee is a member of a protected group; 2) the employee was

subject to unwelcome sexual harassment, such as sexual advances,

requests for sexual favors, or other conduct of a sexual nature;

3) the harassment was based on the sex of the employee; 4) the

harassment was sufficiently severe or pervasive to alter the

terms or 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. Id. at 293-94.

49. Petitioner has demonstrated that she is a member of a

protected group, in that she is female. She was not subject to

sexual advances or requests for sexual favors, but was subject to

other conduct of a sexual nature, in that Mr. Rinker sometimes

told sexual jokes in her presence, and an isolated neck/shoulder

rub. It is questionable whether it can be said that the conduct

was based upon her sex, because the evidence shows that the jokes

were told in the presence of both male and female staff. Compare

Baldwin v. Blue Cross/Blue Shield , 480 F.3d 1287, 1302 (11th Cir.

2007)(a sexual harassment plaintiff must show that similarly

situated persons not of her sex were treated differently and

better: "An equal opportunity curser does not violate a statute

whose concern 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.").

50. Regardless, Petitioner's more significant problems are

with the fourth and fifth components of her claim. The

requirement that Petitioner show that the harassment was

sufficiently severe or pervasive to alter a term or condition of

employment is a high burden, designed to prevent anti-

discrimination laws from becoming a general civility code.

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

"Properly applied, they will filter out complaints attacking the

ordinary tribulations of the workplace, such as the sporadic use

of abusive language, gender-related jokes, and occasional

teasing." Id. ; Gupta v. Florida Board of Regents , 212 F.3d 571,

583 (11th Cir. 2000).

51. In determining whether the harassment was sufficiently

pervasive to alter a petitioner's terms or conditions of

employment, the conduct must be considered from both a subjective

and objective viewpoint. The employee must subjectively perceive

the harassment as sufficiently severe, which Ms. Price certainly

did. In addition, however, the subjective perception must be

objectively reasonable. In other words, the environment must be

one that a reasonable person would find hostile or abusive.

Gupta , 212 F.3d at 586; Mendoza v. Borden, Inc. , 195 F.3d 1238,

1246 (11th Cir. 1999).

52. Whether a reasonable person would find the environment

hostile or abusive, requires that the totality of the

circumstances must be considered. The factors to examine include

the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with

an employee's work performance. Harris v. Forklift Systems,

Inc. , 510 U.S. 17, 23 (1993); Mendoza , 195 F.3d at 1246.

53. Consideration of these factors compels the

determination that Petitioner has not demonstrated that the

conduct was pervasive and severe. The conduct at issue involved

casual jokes by Mr. Rinker and sexual chatter by adolescent

students, and an isolated shoulder/neck rub. The more credible

evidence is that it occurred on occasion as opposed to on a daily

basis. The conduct was not physically threatening or

humiliating, but could be more aptly characterized as offensive

utterances. Credible testimony indicate that she appeared to

enjoy, rather than be offended by, the isolated neck/shoulder

rub. Finally, there was no credible evidence that the conduct

interfered with Petitioner's work performance.

54. The undersigned has carefully considered the cases

describing sexual harassment to determine whether the conduct at

issue here could be considered severe and pervasive. In this

instance, not all of Petitioner's assertions have been credited.

The inescapable conclusion is that conduct much more severe than

what Ms. Price alleges, assuming all of her allegations were

credited, have been found not to meet the standard for severe and

pervasive sexual harassment. Petitioner has not demonstrated

that Mr. Rinker's conduct and that of the students under his

supervision created such a severe and pervasive environment so as

to alter the conditions of her employment. Compare Webb-Edwards

v. Orange County Sheriff's Office , 525 F.3d 1013 (11th Cir.

2008)(comments were taunting and boorish but not threatening or

humiliating, or ones a reasonable person would find hostile or

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

2000); Mendoza v. Borden, Inc. , 195 F.3d 1238, 1246-47 (11th Cir.

1999)(and cases described therein); Maldonado v. Publix

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

55. Likewise, Petitioner has not demonstrated that

Respondent knew or should have known of the harassment and took

insufficient or remedial action. In this case, Petitioner did

not complain about Mr. Rinker's conduct despite the fact that she

claimed it had been going on for over a year. No one in

authority at Flagler Palm Coast High School was aware of any

problem between Mr. Rinker and Petitioner. 3/ Section 761.11(1),

Florida Statutes, requires that complaints be filed within 365

days from the alleged violation. Even assuming that Mr. Rinker

made the "mailbox" comment, which was crude and boorish, it is

both outside the time frame for filing this complaint, and, taken

either alone or in conjunction with other conduct proven in this

case, does not rise to the level of pervasive and severe conduct

that alters a term or condition of employment.

56. Once she filed a complaint with Ms. Willis, the School

District took immediate action to investigate her claim.

Mr. Rinker was suspended with pay while the matter was

investigated. Ultimately, he was reprimanded and placed on

probation, with the warning that any further complaints would

result in his termination.

57. Petitioner objected strenuously to both the quality of

and the results of the investigation by the School District.

Baldwin v. Blue Cross/Blue Shield , 480 F.3d 1287 (11th Cir.

2007), is instructive on both counts. In Baldwin , the

investigation conducted was similar to that conducted by the

School District. In rejecting Baldwin's challenge to the

reasonableness of the procedures used, the Eleventh Circuit

stated:

The first reason is there is nothing in [4]

Faragher or Ellerth decisions requiring a

company to conduct a full-blown, due process,

trial-type proceeding in response to

complaints of sexual harassment. All that is

required of an investigation is

reasonableness in all of the circumstances,

and the permissible circumstances may include

conducting the inquiry informally in a manner

that will not unnecessarily disrupt the

company's business, and in an effort to

arrive at a reasonably fair estimate of

truth.

* * *

We will not hold that the investigation

does not count, as Baldwin urges us to,

because the investigators did not take more

notes, because the discussion among them was

not more thorough, or because they did not

give more weight to a particular factor, such

as Barclay's initial impression that the

answers of one of the employees seemed

rehearsed. To second guess investigations on

grounds like these would put us in the

business of supervising internal

investigations conducted by company officials

into sexual harassment complaints. We

already have enough to do, and our role under

the Faragher and Ellerth decisions does not

include micromanaging internal

investigations. Instead, we look only to the

overall reasonableness of the investigation

under the circumstances, and this

investigation was reasonable.

480 F.3d at 1304-1305. The same can be said with respect to the

investigation conducted by the School District in this case.

58. The Eleventh Circuit also stated that if the remedial

result is adequate, then the reasonableness of the investigation

becomes irrelevant. Like Petitioner, Baldwin also challenged the

remedy imposed. Petitioner felt Mr. Rinker should have been

fired. As a preliminary matter, Petitioner does not get to

choose the remedy or decide its adequacy. Baldwin , 480 F.3d at

1306. The question to be answered is whether the remedy selected

by the School District was "reasonably likely to prevent the

misconduct from recurring." Id. at 1305, quoting Kilgore v.

Thompson & Brock Mgmt., Inc. , 913 F.2d 463, 465 (7th Cir. 1990).

The measures imposed, i.e., a reprimand, probation, review of

sexual harassment policies and a warning that further

impermissible conduct would result in termination, clearly are

measures designed to stop the conduct about which Petitioner

complained.

59. After carefully examining the entire record, evaluating

the credibility of the witnesses' testimony and competency of the

evidence presented, Petitioner has not demonstrated that she was

subjected to sexual harassment by means of a hostile and

offensive workplace actionable under Chapter 760, Florida

Statutes.

60. Sexual harassment claims are also subject to the

affirmative defense known as the "Faragher-Ellerth" defense based

on United States Supreme Court decisions from which the defense

was fashioned. An employer can avoid liability for sexual

harassment where 1) it exercised reasonable care to prevent and

correct promptly any sexual harassing behavior; and 2) the

employee unreasonably failed to take advantage of any preventive

or corrective opportunities. Baldwin , 480 F.3d 1287, 1303 (11th

Cir. 2007). As can be seen from the Baldwin decision, there is

some overlap with respect to the final element for demonstrating

sexual harassment (that the employer knew or should have known,

and took insufficient remedial action) and the Faragher-Ellerth

defense. In this case, the result is the same.

61. The School District had at least one policy prohibiting

sexual harassment that was available to all employees. It had a

policy for reporting harassment and encouraged that reporting to

be prompt. Petitioner did not notify any supervisor that she

felt harassed for well over a year from the first incident, and

continued not to tell anyone until such time as she felt she was

in trouble for an unrelated incident. Once she did complain, the

School District acted promptly to remedy the situation. The

School District has met its burden in demonstrating that the

elements of the affirmative defense have been proven.

62. Finally, Petitioner claims that she suffered

retaliation for complaining about Mr. Rinker, in the form of her

transfer to the autistic classroom. She claims that this

transfer constituted a change in the terms and conditions of her

employment and that the change was so deplorable it resulted in

her constructive discharge.

63. Section 760.10(7), Florida Statutes (2007), prohibits

discrimination against any person because that person has opposed

any practice which is an unlawful employment practice under the

Florida Civil Rights Act.

64. To establish a prima facie case for retaliation,

Petitioner must demonstrate 1) that she engaged in a statutorily

protected activity; 2) that she suffered an adverse employment

action; and 3) that there was a causal relation between the two

events. Gupta , 212 F.3d at 587; Jones v. Flagship International ,

793 F.2d 714 (5th Cir. 1986); Hinton v. Supervision

International, Inc. , 942 So. 986, 990 (Fla. 5th DCA 2006); Guess

v. City of Miramar , 889 So. 2d 840, 846 (Fla. 4th DCA 2004).

With respect to the causal relationship between the protected

activity and the adverse employment action, Petitioner need only

prove that the two events are not completely unrelated. Rice

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

4th DCA 2003).

65. If Petitioner establishes a prima facie case, the

burden shifts to Respondent to proffer a legitimate, non-

retaliatory reason for the adverse employment action. The

ultimate burden of persuasion remains with Petitioner throughout

the case to demonstrate a discriminatory motive on the part of

the Respondent for the adverse employment action. St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993).

66. An adverse employment action is an ultimate employment

decision, such as termination or failure to hire, or other

conduct that alters the employee's compensation, terms,

conditions, or privileges of employment, deprives Petitioner of

employment opportunities or adversely affects her status as an

employee. Conduct that falls short of an ultimate employment

decision must "meet some threshold level of substantiality . . .

to be cognizable under the anti-retaliation clause." Gupta , 212

F.3d at 587, quoting Wideman v. Wal-Mart Stores, Inc. , 141 F.3d

1453, 1456 (11th Cir. 1998).

67. Petitioner claims that her transfer into the autistic

classroom was an adverse employment decision. It was not. As

stated in the findings of fact, Petitioner's transfer to another

classroom was at her request. She was transferred from one

special education classroom to another. While the challenges

presented in each room were different, challenges existed in

both. In Gupta v. Board of Regents , the petitioner claimed that

her teaching assignments, including not assigning a class she

wanted to teach, were adverse employment decisions. The Eleventh

Circuit rejected this argument, stating that a university can

assign its professors to teach the classes it needs them to

teach. 212 F.3d at 588. The same can be said here. Respondent

can assign its staff to those areas where student need is the

greatest, and it did so.

68. Because Petitioner did not suffer an adverse employment

action, she has not presented a prima facie case for retaliation.

Her claim in this respect must be rejected.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered by the Florida Human Relations

Commission dismissing Petitioner’s complaint in its entirety.

DONE AND ENTERED this 8th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of August, 2008.

ENDNOTES

1/ Ms. Price's allegation that Mr. Rinker constantly

deliberately rubbed up against her was not credible. First, no

information was presented regarding when this conduct occurred,

either in terms of the dates or general timeframe, or when it

occurred during the day, such as before or between classes,

during lunch, or any other time. Likewise, no testimony was

provided regarding where it supposedly occurred or how she

reacted when it happened. No other person ever witnessed

physical contact between the two of them other than a neck rub,

which the witness indicated Ms. Price appeared to enjoy.

Likewise, credible testimony was presented that no one ever

observed any particular problems with respect to the interaction

between Mr. Rinker and Ms. Price. The undersigned had the

opportunity to observe both individuals over the course of the

hearing. Ms. Price is not one to hide her feelings. It is

inconceivable that she could have been enduring the kind of

behavior she described without some outward sign of her

discomfort.

2/ Ms. Price also alleged that when she found that students had

written sexually-oriented profanity on some of the desks in the

classroom, Mr. Rinker made a comment in front of the students that

indicated Mr. Rinker wanted to engage in sexual intercourse with

her, consistent with the profane statement on the desk. Her

assertion was not corroborated by any of the students who

testified. While there was testimony that the desks had profanity

written on them, the more credible evidence is that Mr. Rinker

worked to clean the language off the surface of the desk. Other

allegations not specifically discussed in this Order are rejected

because there was no competent, credible evidence to support them.

3/ There is evidence that Kathy Picano and Petitioner discussed

Mr. Rinker's propensity to tell jokes and agreed that the jokes

were sometimes disgusting. However, there is no credible evidence

that Ms. Price confided in anyone else regarding her distaste for

the jokes or that she confided in anyone at all regarding her

other claims.

4/ Faragher v. City of Boca Raton , 524 U.S. 775 (1198); and

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

COPIES FURNISHED:

Michele Price

16 Burma Place

Palm Coast, Florida 32137

Kristy J. Gavin, Esquire

Gobelman, Love, Gavin,

Blazs & Wasilenko

815 South Main Street, Suite 300

Jacksonville, Florida 32207

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

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.