08-001117 Jeanette V. Cox vs. Gulf Breeze Resorts Realty, Inc. Status: Closed Recommended Order on Thursday, January 29, 2009.

Summary: Petitioner failed to establish a claim of hostile work environment based on sex. She also failed to prove that her employer fired her for discriminatory reasons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEANETTE V. COX, )

)

Petitioner, )

)

vs. ) Case No. 08-1117

)

GULF BREEZE RESORTS )

REALTY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on August 26,

2008, in Clearwater, Florida, before Carolyn S. Holifield,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jeanette Cox, pro se

801 Chestnut Street

Apartment 1603

Clearwater, Florida 33756

For Respondent: Richard W. Epstein, Esquire

Myrna L. Maysonet, Esquire

Greenspoon Marder, P.A.

201 East Pine Street, Suite 500

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Petitioner was subjected to a hostile work environment in violation of Subsection 760.10(1), Florida Statutes (2005).

PRELIMINARY STATEMENT

On August 14, 2006, Petitioner, Jeanette Cox (Petitioner),

filed a Complaint of Employment Discrimination ("Complaint")

with the Florida Commission on Human Relations ("Commission").

The Complaint alleged that Respondent, Gulf Breeze Resorts

Realty, Inc. ("Gulf Breeze" or "Respondent"), violated Title VII

of the Civil Rights Act of 1964 ("Title VII"), the Age

Discrimination in Employment Act, and the Florida Civil Rights

Acts of 1992 ("FCRA"), as amended, by discriminating against her

on the basis of gender (hostile work environment) and age, and,

ultimately, terminating her employment.

The Commission investigated the allegations in the

Complaint, and on February 5, 2008, informed the parties that

there was no reasonable cause to believe that an unemployment

practice occurred in connection with the termination of

Petitioner's employment.

On February 29, 2008, Petitioner filed a Petition for

Relief which alleged that Respondent violated the FCRA by

engaging in an unlawful employment practice based on her age and

sex.

On March 4, 2008, the Commission referred the matter to the

Division of Administrative Hearings for assignment of an

Administrative Law Judge to conduct a hearing. The hearing was

initially scheduled for April 30, 2008, but was continued until

July 9, 2008, at the request of Petitioner. On May 8, 2008,

Respondent requested a continuance. The request was granted,

and the hearing was rescheduled for August 26, 2008.

At hearing, Petitioner testified on her own behalf and

presented the testimony of three other witnesses, all of whom

are former employees of Gulf Breeze: (1) Inez Verhagen;

(2) Michelle Ferrara; and (3) Michael Booth. Respondent

presented the testimony of Dale Wagner and Vickie Dockery-Ruiz.

The parties' Joint Exhibits 1 through 8, Petitioner's Exhibit 1

and Respondent's Exhibits 1 through 6 were admitted into

evidence.

The two-volume Transcript was filed on September 15, 2008.

At the conclusion of the hearing, the parties agreed to file

proposed recommended orders on October 15, 2008, 30 days after

the Transcript was filed. On October 7, 2008, Respondent filed

an unopposed motion requesting that the time for filing proposed

recommended orders be extended to October 29, 2008. The

unopposed motion was granted. Proposed Recommended Orders were

timely filed by Petitioner and Respondent and have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a female who was employed by Gulf Breeze

as a sales representative from 2003 until her employment was

terminated on February 9, 2006. Petitioner was 63 years old

when she was hired to work as a sales representative with Gulf

Breeze.

2. Petitioner was an experienced and successful sales

representative. In 2004, Petitioner received a "million dollar

ring" in recognition of her outstanding sales record with Gulf

Breeze.

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

of Subsections 760.02(6) and (10), Florida Statutes.

4. Gulf Breeze is a licensed real estate broker that is in

the business of selling real estate interests in timeshare

resorts. Gulf Breeze conducts this business at an off-site

office located at 4300 Duhme Road, Madeira Beach, Florida.

5. The Berkeley Group, Inc., is the parent company of Gulf

Breeze and its headquarters is located in Ft. Lauderdale,

Florida.

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

Subsection 760.02(7), Florida Statutes.

7. The Berkley Group purchased Bay and Beach Resort

located in Indian Shores as the start-up property for its

timeshare sales operation in 2003. That location was eventually

replaced by the stand-alone sales center in the Madeira Beach

location.

8. In 2003, when Petitioner was initially employed by Gulf

Breeze, she was hired by Dennis Bill, the project manager or

director of sales for Gulf Breeze. Prior to being employed by

Gulf Breeze, Petitioner had worked with Mr. Bill for 15 or 20

years in the timeshare sales business.

9. At Gulf Breeze, the job of the project manager is:

(1) to oversee and supervise the sales operation and its staff;

(2) to ensure that the sales staff members are trained and are

successfully performing their jobs; and (3) to motivate the

sales force.

10. From August or September 2005 through February 2006,

Dale Wagner was project manager for Gulf Breeze. As project

manager, Mr. Wagner supervised the eight to ten sales

representatives in the Gulf Breeze office. Of that number,

two-thirds were over 40 years old.

11. During the time Mr. Wagner was project manager, there

were noticeable changes in the work environment at the Gulf

Breeze office. Those changes included: (1) the excessive use

of profanity in the office; (2) the presence and/or consumption

of alcoholic drinks in the office or during the workday; (3) the

presence of marijuana in the office; and (4) the berating of

employees by derogatory name-calling.

12. While he was project manager, Mr. Wagner and a sales

manager, Michael Wiseman, used profanity repeatedly and almost

everyday in the Gulf Breeze office, including during sales or

staff meetings. Mr. Wagner and Mr. Wiseman used the terms

"goddamn" and "f**k," respectively, as part of their general

vocabulary.

13. Petitioner sometimes observed that during the workday,

it appeared that Mr. Wagner, while project manager, had been

consuming some type of alcoholic drink(s). Petitioner and

another sales representative sometimes smelled alcohol on

Mr. Wagner's breath when he came to the table to work with them

on transactions.

14. Mr. Wagner acknowledged that he occasionally had a

drink or two at lunch, but denied that he ever consumed alcohol

in the office.

15. Petitioner had reason to believe that marijuana was

being brought to the Gulf Breeze office by one or more employees

and being given or sold to some other employees.

16. Petitioner was very concerned and disturbed by the

unprofessional environment at the Gulf Breeze office.

Petitioner was especially concerned about Mr. Wagner and

Mr. Wiseman using profanity in the office and about her

perception that alcohol and/or drugs (marijuana) were being

brought into the office by employees. Petitioner reported her

concerns to Pam Montanez, the human resources representative at

the Gulf Breeze office, at least four times, but did not submit

any written complaints to the local or corporate office.

Petitioner did not specify when she reported her complaints to

Ms. Montanez.

17. There is no evidence that Ms. Montanez took action to

alleviate the conduct that Petitioner reported to her.

Consequently, the behaviors and other activities continued to

occur in the Gulf Breeze office.

18. Three female sales representations at Gulf Breeze

during the time Mr. Wagner was project manager, including

Petitioner, viewed his conduct toward women as demeaning.

19. According to Petitioner, when Mr. Wager became project

manager, there was "hell to pay every time we went to work."

While he was project manager, Mr. Wagner called Petitioner

derogatory names and made inappropriate comments to her in the

Gulf Breeze office. For example, Mr. Wagner told Petitioner,

"Go take your [hormone] medicine and sit down." 2 He also told

Petitioner that she was too old to be working and needed to

retire. Sometimes when Mr. Wagner walked by Petitioner, he

called her an "old hag," "whore," and "slut." When Mr. Wagner

made these comments to Petitioner and called her names, other

employees were present and heard him.

20. Once when Mr. Wagner and several other male employees

were in an office with the door cracked, Michael Booth, a

salesman for Gulf Breeze, overheard them discussing how they

could get rid of that "old hag" or "old bitch" or "old woman."

Mr. Booth believed that the men in the office were referring to

Petitioner. When this conversation took place, Mr. Wagner was

not the project manager and had no supervisory responsibility

for Petitioner. Also, there is no indication that Petitioner

heard this conversation.

21. Prior to being employed by Gulf Breeze, Petitioner had

previously worked with Mr. Wagner and had not experienced any

problems with him. However, during the time he was project

manager, Mr. Wagner's behavior toward Petitioner changed.

Although Petitioner did not know the reason for that change, she

testified that the negative changes in Mr. Wagner's behavior at

work were caused by his alcohol consumption, not to her

membership in a protected class.

22. Mr. Wagner disputes Petitioner's statement that his

conduct at work was affected by his consumption of alcohol.

23. Inez Verhagen, a sales representative, described

Mr. Wagner's management style as "management by intimidation."

This description is based on the manner in which Mr. Wagner

regularly communicated with Ms. Verhagen.

24. While project manager, Mr. Wagner yelled at

Ms. Verhagen everyday and, sometimes, did so in the presence of

clients.

25. On one occasion, Mr. Wagner once came to the table

where Ms. Verhagen was meeting with two clients and began

yelling and screaming at her and then walked away. Given the

lapse in time, Ms. Verhagen could not recall the reason

Mr. Wagner was yelling at her. After Mr. Wagner left the table,

one of the clients at the table, Beverly, asked Ms. Verhagen,

"Does he always treat you this way?" Ms. Verhagen answered,

"Yes, ma'am, he does." The client then asked Ms. Verhagen, "How

do you stand this?" "You need to get out of here before you

have a bleeding ulcer."

26. While employed at Gulf Breeze, Ms. Verhagen complained

to Ms. Montanez about Mr. Wagner's repeated verbal abuse toward

her. Ms. Montanez never followed up with Ms. Verhagen, and it

appears that nothing was ever done to address the complaints.

Moreover, throughout Ms. Verhagen's employment, Mr. Wagner's

conduct did not change.

27. During the time Mr. Wagner was project manager,

Ms. Verhagen never heard him yell at any of the male sales

representatives. Thus, she believed that male employees at Gulf

Breeze were excluded from and not subjected to Mr. Wagner's

intimidating management style.

28. As a result of Mr. Wagner's behavior toward her,

Ms. Verhagen voluntarily left her job at Gulf Breeze.

29. Michelle Ferrara was a sales representative at Gulf

Breeze in the Fall of 2005, when Mr. Wagner became project

manager. According to Ms. Ferrara, after Mr. Wagner assumed

that position, the work environment at Gulf Breeze was not

"pleasant" and "a lot of constant degrading comments" were made

in the workplace. Ms. Ferrara also believed that Mr. Wagner

sometime treated her unfairly and did not implement policies

consistently.

30. At Gulf Breeze, new sales representatives sometimes

worked with managers on sales presentations. When these

presentations resulted in a sale, the practice at Gulf Breeze

was for the commission to be shared between the manager and the

new sales representative. Ms. Ferrara participated in such a

presentation, but was told by Mr. Wagner, then project manager,

that she would not receive any part of the commission because

the male manager with whom she had worked believed that she

[Ms. Ferrara] did not deserve it.

31. While he was project manager, Mr. Wagner yelled at,

embarrassed, and berated Ms. Ferrara many times.

32. In one instance, Mr. Wagner called Ms. Ferrara into

his office. At the time, there were two male employees sitting

in Mr. Wagner's office. Ms. Ferrara did not testify as to the

substance of Mr. Wagner's comments to her. Nonetheless,

Ms. Ferrara recalled clearly that Mr. Wagner "just tore into

[her]" and "embarrassed and berated" her in the presence of the

two male employees.

33. A new employee at Gulf Breeze approached Ms. Ferrara

and asked if Gulf Breeze provided formal training. Ms. Ferrera

believed that formal training involved structure and training in

a classroom setting at designated and extended time frames

(i.e., most of the day). Since no such training was provided at

Gulf Breeze, Ms. Ferrara told the new employee that there was no

formal training and that new employees simply learned on the

job. Apparently, Mr. Wagner overheard and disagreed with

Ms. Ferrara's response to the new employee. To express his

disagreement with Ms. Ferrara's response, Mr. Wagner "grabbed"

Ms. Ferrara and "just started screaming" at her.

34. In another incident, Ms. Ferrara arrived at work about

8:13 a.m., but did not immediately go into the Gulf Breeze

office. Instead, she stayed in her car "to do something."

(Employees were required to be in the office by 8:15 a.m.). It

is unknown how long Mr. Ferrara stayed in her car, but when she

got out of her car and went into the Gulf Breeze office, a male

employee entered the building just before she did. As the male

employee signed in, Ms. Ferrara was a few feet behind him,

waiting to sign in for work. Mr. Wagner approached Ms. Ferrara

and asked her, "What [were] you doing?" Mr. Wagner then told

Ms. Ferrara, "You shouldn't be in your car. You're supposed to

be in here." Although Ms. Ferrara and the male employee came

into the office about the same time, Mr. Wagner said nothing to

the male employee. Ms. Ferrara believed it was inappropriate

for Mr. Wagner to make the foregoing comments to her because

there were customers in the immediate vicinity. She also

believed that it was unfair to make any statements to her and

not to the male employee since they both came into the office

about the same time.

35. Mr. Wagner, while project manager, would comment that

"she [Ms. Ferrara] is in la-la land."

36. Ms. Ferrara never reported any of the foregoing

incidents to Ms. Montanez or to anyone in corporate

headquarters. However, as a result of Mr. Wagner's conduct,

Ms. Ferrara voluntarily left her job at Gulf Breeze.

37. Mr. Wagner also made offensive comments to Mr. Booth,

who was employed as a sales representative at Gulf Breeze from

about March 2005 through January 2006. Initially, Mr. Bill was

the project manager and Mr. Booth's supervisor. In August or

September 2005 until January 2006, Mr. Wagner replaced Mr. Bill

as project manager and was Mr. Booth's supervisor.

38. Throughout Mr. Booth's employment at Gulf Breeze,

including the period when Mr. Wagner was project manager,

Mr. Wagner made inappropriate comments to Mr. Booth. For

example, Mr. Wagner would make comments about Mr. Booth's

sexuality and would refer to him (Booth) as a "fag" or "queer."

Mr. Wagner would call Mr. Booth those names when he walked past

him (Booth) in the office. Mr. Wagner also made comments such

as "I'm not picking on you because you're a fag" and "I don't

have anything against homos." 3

39. Mr. Booth made several complaints to Ms. Montanez,

some of which concerned Mr. Wagner's inappropriate conduct

toward him (Mr. Booth) and toward Petitioner. In response to at

least one of Mr. Booth's complaints about Mr. Wagner,

Ms. Montanez told him that she would call someone in

Ft. Lauderdale (the corporate office), that "we're going to

handle it," and that she would then get back with him. Later,

Mr. Montanez reported to Mr. Booth that she had contacted the

corporate office and was told that the local office should

handle the matter and "to keep the corporate office out of it."

40. Mr. Wagner testified that the sale of timeshare

interests is a difficult and stressful job. Sales

representatives in the business must convince prospective

customers to purchase a product that they do not need (i.e.,

luxury item). Gulf Breeze incurs an upfront expense before a

prospective customer walks in the door. Thus, the pressure on

the sales representatives is increased by the fact that only one

out of eight to one out 12 sales presentations result in a sale.

The project manager must ensure that sales representatives are

trained, motivated, and performing their jobs.

41. Mr. Wagner does not deny that, as project manager, he

sometimes yelled at sales representatives. According to

Mr. Wagner, he "raise[d] his voice" when talking to employees to

get them motivated and to "try to get them in the right

direction."

42. According to Mr. Wagner, every sales representative at

Gulf Breeze receives training in the proper methods for

conducting sales. Gulf Breeze expects its sales representatives

to be courteous to the customers and to refrain from twisting

the customers' arms in order to make a sale.

43. Florida law allows a purchaser of a timeshare interest

ten days to rescind the purchase. Sales representatives at Gulf

Breeze are told that they are not to "pitch rescission" when

making a sales presentation. The term "pitch rescission" refers

to a technique in which the sales representative induces the

customer to purchase a timeshare interest by using the

cancellation as a sales tool.

44. The project manager is authorized to impose

disciplinary action against a sales representative who violates

the prohibition against "pitching rescission," or any other

company procedure. Gulf Breeze has no disciplinary guidelines

and the project manager has the discretion to impose whatever

disciplinary action he believes is appropriate.

45. On or about February 8, 2006, Mr. Wiseman told

Mr. Wagner that he had observed Petitioner pitching rescission

to a customer in order to induce a purchase. At the time,

Petitioner's cancellation rate for purchases was 80 percent,

while the average cancellation rate for other sales

representatives was between 18 percent and 22 percent. In light

of the foregoing, Mr. Wagner decided to meet with Petitioner.

46. When Petitioner arrived at work on the morning of

February 9, 2006, Mr. Wagner told her to come into his office to

meet with him and two sales managers, Larry VonStein and

Mr. Wiseman. Mr. Wagner did not tell Petitioner the reason he

wanted to meet with her. Moreover, there is no evidence that

Petitioner knew the reason Mr. Wagner wanted her to come into

his office.

47. Mr. Wagner wanted the two sales managers in the

meeting with Petitioner so that they were "aware of what was

happening" and to ensure that "everyone was on the same page."

48. Petitioner told Mr. Wagner that she did not want to

meet alone with three men. Mr. Wagner then ordered Petitioner

to go downstairs and sit in her car until Ms. Montanez got to

the office. He indicated that when Ms. Montanez arrived, they

would go to her office and talk. It is unclear why Mr. Wagner

required Petitioner to wait in her car, rather than in the Gulf

Breeze office.

49. Petitioner did not leave the building and go to her

car as Mr. Wagner had ordered. Petitioner got a chair and sat

in the back of the room where a regular sales meeting was being

held and told Mr. Wagner that she was not leaving. At some

point, Petitioner apparently became upset and/or agitated, and

according to Mr. Wagner, "threw a fit" and was screaming and

disrupting the sales meeting. This episode lasted for about ten

minutes. After Petitioner refused to leave, the situation

escalated when Mr. Wagner threatened to call the police,

presumably to have Petitioner removed from the Gulf Breeze

office. Petitioner responded by telling Mr. Wagner that he

could call the police, but she was not leaving.

50. Mr. Wagner contacted Ms. Montanez on her cell phone

and asked her to come in early to help him deal with Petitioner.

Before the call was completed, Petitioner also spoke with

Ms. Montanez. After talking with Ms. Montanez, the situation

apparently calmed down, and Petitioner went downstairs and

waited for Ms. Montanez to arrive at the office.

51. After Ms. Montanez arrived at the Gulf Breeze office,

she and Petitioner went upstairs to Ms. Montanez' office, where

they were later joined by Mr. Wagner. The issue that Mr. Wagner

had initially planned to discuss with Petitioner, the charge

that she had "pitched rescission during a presentation," was

never addressed. Instead, during the meeting, Mr. Wagner

terminated Petitioner's employment for insubordination. 4

52. Mr. Wagner initially intended to talk to Petitioner

about the charge that she had pitched rescission, but did not

plan to terminate her for issues related to that charge.

53. Gulf Breeze has an anti-discrimination policy which

expressly prohibits discrimination based on race, color,

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

veteran status.

54. The anti-discrimination policy is included in the

employee manual which is disseminated to employees who must

acknowledge, in writing, receipt of the policy. Gulf Breeze

also provides a separate statement to its employees notifying

them, again, of the company's anti-discrimination policy and

reporting procedures.

55. Gulf Breeze's anti-discrimination policy provides that

an employee should report any problems or allegations of

discrimination and harassment to the employee's direct

supervisor, the on-site human resource representative, or the

corporate human resource director. The employee may also notify

the company of alleged discrimination by anonymously completing

a form provided in or on the back of the Employee Handbook.

56. Petitioner received the Employee Handbook and the

company's workplace harassment policy and signed a document

acknowledging receipt of the Employee Handbook and Gulf Breeze's

anti-discrimination policy.

57. Vickie Dockery-Ruiz is the corporate human resource

director, has held that position since 1999, and works out of

the corporate office in Ft. Lauderdale, Florida.

58. To facilitate employee communication and resolution of

disputes, each resort has its own on-site human resources

representative (human resources manager). At all times relevant

to this proceeding, Ms. Montanez was the human resources manager

for Gulf Breeze. Prior thereto, Ms. Montanez served in that

same position at the Bay and Beach location.

59. Petitioner was familiar with the Gulf Breeze

anti-discrimination policy and knew how to file a charge of

discrimination and/or harassment. In fact, Petitioner had filed

a written complaint on or about September 19, 2005, against a

co-worker, Joel Zackheim. Petitioner sent the complaint to

Ms. Dockery-Ruiz at the corporate office and to Ms. Montanez at

the Gulf Breeze office.

60. The complaint arose out of an incident which occurred

during a staff or sales meeting during which Mr. Zackheim

intentionally pulled a chair from under Petitioner, resulting in

her falling on the floor.

61. In her written complaint, Petitioner recounted the

incident and noted that Mr. Zackheim had pulled a chair over her

leg and in a very loud voice, called her a "damn bitch."

Petitioner reported that as a result of Mr. Zackheim's actions,

she sustained an injury to her leg which was diagnosed as a

contusion and required medical care. 5

62. Petitioner's September 19, 2005, complaint was

promptly investigated, and Ms. Montanez issued a written

response on or about September 29, 2005. The response noted

that Petitioner's diagnosis had been confirmed as had

Mr. Zackheim's actions. As a result of his actions,

Mr. Zackheim was put on unpaid leave from October 2, 2005,

through October 9, 2003, and warned that another incident such

as this could be grounds for termination. Mr. Zackheim was also

advised to be respectful to fellow employees and to maintain a

positive attitude in the working environment.

63. Petitioner's September 19, 2005, complaint did not

include any allegations of harassment or other wrong doing by

Mr. Wagner.

64. On or about February 9, 2006, after she was

terminated, Petitioner called Ms. Dockery-Ruiz and reported

actions which she believed to constitute sexual harassment that

had occurred while she (Petitioner) was employed at Gulf Breeze.

Ms. Dockery-Ruiz requested that Petitioner write a letter

detailing her specific allegations. Petitioner complied with

that request and made allegations of sexual harassment.

Although Petitioner had been terminated, the president of the

company investigated the allegations of sexual harassment at

Gulf Breeze. The investigation concluded that there was no

sexual harassment.

65. Except for one incident that involved a Gulf Breeze

employee, Mr. Zackheim, Ms. Dockery-Ruiz was never notified of

any of the alleged activities Petitioner discussed after

[Petitioner's] termination.

66. Soon after Mr. Wagner terminated Petitioner's

employment with Gulf Breeze, his employment with the company

also ended. 6 Mr. Wagner was re-employed by the parent company

and is at working at a resort in Orlando, Florida.

CONCLUSIONS OF LAW

67. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2008).

68. Subsection 760.10(1)(a), Florida Statutes, 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

individuals . . . sex . . . [and] age." The FCRA 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. Chadbourne , 810 So. 2d 1028,

1030, n. 3 (Fla. 1st DCA 2002).

69. Both the federal and FCRA prohibit sexual harassment.

Mendoza v. Borden, Inc. , 195 F.3d 1238, 1244-45 (11th Circuit

1999); Maldonada v. Publix Supermarkets , 939 So. 2d 290 (Fla.

4th DCA 2006).

70. 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, citing

Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 751

(1998).

71. A hostile work environment claim is established upon

proof that "the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe

or pervasive to alter the conditions of the victim's employment

and create an abusive working environment." Miller v. Kenworth

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

72. In order to establish a prima facie case in a hostile

work environment claim, Petitioner must show that: (1) she

belongs to a protected group; (2) she has been subject to

unwelcome harassment; (3) the harassment was based on her sex;

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

the terms and conditions of employment; and (5) the employer is

responsible for such environment under a theory of vicarious or

of direct liability. Miller , 277 F.3d at 1275; Mendoza , 195

F.3d at 1245.

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

protected group in that she is a female.

74. Petitioner presented no evidence that she was

subjected to sexual advances or requests for sexual favor, but

claims that she was subject to other conduct of a sexual nature

in that Mr. Wagner persistently cursed and used profanity and

called her derogatory names (i.e., whore, slut and bitch).

75. It does not appear that the conduct (cursing and using

profanity and name-calling) was based on Petitioner's sex or had

any gender-related connotation. The evidence established that

Mr. Wagner cursed and used profanity in the office and in staff

meetings in the presence of employees regardless of their

gender. 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.").

76. Similarly, Mr. Wagner's conduct, as it relates to his

calling Petitioner various derogatory names, does not

necessarily include a sexual or other gender-related

connotation. See Mendoza , 195 F.3d at 1247-48, citing Galloway

v. General Motors Services Parts Operations , 78 F.3d 1164,

1167-68 (7th Cir. 1996)(noting that the term "sick bitch" is not

necessarily a sexual or gender-related term.)

77. Petitioner has established that she has been subject

to unwelcome harassment.

78. The third element to establish hostile work

environment requires that Petitioner complaint of conduct must

be based upon sex. The primary inquiry as to whether conduct is

"based upon sex" is determining that "but for the fact of her

sex [Petitioner] would not have been the object of harassment."

Henson v. City of Dundee , 682 F.2d 897, 903-904 (11th Cir 1982).

79. In this case, Petitioner has not established that

Mr. Wagner's cursing, which she had to endure on an almost daily

basis and his sporadic derogatory name-calling, were motivated

by gender considerations. Therefore, Petitioner failed to

establish the third element, and her hostile work environment

claim is legally deficient.

80. Assuming, though not concluding, that Petitioner has

met the first three elements, she must next establish the fourth

and fifth elements of her claim.

81. The fourth element that requires Petitioner to

establish harassment was sufficiently severe or pervasive to

alter the terms and conditions 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).

82. To establish that the harassing conduct is

sufficiently severe or pervasive to alter the employees' terms

of employment requires a subjective and objective analysis.

Mendoza , 195 F.3d at 1246. Petitioner, as the employee, must:

(1) subjectively perceive the harassment as sufficiently severe

and pervasive to alter the terms and conditions of employment;

and (2) a reasonable person in her position, considering all the

circumstances, would also perceive the harassment as

sufficiently severe and pervasive to alter the terms and

conditions of employment. Id.

83. In determining whether the harassment objectively

altered an employee's terms of conditions of employment, the

following factors must be considered: (1) the frequency of the

conduct; (2) the severity of the conduct; (3) whether the

conduct is physically threatening or humiliating or a mere

offensive utterance; and (4) whether the conduct unreasonably

interferes with the employee's job performance. Id. at 1246.

84. The conduct must be examined in context, not as

isolated acts, and determine, under the totality of the

circumstances, whether the harassing conduct is sufficiently

severe or pervasive to alter the employer's employment and

create a hostile or abusive working environment.

85. The evidence presented by Petitioner did not establish

that the alleged conduct was sufficiently severe or persuasive

to alter the terms and conditions of her employment. The

evidence established that Mr. Wagner's used profanity on an

almost daily basis, but did not show that his using profanity

was physically threatening or humiliating and unreasonably

interfered with Petitioner's job performance. Petitioner did

not establish the frequency with which Mr. Wagner called her

offensive or derogatory names. However, assuming that such

name-calling occurred frequently, the evidence did not establish

that it was physically threatening or humiliating. The

derogatory names Mr. Wagner called Petitioner are more akin to

offensive utterances. Petitioner presented no evidence to

establish that Mr. Wagner's derogatory name-calling unreasonably

interfered with Petitioner's job performance.

86. A reasonable person could not conclude that the

employer's conduct, if it occurred as described by Petitioner

was sufficiently severe and pervasive so as to affect a term or

condition of her employment.

87. Assuming, but not concluding, that Petitioner met the

first four elements necessary to establish a claim of hostile

work environment, she must next establish that Gulf Breeze is

responsible for such environment and liable for the harassing

conduct.

88. The evidence shows that Gulf Breeze had a policy and

procedures in place for reporting and preventing sexual

harassment. Faragher , 524 U.S. at 807; Burlington Industries,

524 U.S. at 765. The evidence established that Petitioner was

aware of the procedures and followed those procedures when she

filed a complaint against a co-worker in September 2005, when

she was working at Gulf Breeze. However, the evidence showed

that Petitioner failed to take advantage of policy and related

procedures by failing to report her allegations against

Mr. Wagner before she was discharged on February 9, 2006. Based

on the evidence presented, Petitioner failed to prove her claim

of hostile work environment.

89. Petitioner has not produced any competent evidence

that she was subject to a hostile work environment created by

sexual harassment. While working for a "harsh," "demeaning,"

and "intimidating" supervisor may create an intolerable working

environment, such a scenario is not actionable under Title VII

or under the FCRA, where all employees, regardless of gender,

are subjected to the same harsh and disparaging treatment. It

is not within the authority of this tribunal to second-guess

Respondent's tolerance of Mr. Wagner's rude and disrespectful

behavior to its employees.

90. In addition to her claim of hostile work environment,

Petitioner alleges that Respondent terminated her employment on

the basis of her age.

91. To establish a prima facie case of discriminatory

discharge, Petitioner must show that: (1) she is a member of a

protected class; (2) she qualified for the job from which they

were fired; and (3) the misconduct for which she was discharged

was nearly identical to that engaged in by an employee outside

the protected class who was retained. See Nix v. WLCY

Radio/Rahall Communications , 738 F.2d 1181 (11th Cir. 1984).

92. Petitioner has met its burden as to the first two

elements. She is a member of a protected class and age in that

she is over 40 years old. Petitioner has also established that

she is qualified for the job of sales representative from which

she was fired.

93. To establish the third element, Petitioner must prove

that the misconduct for which she was fired was nearly identical

to that engaged in by an employee outside the protected class

whom the employer retained. To prove this element, Petitioner

presented evidence that Mr. Zackheim engaged in intentional

conduct (pulling a chair from under Petitioner and then pulling

the chair over her leg) for which Respondent suspended him for a

week with no pay. Petitioner also established that she was

fired for insubordination (failing to comply with her

supervisor’s instructions to leave the office). These acts are

not "nearly identical." However, Petitioner failed to establish

a key component of this element--Mr. Zackheim's age. Thus, it

can not be determined that he is under 40, and outside the

protected class.

94. Assuming that Petitioner established the elements of a

prima facie case of discrimination, Respondent has met its

burden by articulating a legitimate, non-discriminatory

explanation of the action taken. Respondent presented ample

evidence that its motivation for terminating Petitioner was

reasonable and not motivated by Petitioner's age. Petitioner

was terminated for insubordination after she refused to leave

the building after being asked to do so.

95. Having articulated legitimate, non-discriminatory

reasons for its challenged actions, the burden then shifted to

Petitioner to demonstrate that the employer's proffered reasons

for taking actions were actually a pretext for discrimination.

Petitioner failed to present any evidence that the adverse

employment actions taken were pretextual. Therefore, her claim

must fail.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be issued by the Florida

Commission on Human Relations dismissing Petitioner's Petition

for Relief.

DONE AND ENTERED this 29th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January, 2009.

ENDNOTES

1/ All statutory references are to Florida Statutes (2005),

unless otherwise noted.

2/ The record indicates that Petitioner believed that Mr. Wagner

was referring to her "hormone" medication.

3/ Mr. Booth made numerous complaints about Mr. Wagner's

inappropriate sexual comments to Ms. Montanez, who "typed up"

about five of the complaints. Mr. Booth and Mr. Wagner met with

Ms. Montanez several times to resolve the issue, but to no

avail. Immediately after the meetings, Mr. Wagner would not

engage in the inappropriate and increasingly offensive conduct,

but a few days later, he would resume his past inappropriate

behavior. Mr. Booth left in January 2006, as a result of

Mr. Wagner's behavior.

4/ Mr. Wagner described Petitioner's offending conduct as

"ranting and raving" and "just being insubordinate." Mr. Wagner

indicated that he could not tolerate Petitioner's attitude or

the way she had acted "in front of the customer." (There was no

evidence that any customers were present during the episode.)

5 Petitioner's complaint stated that while she was in the

parking lot that day, Mr. Zackheim shot a bird [with his

fingers] at her. In the complaint, Petitioner wrote that "many

times" when she was leaving work for the day, Mr. Zackheim would

tell her, "Don't come back. You're fired." Petitioner's

written complaint noted that she had reported her issues with

Mr. Zackhiem to Mr. Wagner, who was project manager, but that

despite Mr. Wagner's meeting with Petitioner and Mr. Zackheim,

the issues were not resolved to her satisfaction.

6/ There was conflicting testimony concerning his termination.

Mr. Wagner testified that his separation from the company was a

voluntary and mutual decision. Ms. Dockery-Ruiz testified that

the decision to terminate Mr. Wagner was a company unilateral

decision.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jeanette V. Cox

801 Chestnut Street

Apartment 1603

Clearwater, Florida 33756

Richard W. Epstein, Esquire

Myrna L. Maysonet, Esquire

Greenspoon Marder, P.A.

201 East Pine Street, Suite 500

Orlando, Florida 32801

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.