08-001516 Tonja J. Hunt vs. Sears Home Improvements, Inc. Status: Closed Recommended Order on Wednesday, April 15, 2009.

Summary: Respondent did not discriminate against Petitioner based on her race, did not retaliate against Petitioner, and was not responsible for sexual harrassment by a co-worker.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TONJA J. HUNT, )

)

Petitioner, )

)

vs. ) Case No. 08-1516

)

SEARS HOME IMPROVEMENTS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on March 4, 2009, in Orlando, Florida, before Susan B. Harrell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Tonja J. Hunt, pro se

516 Winchester Boulevard

Sanford, Florida 32773

For Respondent: Donald C. Works, Esquire

Jackson Lewis LLP

390 North Orange Avenue, Suite 1285

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed an

unlawful employment practice by discriminating against

Petitioner based on sex, whether Respondent was sexually

harassed, and whether Respondent retaliated against Petitioner

for making a complaint of sexual harassment.

PRELIMINARY STATEMENT

In October 2006, Petitioner, Tonja J. Hunt (Ms. Hunt),

dual-filed a Charge of Discrimination against Respondent, Sears

Home Improvement, Inc. (Sears), with the Florida Commission on

Human Relations (Commission) and the Equal Employment

Opportunity Commission (EEOC). The charge alleged

discrimination based on sex. The EEOC investigated the

complaint and determined that it was unable to conclude that the

information obtained during its investigation established an

unlawful employment practice. On February 19, 2008, the

Commission issued a Right to Sue to Ms. Hunt.

On March 24, 2008, Ms. Hunt filed a Petition for Relief

with the Commission, alleging that Sears had discriminated

against her based on sex and that Sears had retaliated against

her for filing a charge of sexual discrimination. The Petition

for Relief was forwarded to the Division of Administrative

Hearings on March 28, 2008, for assignment to an Administrative

Law Judge to conduct a final hearing.

The case was assigned to Administrative Law Judge

Lawrence P. Stevenson, but was transferred to Administrative Law

Judge Susan B. Harrell to conduct the final hearing. The final

hearing was scheduled for May 15, 2008. Ms. Hunt requested and

was granted several continuances.

At the final hearing, Ms. Hunt testified on her own behalf

and called Deborah Selgado and Zegenya Hunt as witnesses.

Petitioner’s Exhibits 1 through 4 were admitted in evidence.

At the final hearing, Sears called the following witnesses:

Darlene Lighthouse, Luis Saez, Linda Hodahl, Kim Frates, and

Keith Wilson. Respondent’s Exhibits 1 through 14 were admitted

in evidence.

The Transcript was filed on March 16, 2009. The parties

agreed to file their proposed recommended orders on or before

April 3, 2009. Sears filed its Proposed Recommended Order on

March 30, 2009. On April 2, 2009, Ms. Hunt moved for an

extension of time to file her proposed recommended order. The

motion was granted, and the time for filing proposed recommended

orders was extended to April 10, 2009. Ms. Hunt filed her

Proposed Recommended Order on April 10, 2009. The parties’

Proposed Recommended Orders have been given due consideration in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Hunt was hired by Sears on January 9, 2006, as an

appointment specialist, which is a telemarketer position. Sears

provides home improvement products such as siding. The duties

of an appointment specialist include calling potential Sears

customers and scheduling appointments for the Sears salespersons

and the customers.

2. Each year, the chief executive officer of Sears sends

the Sears associates a reaffirmation statement of affirmative

action and equal employment opportunity. The letter, which is

posted at each call center, states in part:

Our fair employment policies are not new to

Sears. These policies prohibit harassment

or discrimination against any applicant,

associate, vendor, contractor, or customer

on the basis of race, color, religion,

gender, gender identity, ancestry, national

origin, age, disability, veteran status,

pregnancy, citizenship, sexual orientation,

marital status, ethnicity, or any other

reason prohibited by law. These policies

also prohibit all forms of retaliation

against any individual who complains of

being harassed or discriminated against.

3. Each new hire, including Ms. Hunt, is provided with a

copy of the Sears harassment policy on their first day of

employment. The harassment policy is also posted at each call

center. The harassment policy states that Sears prohibits

sexual harassment and provides examples of actions that may

constitute sexual harassment. Such examples include

“[i]nappropriate comments, jokes, or remarks because of or based

including hugs, kisses, pinches, etc.”

4. The Sears harassment policy further requires an

employee to take action if the employee:

[F]eel[s] uncomfortable in a situation

because of someone’s harassing, sexually

aggressive, abusive, or discriminatory

behavior.

[F]eel[s] that another’s harassing, sexually

aggressive, abusive or discriminatory

comments or actions toward [the employee] or

a fellow associate, vendor, customer, etc.

are improper in a work environment.

[B]elieve[s] that another’s harassing,

sexually aggressive, abusive, or

discriminatory behavior impairs the

[employee’s] ability to do [his or her] job,

or

[W]ants the harassing, sexually aggressive,

abusive, or discriminatory behavior to stop.

5. If an employee believes that a violation of the

harassment and discrimination policy has occurred, the Sears

harassment policy tells the employee to take the following

actions:

Explain the situation to your immediate

supervisor or manager.

If you are not satisfied with your

supervisor’s or manager’s response, or if

you are uncomfortable speaking with him or

her, immediately contact his or her manager

or your human resources representative.

If you still find that sufficient attention

has not been given to your complaint, or if

you are uncomfortable talking with someone

in your unit, associates should contact

the company’s the EthicsAssist Line at

1-800-BASSIST or Associates Services at

1-888-88sears.

6. Sears has a progressive discipline policy and a

progressive progress policy. Employees are given coaching

discussions and verbal performance memos for the first step.

The second step, third, and fourth steps are performance plans

for improvements. The last step is a final warning.

7. Sears has a dress code policy. On April 6, 2006,

Ms. Hunt was sent home because she was in violation of the dress

code policy.

8. On April 13, 2006, a coaching discussion was held with

Ms. Hunt concerning her productivity. Ms. Hunt was not meeting

the daily requirements for making calls. The minimum standard

was 165 calls out daily and 12 appointments. Ms. Hunt was

averaging approximately 78 calls per day.

9. On May 15, 2006, Ms. Hunt received a step-two

performance plan for improvement for not adhering to the Sears

attendance policies. The performance plan stated the

performance issues as follows:

Tonja’s attendance does not meet company

expectations. Since the beginning of her

employment Tonja has had multiple

occurrences. On 01-30 scheduled court date,

02-10 out due to a family emergency, 02-21

out due to a court hearing for her daughter,

03-06 out due to daughter personal issues,

03-30 called running late, 04-14 late, 04-19

late, 04-24 thru 04-25 out due to oral

surgery. Tonja does not have any time

available to her an[d] any further

occurrences will count as separate

occurrences.

10. On June 1, 2006, Ms. Hunt received a verbal

performance memo for not meeting the company requirements for

productivity. Her productivity for April was .05, which was

below the company minimum of 1.3.

11. In October 2006, Ms. Hunt received a step-three

performance plan for improvement. The performance issues were

described as follows:

Tonja’s productivity for the month of

September was that of 0.64 which is well

below company minimums of 1.3 and a company

goal of 1.8. Tonja’s attendance has yet to

improve. Since 05-15-06 Ms. Hunt has had 12

additional occurrences.

12. On November 7, 2006, Ms. Hunt received a step-four

performance plan for improvement due to work performance and

misconduct. The performance issues were described as follows:

Work Performance:

Below monthly minimum standard of 1.3;

Tonja’s results--.60 has not met standards

since hire date.

Attendance:

10/27/06, instructions given to Tonja to

call in by noon on Monday & speak to Luis.

Previously warned of attendance on 10/9/06 &

5/15/06.

Failed to follow directive

Could not be reached until 11/1

Misconduct:

10/27/06, received multiple complaints

regarding inappropriate comments of a sexual

nature to other associates on the call

floor.

Upon investigation, behavior was in

violation of company policy.

11/3/06, Tonja instructed by Management and

HR not to discuss investigation with other

associates.

Complaints received regarding Tonja not

following this directive and discussing

the matters of the investigation with

other associates.

13. On November 13, 2006, Ms. Hunt was given a performance

memo which served as a “final warning.” The memo stated the

reasons for the final warning as follows:

As stated in the PPI Written Step IV

document issued on 10-03-06, there were to

be no more attendance occurrences.

According to the timekeeping system, you

clocked in 40 minutes late on 11-09-06.

This memo serves as your final warning.

Another attendance occurrence will result in

immediate separation.

14. On January 17, 2007, Ms. Hunt received her annual

performance evaluation, which rated her on nine areas of

performance. Ms. Hunt received an overall performance

evaluation of two, which meant that improvement was needed. She

received a rating of one in the areas of productivity,

availability, and adherence to policy. A rating of one

signifies that the performance is unacceptable.

15. Sears terminated Ms. Hunt’s employment effective

January 23, 2007, for poor performance.

16. When Ms. Hunt began her employment with Sears, she

worked in a unit in which Mr. Royston Kenneth Khadaroo was the

team leader. As team leader, Mr. Khadaroo would provide

assistance to the other employees concerning the work

assignments. He was not a supervisor and had no authority to

fire, discipline, or otherwise affect the terms and conditions

of employment of the other employees in the unit.

17. Beginning in May 2006, Ms. Hunt claims that

Mr. Khadaroo began to sexually harass her. 1 According to

Ms. Hunt, Mr. Khadaroo made the following statements to her: “I

took the second statement to mean that he was referring to her

nipples. Ms. Hunt claims that on one occasion, he made a

measurement using his finger and thumb. She took the action to

mean that he was referring to the length of her crotch. On

another occasion, Ms. Hunt claims that while Mr. Khadaroo was

giving her a ride to her car that he put his hands between her

legs.

18. Prior to August 2006, Ms. Hunt made no attempt to

advise her supervisor or other management at Sears concerning

Mr. Khadaroo’s actions. In August 2006, Mr. Khadaroo approached

Darlene Lighthouse, who was one of Ms. Hunt’s supervisors and

told Ms. Lighthouse that Ms. Hunt had been making accusations

against him and that he wanted the issue to be addressed by

upper management. Mr. Khadaroo also advised Luis Saez, who was

another of Ms. Hunt’s supervisors, that he wanted an

investigation because Ms. Hunt had been making complaints

against him.

19. After Mr. Khadaroo complained to Ms. Lighthouse, she

sent him home and talked to Ms. Hunt. Ms. Hunt told

Ms. Lighthouse that Mr. Khadaroo had been sexually harassing

her. Ms. Lighthouse sent Ms. Hunt home and began an

investigation into the allegations.

20. Up until Ms. Hunt’s claims, there had been no

complaints from any employee concerning Mr. Khadaroo.

Ms. Lighthouse’s investigation did not reveal any witnesses to

Ms. Hunt’s allegations. There was no evidence to support or

refute Ms. Hunt’s claims of sexual harassment. It was a case of

“he said, she said.”

21. To alleviate the situation, management decided to move

Ms. Hunt from the unit in which Mr. Khadaroo worked. Ms. Hunt’s

workstation was moved so that she worked a few rows away from

Mr. Khadaroo. After the investigation, Ms. Hunt did not

experience any further unwelcome advances or comments from

Mr. Khadaroo.

22. On October 12, 2006, Ms. Hunt filed a Charge of

Discrimination with the Commission, alleging that Sears had

discriminated against her based on her sex.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

24. Ms. Hunt contends that Sears sexually discriminated

against her by subjecting her to a sexually hostile work

environment and retaliated against her for filing a Charge of

Discrimination. Subsections 760.10(1)(a) and (7), Florida

Statutes (2006), provide:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail to refuse to

hire any individual, or otherwise

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual’s race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor-management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

25. The Florida Civil Rights Act of 1992, Section 760.01,

et seq. , Florida Statutes, is modeled after Title VII of the

Civil Rights Act of 1964, 42 U.S.C. Section 2000, et seq. ;

therefore, case law interpreting Title VII is also relevant to

cases brought under the Florida Civil Rights Act. Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205, 1209

(Fla. 1st DCA 1991).

26. In a discrimination case, the petitioner has the

initial burden of establishing a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). If the petitioner

proves a prima facie case of discrimination, the burden shifts

to the employer to proffer a legitimate, non-discriminatory

reason for the action it took. Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981). The employer’s burden is always one of production,

not persuasion, as it always remains the petitioner’s burden to

persuade the fact finder that the proffered reason is a pretext

and that the employer intentionally discriminated against the

petitioner. Id. at 252-256.

27. The required elements of a prima facie case for

retaliation are: (1) Petitioner participated in a protected

activity, (2) Petitioner suffered an adverse employment action,

and (3) there is a causal connection between participation in

the protected activity and the adverse employment action. See

Gupta v. Fla. Board of Regents , 212 F.3d 571, 587 (11th Cir.

2000); Farley v. Nationwide Mutual Ins. , 197 F.3d 1322, 1336

(11th Cir. 1999).

28. Ms. Hunt has failed to establish a prima facie case of

retaliation. She did file a claim of sexual harassment which is

a protected activity, and she was terminated from her employment

with Sears. Ms. Hunt did not establish that there was a causal

connection between her termination and the filing of a sexual

harassment complaint. Her employment was terminated for poor

performance. Her problems with productivity were documented as

early as April and June 2006, well before she filed a

discrimination complaint, and continued throughout her

employment with Sears. Ms. Hunt was given performance plans in

October and November 2006 for the correction of her productivity

problems, but Ms. Hunt continued to fall below the company

standards.

29. To establish a claim of sexual harassment, Petitioner

must prove the following elements: (1) Petitioner belonged to a

protected group, (2) Petitioner has been subjected to unwelcome

harassment, (3) the harassment must have been based on the sex

or race 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) the employer is responsible for such

environment under either a theory of vicarious or of direct

liability. Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269,

1275 (11th Cir. 2002); Mendoza v. Borden, Inc. , 195 F.3d 1238,

1245 (11th Cir. 1999).

30. In Miller v. Kenworth of Dothan, Inc. , the court

discussed an employer’s liability for a hostile work environment

based on the theories of vicarious and direct liability.

An employer “is subject to vicarious

liability to a victimized employee for an

actionable hostile environment created by a

supervisor with immediate (or successively

higher) authority over the employee.”

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

775, 807, 118 S.Ct. 2275, 2292-93, 141 L.

Ed. 2d 662 (1998). The employer will be

strictly liable for the hostile environment

if the supervisor takes tangible employment

action against the victim. See id. at 807,

118 S.Ct. 2293. However, when an employee

has established a claim for vicarious

liability but where no tangible employment

action was taken, a defending employer may

raise as an affirmative defense to liability

or damages: “(a) that the employer

exercised reasonable care to prevent and

correct promptly any . . . harassing

behavior, and (b) that the plaintiff

employee unreasonably failed to take

advantage of any preventive or corrective

opportunities provided by the employer or to

avoid harm otherwise.” Id. at 807, 118

S.Ct. at 2292-93. Where the perpetrator of

the harassment is merely a co-employee of

the victim, the employer will be held

directly liable if it knew or should have

known of the harassing conduct but failed to

take prompt remedial action. See Breda v.

Wolf Camera & Video , 222 F.3d 886, 889 (11th

Cir. 2000).

31. In the instant case, Ms. Hunt has failed to establish

that Sears was liable for Mr. Khadaroo’s actions. Ms. Hunt did

not inform management for Sears until several months after

Mr. Khadaroo began to make inappropriate remarks to her. Up

until Ms. Hunt’s complaint, Sears had no knowledge of any

inappropriate behavior by Mr. Khadaroo to anyone employed at

Sears. When management for Sears became aware of Ms. Hunt’s

allegations, Sears immediately began an investigation. Both

Ms. Hunt and Mr. Khadaroo were interviewed. No other witnesses

were located who could substantiate Ms. Hunt’s allegations. In

order to remedy the situation between Ms. Hunt and Mr. Khadaroo,

Ms. Hunt was taken out of the unit in which Mr. Khadaroo worked

and was physically moved to a location in which she would not

have to work near Mr. Khadaroo as she had before her complaint.

After the investigation, Ms. Hunt did not have any further

incidents with Mr. Khadaroo.

32. Because Sears’ actions in response to Ms. Hunt’s

complaint immediately and permanently ended the alleged

harassment, Sears did what was required under the law and cannot

be found liable for harassment by Mr. Khadaroo. See Hill v.

American General Finance, Inc. , 218 F.3d 639, 644 (7th Cir.

2000) (noting that employer, who acted in response to a claim of

harassment by immediately investigating and transferring the

alleged harasser “reacted with commendable alacrity in almost

textbook example of what is supposed to happen”); Kilgore v.

Thompson & Brock Management, Inc. , 93 F.3d 752, 754 (11th Cir.

1996) (holding that employer was not liable where it immediately

began investigation into allegations of harassment); Steele v.

Offshore Shipbuilding, Inc. , 867 F.2d 1311, 1316 (11th Cir.

1989) (holding that employer not liable for harassment because

it took prompt remedial action including interviewing employees,

reprimanding accused, and assuring employees that harassment

would cease).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entering dismissing

Ms. Hunt’s Petition for Relief.

DONE AND ENTERED this 15th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 15th day of April, 2009.

ENDNOTES

1/ Ms. Hunt’s testimony at final hearing concerning the length

of time she had been sexually harassed differed from the

statement she made in her Charge of Discrimination filed on

October 12, 2006. Her Charge of Discrimination stated that she

had been subjected to inappropriate sexual innuendos and remarks

from about July through August 2006.

2/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2006 version.

COPIES FURNISHED :

Donald C. Works, Esquire

Jackson Lewis LLP

390 North Orange Avenue, Suite 1285

Orlando, Florida 32801

Tonja J. Hunt

516 Windchase Boulevard

Sanford, Florida 32773

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

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.