09-000092 Beth Thulin vs. City Of Flagler Beach, Fl Status: Closed Recommended Order on Friday, May 22, 2009.

Summary: Petitioner did not prove that Respondent was responsible for sexual harrassment in the workplace and/or that Respondent retaliated against Petitioner for complaining about sexual harassment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETH THULIN, )

)

Petitioner, )

)

vs. ) Case No. 09-0092

)

CITY OF FLAGLER BEACH, FL, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on March 18 and

19, 2009, in Bunnell, Florida, by Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Thomas A. Delegal, III, Esquire

Wendy E. Byndloss, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

For Respondent: Michael Bowling, Esquire

Kara Rogers, Esquire

Bell, Roper & Kohlmyer, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

STATEMENT OF THE ISSUES

The issues are whether Petitioner committed an unlawful

employment practice by discriminating against Petitioner based

on her sex in violation of Section 760.10(1)(a), Florida

Statutes (2008), and by retaliating against her contrary to

Section 760.10(7), Florida Statutes (2008).

PRELIMINARY STATEMENT

On or about May 17, 2008, Petitioner Beth Thulin

(Petitioner) filed an Employment Complaint of Discrimination

against Respondent City of Flagler Beach, Florida (Respondent).

The complaint alleged that Petitioner had been sexually

harassed, unfairly disciplined, subjected to different terms and

conditions, retaliated against, and constructively discharged.

On December 1, 2008, The Florida Commission on Human

Relations (FCHR) issued a Determination: No Cause. On

January 5, 2009, Petitioner filed a Petition for Relief with

FCHR. The petition was referred to the Division of

Administrative Hearings on January 8, 2009.

A Notice of Hearings dated January 23, 2009, scheduled the

hearing for March 18, 2009. On March 10, 2009, the undersigned

issued an Order granting Respondent's unopposed Request for

Additional Hearing Date.

On March 11, 2009, Petitioner filed a Motion for Change of

Venue. After a telephone conference on March 12, 2009, the

undersigned issued an Amended Notice of Hearing changing the

location of the hearing.

During the hearing, Petitioner testified on her own behalf

and presented the testimony of four additional witnesses.

Petitioner offered Petitioner's Exhibit Nos. P1 through P8 that

were accepted as evidence.

Respondent presented the testimony of six witnesses.

Respondent offered Respondent's Exhibit Nos. R1 through R15 that

were accepted as evidence.

The Transcript was filed on March 13, 2009. The parties

filed their proposed findings of fact and conclusions of law on

April 21, 2009.

FINDINGS OF FACT

1. Respondent hired Petitioner as Finance Director in

September 2005. Petitioner took the position during a very

challenging time because the budget was immediately due, an

audit was six months past due, and allegations of embezzlement

had been lodged against the former finance director. Petitioner

successfully managed these challenges.

2. Petitioner reported directly to the City Manager. The

City Manager reported to the City Commissioners. The City

Manager directed the day-to-day supervision and management of

Petitioner and other department heads.

3. Bill Veach was the City Manager when Respondent hired

Petitioner. Mr. Veach gave Petitioner excellent performance

evaluations. Additionally, Randy Bush, City Commissioner from

2002 to 2006, and Bob Mish, City Commissioner from 2004 to 2006,

commended Petitioner for her work.

4. At the time of the hearing, Ron Vath had been a City

Commissioner for eight years. Mr. Vath frequently went to the

City Hall to pick up his mail. He often asked Petitioner to

compile information or answer questions related to finance

matters, especially during budget time. Initially, Mr. Vath was

satisfied with Petitioner's work performance.

5. In addition to seeking financial information from

Petitioner, Mr. Vath made inappropriate sexual comments to

Petitioner. For instance, Mr. Vath would look at Petitioner and

say "yum yum." He commented on Petitioner's clothes as being

sexy and told her that she "had very nice looking legs."

6. On one occasion, Mr. Vath and Petitioner were standing

near the copy machine. Mr. Vath stated in a very low tone, "I

don't know what's been going on with my mind lately, it could be

the new medication I'm on, but I've been having very erotic

dreams lately and you've been in some of them."

7. Sometime in June or July 2006, Mr. Vath was in or near

Petitioner's office cubicle discussing some figures. When

Mr. Vath became very quiet, Petitioner inquired if he was okay.

Mr. Vath then leaned across Petitioner's desk, looked her

straight in the eye, and said, "I'm okay, but I have a very big

hard on right now." Petitioner pushed her chair away from her

desk and told Mr. Vath, "You need to go home and take that up

with your wife."

8. After Mr. Vath's inappropriate comment, Petitioner saw

James Ramer, Respondent's Water Plant Superintendent.

Petitioner told Mr. Ramer that Mr. Vath had made a pass at her.

9. Roger Free was Respondent's Chief of Police until

September 2007. Petitioner told Chief Free about Mr. Vath's

"hard on" comment. Chief Free advised Petitioner to follow

Respondent's procedures and talk to Mr. Veach.

10. A couple of days later, Petitioner verbally reported

Mr. Vath's "hard on" comment to Mr. Veach. Mr. Veach suggested

that Petitioner file a complaint. Petitioner told Mr. Veach

that she did not want to file a written complaint because it

might cause her trouble. Mr. Veach honored her request and did

not make a written record of the complaint or perform any type

of investigation.

11. Bernard Murphy became Interim City Manager in

September 2006. When he took the position, Petitioner was

introduced to him as "someone people liked and could do good

work."

12. In November 2006, Petitioner told Mr. Murphy about

Mr. Vath's "hard on" comment. Once again Petitioner decided

that she did not want to make a formal complaint followed by an

investigation. Mr. Murphy did not make a written record of the

allegations, but he told Petitioner to let him know if it

happened again.

13. Petitioner requested that Mr. Murphy keep her concern

about Mr. Vath's comment confidential. Mr. Murphy honored that

request until he learned that Petitioner was telling other city

employees and city commissioners. Mr. Murphy then questioned

Mr. Vath, who denied making the inappropriate comment.

14. Mr. Vath's attitude toward Petitioner immediately

changed. He continued to question Petitioner about her work and

to complain to Mr. Murphy about her job performance. However,

Petitioner did not experience anymore specific instances of

sexually inappropriate comments from Mr. Vath.

15. At all times relevant here, Elizabeth Kania was

Mr. Murphy's assistant/human resource director. Months after

the incident occurred, Petitioner told Ms. Kania, in an informal

conversation, about Mr. Vath's "hard on" comment. Petitioner

told Ms. Kania that Petitioner would not report it unless it

happened again. Petitioner complained on a regular basis to

Ms. Kania about Mr. Vath's questions and requests for additional

financial information that added to Petitioner's workload.

16. Elizabeth Mathis was Respondent's utility services

manager. Petitioner supervised Ms. Mathis whose workspace was

approximately three feet from Petitioner's cubicle. At some

point in time, Petitioner told Ms. Mathis about Mr. Vath's

sexually inappropriate comment.

17. Kathleen Doyle served as an accountant under

Petitioner's supervision. Petitioner complained to Ms. Doyle

about one sexually inappropriate comment by Mr. Vath. Ms. Doyle

also observed that Petitioner took offense to Mr. Vath's

questions.

18. Mr. Murphy, Petitioner, and other members of

Petitioner's staff often told off-color jokes to each other.

They occasionally used vulgar language and made profane

statements in the work place. As a participant in this type of

inappropriate office behavior, Petitioner was in no position to

complain.

19. Occasionally, Mr. Murphy made specific inappropriate

comments that Petitioner never complained of until she resigned.

For example, he referred to his former assistant as having big

tits. He also stated that his dermatologist was sexy and that a

woman in a bathing suit outside his window was attractive.

After returning from a humanitarian mission to India, Mr. Murphy

stated that Indian women were sensual. These comments occurred

over a period of many months.

20. Initially, Petitioner and Mr. Murphy were on a first

name basis. However, as time went on, Mr. Murphy began to have

justifiable concerns about Petitioner's work performance.

21. At times, Mr. Murphy would become angry and raise his

voice at Petitioner. On another occasion, Mr. Murphy

inappropriately used his finger to "flip a bird" at Petitioner

as he walked off after a disagreement about Petitioner's work.

However, there is no persuasive evidence that Mr. Murphy's

inappropriate conduct was in retaliation for Petitioner's

allegations against Mr. Vath.

22. Mr. Murphy's only formal disciplinary action against

Petitioner concerned an attendance issue. He gave Petitioner a

written reprimand on April 8, 2008, because she misrepresented

the reason for taking sick leave. Petitioner admits that she

was not absent on April 7, 2008 due to illness. Instead,

Petitioner was in Savannah, Georgia, interviewing for the

position that she presently holds. The greater weight of the

evidence refutes Petitioner's claim that she was constructively

discharged.

23. Petitioner first reported her allegation of sexually

offensive behavior against Mr. Murphy in her resignation letter

dated April 22, 2008. Specifically, Petitioner claimed that

Mr. Murphy spoke about women as being "sensual" and that he made

comments about bodily characteristics of women. Petitioner

complained about Mr. Murphy's management style of verbal abuse

as being belittling, demeaning, and offending.

24. City Commissioner Jane Mealy investigated the

complaints contained in Petitioner's resignation letter.

Ms. Mealy was unable to substantiate the allegations of sexually

inappropriate and harassing behavior.

25. Petitioner had been looking for another job for over

one and one-half years because of her low tolerance to

criticism. Petitioner resigned her employment with Respondent

only after she received an offer of employment from her current

employer, Chatham Area Transit Authority.

26. At all relevant times, Petitioner was aware of

Respondent's sexual harassment policy. The policy defines

sexual harassment as "[u]nwelcome sexual advances of whatever

nature, requests for sexual favors or other verbal or physical

conduct of a sexual nature." See Section 2-200, Personnel Code

of City of Flagler Beach (Personnel Code). Section 2-202 of the

Personnel Code states as follows:

(a) The city shares a common belief

that each employee should be able to work in

an environment free of discrimination, and

any form of harassment, based on race,

color, religion, age, sex, pregnancy,

national origin, handicap or marital status.

(b) To help assure that none of our

employees feel that they are being subjected

to harassment and in order to create a

comfortable work environment, the city

prohibits any offensive physical written or

spoken conduct regarding any of these items,

including conduct of a sexual nature. This

includes:

(1) Unwelcome or unwanted advances,

including sexual advances.

(2) Unwelcome requests or demands for

favors, including sexual favors.

(3) Verbal or visual abuse or kidding

that is oriented toward a prohibited form of

harassment, including that which is sexually

oriented and considered unwelcome.

(4) Any type of sexually oriented

conduct or other prohibited form of

harassment that would unreasonably interfere

with work performance.

(5) Creating a work environment that

is intimidating, hostile, abusive or

offensive because of unwelcome or unwanted

conversation, suggestions, requests,

demands, physical contact or attentions,

whether sexually oriented or other related

to a prohibited form of harassment.

(c) If an employee believes that he or

she is being subjected to any of these forms

of harassment, or believes that he or she is

being discriminated against because other

employees are receiving favored treatment in

exchange for sexual favors, he or she must

bring this to the attention of appropriate

persons in management. The very nature of

harassment makes it virtually impossible to

detect unless the person being harassed

registers his or her discontent with the

city's representative. Consequently, in

order for the city to deal with the problem,

the employee must report such offensive

conduct or situation to the city manager.

(d) A record of the complaint and the

findings will become a part of the file and

will be maintained separately from the

employee's personnel file.

(e) It is understood that any person

electing to utilize this complaint

resolution procedure will be treated

courteously, the problem handled swiftly and

confidentially, and the registering of a

complaint will in no way be used against the

employee, nor will it have an adverse impact

on the individual's employment status.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569, 120.57(1), and 760.11,

Florida Statutes (2008).

28. Section 760.10(1)(a), Florida Statutes (2008), states

as follows:

(1) It is an unlawful employment

practice for an employer:

(a) To discharge or to fail or refuse

to hire any individual, or otherwise to

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.

Additionally, it is unlawful for an employer to retaliate

against any person because that person has opposed any practice

which is an unlawful employment practice. § 760.10(7), Fla.

Stat. (2008).

29. The Florida Civil Rights Act (FCRA), Sections 760.01

through 760.11, Florida Statutes (2008), as amended, was

patterned after Title VII of the Civil Rights Act of 1964, 42

U.S.C.S. 2000 et seq. Federal case law interpreting Title VII

is applicable to cases arising under the FCRA. See Green v.

Burger King Corp. , 728 So. 2d 369, 370-371 (Fla. 3rd DCA 1999);

Florida State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA

1996).

30. Petitioner has the burden of proving by a

preponderance of the evidence that Respondent discriminated or

retaliated against her. See Florida Dep't of Transportation v.

J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1981).

31. Petitioner can establish a case of discrimination or

retaliation through direct evidence or circumstantial evidence.

See Holifield v. Reno , 115 F.3d 1555, 1561-1562 (11th Cir.

1997). In this case, Petitioner has not shown any direct

evidence of discriminatory or retaliatory intent.

32. Under McDonnell Douglas Corp v. Green , 411 U.S. 792,

802-805 (1973), an employment discrimination case based on

circumstantial evidence involves the following burden-shifting

analysis: (a) the employee must first establish a prima facie

case of discrimination; (b) the employer may then rebut the

prima facie case by articulating a legitimate, nondiscriminatory

reason for the employment action in question; and (c) the

employee then bears the ultimate burden of persuasion to

establish that the employer's proffered reason for the action

taken is merely a pretext for discrimination.

Sexual Harassment and Sex

33. To prove a prima facie case of sexual harassment,

Petitioner must establish the following: (a) she belongs to a

protected group; (b) she was subjected to unwelcome harassment;

(c) the harassment was based on her gender; (d) the harassment

was sufficiently severe or pervasive to alter the terms and

conditions of her employment and create an abusive working

environment; and (e) a basis for holding Respondent liable. See

Gupta v. Florida Bd. of Regents , 212 F.3d 571. 582-583 (11th

Cir. 2000).

34. Proof that sexually harassing conduct was sufficiently

severe or pervasive so as to alter the terms or conditions of

employment includes a subjective and objective component. The

employee must subjectively perceive the harassment as

sufficiently severe and pervasive and this subjective perception

must be objectively reasonable, i.e. an environment that a

reasonable person would find hostile or abusive. See Mendoza v.

Borden, Inc. , 195 F.3d 1238, 1245 (11th Cir. 1999).

35. In determining whether harassment objectively alters

an employee's terms or conditions of employment, the following

factors must be considered: (a) the frequency of the conduct;

(b) the severity of the conduct; (c) whether the conduct is

physically threatening or humiliating, or a mere offensive

utterance; and (d) whether the conduct unreasonably interferes

with the employee's job performance. See Harris v. Forklift

Systems, Inc. , 510 U.S. 17, 23 (1993).

36. Here, Mr. Vath's sexually inappropriate comments were

intermittent at most. While Petitioner may have been offended,

there is no credible evidence that Mr. Vath's comments

interfered with Petitioner's job performance. For the most

part, Petitioner was offended by and sensitive to criticism of

her work by Mr. Murphy. It was not Mr. Vath's occasional

comments that created what Petitioner perceived as a hostile

work environment.

37. Additionally, Petitioner has not shown that

Mr. Murphy's inappropriate comments about women were as severe

or pervasive as to create a hostile or abusive work environment.

Mr. Murphy made the offensive utterances over the course of many

months. Petitioner did not complain about these statements

until she resigned.

38. Mr. Murphy apparently lost his temper with Petitioner

and embarrassed her by raising his voice and finding fault with

her work in public. The most persuasive evidence indicates that

Mr. Murphy's criticisms were not related to Petitioner's sex or

any other protected basis.

Retaliation

39. To support a prima facie case of retaliation,

Petitioner must prove the following elements: (a) she

participated in a protected activity; (b) she was subjected to

an adverse employment action; and (c) the existence of a causal

link between the protected activity and the adverse action. See

Pipkins v. City of Temple Terrace , 267 F.3d 1197, 1201 (11th

Cir. 2001).

40. An employee, like Petitioner, who makes an informal

complaint but does not want an investigation conducted cannot

claim that the informal complaint amounted to protected activity

for the purposed of making a claim of retaliation. See Alabama

Dept. of Pub. Safety , 64 F. Supp. 2d 1215, 1233 (M.D. Ala.

1999).

41. Mr. Murphy had legitimate non-discriminatory, non-

retaliatory, reasons for criticizing Petitioner's work and for

giving her a written reprimand. There is no persuasive evidence

that Mr. Murphy's reasons for these actions were a pretext for

discriminatory or retaliatory intent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations dismiss the

Petition for Relief with prejudice.

DONE AND ENTERED this 22nd day of May, 2009, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 22nd day of May, 2009.

COPIES FURNISHED :

Michael H. Bowling, Esquire

Bell, Roper & Kohlmyer, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

Thomas A. Delegal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

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.