16-001072 Holly Mathis vs. O'Reilly Auto Parts Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, November 16, 2016.

Summary: Petitioner proved her sexual harrassment claim by a preponderance of the evidence. However, there was no basis to the hold the employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOLLY MATHIS ,

Petitioner ,

vs. Case No. 16 - 1072

OÓREILLY AUTO PARTS ,

Respondent .

/

RECOMMENDED OR DER

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

on May 1 3 , 2016, in Panama City, Florida, before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitio ner: Robert L. Thirston, II, Esquire

Thirston Law Firm

Post Office Box 19617

Panama City Beach, Florida 32417

For Respondent: Harold W. Wasden, Esquire

Burr Forman LLP

11 North Water Street

Mobile, Alabama 36602

STATEMENT OF THE ISSUE

Whether Petitioner (ÐHolly MathisÑ or ÐMs. MathisÑ), in

contravention of the Florida Civil Rights Act of 1992, sections

760.01 through 760.11 and 509.092, Florida Statut es (201 4 ), 1/

experienced s exual harassment and/or disparate treatment during

her employment at Respondent, O ÓReilly Auto Parts (ÐOÓReillyÑ) .

PRELIMINARY STATEMENT

Holly Mathis filed a complaint with the Florida Commission

on Human Relations (Ðthe FCHRÑ) on July 14, 2015, alleging that

she was subjected to sexual harassment and disparate treatment

during her employment with OÓReilly . The FCHR conducted an

investigation and ultimately determined on January 19, 2016,

that there was reasonable cause to belie ve that an unlawful

employment practice had occurred.

Ms. Mathis filed a Petition for Relief with the FCHR on

February 18, 2016, alleg ing th at :

I am a female who was discriminated against

and sexually harassed by my supervisor at my

former place of emp loyment, OÓReilly Auto

Parts. I worked at OÓReilly from

August 2014 until the end of April 2015. I

was the only female employed at the Panama

City Beach location, and as such, was

subject to disparate treatment. Male

employees were given preferential tr eatment,

and allowed to use work vehicles for non -

work related matters. On April 4, 2015, my

supervisor, Mr. Paul Stevenson [sic]

approached me and asked me to expose my

breasts to him. I refused and was sent home

early for t he day. On April 9, 2015,

Mr . [Yohe], another supervisor, allowed a

male employee again to use the work vehicle

for a non - work related matter. The next

day, though, I had a Gatorade drink in the

vehicle and was sent home early again. On

April 15, 2015, Paul Stevenson [sic] tried

to touch me inappropriately many times, and

on April 16, 2015 actually did touch me in

an inappropriate manner, repeatedly, even

though I asked him to stop. Additionally,

on that day, while I was attending to my

other duties, William [Yohe] had me perform

a delivery for a male employee who was

sitting around doing nothing. I put in my

notice shortly after that incident.

On February 18, 2016, the FCHR referred this matter to DOAH

for a formal administrative hearing.

In the Amended Joint Pre - Hearing Stip ulation filed on

May 11 , 2016, Ms. Mathis described her allegations as follows:

Petitioner was formally employed as a

delivery specialist by Respondent, which

owns and operates an automotive parts store

in Panama City Beach, Florida known as

OÓReilly Auto Parts. Petitioner alleges

that Respondent unlawfully discriminated and

harassed her on the basis of PetitionerÓs

sex, which was female. Specifically,

Petitioner alleges that on April 4, 2015,

wh ile the Petitioner was on her shift, the

Respondent requeste d that the Petitioner

expose her breast s to him in order to allow

her [to leave work] early. The Petitioner

denied his request, but [ she was] allowed to

leave work early. Moreover, the Petitioner

alleges that there was disparity in the

treatment of the P etitioner compared to her

male counterpart [s] in disciplinary acts.

The Parties described the stipulated issue of law as follows:

The parties agree that the Administrative

Law Judge should apply the relevant sections

of the Florida Civil Rights Act in

de termining whether Ð quid pro quo sexual

harassment Ñ occurred, based on an evaluation

of the facts presented. Petitioner does not

allege hostile work environment in this

action.

ÐQuid pro quo harassment occurs when a work -

related benefit is conditioned exp ressly or

impliedly on the granting of a sexual

favor.Ñ Tate v. Winn - Dixie Logistic s , Inc. ,

2011 WL 7794089 (Cir. Ct. Fla. 2011)(citing

Gupta v. Florida Bd. of Regents , 212 F.3d

571, 582 (11 th Cir. 2000)). The acceptance

or rejection of the harassment by the

employee must be an expressed or implied

condition to receipt of a job benefit or the

cause of a job detriment. Id. (citing

Hodges v. Gellerstedt , 833 F. Supp. 898,

901 ( M.D. Fla. 1993)

The Parties also stated in the Amended Joint Pre - Hearing

Stipu lation that Ð[t]he sole issue of law that must be applied

in this matter, after making a [determination] of fact based on

the testimony of witnesses and documents presented, is whether

quid pro quo sexual harassment occurred, applying the standard

of revie w set forth in the preceding paragraph.Ñ

At the outset of the final hearing, the undersigned

questioned Ms. MathisÓ attorney about the statement in the

Amended Joint Pre - Hearing Stipulation that Ms. Mathis was

proceeding based on a theory of quid pro quo sexual harassment

rather than hostile work environment. The undersigned raised

this question because the description of Ms. MathisÓ claim in

her Petition for Relief seemed to be more closely aligned with

one alleging a hostile work environment. Ms. Mathi sÓ attorney

responded by characterizing the statement at issue in the

Amended Joint Pre - Hearing Stipulation as Ðan oversight.Ñ After

hearing Ms. MathisÓ testimony, the undersigned is of the opinion

that Ms. MathisÓ claim is primarily based on a hostile wo rk

environment theory. However, at least one aspect of her case

arguably amounts to quid pro quo sexual harassment. Therefore,

in the interest of being thorough, the undersigned will evaluate

Ms. MathisÓ allegations under both theories.

T he final heari ng was commenced as scheduled on May 13,

2016 , and Ms. MathisÓ attorney invoked the rule of

sequestration .

During the final hearing, Ms. Ma t his presented her own

testimony and offered an audio recording into evidence.

However, t he undersigned ultimately ruled that Ms. MathisÓ

exhibit was inadmissible because at least one participant in the

conversation was unaware that it was being recorded. See

§ 934.03(2)(d), Fla. Stat. (providing that Ð[i]t is lawful under

this section and ss. 934.04 - 934.09 for a per son to intercept a

wire, oral, or electronic communication when all of the parties

to the communication have given prior consent to such

interception.Ñ); § 934.06, Fla. Stat. (mandating that

Ð[w]henever any wire or oral communication has been intercepted,

no part of the contents of such communication and no evidence

derived therefrom may be received in evidence in any trial,

hearing , or other proceeding in or before any court, grand jury,

department, officer, agency, regulatory body, legislative

committee, or other authority of the state, or a political

subdivision thereof, if the disclosure of that information would

be in violation of this chapter.Ñ).

OÓReilly presented the testimony of three witnesses and

offered 31 exhibits. Exhibits N o. 1, 2, 2 - A - 1, 2 - A - 2, 2 - B,

2 - C - 1, 2 - C - 2, 2 - C - 3, 2 - C - 4, 2 - C - 5, 2 - C - 6, 2 - E, 2 - H - 1, 2 - H - 2,

2 - J, 2 - L, 3, 4, 5, and 6, were accepted into evidence. However,

RespondentÓs Exhibits 2 - D, 2 - F, 2 - G - 1, 2 - G - 2, 2 - G - 3, 2 - G - 4,

2 - G - 5, 2 - G - 6, 2 - G - 7, 2 - I, 2 - K, and 7, were out - of - c ourt

statements that the undersigned could not consider unless it was

determined that they supplemented or corroborated other non -

hearsay evidence.

The proceedings were recorded, and a one - volume Transcript

was filed on May 31, 2016.

OÓReilly filed a t imely proposed recommended o rder on

June 10, 2016. Ms. Mathis filed a m otion on June 13, 2016,

requesting additional time to fil e a proposed recommended order.

Through an Order issued on June 13, 2016, the undersigned

grant ed the aforementioned m otion an d g ave Ms. Mathis until

June 17, 2016, to file her proposed recommended o rder.

Ms. MathisÓ propos ed recommended order was timely filed, and the

undersigned considered both proposed recommended orders in the

preparation of this Recommended Order.

FINDING S OF FACT

1. OÓReilly is a retail distributor of automobile parts

headquart ered in Springfield, Missouri.

2. On approximately August 11, 2014, Ms. Mathis began

working at an OÓReillyÓs store in Panama City Beach, Florida

(Ðstore no. 4564Ñ) . Her duties included pulling automobile

parts from the storeÓs inventory and using an OÓReillyÓs - owned

vehicle to deliver automobile parts to mechanics in the

surr ounding area.

3. Ms. Mathis was the only female employee at

store no. 4564 .

4 . Upon begin ning her employment with OÓReilly, Ms. Mathis

received a copy of the OÓReilly Auto Parts Team Member H andbook

(Ðthe HandbookÑ) detailing policies, benefits, and the

responsibilit ies of OÓReillyÓs employees.

5 . One portion of the Handbook specifies that OÓReillyÓs

employees Ðare not discriminated against on the basis of race,

religion, color, national origin, sex, sexual orientation,

pregnancy, age, military obligation, disability, or other

protected class as defined by federal, s tate or local laws . Ñ

6 . Another portion of the Handbook addressed harassment

and stated that Ð[a]buse of other team members through ethnic,

racist, or sexist slurs or other derogatory or objectionable

conduct is unacceptable behavior and will be subject to

progressive disciplin e.Ñ

7 . This portion of the Handbook continued by describing

sexual harassment as follows:

Sexual harassment is a specific form of

harassment that undermines the integrity of

the employment relationship Î it will not be

tolerated. Unwelcome sexual advan ces,

requests for sexual favors, and other verbal

or physical conduct of a sexual nature

constitute sexual harassment when:

Submission to such conduct is made, either

explicitly or implicitly, a term or

condition of an individualÓs employment.

Submissi on to or rejection of the conduct is

the basis for an employment decision

affecting the harassed team member.

The harassment substantially interferes with

a team memberÓs work performance or creates

an intimidating, hostile, or offensive work

environment.

8 . This portion of the Handbook also instructed employees

how to report harassment:

If you feel you have been discriminated

against or have observed another team member

being discriminated against due to race,

color, religion, national origin,

disabili ty, sex, age or veteran status, you

should immediately report such incidents to

your supervisor/manager, local Human

Resources representative, the corporate

Human Resources Department, or anonymously

via the companyÓs T.I.P.S. Hotline at

1 - 800 - 473 - 8470 wi thout fear of reprisal.

A prompt, thorough investigation will be

made as confidentially as possible.

Appropriate action, up to and including

termination, will be taken to ensure that

neither discrimination nor harassment

persists . . . .

9 . The Han dbook instructs an OÓReillyÓs employee with

work - related concerns to bring the m to the attention of his or

her supervisor. If the work - related concern involves that

employeeÓs supervisor, then the Handbook instructs the employee

to Ðspeak directly with th e next level of supervision.Ñ

10 . Store no. 4564 had a poster notifying employees that

sexual harassment is illegal. The poster stated that :

I f you experience or witness sexual

harassment, report it immediately to your

supervisor or the Human Resourc es Department

without fear of retaliation. The company

will promptly investigate all complaints as

confidentially as possible. If the company

concludes that sexual harassment did occur,

disciplinary action will be taken with the

offender(s) up to and inc luding termination.

1 1 . The poster listed two ÐhotlineÑ phone numbers that

O ÓReillyÓs employees could utilize to r eport sexual harassment.

12. Also, the Handbook states that Ð[s]moking, eating, and

drinking are not allowed in company vehicles, and t eam members

are not permitted to possess food or beverages, including water,

within the cab of a store delivery vehicle.Ñ

13. As noted above, Ms. Mathis began working for OÓReilly

on approximately August 11, 2014. She typically worked from

8:00 a . m . to 5:00 p . m . on Wednesday s , Thursday s , and Friday s .

14. Ms. MathisÓ hiring by OÓReilly was probably

facilitated by the fact that she had previously worked with the

storeÓs general manager (Paul Ste phenson ) at an Advance Auto

Parts store.

15. Ms. Mathis considered Mr. Ste phenson to be a Ðbig

brother.Ñ However, in September of 2014, Mr. Ste phenson began

directing sexual comments toward Ms. Mathis , and inappropriate

conduct by Mr. Ste phenson continued through April of 2015. 2 /

16. During Ms. MathisÓ emp lo yment with OÓReilly,

Mr. Stephenson was the highest - ranking employee at the Panama

City Beach store. Therefore, Mr. Stephenson had supervisory

authority over Ms. Mathis.

17. On April 4, 2015, Ms. Mathis and Mr. Ste phenson were

working at s tore no. 4564 . When Ms. Mathis asked to leave early

so that she could s pend time with her newborn, Mr. Ste phenson

repeatedly asked her to expose her breasts to him.

18. Ms. Mathis r efused Mr. Ste phenson Ós requests but was

eventually allowed to leave work early. How ever, Ms. Mathis had

been under the impression that she would not be allowed to leave

early unless she complied with Mr. Ste phenson Ós request.

19. On approximately April 13, 2015, Ms. Mathis applied

for a position at an Autozone store approximately fiv e minutes

from store no. 4564 . By April 14, 2015, Ms. Mathis had secured

a new position at that A utozone store and submitted a letter of

resignation to OÓReilly on April 14, 2015.

20. Mr. Ste phenson Ós inappropriate conduct did not stop

after Ms. Mathis submitted her letter of resignation. As

discussed in her Petition for Relief, Mr. Ste phenson attempted

to touch her in an inappropriate manner many times on April 15,

2015, and succeeded in doing so on April 16, 2015. Ms. Mathis

reaffirmed that statement during her testimony at the final

hearing.

21. The undersigned finds Ms. MathisÓ testimony regarding

Mr. StephensonÓs conduct in April of 2015 to be credible.

22. April 16, 2015, w as Ms. MathisÓ last day of work at

store no. 4564 , and she began wo rking for Autozone on April 17,

2015.

2 3 . In addition to Mr. Ste phenson Ós inappropriate conduct,

Ms. Mathis asserts that she was subjected to disparate treatment

by her direct supervisor, William Yohe.

2 4 . Specifically, Ms. Mathis testified that Mr. Yo he would

belittle her by calling her ÐstupidÑ in front of co - workers and

customers. Male employees did not experience such verbal abuse.

2 5 . In addition, Mr. Yohe allegedly allowed male drivers

to decline deliveries without giving Ms. Mathis th e same option.

When a male driver declined a particular delivery, then

Ms. Mathis was required to handle it.

2 6 . Also , Mr. Yohe allegedly allowed male drivers to have

food and beverages in the OÓReilly - owned delivery vehicles.

However, Mr. Yohe sent Ms. Mat his home early on April 10, 2015,

for having a Gatorade in a delivery vehicle.

2 7 . With the exception of family and friends, Ms. Mathis

told no one (including no one with authority over Mr. Ste phenson

and Mr. Yohe in OÓReillyÓs chain - of - command ) of th e sexual

harassment and disparate treatment she experienced at

store no. 4564 .

2 8 . Ms. Mathis did not report the sexual harassment and

disparate treatment to anyone associated with OÓReilly because

she was worried that Mr. Ste phenson or Mr. Yohe would le arn of

her complaints and fire her . As a single mother of a newborn,

she could ill afford to be out of work.

2 9 . As for the anonymous T.I.P.S. Hotline in the Handbook,

Ms. Mathis was concerned that her anonymity could not be

maintained because she was the only female employee at

store no. 4564 .

30 . The undersigned finds that Ms. Mathis proved by a

preponderance of the evidence that Mr. Ste phenson sexually

harassed her in April of 2015 as described above.

3 1 . There was no reliable evidence to r ebut Ms. MathisÓ

allegations regarding Mr. Ste phenson . For example, another

driver at store no. 4564 testified that he never observed any

behavior towards Ms. Mathis that amounted to a violation of

OÓReillyÓs policies. However, that testimony and his wri tten

statement w ere of little use because the other driver worked

Mondays and Tuesdays while Ms. Mathis usually worked Wednesday

through Friday.

3 2 . Mr. Ste phenson did not testify during the final

hearing. He did give a written statement to OÓReilly in which

he denied any inappropriate conduct of the nature described by

Ms. Mathis. However , and as explained in the Conclusions of Law

below, Mr. Ste phenson Ós written statement was hearsay, and it

did not supplement or corroborate any non - hearsay evidence.

3 3 . In addition, several other OÓReillyÓs employees

submitted written statements explaining that they had never seen

any discrimination at their workplace and/ or that they were

unaware of any discrimination occurring at their workplace.

However, those employees did not testify, and their written

statements did not supplement or corroborate any non - hearsay

evidence.

3 4 . Mr. Yohe gave a written statement in which he noted

that no one had complained to him about being sexually harassed.

However , and as noted above, Ms. Mathis told no one other than

friends and family about her experiences at store no. 4564.

3 5 . While Ms. Mathis proved by a preponderance of the

evidence that she was sexually harassed by Mr. Ste phenson during

her employment at OÓRei lly, she did not prove by a preponderance

of the evidence that she was subjected to other types of

disparate treatment.

3 6 . Mr. Yohe denied verbally abusing Ms. Mathis, and

OÓReillyÓs witnesses persuasively testified that male and female

drivers were tre ated equally with regard to having prohibited

items in OÓReilly - owned delivery vehicles.

3 7 . As for Ms. MathisÓ assertion that she was forced to

make deliveries that male drivers declined, Mr. Yohe rebutted

that assertion by testifying that Ms. Mathis wa s unable to

successfully work the front counter at store no. 4564 because

she had yet to accumulate sufficient kn owledge of automobile

parts . Therefore, if the front counter was short - staffed at

certain time s , then a male driver would be asked to work the

front counter and Ms. Mathis would have to handle all of the

deli veries during that time period.

3 8 . The undersigned also finds OÓReilly had reasonable

measures in place to prevent and promptly correct any sexually

harassing behavior.

3 9 . It is also found that Ms. Mathis failed to take

advantage of the preventative or corrective opp ortunities

offered by OÓReilly .

CONCLUSIONS OF LAW

40 . DOAH has jurisdiction over the subject matter and the

parties in this case pursuant to sections 120.569 and 120 .57(1),

Florida Statutes (2015) .

4 1 . The Florida Civil Rig hts Act, sections 760.01 through

760.11 and 509.092, Florida Statutes (201 4 ), is patterned after

federal law contained in Title VII of the Civil Rights Act of

1964, and Florida Courts have determ ined that federal

discrimination law should be used as guidance when construing

its provisions. See FSU v. Sondel , 685 So. 2d 923, n. 1 (Fla.

1 st DCA 1996); Fla. DepÓt of Cmty. Aff. v. Bryant , 586 So. 2d

1205, 1209 (Fla. 1 st DCA 1991).

4 2 . Section 760.1 0(1)(a) provides that it is an unlawful

employment practice for an employer to Ðdiscriminate against any

individual with respect to compensation, terms, conditions, or

privileges of employment, because of such individualÓs race,

color, religion, sex, natio nal origin, age, handicap, or marital

status.Ñ

4 3 . The Civil Rights Act does not mention sexual

harassment. Nevertheless, courts have recognized that the

phrase Ðterms, conditions, or privileges of employmentÑ evinces

an intent to strike at the entire s pectrum of disparate

treatment of men and women in employment, which includes

requiring people to work in a discriminatorily hostile or

abusive environment. Harris v. Forklift Sys. , Inc. , 510 U.S.

17, 21 (1993).

4 4 . ÐThis includes both unwelcome, sex - ba sed conduct that

alters a term or condition of employment (i.e., hostile work

environment) and coercing an employeeÓs ÒresignationÓ based on

sex (constructive discharge).Ñ Jones v. United States Petroleum

Corp. , 20 F. Supp. 2d 1379, 1382 (S.D. Ga 1998).

4 5 . Petitioner has the burden of proving by a

preponderance of the evidence that OÓReilly committed an

unlawful employment practice. Fla. DepÓt of Transp. v . J.W.C. ,

396 So. 2d 778 (Fla. 1 st DCA 1981).

4 6 . As found above, Ms. Mathis failed to prove her

allegations of disparate treatment by a preponderance of the

evidence.

4 7 . However, Ms. Mathis proved by a preponderance of the

evidence that Mr. Ste phenson sexually harassed her in the manner

that she described during the final hearing.

4 8 . There was no reliable evidence to rebut Ms. MathisÓ

testimony on this point. Mr. Ste phenson did not testify during

the final hearing, and his written statement denying Ms. MathisÓ

allegations was hearsay. See generally Lyles v. State , 412 So.

2d 458, 459 (Fla. 2d DCA 1982)(explaining why hearsay is

unreliable by stating that Ð[h]earsay testimony is generally

inadmissible for several reasons. First, the declarant is not

testifying under oath. Second, the declarant is not in court

for the trier of fact to observe his or her demeanor. Third,

and of prime importance, the declarant is not subject to

cross - examination in order to test the truth of the statement.Ñ)

(overruled on other grounds by Deparvine v. State , 995 So. 2d

351 (Fla. 2008)) .

4 9 . Moreover, Mr. Ste phenson Ós written statement did not

supplement or corroborate any non - hearsay evidence. As a

result, the undersigned cannot b ase any findings of fact on

Mr. Ste phenson Ós written statement. See § 120.57(1)( c )

(providing that Ð[h]earsay evidence may be us ed for the purpose

of supplementing or explaining other evidence, but it shall not

be sufficient in itself to support a finding unless it would be

admissible over objection in civil actions.Ñ).

50 . Therefore, the analysis must turn to whether OÓReilly

will be held responsible f or Mr. Ste phenson Ós se xual harassment

of Ms. Mathis.

5 1 . ÐThe relief granted under Title VII is against the

employer, not individual employees whose actions would

constitute a violation of the Act.Ñ Smith v. Lomax , 45 F.3d

4 02, 403 - 04 n.4 ( 1 1 th Cir. 1995)(quoting Busby v. City of

Orlando , 931 F.2d 764, 772 ( 1 1 th Cir. 1991)).

5 2 . Pursuant to Burlington Industries , Inc. v. Ellerth ,

524 U.S. 742, 753 (1998), and Faragher v. City of Boca Raton ,

524 U.S. 775, 790, 118 S. Ct. 2 275, 141 L. Ed. 2d 662 (1998) ,

the labels Ðquid pro quoÑ and Ðhostile environmentÑ are relevant

only to the extent that they illustrate the distinction between

cases involving carried out threats by a supervisor and those

involving offensive conduct in ge neral, in order to assist in

resolving a Ðthreshold question whether a plaintiff can prove

discrimination.Ñ Ellerth , 524 U.S. at 743.

5 3 . Cases involving claims that an employer is liable for

sexual harassment should be separated into t wo groups :

(1) h arassment which culminates in a "tangible employment

action," such as discharge, demotion or undesirable

reassignment ; and (2) harassment in which no adverse "tangible

employment action" is taken but which is sufficient to

constructively alter an employee' s working conditions. Ellerth ,

524 U.S. at 761 - 63; Faragher , 524 U.S. at 807 .

5 4 . With regard to the first type of claim, i f the

employee suffered an adverse and tangible employment acti o n as a

result of the supervisorÓs harassment , then the employer is

automatically held vicariously liable. Faragher v. City of Boca

Raton , 524 U.S. 775, 790 , 807 (1998).

5 5 . ÐA tangible employment action constitutes a

significant change in employment status, such as hiring, firing,

failing to promote, reassignment wi th significantly different

responsibilities, or a decision causing a significant change in

benefits.Ñ Ellerth , 524 U.S. at 761 .

5 6 . C onstructive discharge can qualify as a tangible

employment action . Hipp v. Liberty NatÓl Life Ins. Co. ,

252 F.3d 1208, 1230 (11 th Cir. 2001) (noting that Ð[w]e have long

recognized that constructive discharge can qualify as an adverse

employment decision under the [Age Discrimination in Employment

Act] . Ñ). See also United States Petroleum Corp. , 20 F. Supp. 2d

at 1383 ( not ing that both plaintiffs resigned from USAP before

complaining of BrownÓs behavior and that a normal voluntary

resignation is not a tangible employment action . Ð However, if

the employer made working conditions so intolerable that the

employee was Ò forced Ó to resign, courts can recognize that a

constructive discharge occurred, and that is a tangible

employment action.Ñ).

5 7 . However, i t is very difficult to establish a

constructive discharge claim. In order to do so, a plaintiff

must demonstrate that h is or her working conditions were so

intolerable that a reasonable person would have been compelled

to resign. Hipp , 252 F.3d at 1231. See also Hill v. Winn -

Dixie , 934 F.2d 1518, 1527 (11 th Cir. 1991)(stating that there

must be Ða high degree of deterior ation in working conditions,

approachin g the level of intolerable.Ñ).

5 8 . E ven if a petitioner can establish that his or her

working conditions were so intolerable that a reasonable person

would have been compelled to resign , a constructive discharge

w ill generally not be found if the employer was not given a

sufficient amount of time to remedy the situation. See United

States Petroleum Corp. , 20 F. Supp. 2d at 1383 ( noting that

Ðconstructive discharge will generally not be found if the

employer is not given sufficient time to remedy the situation.Ñ)

5 9 . Court s have recognized that it can be exceedingly

awkward for a victim of sexual harassment to utilize remedies

offered by an employer. However, it is well - established that

this burden furthers a co mpelling public interest. See

generally Barrett v. Applied Radiant Energy Corp. , 240 F.3d 262,

267 (4 th Cir. 2001)(explaining that Ð[r]eporting the harasser

benefits the victim by allowing the company to halt future

harassment. It benefits others who mig ht be harassed by the

same individual, and it benefits the company by alerting it to

the disruptive and unlawful misconduct of an employee. Thus,

the reporting requirement serves the Òprimary objectiveÓ of

Title VII which Òis not to provide redress but to avoid harm.Ó

Faragher , 524 U.S. at 806. By advancing a speculative Òfear of

retaliationÓ excuse for remaining silent, BarrettÓs argument

would undermine the primary objective of Title VII and could

result in more, not less, sexual harassment going undet ected.

Furthermore, Title VII expressly prohibits any retaliation

against Barrett for reporting Ra mseyÓs harassment. 42 U.S.C.

§ 2000e - 3(a). It is for this reason that the courts have

refused to recognize a nebulous Òfear of retaliationÓ as a basis

for remaining silent.Ñ).

60 . Ms. MathisÓ assertions regarding Mr. Ste phenson Ós

behavior are similar to the allegations made by the plaintiffs

in United States Petroleum Corp. , supra . Plaintiffs Kathy Jones

and Kristi Wilson had worked in a gas station own ed by USA

Petroleum and filed separate sexual harassment suits against USA

Petroleum because of the alleged actions of Richard Brown, the

station manager where the plaintiffs had worked. Id. at 1381.

6 1 . Both plaintiffs resigned from USA Petroleum bef ore

complaining of Mr. BrownÓs alleged conduct. However, t he Court

held that the plaintiffsÓ constructive discharge claims were

undermined by their failure to give USA Petroleum an opportunity

to remedy the situation:

Wilson relies largely on generalized claims

that Brown used profanity in her presence;

berated her for failure to complete her

nightly duties around the station; and

occasionally rubbed against her while the

two were in the cashier's booth each

morning. Wilson dep. at 49 - 56, 65 - 70. As

for s pecific incidents, she alleges that

Brown once tried to open the restroom door

while she was using the facilities, coyly

asking "Do you need any help in there?"

Wilson dep. at 46 - 47. Additionally, she

maintains that Brown once asked her to drop

her pants so he could feel her

undergarments. Id. at 53.

Jones likewise relies upon generalized

claims that Brown used profanity, though she

also testified that he made sexually

suggestive comments (i.e., he asked her the

color of her pubic hair, jokingly

proposi tioned her, etc.) and sometimes

rubbed up against her while they were

together in the cashier's booth. Jones dep.

at 85 - 88, 97 - 100. Jones also alleges that

Brown forcibly kissed her in the bathroom of

the station, causing her to become ill and

faint late r that day. Id. at 100 - 108.

As alleged, Brown's conduct towards both

Wilson and Jones is boorish and offensive.

The Court recognizes that a factual issue

may exist as to whether plaintiffs' working

conditions were intolerable. Perhaps such

is for a ju ry to decide. Compare Hill ,

934 F.2d at 1527 (affirming j.n.o.v. for

harassing behavior occurring over a few

weeks) with Morgan v. Ford , 6 F.3d 750,

756 (11th Cir. 1993) (reversing summary

judgment on a constructive discharge claim

because whether working conditions are

intolerable is a question of material fact).

Nevertheless, neither plaintiff was

constructively discharged because they

failed to give USAP notice of Brown's

behavior by utilizing USAP's internal

grievance procedure, or otherwise notify

US AP. They thus deprived USAP of a chance

to remedy the situation. Tate Aff. P 9. It

is undisputed that USAP's established

grievance procedure directed victims of

supervisor harassment to call USAP's

personnel manager, yet Wilson and Jones

chose to disreg ard it. The prohibition

against Brown's alleged behavior is spelled

out on USAP's anti - harassment form. Both

plaintiffs read and signed the form just

prior to encountering Brown. Still, they

failed to complain about it until several

months after their r esignation. Tate Aff.

P 7. By depriving USAP of a reasonable

opportunity to remedy the situation,

plaintiffs neutralized their constructive

discharge claim.

Both Jones and Wilson claim that, while they

read and signed the sexual harassment form,

they di d not truly have notice of it because

the policy was not given to them or posted

in the station. Wilson doc. # 51; Jones

doc. # 74. However, neither plaintiff

claims to have ever asked for a copy of the

form. Additionally, several documents

bearing both USAP's phone number and address

and the regional manager's phone number were

posted in the station. Jones dep. at 247,

249 - 254. Rather than using this information

to contact someone at USAP, plaintiffs chose

to ignore it and instead quit and sue.

Given the pivotal importance notice plays in

supervisor sexual harassment cases, see

Ellerth , 118 S. Ct. at 2270, this Court

concludes that the instant plaintiffs

neutralized their constructive discharge

claims by not notifying their employer of

their problems with Brown. To hold

otherwise would allow a constructive -

discharge claiming employee to procedurally

bypass her employer's grievance procedure

and deprive it of the Ellerth/Faragher

affirmative defense. That would simply moot

the employer's preventive an d corrective

efforts, and gut Ellerth/Faragher 's goal of

encouraging sensible grievance procedures.

This conclusion is reinforced by pre -

Ellerth/Faragher constructive discharge

precedent. The employees in Kilgore

neutralized their constructive discharge

c laims by complaining to management but then

failing to give it a reasonable chance to

remedy the situation (they failed to return

to work following their complaints).

93 F.3d at 754; accord Garner , 807 F. 2d at

1539 (denying constructive discharge claim

wh ere employee, who quit just one day after

complaining of an adverse reassignment which

she felt was in retaliation for an EEOC

claim, failed to give the employer

sufficient time to address the matter).

Under both Kilgore and Garner, an employee

must act r easonably and give the employer an

opportunity, after utilizing a grievance

procedure, to correct the discriminatory

situation. Here neither plaintiff even

began the remedial process since neither

notified USAP's personnel manager in

accordance with USAP' s grievance procedure.

Thus, USAP never had an opportunity to

correct the situation.

Id. at 1383 - 84.

6 2 . Ms. Mathis does not specifically allege that she

suffered a tangible employment action by being constructively

discharged . However, even if it were to be assumed that she had

made that specific allegation, her sexual harassment claim must

suffer the same fate as those made by the plaintiffs in United

States Petroleum Corp. , supra . While the undersigned found that

Ms. MathisÓ proved her allegation s regarding the sexual

harassment by Mr. Ste phenson by a preponderance of the evidence ,

the case law demonstrates that Ms. Mathis cannot prevail on her

tangible employment claim because OÓReilly did not have an

opportunity to correct the situation. In oth er words, OÓReilly

cannot be held vicariously liable for Mr. Ste phenson Ós actions

because Ms. Mathis did not utilize the reporting proce dures

OÓReilly made available to her .

6 3 . A n employer can also be liable for a supervisorÓs

harassing conduct even if there was no adverse tangible

employment action . In order to sustain this second type of

sexual harassment claim , the conduct in question must be

su fficient to constructively alter an employee's working

conditions.

6 4 . However, if no tangible employme nt action occurred,

then the employer can avoid liability if it can demonstrate

that: (a) it exercised reasonable care to prevent and promptly

correct any sexually harassing behavior; and (b) the plaintiff

unreasonably failed to take advantage of any prev entative or

corrective opportunities provide d by the employer . Ellerth ,

118 S . Ct. at 2270.

6 5 . The unchallenged, documentary evidence in the instant

case demonstrates that OÓReilly had appropriate measures in place

to prevent and promptly correct any sexually harassing behavior.

H owever, Ms. Mathis failed to take advantage of the preventative

or corrective oppor tunities offered by OÓReilly.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Flo rida Commission on H uman

Relations enter a final o rder dismissing Holly MathisÓ claim for

relief.

DONE AND ENTERED this 1 3 th day of July , 2016 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law J udge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 3 th da y of July, 2016 .

ENDNOTE S

1/ All statutory references will be to the 2015 version of the

Florida Statut es unless indicated otherwise.

2 / Ms. MathisÓ testimony did not give a detailed description of

the inappropriate conduct that occurred prior to A pril of 2015.

However, that lack of detail is largely irrelevant because any

inappropriate conduct committed by Mr. Ste phenson prior to

April of 2015 was not mentioned in Ms. MathisÓ Petition for

Relief or in the Amended Joint Pre - Hearing Stipulation . As a

result, the undersigned will not consider any inappropriate

conduct committed by Mr. Ste phenson prior to April of 2015 in

evaluating whether an unlawful employment practice occurred.

See generally State Farm Fire & Cas. Co. v. Tippett , 864 So. 2d

31, 3 3 (Fla. 4 th DCA 2003)( noting that Ð[i]n determining whether

a duty to defend exists, the trial court is confined to the

allegations in the complaint. The trial court is restricted to

the allegations set forth in the complaint, regardless of what

the insur ed or others say actually happened.Ñ)(internal

citations omitted).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Robert L. Thirston, II, Esqui re

Thirston Law Firm

Post Office Box 19617

Panama City Beach, Florida 32417

(eServed)

Harold W. Wasden, Esquire

Burr Forman LLP

11 North Water Street

Mobile, Alabama 36602

(eServed)

Cheyanne Costilla, Gen eral Counsel

Florida Commission on Human Relatio ns

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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 Recomm ended Order should be filed with the agency that

will issue the Final Order in this case.