16-001909 Chris Miniard vs. North Florida Design Group, Inc. Status: Closed Recommended Order on Thursday, August 4, 2016.

Summary: Petitioner failed to establish that he was sexually harassed by his male supervisor or that he was subjected to retaliation for reporting the harassment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRIS MINIARD,

Petitioner,

vs. Case No. 16 - 1909

NORTH FLORIDA DESIGN GROUP,

INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hearing was conducted i n this case on June 8,

2016, in Jacksonville, Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Daniel J oseph Glary, Esquire

Da niel Glary, P.A.

2468 Atlantic Boulevard

Jacksonville, Florida 32207

For Respondent: Michelle Bedoya Barnett, Esquire

David E. Chauncey, Esquire

Alexander DeGance Ba rnett, P.A.

1500 Riverside Avenue

Jacksonville, Florida 32204

STATEMENT OF THE ISSUE S

W hether Respondent, North Flo rida Design Group, Inc., d/b/a

Granite Transformations of Jacksonville (ÐNorth Florida

DesignÑ) , discriminated against Petitioner , based upon his sex ,

by creating a hostile working environment and whether North

Florida Design terminated Petitioner's employ ment in retaliation

for complaining that an employee of Respondent was sexually

harassing Petitioner, in violation of section 760.10, Florida

Statutes (2015). 1/

PRELIMINARY STATEMENT

On or about June 23, 2015, Petitioner , Christopher Miniard

("Petitioner ") , filed with the Florida Commission on Human

Relations ("FCHR") an Employment Complaint of Discrimination

against North Florida Design. Petitioner alleged that he had

been discriminated against pursuant to chapter 760, Florida

Statutes, and Title VII of the Federal Civil Rights Act, based

upon race, as follows:

I was hired by North Florida Design Group as

a granite fabricator during February of

2015. I performed my job well and I was

never counseled or disciplined. My

immediate supervisor, Dave, sexual ly

harassed me while I worked there. He

frequently indicated that he wanted to

engage in sexual acts with me. He touched

me inappropriately and he sent texts to my

cell phone that included pornographic

pictures. I complained about DaveÓs conduct

to Guy Davis, the companyÓs vice - president,

but my complaints were ignored and I

continued to be sexually harassed by Dave.

I then complained to Anthony Davis, the

president and owner of the company. In

response, I was informed that my employment

was being term inated.

I believe that DaveÓs conduct was repugnant

and that his conduct rises to the level of

inappropriate behavior which constitutes

sexual harassment under FloridaÓs law. I

believe that the company became liable for

DaveÓs harassment once I made it a ware of

DaveÓs conduct and it failed to take any

remedial action. I further believe that I

was terminated in retaliation for having

complained about DaveÓs conduct, as there

was no legitimate business reason for the

termination of my employment.

I believ e that the company violated Section

760.10(1)(a) of the Florida Civil Rights

Act, in that I was discriminated against and

discharged because of my sex. I would not

have been the target of DaveÓs conduct, his

conduct would not have been tolerated, and

my e mployment would not have been terminated

in retaliation for having reported DaveÓs

conduct if I were a woman.

On January 15, 2016, Petitioner filed an Election of Rights

form with the FCHR. On the form, Petitioner selected the

following option:

More than 180 days have elapsed since I

filed my complaint of discrimination. I

wish to withdraw my complaint from the

Florida Commission on Human Relations and

file a Petition for Relief in order to

proceed with an administrative hearing. I

understand that a Pet ition for Relief form

must be completed before proceeding to the

Division of Administrative Hearings (DOAH).

The Florida Commission on Human Relations

will mail this form to me.

In a letter dated February 26, 2016, the FCHR issued its

Notice of Dismissal , indicating that Petitioner had voluntarily

withdrawn his complaint from the FCHR pursuant to Florida

Administrative Code R ules 60Y - 5.001(8) and 60Y - 5.006(9).

On March 28, 2016, Petitioner timely filed a Petition for

Relief with the FCHR. On April 4, 201 6, the FCHR referred the

case to the Division of Administrative Hearings ("DOAH"). The

case was scheduled for hearing on June 8, 2016, on which date it

was convened and completed.

At the hearing, the parties stipulated that they would

jointly employ Respo ndentÓs pre - marked exhibits. Petitioner

testified on his own behalf and entered RespondentÓs Composite

Exhibit 1 and RespondentÓs Exhibits 14 and 15 into evidence.

Respondent presented the testimony of Guy Davis, operations

manager for North Florida Desi gn; Eldon Clark, a fabricator for

North Florida Design; David Warner, head fabricator for North

Florida Design; Summer Page, office administrator for North

Florida Design; and Anthony Davis, owner of North Florida Design

and son of Guy Davis. Respondent e ntered no exhibits into

evidence. Petitioner testified in rebuttal.

The one - volume Transcript of the hearing was filed at DOAH

on July 5, 2016. Both parties timely filed their Proposed

Recommended Orders. 2/

FINDING S OF FACT

1. North Florida Design is an employer as that term is

defined in section 760.02(7), Florida Statutes. North Florida

Design is mainly in the business of fabricating and installing

granite countertops and backsplashes. Testimony at the hearing

indicated that North Florida Design a lso has an affiliated

plumbing business.

2. Petitioner, a white male, was hired by North Florida

Design in early February 2015, as a trainee fabricator and

assigned to work in the companyÓs shop in Green Cove Springs.

He was hired by operations manager Guy Davis on the

recommendation of Don Pinkston, a longtime employee of North

Florida Design. A granite fabricator cuts, polishes , and glues

together the pieces of granite countertops. At North Florida

Design, the fabricators also cut out sinks and prep ared cabinets

for installation. At the time of his hiring, Petitioner was

qualified for the position.

3. Petitioner was hired on a part - time, flexible - hour

basis and was paid $10.00 per h our. He began work on

February 10, 2015. In addition to learnin g fabrication in the

shop, Petitioner would fill in as an installer helper on an as -

needed basis.

4. Petitioner also worked on his own as a Ðscrapper,Ñ

i.e., a person who collects and recycles scrap metal.

Petitioner testified that he had operated his o wn business

called ÐScrappers - R - UsÑ for several years prior to being hired

by North Florida Design. He continued to operate the scrapping

business while working part - time for North Florida Design.

Petitioner often requested permission to leave work early or

rearrange his schedule to coincide with scrapping opportunities.

In most instances, Guy Davis accommodated PetitionerÓs requests.

5. Petitioner testified that he made from $25,000 to

$35,000 per year from his scrapping business. 3/ PetitionerÓs

incom e tended toward the low end of the range in recent years

because of a general decline in the prices for scrap metal. He

stated that he saw the job at North Florida Design , not only as

a way to supplement his scrapping income , but as a means to

learn a rea l trade.

6. PetitionerÓs immediate supervisor was the head

fabricator, Dave Warner, a ten - year employee of North Florida

Design. Guy Davis was the supervisor in charge of the entire

shop floor and his son, Anthony Davis, was the owner of the

company. Th e younger Mr. DavisÓ office was in the North Florida

Design showroom, a few miles north of the shop.

7. Mr. Warner and the other employees on the shop floor

undertook to train Petitioner in working with the equipment used

to cut and polish granite count ertops.

8. Mr. Warner testified that Petitioner displayed little

aptitude for , or interest in , learning the trade of fabrication,

but that he was eager to perform cleanup duties around the shop.

Mr. Warner stated that he would be trying to teach Petition er

some aspect of the trade, but Petitioner would Ðjust disappearÑ

to start cleaning. ÐYou would turn around and heÓd be gone and

youÓd be talking to the wind. It seemed like he only wanted to

clean.Ñ

9. Guy Davis likewise testified that PetitionerÓs tr aining

did not go well. The skills that the company looks for in a

fabricator are usually acquired in three months. North Florida

Design has a three month probationary period for new employees

to make sure they are catching on to the trade. Mr. Davis

st ated that Petitioner Ðkind of avoidedÑ the training and spent

most of his time cleaning.

10. Because the other fabricators hated cleanup duty in

the shop, PetitionerÓs preference for that job met with little

resistance. If he would rather clean than le arn to work with

granite, they were happy to indulge him. Mr. Davis stated that

Petitioner was good at cleaning. After it became clear that

Petitioner would be no help on the fabrication side, it was

tacitly acknowledged that his primary duty would be to clean the

shop.

11. Guy Davis testified that fabrication is not a

physically demanding job, but it is precision work that is very

repetitive. On the all - male shop floor, the employees often

resorted to ribald humor to break the monotony of the work.

Jo kes and obscene text messages flew back and forth among the

crew. Fabricator , Eldon Clark , testified that the employees

traded Ðshock valueÑ pictures on their cell phones, some

Ðpornographic,Ñ others Ðabsolutely grotesque.Ñ There was a

general atmosphere of lightheart ed, foulmouthed japery that

Mr. Davis referred to as Ðnormal shop stuff.Ñ Much of the

joking was Ðgay - related,Ñ according to Mr. Davis.

12. To all appearances, Petitioner was at home in this

shop floor atmosphere from day one. He had no so oner begun work

than he gave Mr. Warner a new nickname: ÐGay Dave.Ñ Mr. Warner

is married to a woman with whom he has two children. He stated

that he is most definitely not gay. He testified that he didnÓt

really like the nickname but that, in the spir it of the shop

floor, he went along with the joke and never told Petitioner to

stop using it.

13. Petitioner claimed that his coworkers told him that

Mr. Warner was known as ÐGay Dave.Ñ However, Mr. Warner

testified that no one else at the shop called him by that name.

Mr. Clark confirmed that no one else in the shop called

Mr. Warner ÐGay Dave.Ñ Mr. Clark opined that Petitioner may

have coined the nickname in an effort to fit in at the shop.

Guy Davis testified that Petitioner himself would pretend to be

gay for comic effect.

14. Petitioner was known throughout the shop for the

announcement he made every morning upon his arrival: ÐItÓs time

to suck the dayÓs dick.Ñ Both Mr. Warner and Mr. Clark noted

that Petitioner said this Ðevery single day.Ñ Petitioner

claimed to have heard the saying from a coworker, but was

himself the person known for using it.

15. Petitioner introduced the shop to a routine by the

comedian Rodney Carrington offering advice on how to call in

sick to work. When the boss sa ys, ÐYou donÓt sound sick,Ñ the

response should be, ÐWell, IÓm fucking my sister. Does that

sound sick enough for you?Ñ This became a running joke in the

shop. When someone missed work or came in late, he was liable

to be asked whether he was Ðfucking h is sister.Ñ

16. Petitioner testified that in addition to all the

sexual joking and texting, there was sexual horseplay of a

physical nature instigated by Mr. Warner. There was grabbing

and slapping of the crotch and buttocks. Mr. Warner would walk

in fr ont of someone, then abruptly stop and bend over.

Petitioner testified that he was not the only victim of this

behavior, but he was apparently the only person who interpreted

it as sexual assault. He testified that he told Mr. Warner to

stop and pushed h is hand away every time he tried to grab him.

Petitioner stated that Mr. WarnerÓs only reaction was to laugh.

17. Mr. Warner denied any sort of physical contact with

Petitioner or any other employee of North Florida Design and

stated that he was shocked and dumbfounded when he heard of

PetitionerÓs allegations. Mr. Clark testified that he never saw

Mr. Warner touch Petitioner or any other employee in the manner

described by Petitioner.

18. Guy Davis testified that there were closed circuit

cameras thro ughout the shop and that he could see what went on

in the entire shop from the monitors in his office. He stated

that he never saw Mr. Warner touch Petitioner inappropriately.

Mr. Davis conceded that he didnÓt spend all day every day

watching the monitor s, but he also pointed out that Mr. Warner

had no way of knowing when the monitors were being watched and

thus had to assume he was being observed at all times.

19. Mr. Warner testified that one day in February 2015, a

couple of weeks after Petitioner st arted at North Florida

Design, he and Petitioner were chatting about some pictures on

Mr. WarnerÓs phone. Of particular interest was a series called

ÐAss of the Day,Ñ photos of unclothed female behinds.

Petitioner asked Mr. Warner to forward the photos t o his phone.

Mr. Warner warned Petitioner that forwarding the ÐAss of the

DayÑ photo entailed receiving other less appealing text

messages, but Petitioner persisted. From that point forward,

Mr. Warner included Petitioner on his ÐforwardÑ list for text

m essages from the other people in the shop.

20. Petitioner testified, less plausibly, that Mr. Warner

started sending these text messages to him unbidden. He

speculated that Mr. Warner may have obtained his cell phone

number from the Scrappers - R - Us advert isement on the side of his

pickup truck.

21. At the hearing, five photos that Mr. Warner sent to

Petitioner were entered into evidence. Two of the photos were

sent on February 24, 2015: the aforementioned ÐAss of the Day,Ñ

and a photo of a woman defec ating. Petitioner testified that he

was not offended by either of these photos, though he thought

the defecation photo was Ðrather immature.Ñ

22. On February 25, 2015, Mr. Warner sent two more photos.

One showed what appears to be a maleÓs finger being inserted

into the rectum of a person whose sex cannot be identified from

the angle of the photo. The second photo showed two naked men

engaged in anal intercourse.

23. Petitioner testified that he was Ðnot pleasedÑ to see

the February 25 photos and that he spoke to Mr. Warner about it.

He told Mr. Warner that he did not find it funny and asked him

not to send any more such pictures.

24. On the afternoon of February 26, 2015, Mr. Warner sent

Petitioner a close - up photo of a man with his penis inserted

into his own rectum and the legend, ÐGo fuck yourself!Ñ

Petitioner testified that he interpreted this as Mr. WarnerÓs

response to his complaint about the earlier photos.

25. Mr. Warner testified that Petitioner never complained

about any image he rec eived and never told him to stop sending

them. Mr. Warner believed that Petitioner took the photos as

the jokes they were intended to be, in keeping with the general

atmosphere of the North Florida Design shop floor. Mr. WarnerÓs

testimony on this point is more credible than PetitionerÓs.

26. Petitioner testified that he received no more

offensive or possibly harassing photos from Mr. Warner after

February 26, 2015. Petitioner and Mr. Warner continued to be on

friendly terms at work, discussing such thi ngs as their use of

marijuana and their fondness for firearms.

27. Petitioner testified that this friendliness was

something of a ruse on his part, a way to smooth things over

with Mr. Warner. Petitioner st ated that he did not report

Mr. WarnerÓs actio ns to his superiors because he did not want to

make waves in the workplace.

28. On February 26, 2015, about three hours after

receiving the last photo from Mr. Warner, Petitioner sent a text

message to Mr. Warner reading, ÐDo you need any wax. my boy

just got back in town?Ñ ÐWaxÑ is a form of concentrated

marijuana smoked in a bong or a vaporizer. Petitioner was

offering to connect Mr. Warner with his own drug dealer.

Mr. Warner declined the offer in a return text, citing lack of

funds until payday.

29. Petitioner testified that his offer of a marijuana

source was the offshoot of his conversations with Mr. Warner

about using the drug. Petitioner stated that he never offered

his connection to anyone else at work. Petitioner testified

that he receiv ed no cut from his dealerÓs sales. He was merely

reaching out to Mr. Warner as a friend and offering to do him a

favor.

30. On March 4, 2015, at 3 :44 p.m., Petitioner texted

Mr. Warner, "Whant [sic] to chill for hump day at my house after

work?" To Peti tioner, ÐchillingÑ signified having drinks,

smoking pot, and watching television together. Petitioner

testified that this was a general invitation to the North

Florida Design shop crew, no t to Mr. Warner alone. At

4:13 p.m., Mr. Warner responded, "Nah, I 've been tired as shit.

I'm thinking about going home and taking a nap."

31. On the morning of March 10, 2015, Mr. Warner texted

Petitioner a picture of a gun he was trying to sell with the

caption, Ð16Ñ midlength, all magpul furniture case and cleaning

kit for $750.00 obo.Ñ That evening, Petitioner sent Mr. Warner

a photo of his ÐScrappers - R - UsÑ pickup truck loaded with scrap

metal with the caption, ÐRack city,Ñ meaning he had an

extraordinarily good day scrapping. Petitioner testified that

his only pu rpose in sending this text was to share news of his

good fortune with his friend.

32. On March 20, 2015, at 4 :07 p.m., Petitioner texted

Mr. Warner as follows: ÐU off? want to come chill?Ñ Two

minutes later, Mr. Warner responded with, ÐDamn nigga I woul d

but IÓve been home for an hour as [sic] already.Ñ Both

Petitioner and Mr. Warner are white , but for reasons neither

could articulate at the hearing , habitually addressed each other

as ÐniggaÑ or Ðnigger.Ñ

33. On March 24, 2015, at 7:23 a.m., Mr. Warn er texted

Petitioner, ÐAre you fucking your sister?Ñ This was a reference

to the Rodney Carrington comedy routine. Petitioner recalled

that this text was occasioned by his being late for work that

day. He testified that he did not find this text offensi ve or

harassing. To the contrary, he would ask Mr. Warner if he was

Ðfucking his sisterÑ in the same joking manner. Petitioner

stated that Ðit was a back and forth thing. It was not a one -

sided thing.Ñ

34. On April 13, 2015, at 9:11 a.m., Mr. Warner te xted

Petitioner a photo of old appliances and a lawn mower with the

caption, ÐI love you.Ñ Mr. Warner testified that the photo was

of some scrap metal he had salvaged from an old trailer and that

he had arranged for Petitioner to come pick it up. He stat ed

that the ÐI love youÑ was his joking way of expressing gratitude

for PetitionerÓs taking the junk off his hands. Mr. Warner

testified that nothing romantic or sexual was intended by the

statement.

35. On April 22, 2015, at 1:46 p.m., Mr. Warner texted

Petitioner, ÐThereÓs a couple hundred lbs of cast iron in the

dumpster . . . .Ñ Petitioner wa s not at work that day, and

Mr. Warner was alerting him to the opportunity to pick up some

scrap metal that the shop was discarding. Petitioner drove in

to the shop.

36. While he was at the dumpster behind the shop,

Petitioner could hear the whiz of a pellet fired from a pellet

gun. He testified that the pellet passed over his head. A

pellet gun was kept at the shop, and employees would take turns

shooting i t during breaks from work.

37. On the same day , at 2:14 p.m., Mr. Warner texted

Petitioner, ÐNext time he wonÓt miss you nigger.Ñ Two minutes

later, Petitioner responded, ÐThatÓs fuck up nigger.Ñ

38. Petitioner testified that he felt threatened by being

shot at but did not say anything to a supervisor or call the

police because he was afraid of Mr. WarnerÓs reaction.

39. Mr. Warner testified that the text was a joke. He

stated that he did not know who shot the pellet gun in

PetitionerÓs direction. I t is not plausible that Mr. Warner

knew to send the text to Petitioner but did not know who fired

the pellet gun. It is more likely that Mr. Warner knew who

fired the gun but did not wish to incriminate the culprit. 4/

40. Petitioner testified that from this point forward he

carried a concealed Glock pistol to work and tried to limit his

conversations with Mr. Warner. He could not stay away from him

altogether because Mr. Warner was his supervisor, but Petitioner

stated he did as much cleaning as possibl e because doing so made

it easier to avoid Mr. Warner.

41. On the morning of April 23, 2015, the day after the

dumpster incident, Mr. Warner texted Petitioner, ÐLand lord

didnÓt pay the light bill, no power, have a nice day . . . .Ñ

By this text, Mr. War ner was letting Petitioner know there was

no power at the shop and he did not need to report for work that

day.

42. On April 27, 2015, at 2:29 p.m., Mr. Warner texted

Petitioner a photo of a power ballast that he had asked

Petitioner to pick up at Home De pot on his way in to the shop.

This was the last text sent between Mr. Warner and Petitioner.

43. On May 2, 2015, Petitioner held a party at his home to

which he invited all the employees of North Florida Design,

including Mr. Warner. Mr. Warner did not attend the party.

Though he was invited on several occasions, Mr. Warner never

went to PetitionerÓs home. Mr. Warner never invited Petitioner

to his home.

44. On May 13, 2015, roughly at the end of his 90 - day

probationary period, Petitioner had a conve rsation with

Mr. Warner about the progress of his training and his general

job performance. Mr. Warner testified Petitioner seemed upset,

perhaps about having been denied time off on the previous day.

Petitioner approached Mr. Warner in a somewhat threat ening

manner, moving closer and closer and raising his voice louder

and louder as their conversation progressed. Mr. Warner

testified that he told Petitioner he was not doing too well on

the fabricating side but that he was very good at cleaning.

45. Pet itioner testified that Mr. Warner told him that he

was untrainable, that his performance was horrible, and that he

didnÓt know why Petitioner even bothered to come in to work.

46. Unsatisfied and upset by the conversation with Mr.

Warner, Petitioner next went to the office of Guy Davis. 5/

Mr. Davis testified that Petitioner barged in as he was speaking

with someone else and Ðstarted getting in my face.Ñ Mr. Davis

asked Petitioner to sit down and talk rationally.

47. Summer Page, North Florida DesignÓs office

administrator, shared the office with Mr. Davis and confirmed

his account of PetitionerÓs abrupt entrance and of the ensuing

conversation.

48. Petitioner sat down and began asking questions about

his job performance. Mr. Davis testified that he was Ðup frontÑ

with Petitioner, telling him that he tended to default to

cleaning the shop as opposed to doing the fabrication job for

which he had been hired. PetitionerÓs job performance was not

Ðup to snuffÑ and he Ðneeded to pick it upÑ in the fabric ation

part of his job.

49. At this point, Petitioner raised, for the first time

with anyone at North Florida Design, the subject of sexual

harassment. He told Mr. Davis that the other men in the shop,

and especially Mr. Warner, kidd ed him in a sexual man ner.

Mr. Davis testified that Petitioner said nothing about being

touched or having been shot at with the pellet gun. Petitioner

said nothing about a ÐhostileÑ work environment or feeling

threatened. Mr. Davis testified that this meeting was the first

t ime that Petitioner had ever complained to him about anything

in the shop.

50. Petitioner testified that Mr. Davis told him that he

knew about Mr. WarnerÓs propensity for sexual horseplay, and

that Petitioner needed to go back to the shop floor and Ðwork it

outÑ with Mr. Warner. This testimony is not credible.

51. As soon as Petitioner left his office, Mr. Davis began

investigating his allegations. North Florida Design is a small

company without a separate h uman relations department.

Mr. Davis conducte d his investigation based on anti - harassment

and discrimination training he had received during 24 years as a

pilot for Delta Airlines and seven years as a pilot in the

United States Air Force. This was the first time in the 12 year

history of North Flori da Design that an employee had made a

claim of harassment or discrimination.

52. Mr. Davis spoke separately with each man on the shop

floor. He took Mr. Warner aside and spoke with him at length.

The men uniformly denied that any sort of sexual harassme nt was

occurring in connection with Petitioner or anyone else.

Mr. Warner denied ever touching Petitioner, but did admit to

sending texts. The men generally told Mr. Davis that Petitioner

was a part of the joking that occurs on the shop floor.

53. Mr. Davis told the men to Ðknock it offÑ as far as

involving Petitioner in their verbal sparring. He was not going

to have anyone feel harassed or offended on the shop floor.

Whatever else the men did, they were not to direct any of their

humor at Petitione r. Mr. Warner assured him there would be no

more texting to Petitioner.

54. Mr. Davis did not know about the ÐGay DaveÑ nickname

until after he laid down the law to the shop staff. This

indication of PetitionerÓs wholehearted participation in the

shop floor merriment, coupled with the menÓs adamant denial that

Petitioner was treated any differently than anyone else on the

floor as regards to the trading of jokes and insults, led Mr.

Davis reasonably to conclude that PetitionerÓs allegation of

sexua l harassment was unfounded. All he discovered in his

investigation was banter back and forth on the shop floor that

was, in fact, often started by Petitioner.

55. Mr. Davis met with Petitioner again a few days later.

They discussed the results of Mr. Da visÓ investigation, but

Petitioner was more interested in negotiating a reduction in

work days. He wanted to work only on Mondays and Fridays in

order to spend more time on his scrapping business. Petitioner

also stated that he wished to do nothing but c lean while on the

job at North Florida Design. Mr. Davis readily agreed to this

proposal.

56. PetitionerÓs next scheduled day to work under the new

arrangement was May 22, 2015. He failed to show up. Petitioner

was needed to work outside the shop with the plumbers on May 26

and 27, 2015, and he worked both days. However, on his next

scheduled morning to work in the shop, May 29, 2015, he again

failed to show up for work.

57. Petitioner testified that he did not show up to work

in the shop because his conversation with Mr. Davis convinced

him that the situation had not changed. He did not feel safe

after being shot at.

58. On the afternoon of May 29, 2015, Petitioner appeared

at the shop to pick up his paych eck. He spoke briefly with

Mr. Davis. Mr . Davis testified, ÐI told him since I donÓt know

when heÓs going to come to work, IÓll call him when I need him.Ñ

Mr. Davis never saw or spoke to Petitioner again.

59. Ms. Page, the office administrator, was present when

Petitioner came in for his paych eck. Petitioner appeared

agitated and gave some indication that he intended to drive over

to the North Florida Design showroom to speak with Anthony

Davis. Ms. Page phoned Anthony Davis to let him know to expect

PetitionerÓs arrival.

60. Anthony Davis t estified that he could tell Petitioner

was Ðfired upÑ when he entered his office. Petitioner sat down

and inquired whether Mr. Davis was aware of the situation at the

shop. Mr. Davis had discussed the matter with his father and

was confident that the eld er Mr. Davis had done his due

diligence. He had also learned f rom the elder Mr. Davis and

Ms. Page that Petitioner had stopped showing up for work and was

in the process of being dropped from the companyÓs payroll.

61. Petitioner told Mr. Davis that he was being sexually

harassed and asked what Mr. Davi s was going to do for him.

Mr. Davis testified that this statement confirmed his suspicion

that Petitioner was attempti ng some sort of shakedown.

Mr. Davis asked what he meant by Ðdoing something for hi m.Ñ

Petitioner replied that he did not want to work in the shop

anymore. He wanted to be an installer.

62. Mr. Davis told Petitioner that it was his

understanding that Petitioner had quit his job by not showing up

for work, but that in any event Petitio ner was not capable of

performing installation work and that he would not be sending

Petitioner into the homes of his customers. Petitioner again

asked Mr. Davis what he was going to do for him. Mr. Davis

replied, ÐIÓm not going to do shit for you. 6/ Ñ

63 . Mr. Davis testified that at that point, Petitioner

exploded and said he was going to sue him for a million dollars.

Mr. Davis told Petitioner to get the hell out of his office.

Mr. Davis testified that he repeated several times his

understanding that Petitioner had quit his job. He never told

Petitioner that he was fired.

64. Petitioner testified that he never went back to work

for North Florida Design afte r his conversation with

Anthony Davis because it was an unsafe working environment.

65. Petiti oner testified that since leaving North Florida

Design, he has lived entirely on income from his scrapping

business. He has not sought other employment, nor did he apply

for unemployment compensation.

66. Petitioner offered no evidence to corroborate his

story of sexual harassment in the workplace. There was no

credible evidence that Mr. Warner ever touched him in a sexual

manner or made any proposition to Petitioner that could be

regarded as anything other than a joke.

67. Even in the absence of overt, physical sexual

activity, a workplace such as the shop floor of North Florida

Design, filled with constant sexual innuendo, obscene text

messages, and bawdy jokes, might in some cases be considered a

hostile and victimizing work environment. However, the evidence

in this case established that Petitioner swam freely and happily

in these muddy waters.

68. As often as not, Petitioner was the instigator of the

activities of which he now complains. He gave Mr. Warner the

ÐGay DaveÑ nickname. He introduced the shop to the Rodney

Carrington incest joke. He started each morning with the loud

proclamation, ÐItÓs time to suck the dayÓs dick.Ñ These were

not the actions of a victim. Even if one were to grant that

Petitioner was merely keeping up a front, he k ept it up so well

that no one in the shop could possibly have guessed that he

found all this badinage deeply offensive and sexually harassing.

6 9 . PetitionerÓs testi mony that he felt afraid of

Mr. Warner and sought to avoid him is belied by the facts th at

he continued to invite Mr. Warner to his home and to send him

friendly text messages through most of his short career at North

Florida Design. Even after someone allegedly fired a pellet gun

at him and Mr. Warner sent him a possibly threatening text ab out

not missing the next time, Petitioner invited Mr. Warner to a

party at his house.

70 . Petitioner did not raise the issue of sexual

harassment with anyone at North Florida Design until after he

received a poor job review. Guy Davis investigated the ch arges

and satisfied himself that they were baseless.

7 1 . Even after Petitioner m ade his accusations against

Mr. Warner, North Florida Design was willing to keep Petitioner

as a part - time, Monday and Friday employee performing cleanup

work. Petitioner d eclined to show up for work and was dropped

from the payroll. Guy DavisÓ statement to the effect of ÐweÓll

call you when we need youÑ could be read as a constructive

dismissal, but this statement was made only after Petitioner

failed to show up for work o n multiple occasions. Consistent

with a voluntary separation, Petitioner did not apply for

unemployment compensation. The greater weight of the evidence

is that Petitioner was not terminated but abandoned his

position.

7 2 . Petitioner offered no credible evidence that North

Florida Design discriminated against him because of his sex or

that he was subjected to a hostile workplace due to his sex in

violation of section 760.10.

7 3 . Petitioner offered no credible evidence that the

ending of his emplo yment at North Florida Design, whether by

employer termination or by voluntarily abandonment of his

position, was in retaliation for any complaint of discriminatory

employment practices that he made while an employee of North

Florida Design.

CONCLUSIONS OF LAW

7 4 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

7 5 . The Florida Civil Rights Act of 1992 (the "Florida

Civil Rights Act" or the "Act"), c hapter 760, prohibits

discrimination in the workplace.

7 6 . Section 760.10 states the following, in relevant part:

(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.

7 7 . North Florida Design is an "employer" as defined in

section 760.02(7) which provides the following:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent o f such a person.

7 8 . Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Doug las

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under section 760.10, absent

direct evidence of discrimination. 7/ See Harper v. Blockbuster

EntmÓt Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998); Paraohao v .

Bankers Club, Inc. , 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002);

Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st

DCA 1996); Fla. DepÓt of Cm ty . Aff. v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

7 9 . Under the McDonnell analysis, in emplo yment

discrimination cases, Petitioner has the burden of establishing ,

by a preponderance of evidence , a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to the employer to rebut this preliminary showi ng

by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts

the prima facie case, the burden shifts back to Petitioner to

show by a preponderance of evidence that the employer's offered

reasons for its adverse employment decision were pretextual.

See Texas DepÓt of Cm ty . Aff. v. Burdine , 450 U.S. 248, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981).

80 . In order to prove a prima facie case of unlawful

employment discrimination under chapter 7 60, Petitioner must

establish that: (1) he is a member of the protected group;

(2) he was subject to adverse employment action; (3) North

Florida Design treated similarly situated employees outside of

his protected classifications more favorably; and (4) Petitioner

was qualified to do the job and/or was performing his job at a

level that met the employerÓs legitimate expectations. See,

e.g. , Jiles v. United Parcel Serv., Inc. , 360 Fed. Appx. 61, 64

(11th Cir. 2010); Burke - Fowler v. Orange Cnty , 447 F.3d 1 319,

1323 (11th Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc. ,

330 F.3d 1313, 1316 (11th Cir. 2003); Williams v. Vitro Serv s .

Corp. , 144 F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP

Mgmt. Corp. , 40 F. Supp. 2d 1369, 1374 - 75 (S.D. Fla. 1999).

8 1 . Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

8 2 . The F indings of F act here are not sufficient to

establish a prima facie case of discrimination against

Petitioner based on his sex. No evidence supports an infe rence

that Petitioner was discriminated based upon his sex.

Petitioner offered no evidence to establish that any similarly

situated employee was treated differently by North Florida

Design. 8/ Likewise, Petitioner did not provide sufficient

evidence that he suffered an adverse employment action. The

greater weight of evidence was that Petitioner simply stopped

showing up for work.

8 3 . Even if Petitioner had provided sufficient evidence

that there was an adverse employment action, North Florida

Design pre sented plentiful evidence of legitimate, non -

discriminatory reasons for Petitioner's termination, including

failing to show up to work and failing to seriously train for

the position he was hired to fill. The fact that his employer

showed the forbearance to keep him on as a shop cleaner does not

change the fact the Petitioner completely failed to learn the

job of fabrication.

8 4 . Petitioner has also advanced a hostile environment

sexual harassment claim. Under federal case law and section

760.10, Petitio ner can establish a hostile work environment

claim by showing that: (1) he is a member of a protected group;

(2) that he was the subject of u nwelcome sexual harassment;

(3) that the harassment occur red because of his sex; and

(4) that the harassment was s ufficiently severe or pervasive to

alter the terms and conditions of his employment. Natson v.

Eckerd Corp., Inc. , 885 So. 2d 945, 947 (Fla. 4th DCA 2004).

"Additionally, 'the employee must show that the employer knew or

should have known of the harassmen t and failed to take remedial

action.'" Id ., citing Castleberry v. Edward M Chadbourne,

Inc. , 810 So. 2d 1028, 1029 - 30 (Fla. 1st DCA 2002).

8 5 . It is also well established that "[a]n employer is

subject to vicarious liability to a victimized employee fo r 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; 141 L.Ed.2d 662 (1998).

8 6 . The incidents described by P etitioner were not

sufficiently severe or so pervasive as to alter the terms and

conditions of his employment. Petitioner's testimony as to the

behavior of Mr. Warner was not credible enough to be believed in

the absence of any corroborating evidence. Th ere was no

credible evidence that Mr. Warner touched Petitioner. As to the

general sexual and scatological joking that pervaded the shop

floor, Petitioner failed to establish that this conduct was not

welcomed. In fact, the evidence shows that the allege d

harassing conduct was welcomed and very often initiated by

Petitioner himself. This conduct included PetitionerÓs giving a

disparaging nickname to his alleged harasser.

8 7 . Having failed to sufficiently establish the severe or

pervasive element or unwe lcomed conduct element of a hostile

working environment claim, Petitioner has not established a

prima facie case of hostile working environment.

8 8 . Even if Petitioner had provided sufficient evidence

that there was an adverse employment action, Petitione r did not

avail himself of North Florida Design's remedial action

following the complaint and investigation. Petitioner failed to

report any alleged sexual harassment to management prior to his

meeting with Guy Davis on or about May 14, 2015. Before that

meeting, North Florida Design was not aware of any alleged

sexual harassment. There was no evidence to establish that

North Florida Design should have known of any alleged sexual

harassment prior to that meeting. North Florida Design

investigated the al legations and instituted remedial measures of

which Petitioner failed to take advantage.

8 9 . Finally, as to PetitionerÓs retaliation claim, the

court in Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926

(Fla. 5th DCA 2009), described the elements of such a claim as

follows:

To establish a prima facie case of

retaliation under section 760.10(7), a

plaintiff must demonstrate: (1) that he or

she engaged in statutorily protected

activity; (2) that he or she suffered

adverse employment action and (3) that the

adverse employment action was causally

related to the protected activity. See

Harper v. Blockbuster EntmÓt Corp. , 139 F.3d

1385, 1388 (11th Cir.), cert. denied 525

U.S. 1000, 119 S.Ct. 509, 142 L.Ed.2d 422

(1998) . Once the plaintiff makes a prima

fa cie showing, the burden shifts and the

defendant must articulate a legitimate,

nondiscriminatory reason for the adverse

employment action. Wells v. Colorado Dep't

of Transp. , 325 F.3d 1205, 1212 (10th Cir.

2003). The plaintiff must then respond by

demons trating that defendant's asserted

reasons for the adverse action are

pretextual. Id .

90 . Petitioner failed to prove that any employment action

by North Florida Design was causally related to his claims of

sexual harassment or sex discrimination. The fa cts were

somewhat ambiguous as to whether Petitioner quit his job or was

dismissed after failing to show up for work on multiple

occasions, though the greater weight of the evidence was that

Petitioner abandoned his position. Petitioner presented

insuffic ient credible evidence that his claims of harassment or

discrimination played any role in the end of his employment.

Subsequent to his making harassment allegations to Guy Davis,

Petitioner was accommodated with the Monday and Friday cleaning

schedule tha t he requested. Mr. Davis also took steps to ensure

that Petitioner would no longer be subjected to any joking on

the shop floor.

9 1 . Guy DavisÓ subsequent statement that he would call

Petitioner when he needed him could be construed as a

constructive dismissal, but this statement was related to

PetitionerÓs failure to show up for work, not to PetitionerÓs

harassment allegations. North Florida Design dropped Petitioner

from the payroll after he failed to show up for work at least

twice.

9 2 . Even i f Petitioner had demonstrated that there clearly

was an adverse employment action, North Florida Design presented

sufficient evidence of legitimate, non - discriminatory reasons

for Petitioner's termination. Petitioner repeatedly failed to

show up for work. He showed no interest in learning the

rudiments of the job for which he had been hired. He demanded

that Anthony Davis send him out as an installer, a job for which

he was entirely unqualified. Petitioner also failed to remain

on the job long enough to see whether the remedial actions

ordered by Guy Davis would end his alleged harassment. Even if

North Florida Design did terminate PetitionerÓs employment, the

termination was not in retaliation for PetitionerÓs allegations

of discrimination and harassme nt.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that North Florida Design Group,

Inc. , did not commit any unlawful employment p ractices and

dismissing the Petition for Relief filed in this case.

DONE AND ENTERED this 4th day of August , 2016 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Admin istrative 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 4th day of August , 2016 .

EN DNOTE S

1/ Citations shall be to Florida Statutes (2015) unless

otherwise specified. Section 760.10 has been unchanged since

1992, save for a 2015 amendment adding pregnancy to the list of

classifications protected from discriminatory employment

practice s. Ch. 2015 - 68, § 6, Laws of Fla.

2/ RespondentÓs Proposed Recommended Order was stamped as

received by DOAH on Friday, July 15, 2016, at 4:55 p.m.

PetitionerÓs Proposed Recommen ded Order was submitted on

July 15, 2016, but not in time to be stamped as received until

Monday, July 18, 2016 at 8:00 a.m. Respondent has not objected

and the undersigned has treated PetitionerÓs Proposed

Recommended Order as timely filed.

3/ Petitioner freely admitted that ÐScrappers - R - UsÑ is not

registered with the Divisio n of Corporations and that he pays no

taxes on the (largely cash) proceeds of the business. This

admission has no direct bearing on the issues raised by

Petitioner, but does carry some negative implication as regards

to his character and honesty.

4/ The record does not establish whether the person shooting the

pellet gun was aiming to hit Petitioner and missed or, as seems

more likely given the joking atmosphere of the shop floor,

purposely shot over his head to give him a scare and provide a

laugh for t he group.

5/ The record is unclear whether this meeting occurred on the

same day as PetitionerÓs discussion with Mr. Warner, or on the

next day, May 14, 2015.

6/ Mr. Davis testified that he told Petitioner, ÐIÓm not going

to do anything for you.Ñ In t he context of the conversation,

PetitionerÓs version is more plausible than Mr. DavisÓ sanitized

self - quotation.

7/ Ð Direct evidence is Òevidence, which if believed, proves

existence of fact in issue without inference or presumption.Ó"

Rollins v. TechSo uth, Inc. , 833 F.2d 1525, 1528 n.6 (11th Cir.

1987) ( quoting BlackÓs Law Dictionary 413 (5th ed. 1979)). In

Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), the

court stated:

This Court has held that not every comment

concerning a person's age presents direct

evidence of discrimination. [ Young v. Gen.

Foods Corp. 840 F.2d 825, 829 (11th Cir.

Young Court made clear that

remarks merely referring to characteristics

associated with increasing age, or facially

neutral comments from which a plaintiff has

inferred discriminatory intent, are not

directly probative of discrimination. Id .

Rather, courts have found only the most

blatant remarks, whose intent could be

nothing other than to discriminate on the

basis of age, to constitute d irect evidence

of discrimination.

Petitioner offered no evidence that would satisfy the

stringent standard of direct evidence of discrimination.

8/ As to the question of disparate treatment, the applicable

standard was set forth in Maniccia v. Brown , 17 1 F.3d 1364,

1368 - 1369 (11th Cir. 1999):

"In determining whether employees are

similarly situated for purposes of

establishing a prima facie case, it is

necessary to consider whether the employees

are involved in or accused of the same

or similar conduct and are disciplined in

different ways." Jones v. Bessemer Carraway

Med. Ctr. , 137 F.3d 1306, 1311 (11th

Cir.), opinion modified by 151 F.3d 1321

(1998) ( quoting Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997)). "The most

important factors in the disciplinary

context are the nature of the offenses

committed and the nature of the punishments

imposed." Id . (internal quotations and

citations omitted). We require that the

quantity and quality of the comparator's

misconduct be nearly identical to prev ent

courts from second - guessing employers'

reasonable decisions and confusing apples

with oranges. See Dartmouth Review

v. Dartmouth College , 889 F.2d 13, 19 (1st

Cir.1989) ("Exact correlation is neither

likely nor necessary, but the cases must be

fair co ngeners. In other words, apples

should be compared to apples."). (Emphasis

added.)

The Eleventh Circuit has questioned the "nearly identical"

standard enunciated in Maniccia , but has in recent years

reaffirmed its adherence to it. See , e.g., Brown v. Jacobs

EngÓg, Inc. , 572 Fed. Appx. 750, 751 (11th Cir. 2014); Escarra

v. Regions Bank , 353 Fed. Appx. 401, 404 (11th Cir. 2009);

Burke - Fowler , 447 F.3d at 1323 n.2.

In any event, Petitioner in the instant case failed to

provide any evidence at all to es tablish disparate treatment.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Daniel Joseph Glary, Esquire

Daniel Glary, P.A.

2468 Atlantic Boulev ard

Jacksonville, Florida 32207

(eServed)

David E. Chauncey, Esquire

Alexander DeGance Barnett

1500 Riverside Avenue

Jacksonville, Florida 32204

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Roo m 110

Tallahassee, Florida 32399

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 age ncy that

will issue the Final Order in this case.