17-003201 Iieene C. Mcdonald vs. Bottling Group, Llc Status: Closed Recommended Order on Friday, November 17, 2017.

Summary: Petitioner did not prove, by a preponderance of the evidence, that Respondent is liable under section 760.10 for employment discrimination on the basis of sex under a hostile work environment theory, or for constructive discharge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ILEENE C. MCDONALD ,

Petitioner,

vs. Case No. 1 7 - 3201

BOTTLING GROUP, LLC ,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes, 1/ before

Cathy M. Sellers, an Administrative Law Judge ( " ALJ " ) of the

Division of Administrative Hearings ( " DOAH " ), by video

teleconference on August 28, 2 017 , at sites in West Palm Beach

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Ileene C. McDonald, pro se

1172 The Pointe Drive

West Palm Beach, Florida 33409

For Respondent: Bonnie Mayfield , Esquire

Dykema Gossett, P.L.L.C.

39577 Woodward Avenue , Suite 300

Bloomfield Hills, Michigan 48304

STATEMENT OF THE ISSUE S

The issue in this case is whether Respondent engaged in an

unlawful ly discriminatory employment practice against Petitioner

on the basis of sex , in violation of the Florida Civil Rights Act

of 1992 ( " FCRA " ) , section 760.10, Florida Statutes ; and , if so,

the remedy to which Petitioner is entitled .

PRELIMINARY STATEMENT

In September 2016, Petitioner filed an Employment Charge of

Discrimination with the Florida Commission on Human Relations

( " FCHR " ), alleging that Respondent, Bottling Group, LLC, engaged

in unlawful employment discrimination against her on the basis of

her sex. On or about April 26, 2017 , FCHR issued a " No

Reasona ble Cause Determination."

On or about May 31, 2017, Petitioner timely filed a Petition

for Relief from a Discriminatory Employment Practice ( " Petition " )

with FCHR, alleg ing that Respondent discriminated against her

with respect to the terms, conditions, and privileges of

employment on the basis of her sex, in violation of section

760.10(1)(a ). Specifically, Petitioner alleged that she had been

sexually harassed by male employees of Respondent with whom she

worked, causing her to fear fo r her safety, and that Respondent

did not take any action to prevent the harassing conduct , so that

she was effectively forced to leave her employment position at

Respondent's facility.

FCHR referred the matter to DOAH for assignment of an ALJ to

conduc t a de novo hearing pursuant to s ections 120.569 and

120.57(1). The final hearing initially was set for July 18 and

19, 2017, but pursuant to Respondent's motion, was continued and

res cheduled for August 21 and 22, 2017 . Thereafter, upon request

of the A LJ and by agreement of the parties, the final hearing was

continued to August 28 and 29, 2017.

The final hearing was held on August 28, 2017. Petitioner

testified on her own behalf, and Petitioner's Exhibit 5 2/ was

admitted into evidence without objection. Respondent presented

the testimony of Jacer Collins, Armando Velez, and Reggie

Tribble. Respondent's Exhibits 1 through 6, 8 through 11, 13 ,

and 14 3/ were admitted without objection. Respondent's Exhibit 12

was admitted into evidence over objection.

The one - volum e Transcript was filed with DOAH on September

25, 2017, and the parties were given until October 5 , 2017 , to

file their proposed recommended orders. Respondent timely filed

its Proposed Recommen ded Order on October 4 , 2017. Petitioner

filed her P roposed R ecommended O rder on October 6, 2017 . Both

proposed recommended orders were duly considered in preparing

this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner, Ileene C. McDonald, is a female, and , thus,

is a member of a class protected under the FCRA.

2 . At the time of the alleged discriminatory conduct that

gave rise to this proceeding , Petitioner was employed by Kelly

Services ( " Kelly " ) as a temporary employee and was assigned to

work at Respondent's facility located in Riviera Beach, Florida.

3 . Respondent is a limited liability company registered to

do business in Florida. It owns and operates a beverage bottling

facility in Riviera Beach, Florida. It is owne d by Pepsi Co, Inc.

("PepsiCo").

4. R espondent is an " employer, " as that term is defined in

section 760.02(7). 4/

II. Evidence Adduced at Hearing

5 . As noted above, Petitioner was employed by Kelly as a

temporary worker.

6 . Pursuant to a national contract between Respondent and

Kelly, Petitioner began working at Respondent's facility as a

temporary worker in early to mid - May 201 6 . 5 / She was assigned to

work in a warehouse , sorting and preparing cardboard sheets for

use and reuse in Respondent's pr ocesses. Her work hours were

from 7:00 a.m. to 4:00 p.m., Monday through Friday.

7 . Petitioner credibly testified that as soon as she

started working at Respondent's facility, she was constantly

subjected to verbal and physical harassment of a sexual na ture

from one of Respondent's hourly - paid employees, Brandon Owens.

8 . The credible evidence establishes that on an essentially

daily basis, Owens made suggestive and overt comment s of a sexual

nature to Petitioner . These includ ed remarks about her " nice

small frame " and , among other things, suggestions that they

" spend time together " and engage in acts involving " whipped

cream, strawberries, and chocolate sauce. " Additionally, o n one

occasion, Owens grabbed Petitioner's arm and told her " you need a

real man."

9 . These actions by Owens made Petitioner uncomfortable,

nervous, and frightened for her personal safety. Petitioner

credibly testified that she repeatedly verbally rebuffed Owens'

advances and that on the occasion w he n he grab bed her arm, she

hit him and told him if he didn't leave her alone , she was going

to hurt him.

10 . Petitioner testified, credibly, that some of

Respondent's wor kers observe d Owen s talking to Petitioner on

numerous occasions . Petitioner identified these workers as

" Eugene Johnson " and " Willie Tate ." She testified, credibly,

that she told Johnson and Tate about being harassed and bothered

by Owens. She testified that they told her to contact " Reggie , "

and that she had tried to do so, but was unable to reach him.

The evidence does not establish how many times Petitioner

attempted to reach him.

1 1 . Although Petitioner thought Johnson was a supervisor

at Respondent's facility , t he evidence establish es that neither

Johnson nor Tate was in a supervisory or management pos ition at

Respondent's facility . As such, neither was under any

employment - imposed duty to report Owens' conduct to Respondent's

management.

1 2 . The evidence establishes that the "Re ggie" whom

Petitioner had attempted to contact was Reggie Tribble, a

warehouse supervisor for Respondent's first shift at its Riviera

Beach facilityibble was Petitioner's direct supervisor.

However, t he credible evidence establishes that Petitioner d id

not contact Tribble , and that he did not observe , was not

informed of, and did not otherwise know about Owens' conduct

toward Petitioner.

1 3 . Petitioner testified that another employee, Robert Gary

Walker, frequently saw Owens near her at work. S he testified:

He [Walker] noticed that he was constantly

over by me . And he asked, ' is he bothering

you, ' and he was looking at me and he turned

his head. I started shaking my head ' yes '

and he left . And a little while after that,

Gary cam e back and he said ÏÏ ' Gary tried to

get me in trouble, but Reggie didn't do

anything. ' I don't know what was said after

they went over that way, but that's what

Brandon told me when he came back. I don't

know if it was true or not, but that's what

Brandon told m e. [ 6 / ]

1 4 . Petitioner testified that based on this discussion with

Walker, she thought he would report Owens' behavior to the

appropriate authority at Respondent's facility.

1 5 . The evidence establishes that Walker was a supervisor

on Petitioner's shift . 7 /

1 6 . Petitioner also credibly testified that while she

worked at Respondent's facility, other male workers who drove

forklift trucks often would come around to where she was working

to talk to her, and that some had asked for her telephone numbe r

and had asked her out on dates. She credibly testified that she

consistently rebuffed their advances.

1 7 . On or about the morning of June 17, 2016, as Petitioner

arrived at work, Owens drove a semi - trailer truck in front of

her, cutting her off as she approached the warehouse in which she

worked. This badly frightened h er.

1 8 . Petitioner credibly testified that as a result of

Owens' action in cutting her off by driving a truck in front of

her, she was afraid for her personal safety, and that as result,

she left Respondent's facility and did not return.

1 9 . Petitioner's last day of work at Respondent's facility

was June 17, 2016.

20 . On June 20, 2016, Petitioner reported Owens' behavior

to Christie Finnerty, her supervisor at Kelly. T his was the

first time Petitioner had reported Owens' conduct to Kelly. She

also testified that she "may" have verbally reported to Finnerty

at that time that a man on a forklift truck came over to talk to

her while she was working at Respondent's facility .

2 1 . Finnerty completed a Harassment Complainant Interview

("Harassment Form") memorializing Petitioner's statements

regarding the alleged harassment. Attached to the form were four

han dwritten pages prepared by Petitioner , de scribing Owens'

conduct toward her . Petitioner signed the form and handwritten

pages.

2 2 . On cross - examination, Petitioner acknowledged that she

did not report Owens' behavior or that of Respondent's other male

employees who had talked to her, asked her out , or asked for her

phone number, to Respondent's management .

2 3 . T he competent, credible evidence establishes that on

one occasion, in response to a question from Walker, she

confirmed that Owens was "bothering" her. However, t here is no

evidence showing that Petitioner specifically told Walker that

Owens had made physical and verbal advances of a sexual nature

toward her , and t h ere is no evidence showing that Wal ker was

otherwise aware of the se xual nature of Owens' conduct toward

Petitioner.

2 4 . Petitioner testified that the incident in which Owens

drove a truck in front of her "rattled her nerves a little bit,"

affected her sleep and appetite, and bothered her "a lot," but

that she can "g et over it." 8 /

2 5 . On June 21, 2016, Finnerty contacted Respondent's

production supervisor , Norman Medina, by electronic mail

(" e - mail " ) to inform Respondent of Petitioner's harassment

complaint that was filed with Kelly on June 20, 2016. Attached

to the e - mail were the Harassment Fo rm and a video depicting an

individual identified as Brandon Owens.

2 6 . Medina immediately notified Respondent's Riviera Beach

plant director, Armando V e lez , of Petitioner's harassment

complaint . By e - mail sent on J une 21, 2016, V e lez notified Jacer

Collins, Respondent's senior human resources manager for the

south and southwest Florida markets, of Petitioner's complaint.

Collins was at Respondent's Miami l ocation when she was informed

of Petitioner's complaint.

2 7 . On June 22, 2016, Finnerty forwarded to Collins and

V e lez a copy of the video showing Brandon Owens talking to

Petitioner . Also attached to the e - mail was a photograph that

appeared to be a still shot of Owens taken from the video.

2 8 . The video , t aken by Petitioner and depicting her

vantage point, shows Owens approaching Petitioner in the

warehouse where she was working . Owens and Petitioner are the

only individuals that appeared in the video. Owens followed

Petitioner and stood i n close proximit y to her as the video was

recorded. Parts of t he conversation between Petitioner and Owens

are unintelligible due to the background noise of the vacuum

Petitioner was using . However, Petitioner can be heard telling

Owens "I can't stand you," Owens asking why, and Petitioner

responding "you know why" and admonishing Owens for grabbing her.

Owens responded that he was just playing with Petitioner,

apologized, and said he would not come over to talk to her

anymore. The evidence does not definitively establ ish the date

on which the video was taken.

29 . PepsiCo has adopted a global equal employment

opportunity policy that applies to, and is enforced by,

Respondent in the operation of its Riviera Beach facility. A mong

other things, this policy prohibits di scrimination on the basis

of sex.

30 . Additionally, PepsiCo has adopted a global anti -

harassment policy , also applicable to and enforced by Respondent,

that prohibits any type of harassment or discrimination based on

race, color, religion, sex, sexual orientation, gender identity,

age, national origin, disability, veteran status or any other

category protected by law . T he policy states in pertinent part :

Sexual Harassment

According to PepsiCo policy, sexual

harassment is any verbal, visual or physical

conduct of a sexual nature that is unwanted

and that a reasonable person, on account of

his or her gender, would find offensive.

* * *

Sexual harassment includes unwelcome sexual

advanc es; requests for sexual favors; and

other verbal or physical contact of a sexual

nature when:

* * *

Such conduct has the purpose or effect of

unreasonably interfering with an individual's

work performance or creating an intimidating,

hostile or offensive working environment.

Sexual harassment can occur in many different

forms. It can be physical, verbal, visual or

in a written form. Examples of sexual

harassment include but are not limite d to:

unnecessary and unwelcome touching; unwelcome

sex ual flirtation; direct or subtle pressure

for sexual activity; coercion to date or

unwelcome demands for dates; unwelcome or

offensive sexual jokes, innuendo, lewd

language or obscenities; explicit or

degrading remarks about another person or

his/her appea rance or body; e - mails, posters,

graffiti, calendars or other sexually

suggestive pictures or objects displayed in

the work place; demands for sexual favors

accompanied by implied or overt threats

concerning pay or other aspects of

employment; the taking o f or refusal to take

any personnel action based on an employee's

submission to or refusal to submit to sexual

overtures or behavior.

* * *

Reporting Procedure

If you are being subjected to conduct that

you believe violates this policy, you sho uld:

Step 1: Tell or notify the offending person

that such conduct is not welcome and to stop.

Step 2: In addition to Step 1, immediately

report the incident or your complaints to

your supervisor. However, if you believe it

would be inappropriate to d iscuss the matter

with your supervisor or you are uncomfortable

discussing the matter with your supervisor,

report the matter to your Human Resources

Representative.

You may also contact the PepsiCo Speak Up

Line. In the U.S., call 1 - 866 - 729 - 4888

. . . . You may file a complaint via the

Speak Up Webline by visiting

https://speakup.eawebline.com [.]

Step 3: If additional incidents occur, you

should immediately report them to the above

individuals.

Any reported incident will b e investigated by

the Comp any. Complaints and actions taken to

resolve complaints of harassment or

discrimination will be handled as

confidentially as possible. Retaliation

against an employee who makes a claim of

harassment or discrimination is prohibited.

Violation of this p olicy, including

retaliation against a person who brings a

claim and/or who participates in an

investigation pursuant to this policy, may

result in discipline up to and including

termination on the first offense. Further,

any manager/supervisor who receiv es a

complaint of harassment, discrimination or

retaliation and fails to notify Human

Resources will also be subject to

disciplinary action, up to and including

termination of employment.

3 1 . As soon as Respondent was informed of Petitione r's

complaint , it initiated an investigation of the matter .

Specifically, o n June 23, 2016 , Collins interviewed employees ,

including Johnson and Owens, at the Riviera Beach facility .

Owens was not scheduled to work on June 21 or 22, so June 23 was

his first day availa ble to be interviewed.

3 2 . Owens denied having spoken to Petitioner and denied all

of her allegations regarding his conduct toward her .

3 3 . Respondent suspended Owens from his employment on

June 23, 2016 . Owens was escorted from Respondent's facili ty

that day and not allowed to return pending completion of the

investigation into Petitioners' complaint.

3 4 . Respondent's investigation confirmed that Owens had

engaged in the conduct that Petitioner had alleged.

Specifically, the video that Petition er provided, as well Owens'

inconsistent answers to questions Collins asked him based on the

information provided by Petitioner in the Harassment Form,

established that Owens had engaged in the sexually harassing

conduct that Petitioner had alleged in the Harassment Form. T his

conduct violated Respondent's Global Anti - Harassment Policy.

3 5 . On July 12, 2016, Responden t terminated Owens'

employment. 9 /

3 6 . As part of its investigation into Petitioner's

complaint, Respondent also attempte d to identify the forklift

drivers, including a "Hispanic male" driver to which Petitioner

had referred in the handwritten pages attached to the Harassment

Form. However, due to the non - specific description provided in

the Harassment Form, Respondent was unable to identify the

forklift drivers, including the "Hispanic male" driver, who

Petitioner claimed made unwelcome advances toward her . 10 /

3 7 . It is undisputed that while she was employed at

Respondent's Riviera Beach facility, Petitioner did not repo rt to

Respondent's management or to her supervisors that forklift

drivers had engaged in unwelcome advances toward her.

Additionally, i n the handwritten pages attached to the Harassment

Form, Petitioner acknowledged that the "Hispanic male" forklift

driver had approached her only once and that at the time, she

" did n't think it was something to report."

3 8 . The credible evidence establishes that once Respondent

concluded its investigation , verified Peti tioner's allegations

regarding Owens' conduct, and terminated Owens, Respondent

contacted Finnerty at Kelly Services to let her know that

Petitioner was welcome to return to her temporary position at

Respondent's facility. Petitioner declined to do so.

I II. Findings of Ultimate Fact

39. As discussed in greater detail below, the credible,

persuasive evidence establishes that while she was employed at

Respondent's Riviera Beach facility, Petitioner suffered severe,

pervasive harassment as a result of Owe ns' frequent verbal and

physical advances of a sexual nature toward her.

40. However, the competent, persuasive evidence does not

establish that Respondent received, during Petitioner's

employment at Respondent's facility, either constructive or

actual notice of the sexual nature of Owens' conduct toward

Petitioner . The evidence shows t hat Petitioner indicated, by

nodding her head in response to a question from Walker, that

Owens was "bothering" her. However, t here is no competent,

credible evidence i n the record showing that Petitioner

specifically informed Walker of the sexual nature of Owens'

conduct toward her, or that Walker otherwise had knowledge of

such conduct. Thus, a t most, the evidence shows only that Walker

was informed that Owens was "bo thering" Petitioner. Further,

t here is no competent evidence establishing that any other

supervisors or managers of Respondent's Riviera Beach facility

were aware , or should have been aware , of the sexual nature of

Owens' conduct toward Petitioner.

41. The evidence shows that Respondent only received notice

of Owens' sexual conduct toward Petitioner when she complained to

Kelly after she had left her employment with Respondent, and

Kelly then forwarded that complaint to Respondent.

4 2 . The credibl e, persuasive evidence further establishes

that as soon as Respondent received notice of Owens' conduct, it

immediately initiated an investigation and interview ed persons

identified by Petitioner as witnesses, including Johnson and

Owens.

4 3 . As a resu lt of Respondent's investigation, Owens was

suspended from employment on the day he was interviewed, and was

terminated from employment once Respondent completed its

investigation ÏÏ approximately 21 days after Respondent received

notice of Owens' harassing behavior toward Petitioner.

4 4 . Additionally, the evidence shows that Respondent

diligently attempt ed to identify and investigate the forklift

drivers who were mentioned in the Harassment Form and

accompanying pages, but due to the non - specific description

provided therein , were unable to do so. 11 /

4 5 . Finally, the credible, persuasive evidence establishes

that once Owens was discharged, Respondent contacted Kelly to let

them know that Owens was no longer employed at the Riviera Beach

facility , and that Petitioner was welcome to return to her

previous position . N otwithstanding that Owens no longer worked

there , Petitioner refused to return.

CONCLUSIONS OF LAW

4 6 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceed ing. § § 120.569, 120.57(1), Fla. Stat.

4 7 . The FCRA is codified at sections 760.01 through 760.11,

Florida Statutes .

4 8 . Section 760.1 0 (1) (a) makes it an unlawful employment

practice to : " discharge or 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, pregnancy, national origin, age, handicap, or marital

status. "

4 9 . As discussed above, Respondent is an "employer" as that

term is defined in section 760.02( 7). 12 /

50 . In cases involving claims of unlawful employment

discrimination, the burden of proof is on the complainant ÏÏ here,

Petitioner ÏÏ to establish, by a preponde rance , or "greater

weight," of the evidence, the occurrence of the a lleged unlawful

discrimination. EEOC v. Joe's Stone Crabs, Inc. , 296 F.3d 1265,

1273 (11th Cir. 2002 ); St. Louis v. Fla. Int'l Univ. , 60 So. 3d

455, 458 - 59 (Fla. 3d DCA 2011).

5 1 . The FCRA is modeled after Title VII of the Civil Rights

Act of 1964, the principle federal anti - discrimination statute.

Accordingly, case law interpreting Title VII is applicable to

proceedings under the FCRA. Valenzuela v. GlobeGround N. Am.,

LLC , 18 So. 3d 17, 21 (Fla . 3d DCA 2009); Brand v. Fla. Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994) (when a Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as placed on

its federal pro totype).

5 2 . Discrimination can be established through direct or

circumstantial evidence. U. S. Postal Serv. Bd. of Gov.' s v.

Aikens , 460 U.S. 711, 714 (1983); Schoenfeld v. Babbitt , 168 F.3d

1257, 1266 (11th Cir. 1999). Direct evidence of discriminat ion

is evidence that, if believed, establishes the existence of

discriminatory intent behind an employment decision without

resort to inference or presumption. Wilson v. B/E Aero., Inc. ,

376 F.3d 1079, 1086 (11th Cir. 2004); Maynard v. Bd. of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003).

Sexual Harassment

5 3 . Neither Title VII nor the FCRA expressly mention sexual

harassment. However , courts have recognized that the phrase

"terms, conditions, or privileges of employment" evinces an

intent to strike at the entire spectrum 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 Sy s . , Inc. , 510 U.S. 17 (1993).

5 4 . Petitioner alleges that based on her gender, she was

subjected to unwelcome sexual advances from male employees at

Respondent's Riviera Beach facility. In particular, Petitioner

alleges that she was subjected to sexual comments and harassing

and physically intimidating conduct b y Owens, a male employee at

Respondent's facility. 13/

5 5 . Petitioner may seek to prove unlawful sexual harassment

under two theories. Under the first theory, Petitioner must

prove that the harassment culminated in a "tangible employment

action" take n against her by superiors acting under color of

their authority. In such situations, the injury is an employment

action which could not have been inflicted without the "agency"

relation. Alternatively, u nder a "hostile work envir onment"

theory, Petition er must prove that she suffered "severe or

pervasive conduct" which affected the terms and conditions of her

employment . Under the hostile work environment theory, it is

unnecessary to show a tangible employment action. Meritor Sav.

Bank, FSB v. Vinson , 477 U.S. 57 (U.S. 1986).

5 6 . Here, Petitioner does not allege that Respondent took

any tangible adverse employment action taken against her .

Therefore, Petitioner is pursuing a hostile work place environment

claim in this proceeding .

Hostile Work Environment

5 7 . " Hostile work environment" sexual harassment occurs

when the conduct of an employer or an employer's agent, such as a

co - worker, "has the purpose or effect of unreasonably interfering

with an individual's work performance or creating an

intimidating, hostile, or offensive environment." Steele v.

Offshore Shipbuilding, Inc. , 867 F.2d 1311, 1315 (11th Cir.

1989).

5 8 . Here, Petitioner does not allege that the hostile work

environment was created by sexual harassment from her

supervisor s , for which the employer might be vicariously liable.

Rather, Petitioner alleges and has presented evidence showing

that the harassment she suffered was perpetrated by co - workers ÏÏ

specifically , by Owens , an employee of Respondent .

5 9 . A part y claiming a hostile work environment based on

sexual harassment by co - workers must prove five elements. These

elements are: 1) t he employee belongs to a protected group;

2) the employee has been subjected to unwelcome sexual

harassment, such as sexual advances, or other conduct of a sexual

nature; 3) the harassment was based on the sex of the employee;

4) the harassment was sufficiently severe or pervasive to alter

the terms and conditions of Petitioner's employment and create a

discriminatorily abusiv e working environment; and 5) there is a

basis for holding the employer liable. Watson v. Blue Circle,

Inc. , 324 F.3d 1252 , 1257 (11th Cir. 2003); Miller v. Kenworth,

Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002); Breda v. Wolf Camera

& Video , 222 F.3d 886 ( 11th Cir. 2000); Maldonado v. Publix

Supermarkets , 939 So. 2d 293 - 94 (Fla. 4th DCA 2006) ; Speedway

SuperAmerica, LLC v. Dupont , 933 So. 2d 75, 80 (Fla. 5 th DCA

2006).

60 . An employee may prevail on a hostile environment claim

only if "the workplace is p ermeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe

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

and create an abusive working environment." Harris , 510 U.S.

at 21. See Rojas v. Fla . , 285 F.3d 1339, 1344 (11th Cir. 2002).

In evaluating the workplace, the conduct that occurred must be

considered as a whole under all of the circumstances. Reeves v.

C.H. Robinson Worldwide, Inc. , 525 F.3d 1139, 1146 (11th Cir.

2008)(courts should consider the severity of all circumstances

taken together); Olson v. Lowes's Home Ctrs . , Inc. , 130 Fed.

Appx. 380 (11th Cir. 2005)(courts should examine conduct in

context and determine severity and perv asiveness under the

totality of the circumstances).

61 . Turning to this case, Petitioner is a woman and , thus,

belong s to a protected group. Additionally, t he evidence clearly

demonstrate s that Petitioner was subjected to unwelcome ,

harassing physical a nd verbal advances of a sexual nature by

Respondent's employee, Owens . Sexual behavior directed at women

gives rise to the legal inference that the harassment is based on

their sex. Robinson v. Jacksonville Shipyards , 760 F. Supp.

1486, 1522 (M.D. Fla. 1991); see Henson v. City of Dundee , 682

F.2d 897, 904 (11th Cir. 1982). Accordingly, the first three

elements of a "hostile work environment" are met .

6 2 . The next question is whether the harassment was so

severe o r pervasive that it altered the interpersonal climate of

the workplace, creating an objectively abusive and hostile

atmosphere. Gupta v. Fla. Bd. of Regents , 212 F.3d 571, 582

(11th Cir. 2000).

6 3 . T o be actionable, a sexually objectionable environmen t

must be both objectively and subjectively offensive. Conduct

that is not severe or pervasive enough to create an objectively

hostile or abusive work environment is not actionable under the

FCRA or Title VII. Likewise, if the victim does not subjectively

perceive the environment to be hostile or abusive, the conduct

has not actually altered the conditions of the victim's

employment, and there is no violation. Harris , 510 U.S. at

21 - 22; Bryant v. Jones , 575 F. 3d 1281, 1297 (11th. Cir. 2009).

6 4 . Case law establishes a non - exclusive list of factors to

be considered when determining whether discrimination in a work

environment is "severe or pervasive . " These include the

frequency of the discriminatory conduct ; its severity; whether it

is physically threatening or humiliating , or is a mere offensive

utterance ; and whether or not the discriminatory conduct

i nterfere s with the employee's ability to do his or her job .

Allen v. Tyson Foods, Inc. , 121 F.3d 642, 647 (11th Cir. 1997) .

6 5 . The "severity or pervasiveness" factor contains both a

subjective and an objective component . To be actionable as

" severe or pervasive, " the harassment must result in both an

environment that a reasonable person would find host ile or

abusive and an environment that the victim herself subjectively

perceives to be abusive. Miller , 277 F.3d at 1276 .

6 6 . Here, Petitioner proved that she was frequently

subjected to unwelcome verbal and physical sexual advances by

Owens during the term of her employment at Respondent's Riviera

Beach facility. According to her credible, unrebutted testimony,

Owens very frequently came over to where she worked to talk to

her ; often suggested that he and Petitioner engage in sex acts ,

including acts involving whipped cream, s trawberries, and

chocolate ; and physically accosted her. Petitioner credibly

testified that she constantly rebuffed Owens' advances, but that

he continued to harass her. Finally, one day Owens drove a truck

in f ront of Petitioner , cutting her off as she walked to the

warehouse where she worked. This badly frightened her , and out

of fear for her personal safety, she left Respondent's facility

that day and did not return .

6 7 . This evidence establishes that Pet itioner suffered

frequent and severe verbal and physical harassment of a sexual

nature by Owens . Petitioner herself perceive d Owens' conduct as

hostile and abusive . Additionally, a reasonable person similarly

would find such conduct sufficiently harassing to create an

abusive and hostile workplace .

6 8 . Further , the evidence establishes that Owens' conduct ÏÏ

particularly in grabbing Petitioner's arm and driving a semi

trailer - truck in front of her ÏÏ badly frightened her, thus

interfer ing with her ability to perform her job , to the point

that she felt compelled to leave her position at Respondent's

facility in order to protect her personal safety.

6 9 . It is likewise concluded that Owens' conduct was so

severely intimidating that it w ould interfere with a reasonable

employee's ability to perform her job.

70 . In sum, Petitioner presented evidence that, considered

in context and as a whole, show s that Owens' conduct was

sufficiently severe and pervasive that Petitioner's work

environment was permeated with discriminatory intimidation and

insult that alter ed the conditions of her employment and create d

an abusive working environment. Accordingly, it is determined

that the fourth element of a " h ostile work environment" is m et.

7 1 . An e mployer may be held liable for sexual harassment by

a co - worker of the victim when the employer knew or should have

known of the co - worker's harassing behavior and failed to take

prompt and appropriate remedial action. Watson , 324 F.3d at

1259 ; Breda , 222 F.3d at 88 9 .

7 2 . A complainant may show that the employer had knowledge

of the harassment either by demonstrating that the harassment

was so pervasive that constructive knowledge may be inferred , or

by proving that Respondent had actual knowledge of the harassing

conduct . Huddleston v. Roger Dean Chevrolet, Inc. , 845 F. 2d 900,

904 (11th Cir. 1988) .

7 3 . Here, the evidence does not support an inference that

Respondent was on constructive notice of Owens' harassment of

Petitioner. However, Petitioner argue s that Respondent had

actual notice of Owens' harassment through its employee , Walker ,

who was a supervisor on Petitioner's shift .

74 . An employer is deemed to have actual notice of alleged

harassment when the employer has a policy designating how reports

of such allegations are to be made, and the employee follows that

procedure. "With such a policy, the employer itself answered the

question of when it would be deemed to have notice of the

harassment sufficient to obligate i t or its agents to take prompt

and appropriate remedial measures." Breda , 222 F.3d at 889 (11th

Cir. 2000) ; Coates v. Sundor Brands, Inc ., 164 F.3d 1361 (11th

Cir. 1 999) .

75 . As discussed above, Respondent has adopted and

distributed to its employees a Global Anti - Harassment Policy

which includes a Reporting Procedure . The Reporting Procedure

requires a n employee claiming to be the victim of harassment to

tell the offending person that such conduct is unwelcome and to

stop, and to immediately report the conduct to his or her

supervisor.

7 6 . T he credible evidence establishes that Pet itioner

repeatedly t old Owens to stop his harassing conduct and to leave

her alone. However, the evidence shows that Petitioner did not

report the specific sexual nature of Owens' conduct toward her to

a supervisor or manager at Respondent's Riviera Beach facility .

77. In Jones v. Allstate Insurance Company , 2017 U.S. App.

LEXIS 17207 (11th Cir. 2017), the court concluded that v ague,

non - specific descriptions made by a complainant that a co - worker

made "unwanted remarks" and used "profanity" were insufficient to

place the employer on notice that the co - worker had engaged in

harassing conduct of a sexual nature toward the complain ant for

purposes of showing the existence of a hostile work environment.

78. Similarly , in Nurse "B E " v. Columbia Palms West

Hospital, L.P. , 490 F.3d 1302, 1309 - 1310 (11th Cir. 2007), the

court concluded that a complainant's report that a co - worker made

multiple late - night "harassing" phone calls asking her out for

drinks or dinner was not sufficiently specific regarding the

sexual nature of the conduct to place the employer on notice for

purposes of showing the existence of a hostile work environmen t.

79. Here, a lthough the credible, competent evidence shows

that Petitioner indicated that Owens was "bothering" her, there

is no evidence showing that Petitioner specifically informed

Walker of the sexual nature of Owens' conduct toward her, or that

Wa lker otherwise had knowledge of Owens' sexual conduct toward

Petitioner. As noted above, the evidence shows only that

Petitioner informed Walker that O wens was "bothering" he r. The

evidence does not show that Walker ÏÏ and, thus, Respondent ÏÏ knew

or should have known about t he sexual nature of Owens' conduct

toward Petitioner. See Miller , 277 F.3d at 1278 ( actual notice

to employer is established by proof that supervisors or managers

knew of the harassment) .

80. Furthermore, the evidence establishes that even if

Respondent had notice that Owens had engaged in sexually

harassing conduct directed at Petitioner, Respondent took

remedial action as so on as it was informed of the nature of

Owens' conduct through Petitioner's complaint filed with Kelly.

81. To absolve an employer of liability, t he remedial

action must be taken promptly and must be appropriate . Kilgore

v. Thompson & Brock Mgmt. , 93 F.3d 752, 75 4 (11th Cir. 1996) .

W hen an employer undertakes remedial action within a short period

of time after receiving notice of the harassing conduct, the

action is considered prompt. Id. See Watson , 32 4 F.3d at 1261.

Additionally, t he remedial action is considered appropriate when

it is reasonably calculated to prevent the conduct from

recurring. Kilgore , 93 F. 3d at 754.

82. Here, once Respondent received Petitioner's complaint,

it immediately investigat ed Owens' conduct and, as a result of

th at investigation, terminated his employme nt. Respondent's

remedial action was both prompt and specifically calculated to

prevent Owens' sexually harassing conduct from recurring.

83. Because Petitioner did not show a basis for holding

Respondent liable for Owens' sexually harassing conduct, it is

concluded that Petitioner failed to prove sexual harassment on

the basis of a hostile work environment , in violation of

section 760.10.

Constructive D ischarge

84. In her Petition for Relief and in the evidence

presented at the final hearing, Petitioner claims that due to

Owens' behavior ÏÏ particularly, his actions in grabbing her by the

arm and driving a truck in front of her ÏÏ she feared for her

personal safety to the extent that she felt compelled to resign

from her temporary position at Respondent's Riviera Beach

facility. This contention can be interpreted as a constructive

discharge claim. 1 4 /

85. To prevail on a constructive discharge claim,

Petitioner must show that "the abusive working environment became

so intolerable that her resignation qualified as a fitting

response." Pa. State Police v. Suders , 542 U.S. 129, 133 (2004).

86. Petitioner's subjective perceptions do not control ;

rather , the test is an objective one. Doe v. DeKalb Cnty . Sch.

Dist. , 145 F.3d 1441, 1450 (11th Cir. 1998). "To successfully

claim constructive discharge, a plaintiff mus t demonstrate that

working conditions were 'so intolerable that a reasonable person

in [ his or her ] position would have been compelled to resign.'"

Hipp v. Liberty Nat'l Life Ins. Co. , 252 F.3d 12 08, 1231 (11th

Cir. Fla. 2001)( citing Poole v. Country Club , 129 F.3d 551, 553

(11th Cir. 1997) ; Thomas v. Dillard Dep't Stores, Inc. , 116 F.3d

1432, 1433 - 34 (11th Cir. 1997)) ; Wardwell v. Sch. Bd. of Palm

Beach Cnty . , 786 F.2d 1554, 1557 (11th Cir . 1986).

87 . T o prove constructive discharge, the sexual harassment

must be even more severe or pervasive than the minimum required

to prove a hostile work environment claim. Landgraf v. USI Film

Prods. , 968 F.2d 427, 430 (5th Cir. 1992), aff'd , 511 U.S. 244,

114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). S ee also Steele v.

Offshore Shipbuilding, Inc. , 867 F.2d at 1316 .

88. Here, Petitioner contends that she was effectively

forced to resign from her temporary position at Respondent's

facility because she feared for her safety.

89. As discussed above, Petitioner did prove that Owens'

conduct, considered as a whole and in context, was sufficiently

severe and pervasive that Petitioner's work environment was

permeated with discriminatory intimidation and insult which

alter ed the co nditions of her employment and create d an abusive

working environment. Additionally , it is likely that under those

circumstances, a reasonable employee would fear fo r his or her

personal safety , to the point that he or she would have felt

compelled to res ign.

90. However, c onstructive discharge typically is not found

where the employer does not have adequate knowledge of the

situation or sufficient time to remedy it. Kilgore , 93 F.3d at

754 (11th Cir. 1996)(constructive discharge not found where

plaint iffs did not allow enough time for employer to correct

situation); Jones v. USA Petroleum Corp. , 20 F. Supp. 2d 1379,

1383 (S.D. Ga. 1998)(employer not given sufficient time to remedy

hostile work environment when not provided notice ).

91. As discussed a bove, here Respondent did not know of

Owens' conduct toward Petitioner until after she had resigned her

position. Thus, Respondent was not afforded sufficient time to

correct the situation before Petitioner resigned.

92. Further, o nce Respondent was informed of Owens'

conduct, Respondent immediately investigated the matter and took

prompt and appropriate action to terminate Owens' employment ÏÏ

thereby correcting the situation that led to Petitioner's

resignation .

93. Additionally, the evidence establishes that once Owens

was terminated, Respondent contacted Kelly and offered Petitioner

the opportunity to return to her position , but that Petitioner

refused. Thus, u nder any circumstances, it is concluded that

Petitioner was not cons tructively discharged from her position at

Respondent's Riviera Beach facility . See Overstreet v. Calvert

Cnty. Health Dep't , 187 F. Supp. 2d 567, 574 (D. Md. 2002)

( constructive discharge claim not supported when cured by

reinstatement to previous employ ment position).

R ECOMMENDATION

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 dismissing the Petition for Relief.

DONE AND ENTERED this 17 th day of November , 2017 , in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

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 7 th day of November , 2017 .

ENDNOTES

1/ Unless otherwise stated, all statutory references are to the

2016 version of Florida Statutes, which was in effect at the time

of the alleged discriminatory actions.

2/ Petitioner's Exhibit 5 consists of a photograph of a frame of

a video - recording. Respondent's Exhibit 14 consis ts of the

entire video - recording .

3/ See note 2, supra . Respondent was granted permission to late -

file Respondent's Exhibit 14, which presented a complete version

of the video - recording from which Petitioner's Exhibit 5 was

derived.

4/ "Employer" is defined as "any person employing 15 or more

employe es for each working day in each of 20 or more calendar

weeks in the current or preceding calendar year, and any agent of

such person." § 760.02(7), Fla. Stat.

5/ There is conflicting evidence as to whether Petitioner started

working at Respondent's fac ility on May 8 or on May 18, 2016. In

any event, this apparent conflict is neither determinative of,

nor relevant to, the outcome of this proceeding.

6/ Petitioner's testimony that Owens told her that Walker had

told Tribble about his (Owens') conduct is hearsay and,

therefore, is not competent substantial evidence that can

constitute the sole basis for findings that Walker informed

Tribble that Owens was harassing Petitioner. As discussed

herein, there is no other evidence showing that Tribble knew th at

Owens had harassed Petitioner.

7/ Walker did not testify at the final hearing in this proceeding

because he was on medical leave and therefore unavailable to

testify. Respondent's Exhibit 12, an affidavit of Robert Gary

Walker executed on August 14, 2017, was admitted into evidence.

In the affidavit, Walker stated: "I neither saw nor reported to

anyone anything involving Ileene McDonald and/or Brandon Owens.

I am completely unaware of any complaint Ileene McDonald had or

may have had while empl oyed at this location. " This affidavit is

hearsay and is the sole evidence for the point that Walker was

"completely unaware of any complaint" that Petitioner had about

Owens . Accordingly, it has not been afforded any weight in this

proceeding. As discu ssed herein, the evidence establishes that

Walker was aware that Owens was "bothering" Petitioner, but was

not specifically informed of the sexual nature of Owens' conduct.

8/ I n the Harassment Form, Petitioner indicated that she was not

experiencing any personal issues outside of the workplace.

9 / Owens had not worked at Respondent's Riviera Beach facility

since June 23, 2016, the date on which he had been suspended

pending the outcome of the investigation into Petitioner's

complaint.

10/ See note 13, infra . The evidence establishes that Respondent

employed many male forklift drivers, including those of Hispanic

ethnicity, at its Riviera Beach facility during the period in

which Petitioner was employed at the facility, so that Respondent

w as unable to specifically identify and inquire about the conduct

of any specific individuals that may have had interactions with

Petitioner.

11 / Further, on one of the handwritten pages attached to the

Harassment Form, the "Hispanic" forklift driver's interaction

with Petitioner was described as "just the one time" and "she

didn't think it was something to report." This one - time

interaction that Petitioner did not, at the time, perceive as

harassment cannot , as a matter of law, form the basis of a sexu al

harassment hostile work environment claim. See Harris v.

Forklift Sys., Inc. , 510 U.S. 17, 20 - 21 (1993); Bryant v. Jones ,

575 F.3d 1281, 1297 (11th Cir. 2009)(conduct must result in an

environment that both the victim subjectively perceives as, and a

r easonable person would find, hostile or abusive).

12 / Th e evidence establishes that Respondent shared or co -

determined the essential terms and conditions of Petitioner's

employment at the Riviera Beach facility such that Respondent was

a joint employer of Petitioner for purposes of this

discrimination proceeding. See Virgo v. Riviera Beach Assocs. ,

30 F. 3d 1350, 1360 ( 11th Cir. 1994).

1 3 / T he evidence shows that Respondent attempted to identify and

investigate the forklift drivers, but were unable to do so, due

to the non - specific description provided by Petitioner in the

Harassment Form and accompanying pages. Due to th e dearth of

information provided in the Harassment Form and accompanying

pages, Respondent cannot be deemed to have been provided no tice

sufficient to enable it to take prompt and appropriate action to

address the conduct, so it cannot be held liable for these

employees' actions under a hostile work environment theory.

See Nurse "BE" v. Columbia Palms West Hosp. , 490 F.3d 13 02,

1309 - 11 (11th Cir. 2007) (vague references to negative treatment

and annoyance are insufficient, as a matter of law, to place

employers on notice of sexual harassment). Accordingly, this

Recommended Order does not specifically address allegations in

the Pe tition for Relief regarding any "forklift drivers," but

instead considers only whether Owens' conduct gives rise to

liability on the part of Respondent for unlawful discrimination

on the basis of sex, in violation of section 760.10.

1 4 / The "Determinati on: No Reasonable Cause" issued by the FCHR

on April 26, 2017, addressed both sexual harassment and

constructive discharge, concluding that there was no reasonable

basis for determining that either had occurred.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, Gen eral Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServ ed)

Ileene Mcdonald

1172 The Pointe Drive

West Palm Beach, Florida 33409

(eServed)

Raymond Alan Cowley, Esquire

Dykema Cox Smith

1400 North McColl Road , Suite 204

McAllen, Texas 78501

(eServed)

Bill Howard, Esquire

Bottling Group, LLC

MD 3A - 442

7701 Legacy Drive

Plano, Texas 75024

(eServed)

Bonnie Mayfield, Member

Dykema Gossett PLLC

39577 Woodward Avenue , Suite 300

Bloomfield Hills, Michigan 48304

(eServed)

Rea K. Ferandez, Esquire

Dykema Cox Smith

112 East Pecan Street , Suite 1800

San Antonio, T exas 78205

(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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.