18-005072 Sharon Ford vs. Lincare, Inc. Status: Closed Recommended Order on Friday, May 17, 2019.

Summary: Petitioner's complaint based on sexual harassment was time-barred and, regardless, she failed to establish being subjected to severe and pervasive sexual harassment for which Respondent was liable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON FORD,

Petitioner,

vs. Case No. 18 - 5072

LINCARE, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

Administrative Law Judge Andrew D. Manko of the Division of

Administrative Hearings (ÐDOAHÑ), pursuant to sections 120.569

and 120.57(1), Florida Statutes (2018), 1/ on February 21 and 28,

2019, in Tampa, Florida.

APPEARANCES

For Petitioner: Robert Vencil l Williams, Esquire

Burr Forman LLP

Suite 3200

201 North Franklin Street

Tampa, Florida 33602

For Respondent: Luis A. Santos, Esquire

Todd Aidman, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy B oulevard

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Respondent, Lincare, Inc., is liable to Petitioner,

Sharon Ford, for subjecting her to a hostile work environment

based on sexual harassment.

PRELIMINARY STA TEMENT

Ms. Ford filed a Complaint with the Florida Commission on

Human Relations (ÐCommissionÑ) on January 19, 2018, alleging

that Lincare unlawfully subjected her to a hostile work

environment based on sexual har assment committed by LincareÓs

g eneral c oun sel, Paul Tripp.

The Commission conducted an investigation and, on July 13,

2018, issued a determination that there was no reasonable cause

to conclude that an unlawful employment practice occurred.

On August 16, 2018, Ms. Ford requested a hearing by mai ling

a Petition for Relief to the Commission. On September 21, 2018,

the Commission transmitted the Petition to DOAH to conduct a

formal administrative hearing under section 120.57.

Before the hearing, Lincare moved to dismiss the Petition

on grounds that it was untimely filed. After reviewing the

record and holding a heari ng, the undersigned denied the m otion.

The final hearing occurred on February 21 and 28, 2019.

Ms. Ford testified on her own behalf and PetitionerÓs Exhibits

1 through 8 were admitte d without objection. Lincare presented

the testimony of Mripp and Paula Adams, the h ead of employee

r elations and h uman r esources s ervices. RespondentÓs Exhibits

1 through 11 were admitted without objection.

A two - volume T ranscript of the final he aring was filed on

March 15, 2019 ; and, based on an agreed motion for extension,

the deadline for post - hearing submittals was April 22, 2019.

Each party timely filed its Proposed Recommended Order (ÐPROÑ),

which was duly considered in preparing this Recom mended Order.

FINDING S OF FACT

I. The Parties and Complaint Allegations

1. Lincare is a Tampa - based company that focuses on home -

healthcare services. It has an annual revenue of over $3

billion and is a wholly - owned subsidiary of a company based in

Germ any.

2. Ms. Ford, a married woman with children, is an

accountant and an attorney. Lincare first hired her as its

acquisition counsel in 2001 and promoted her to d irector of

a cquisitions in 2002. She held that position for almost

15 years before she le ft the company on January 27, 2017.

3. Mripp, a married man with children, served as an

Arabic linguist in the Army before obtaining his law degree.

Lincare hired Mr. Tripp to replace Ms. Ford as its acquisition

counsel in 2002 and promoted him to g e neral c ounsel in 2013. He

still holds that position.

4. On January 19, 2018, almost a year after leaving

Lincare, Ms. Ford filed a Complaint with the Commission alleging

a hostile work environment. She alleged that Mripp, over a

15 - month period fr om December 2015 through March 2017, subjected

her to severe and pervasive sexual harassment.

5. On July 13, 2018, the Commission issued its notice of

determination of no reasonable cause and mailed it to Ms. Ford.

The notice advised her that she Ðmay re quest an administrative

hearing . . . by filing a Petition for Relief within 35 days of

the date the determination was signed by the Executive

Director.Ñ Ms. Ford received the notice in the mail on July 16,

2018.

6. On August 16, 2018, 34 days after the Commission issued

its notice, Ms. Ford requested an administrative hearing by

mailing her Petition to the Commission via U.S. mail. The

Commission received the Petition on August 20, 2018.

7. On the same day, the Commission generated its

transmittal l etter. But, instead of transmitting the Petition

to DOAH, the Commission advised Ms. Ford that the Petition

appeared to be untimely because it was received three days

beyond the 35 - day deadline under section 760.11(7), Florida

Statutes. After Ms. Ford re sponded that she timely requested a

hearing by post - marking her Petition before the 35 - day deadline,

the Commission transmitted the case to DOAH on September 21,

2018. The transmittal letter, dated August 20, 2018, did not

dismiss the Petition as untimely but rather requested assignment

of a judge to Ðconduct all necessary proceedings required under

the law.Ñ

II. LincareÓs Structure and Policies Between 2015 and 2017

8. Lincare had three officers: c hief e xecutive o fficer

(ÐCEOÑ), c hief f inancial o ff icer (ÐCFOÑ), and c hief o perating

o fficer (ÐCOOÑ). The corporate chart had the CEO at the top and

the CFO and COO, who reported to the CEO, immediately

thereunder.

9. The second tier of the chart listed six department

heads, none of whom were corporate o fficers: c orporate

c ompliance o fficer, h ead of b usiness i nnovation, h ead of h uman

r esources, h ead of p ublic r elations & c ommunications, general

c ounsel, and d irector of a cquisitions. These managers were

equal on the hierarchy chart and all reported direc tly to the

CEO.

10. As d irector of a cquisitions, Ms. Ford brought in the

deals, negotiated the business side, and quarterbacked them to

closing. She helped move the deals along by ensuring that

Lincare personnel communicated and accomplished their requi red

tasks. She provided business advice to the legal department and

worked closely with the acquisition attorney (on smaller deals)

and the g eneral c ounsel (on larger deals). Ms. Ford received a

salary and an objective bonus tied to the deals that closed . 2/

11. As the ge neral c ounsel, Mripp oversaw legal

affairs and supervised five lawyers in the legal department, but

had no control over any other department. As to the deals,

Mripp handled the legal aspects, such as contracts, due

diligence, and compliance, provided legal advice , and assessed

risks. The CEO, COO, and CFO had sole authority to decide

whether a deal closed. Mripp received a salary and a

discretionary bonus tied to the companyÓs financial success in a

given year.

12. Altho ugh Ms. Ford and Mripp gave each other

advice, they were equals on the corporate chart. Mripp had

no authority over Ms. Ford and lacked the power to hire,

discipline, promote, transfer, fire, or control her

compensation. They were coworkers who b oth answered directly to

the CEO.

13. The h ead of h uman r esources (Ð h ead of HRÑ) ran the HR

department and its roughly 15 to 18 employees. Directly under

the Head of HR was the e mployee r elations d irector, Ms. Adams.

Among other things, the HR departm ent oversaw the employee

handbook and investigated reports of discrimination and

harassment.

14. The handbook included a detailed anti - harassment

policy forbidding sexual harassment by any employee at work or

at work - related events outside the office. Harassment was

defined to include unwelcome sexual advances, requests for

conduct of a sexual nature, and other unwelcome behavior that

was personally offensive and interfered with work effectiveness

done in person or through electronic means. The policy

prohibited any employee from making employment decisions based

on the submission to or rejection of sexual advances , and noted

in bold that any violation would subject an employee to

discipline up to an immediate discharge.

15. The handbook contained a detailed reporting procedure

for employees who believed, had concerns, or suspected they or

anyone else may have been harassed. The policy required them

Ðto immediately notifyÑ a named individual based on their

location, which included the e mployee r elati ons d irector or the

HR Manager for employees in the corporate office. The handbook

required employees to follow the procedure and noted that the

failure to do so could adversely affect their rights to pursue a

claim.

16. Lincare took harassment allegatio ns seriously. Once

an allegation was reported, the e mployee r elations d irector or

HR managers investigated; the legal department was not involved

unless a particular legal question arose. They obtained as much

information as possible from the victim, spo ke to potential

witnesses, reviewed available documents, and interviewed the

accused. If the investigation uncovered no corroborating

evidence and the accused denied any wrongdoing, a report would

be added to the accusedÓs personnel file; upon a second

al legation, the accused would be terminated. If a supervisor

retaliated against an employee for reporting harassment, that

supervisor would be terminated.

17. Lincare disseminated the handbook and updated versions

to employees and required them to sign a form acknowledging that

they received the handbook and would abide by its policies.

Ms. Ford signed such forms each time she received a revised

handbook, including in 2015 ÏÏ the version in effect until she

left Lincare in January 2017. She knew about th e harassment

policy, the reporting requirement, and the fact that her failure

to so report could adversely affect her rights.

III. Friends and Coworkers for Over 15 Years

18. Ms. Ford and Mripp worked closely together at

Lincare for 15 years and they became good friends in the

process.

19. When Lincare hired Mripp as acquisition counsel in

2002, he worked closely with Ms. Ford on hundreds of deals.

They were in constant, daily contact to strategize, handle

diligence and compliance issues, advise each other on the tasks

they both had to complete, and ensure the deals closed.

20. They also had a close friendship. They regularly went

to lunch alone and with others, as often as three days per week,

attended social events with mutual friends , and spoke on the

phone and texted about business and personal matters. They had

much in common as married parents with kids around the same age

and they enjoyed each otherÓs company.

21. When Mripp became g eneral c ounsel in 2013,

Ms. Ford init ially worked closely with the new acquisition

counsel. In late 2014, however, she and Mripp resumed

working closely together when Lincare began negotiating larger

transactions. Project Maverick was the largest acquisition of

Ms. FordÓs career and it closed in March 2016. Project Falcon

was the largest divestiture of her career and it closed in

August 2016.

22. These two deals, and others, required Ms. Ford and

Mripp to work even more closely together from 2015 until she

left the company in Janu ary 2017. They often met multiple times

per day. Ms. Ford sought Mr. TrippÓs assistance on the legal

side and he sought her assistance on the business side. As

before, she remained the quarterback shepherding the deal

forward.

23. Their friendship co ntinued during this period. They

invited each other to lunch regularly, alone and with coworkers.

They attended social events with friends, including holiday

dinners in 2015 and 2016. On out - of - town work trips, they

rented cars together and sometimes sp ent time alone, such as for

meals. They continued to text and speak on the phone about

business and personal matters. They talked about their

families, children, and other personal matters much like

longtime friends do. They checked in on each other whe n

personal crises occurred. And, when Ms. Ford began tense

negotiations with the CEO about her compensation, which

ultimately led her to leave Lincare, she relied on Mripp as

a sounding board and for moral support.

24. Even after Ms. Ford left the company in January 2017,

she maintained contact with him. They had lunch alone at least

once. For months, they continued to text each other, even about

personal matters such as when she texted him after he had been

in a car accident. However, their comm unication largely ceased

once Ms. Ford filed a lawsuit against Lincare over her

compensation.

IV. Ms. FordÓs Testimony Accusing Mr. Tripp of Sexual

Harassment

25. The first incident occurred on December 11, 2015. In

that 10 to 20 minute conversation in her office, Mripp

professed strong feelings for her and that he desired a

confidential, sexual relationship with her. She rejected him

and said they were just friends. She immediately called her

husband and spoke to him all the way home. She felt humiliated,

embarrassed, and angry. She did not attend a football game that

weekend with other coworkers to avoid Mripp and kept her

communications with him to e - mail for the next week.

26. The second incident occurred in her office later in

Decembe r 2015. While discussing another affair that may be

happening at work, Mr. Tripp said he could not report the other

employee because he wanted to do the same thing with Ms. Ford,

notwithstanding the professional and personal risks. She again

rejected him .

27. For the next few weeks, Ms. Ford tried to avoid him as

much as possible, but she had to face him be cause the deals

began to lag. She said h e continued to make comments here and

there, but she offered no specific details.

28. The third incident o ccurred in January 2016 , after a

conference call in M r . TrippÓs office. He said he knew Ms. Ford

was avoiding him, but he could not function. He told her he was

willing to leave his wife, but she again rejected him.

29. Over the next few months, the comments and innuendo

pretty much ceased so Ms. Ford decided to go back to being

friends to ensure that the Maverick and Falcon deals closed.

30. However, a fourth incident occurred in the parking lot

after a late conference call in June 2016. Mripp professed

that his feelings were stronger now and that he was waiting for

Ms. Ford to change her mind. She said her feelings had not

changed and he said he understood.

31. For the remainder of 2016, Ms. Ford testified

generally that Mripp continued t o make comments about his

inability to function and that he got more obsessive as the year

progressed. But she offered little detail about the comments or

where and when they occurred, except that she had to be around

Mr. TrippÓs wife several times and sh e and Mripp agreed it

was uncomfortable.

32. The fifth incident occurred in October 2016 when

Mr. Tripp told her he was learning Hebrew to ÐconnectÑ with her

in her native language. He tried to communicate with her in

Hebrew in person and via text, despite her telling him to stop

because it made her very uncomfortable. As a result, she again

started to avoid him at the office, though he texted her to see

if she was alright and admitted to acting like a high school

student.

33. In January 2017, Mr ipp continued with innuendo,

spoke in Hebrew, and told Ms. Ford that he might move closer to

her. She believed he was obsessed, which made her nervous about

his stability and her safety. But she offered no specific dates

on which these events occurre d.

34. Mr. Tripp came to Ms. FordÓs office twice that month

after she had heated meetings with the CEO, including on her

last day at the company, January 27, 2017. He cried because he

could not imagine how he would go on if she left, as she was the

onl y reason he came to work every day. That evening, he told

her on the phone that he now knows what a divorce feels like.

35. Mripp continued to harass her following her

departure, including taking his family to the same ski resort in

March 2017. Sh e testified that she stayed in her room to avoid

him and never initiated contact with him while there, though

text messages admitted into evidence confirm she texted him

several times, about a security breach and generally about his

vacation.

36. In Janua ry 2018, a year after she left the company

during a mediation of her lawsuit against Lincare, Ms. Ford for

the first time accused Mripp of sexual harassment. She had

not reported the allegations pursuant to LincareÓs policy,

though she knew it require d her to do so. She never informed

other coworkers either. In fact, the only person she said she

told was her husband, though he did not testify at the hearing.

37. Ms. Ford testified that she did not report the

allegations because she had a contentious relationship with the

CEO during this period and she believed the CEO would terminate

her. She also was concerned that Mripp was unstable and

could decide to kill the deals to ensure she missed out on her

bonuses. Lastly, she thought reporting would be futile due to

LincareÓs culture of harassment, including by one of the two

individuals to wh om she was directed to report, the h ead of HR.

V. Mr. TrippÓs Testimony Denying the Alleged Sexual Harassment

38. Mripp said that he never harassed Ms. Fo rd.

Indeed, no one has ever accused him of harassment. He said he

never expressed romantic feelings for her, suggested having a

sexual relationship with her, or did anything to scare her.

39. Ms. FordÓs allegations against him came as a shock.

He bel ieved they had been good friends for over 15 years and she

never indicated otherwise. They enjoyed each otherÓs company,

had children around the same age, and spoke often about business

and personal things, like friends often do.

40. Even during the pe riod of alleged harassment, he

noticed no changes in her behavior. They continued to invite

each other to lunch regularly, often eating together alone, and

continued to discuss deeply personal matters about their

families. They texted each other often an d attended holiday

dinners with friends. She chose to sit next to him at a work

event at a hotel in the f all of 2016.

41. The same could be said for business trips during this

period. On a March 2016 trip to New York, Ms. Ford left a group

dinner early with him because he was sick, they worked out the

next day, and had breakfast. On an August 2016 trip to

Nashville to celebrate the closing of the Maverick deal, they

rented a car together and went to dinner alone after Ms. Ford

invited him. On a trip to New York in August/September 2016,

Ms. Ford stayed with Mripp to retrieve his briefcase from

the office and went to the airport together after the rest of

the team left.

42. Mripp admitted to learning some Hebrew, but

because he liked languages ( he was an Arabic linguist in the

Army), not to become romantically connected to Ms. Ford. He

practiced with her because she was the only person he knew who

spoke Hebrew, just as he did with other coworkers who spoke

another language. She never said it ma de her uncomfortable.

43. Mripp also admitted that his wife suggested moving

closer to Plant High School because it had a beneficial program

for their son. The idea had nothing to do with Ms. Ford, who

did not live nearby, and they decided not to mo ve in any event.

44. Even on her final days at Lincare, they had usual

interactions. Mripp admitted calling Ms. Ford the evening

of her last day (but said he had not come down to her office

earlier) to express concern for his friend and sadness that they

would no longer be working together. He did not recall

commenting about a divorce, but if he had, it only related to

her being a friend.

45. For a few months after she left Lincare, Mripp

believed their relationship had not changed. They cont inued to

text each other and had lunch alone at least once. Though he

took a ski trip to the same resort in March 2017, his wife chose

the resort and Ms. Ford reached out to him several times during

that trip to see how he was doing. Ms. Ford also texted him

after he had a car accident in March/April 2017.

46. It was not until several months after Ms. Ford left

Lincare and filed her lawsuit against the company that he

noticed a change in her attitude. At one point, he invited her

to lunch with a mutua l friend, but she did not respond and he

later learned they had lunch without him. Ms. Ford also told

him on the phone that he was going to hate her someday, though

he had no idea then what that meant. After a hurricane in

August/September 2017, he reach ed out to make sure she was safe;

she thanked him and wished his family well too. That was their

last communication before the sexual harassment allegations were

made.

VI. Credibility Findings as to the Conflicting Testimony

47. After hearing the confl icting testimony from Ms. Ford

and Mripp and observing their demeanor, the undersigned

found it exceedingly difficult initially to determine who is

telling the truth and who is quite an effective storyteller.

Ms. FordÓs conviction in her accusations a gainst Mr. Tripp was

equal to his conviction in his denials. But, when considering

all of the record evidence and testimony, the scales of

credibility tip in Mr. TrippÓs favor for several reasons.

48. For one, Ms. Ford cultivated a professional and

pe rsonal relationship with Mripp throughout the alleged

harassment period and continued to do so even after she left

Lincare. Although she said she maintained contact because they

had to work together and she wanted him as an ally, she also

accused him of stalker - like, obsessive, humiliating, and

unstable behavior. Her efforts to maintain a friendship with

him, even after leaving Lincare, are at odds with someone who

feels humiliated and fears for their safety.

49. Ms. FordÓs testimony also veered fr om the affidavit

she filed with the Commission. She testified that he generally

made comments between November 2016 and January 2017, yet her

affidavit offered more specifics as to the comments allegedly

made. Her testimony about him moving to her neighb orhood was

entirely omitted from her affidavit. Her testimony about his

efforts to sometimes communicate with her in Hebrew was at odds

with the affidavitÓs claim that he did so Ðcontinuously.Ñ And,

her testimony about the comments he made on her last da y at

Lincare differed as to substance and degree from her affidavit.

50. Further, Ms. FordÓs testimony was directly refuted by

other evidence. She testified that she did not affirmatively

communicate with him about anything personal in March 2017, but

te xt messages confirm that she checked in with him several times

during the trip about his vacation and engaged in more friendly

conversation than initially admitted.

51. Ms. FordÓs reasons for waiting until a year after she

left Lincare to report the accus ations also call her credibility

into doubt. Though she testified that she feared Mripp

would kill two large deals and her bonuses therefrom, those

deals closed in March and August 2016 , and yet she never

reported the allegedly ongoing harassment befo re she left

Lincare at the end of January 2017. It also cannot be ignored

that she waited until January 2018 to report the accusations and

did so during the mediation of her compensation lawsuit against

the company.

52. Lastly, though not fatal to her cl aim, Ms. FordÓs

failure to present any corroborating evidence cannot be ignored.

She testified that she lost weight, suffered hair loss, and

could not sleep, and said that it was the worst year of her

life. Yet, the record is devoid of evidence that any other

friends or coworkers noticed such changes, that she missed work

or social events, or that she suffered at work in any way. She

said he sent her inappropriate text messages, but provided no

proof of them. She apparently kept a journal about work iss ues,

but did not document the harassing incidents. And, though s he

said she immediately told her husband in December 2015, she

chose not to present his testimony even though he was the only

person who could corroborate her accusations.

CONCLUSIONS OF LA W

53. DOAH has jurisdiction over the parties and the subject

matter of this cause. §§ 120.569, 120.57(1), & 760.11(7), Fla.

Stat.; Fla. Admin. Code R. 60Y - 4.016.

54. The Florida Civil Rights Act of 1992 (ÐFCRAÑ) protects

employees from sex - based discrim ination at work, including

sexual harassment. See §§ 760.10(1)(a) & 760.11, Fla. Stat.

ÐFlorida has opted for a strong policy against sexual harassment

in the work place.Ñ Speedway SuperAmerica, LLC v. Dupont , 933

So. 2d 75, 86 (Fla. 5th DCA 2006). The FCRA Ðis remedial and

requires a liberal construction to preserve and promote access

to the remedy intended by the Legislature.Ñ Woodham v. Blue

Cross & Blue Shield of Fla. , 829 So. 2d 891, 894 (Fla. 2002)

(quoting Joshua v. City of Gainesville , 768 So. 2d 432, 435

(Fla. 2000)).

55. A hostile work environment claim is established Ðupon

proof that the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe

or pervasive to alt er the conditions of the vic timÓ s employment

and create an abusive working environment. Ñ Miller v. Kenworth

of Dothan, Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting

Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993)).

56. Because the FCRA is patterned after Title VII of th e

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e - 17,

Ðthe Florida statute will take on the same constructions as

placed on its federal prototype.Ñ Brand v. Fla. Power Corp. ,

633 So. 2d 504, 509 (Fla. 1st DCA 1994); Harper v. Blockbuster

Entm Ó t C orp. , 139 F.3d 1385, 1387 (11th Cir. 1998).

57. The burden of proof in this proceeding is on Ms. Ford

as the complainant. § 120.57(1)(j), Fla. Stat.; DepÓt of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fl a. 1996). To prove a violation of

the FCRA, Ms. Ford must establish a prima facie case of

discrimination by a preponderance of the evidence. See

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009) . A p reponderance of the evidence is defined as Ðthe

greater weight of the evidence,Ñ or evidence that Ðmore likely

than notÑ tends to prove a certain proposition. S. Fla. Water

Mgmt. Dist. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 (Fla.

2014).

VI I. Preliminary Timeliness Issues Raised by Lincare

58. Lincare raises two preliminary issues : (1) the

Petition for Relief was untimely because it was not received by

the Commission within 35 days of the date of determination; and

(2) the claim is time - barred because the Complaint was not fi led

within 365 days of any actionable conduct.

A. Ms. FordÓs Petition for Relief

59. Lincare moved to dismiss the Petition as untimely

because the Commission did not receive it within 35 days of the

date of determination. The undersigned denied that m otion on

November 28, 2018, but Lincare renewed the issue in its PRO. 3/

60. If, like here, the Commission determines there is no

reasonable cause to believe that a discriminatory practice has

occurred, the aggrieved person may seek further review by eit her

Ðfiling a civil action or requesting an administrative hear ing.Ñ

§ 760.11(4), Fla. Stat. The deadline for requesting an

administrative hearing is as follows:

The aggrieved person may request an

administrative hearing under ss. 120.569 and

120.57, but any such request must be made

within 35 days of the date of determination

of reasonable cause . . . . If the

aggrieved person does not request an

administrative hearing within the 35 days,

the claim will be barred.

§ 760.11(7), Fla. Stat. The statute e xpressly requires that a

ÐrequestÑ for he aring be Ð made Ñ within 35 days of the Ðdate of

determination.Ñ

61. The Ðdate of determinationÑ starts the 35 - day clock

but is not defined in the statute. Applying the plain meaning

of the language as is required , Joshua , 768 So. 2d at 435 - 36,

the Ðdate of determinationÑ is the date on which the Commission

issues its decision. See Fla. Admin. Code R. 60Y - 3.003(28)

(defining ÐDate of determinationÑ as Ðthe date the Determination

was signed by the Executive Directo r or his or her designeeÑ). 4/

62. As to when a ÐrequestÑ for hearing is timely Ðmade,Ñ

the statute also does not define those terms but they too should

be given their plain meaning. Joshua , 768 So. 2d at 435 - 36.

Ð Request Ñ is defined as Ðthe act or an instance of asking for

something.Ñ Merriam - Webster Dictionary , available at

https://www.merriam - webster.com/dictionary/request (last visited

Apr. 30, 2019). ÐMakeÑ is defined as follows: Ðto begin or

seem to begin (an action)Ñ or Ðto set in order.Ñ Id. , available

at https://www.merriam - webster.com/dictionary/make (last visited

Apr. 30, 2019). To make a request in this context, thus, is to

begin the act of asking for a hearing, which is accomplished by

placing the request in the mail ÏÏ the same means by which the

Commission notified Ms. Ford of its no cause determination.

63. Conversely, the term ÐfileÑ is defined as follows:

ÐTo deliver a legal document to the court clerk or record

custodian for placement in the official record.Ñ BlackÓs Law

Diction ary at 642 (7th e d. 1999). By definition, filing

accomplishes the delivery of the document to the recipient,

whereas making a request merely initiates the act of asking for

something. Given those definitions, it makes perfect sense why

a filing deadline would be based on receipt and a requesting

dead line would be based on the post mark date it is mailed.

64. The LegislatureÓs use of ÐrequestÑ and ÐfileÑ in

distinct contexts in this section cannot be ignored. Compare

§ 760.11(1), Fla. Stat. (using ÐfileÑ to refer to a complaint)

and id. at § 760.11(4) (using ÐfilingÑ to refer to a Ðcivil

actionÑ and ÐrequestingÑ to refer to an Ðadministrative

hearingÑ), with id. at § 760.11(7) (noting that an Ðaggrieved

person may request an administrative hearingÑ). Doin g so Ðis

strong evidence that different meanings were intended.Ñ State

v. Bradford , 787 So. 2d 811, 819 (Fla. 2001) (quoting State v.

Mark Marks, P.A. , 698 So. 2d 533, 540 (Fla. 1997)); see also

Cason v. Fla. Dep Ó t of Mgmt. Servs. , 944 So. 2d 306, 315 (F la.

2006) (noting that the Legislature knows how to express itself

and accomplish its intent through the statutory language).

65. Notwithstanding, Lincare argues that the Legislature

intended to impose a filing deadline on requests for hearing.

LincareÓs arguments miss the mark.

66. First, although section 760.11(7) notes that a request

for hearing is made under section 120.569, that section

indicates that a petition for hearing Ðshall be filed with the

agency.Ñ This language seems to direct where the request should

be made, as opposed to legislative intent to turn a deadline to

request a hearing into a filing deadline based on receipt.

67. Second, although Florida Administrative Code Rule

60Y - 5.008(1) notes that the complainant Ðmay file a Petition for

Relief . . . within 35 days of the Date of Determination,Ñ that

language is directly contrary to the terms ÐmadeÑ and ÐrequestÑ

used in section 760.11(7). Although the Commission is

authorized in section 760.06 to promulgate rules to implement

the FC RA, a rule must yield when it contravenes the clear and

unambiguous language of a statute. Willette v. Air Prods. ,

700 So. 2d 397, 399 (Fla. 1st DCA 1997). Indeed, Ð an

administrative law judge may not base agency action that

determine the substantial in terests of a party on . . . a rule

that is an invalid exercise of delegated legislative authority.Ñ

§ 120.57(1)(e)1 . , Fla. Stat.

68. Third, for the same reasons, the fact that Florida

Administrative Code Rules 28 - 106.104 and 28 - 106.111 provide that

a Peti tion for Relief is filed and that filing is complete upon

receipt by the agency does not change the result. Indeed, the

FCRA provision imposes distinct requirements for requesting a

hearing that are contrary to the uniform rules: (1) enlarging

the amount of time (from 21 days to 35 days); (2) altering the

date from which the clock runs (from date of receipt of agency

action to the date of determination by the Commission); and

(3) changing the method for electing a hearing (from filing a

petition that is complete on receipt to making a request that,

as plainly defined above, is complete upon mailing). Compare

Fla. Admin. Code R. 28 - 106.104 & 28 - 106.111 with § 760.11(7),

Fla. Stat. That is why LincareÓs reliance on Cann is misguided,

as it was based on th e filing requirement in r ule 28 - 106.111.

Cann , 813 So. 2d at 239 - 40. 5/ Section 760.11(7) controls.

Willette , 700 So. 2d at 399.

69. Applying this analysis here, Ms. FordÓs 35 - day

deadline started to run on July 13, 2018, the date of

determination, and e xpired 35 days later on Aug ust 17, 2018.

Because she post mar ked her request for hearing on A ugust 16,

2018, her Petition was timely. Not only does this construction

comport with the plain statutory language, it is also the most

appropriate result given t he FCRAÓs remedial purposes and the

liberal construction due to be given to ensure access to a

tribunal for formal proceedings to consider the relief Ms. Ford

seeks.

B . Ms. FordÓs Complaint

70. Lincare also asserts that Ms. FordÓs claim is time -

barred be cause she filed her Complaint with the Commission

beyond the statutory deadline.

71. A person aggrieved by a violation of the FCRA Ðmay

file a complaint with the [C]ommission within 365 days of the

alleged violation.Ñ £ 760.11(1), Fla. Stat. A hostile work

environment claim is timely if Ðall acts which constitute the

claim are part of the same unlawful employment practice and at

least one act falls within the time period.Ñ AMTRAK v. Morgan ,

536 U.S. 101, 115, 117, 122 (2002) (noting that harassment

Ðo ccurs over a series of days or perhaps yearsÑ and Ð[s]uch

claims are based on the cumulative affect of individual actsÑ).

72. However, an employee who fails to prove that the acts

occurring within the limitations period are sexual in nature,

gender - relate d, and sufficiently severe and pervasive, cannot

recover. See Menefee v. Montgomery Cnty. Bd. of Educ. , 137 Fed.

AppÓx 232, 233 - 34 (11th Cir. 2005) (finding claim time - barred

where plaintiff failed to prove that timely acts were of a

Ðsexual or gender - rel ated natureÑ); see also Jones v. Allstate

Ins. Co. , 707 Fed. AppÓx 641, 647 (11th Cir. 2017) (holding that

untimely acts cannot be considered where accused was transferred

and timely acts were insufficiently severe and pervasive);

Mahgoub v. Miami Dade Cmt y. College , Case No. 05 - 11520, 2006

U.S. App. LEXIS 9291, at *2 - 3 (11th Cir. Apr. 13, 2006) (finding

claim time - barred where plaintiff alleged only conclusory

allegations that acts occurred within limitations period); Gupta

v. Fla. Bd. of Regents , 212 F.3d 571, 583 (11th Cir. 2000)

(noting that acts Ðthat do not relate to the sex of the actor or

of the offended party (the plaintiff), are not countedÑ).

73. Ms. FordÓs claim is essentially based on eight

specified incidents from December 2015 through March 2 017, along

with conclusory allegations as to other unspecified comments and

innuendo during this period. There is little doubt that the

specific incidents from December 2015 through June 2016, if they

occurred as alleged, were sexual in nature and gender - related.

In each of these incidents, Mripp allegedly professed his

feelings for Ms. Ford and sought a sexual relationship with

her. 6/

74. However, the alleged incidents from October 2016 until

January 2017 ( e.g. , Mr. TrippÓs efforts to learn and pr actice

Hebrew with Ms. Ford, contemplating a move to a new

neighborhood, and expressing sadness about Ms. Ford leaving

Lincare) bear a tenuous relationship to both the prior incidents

and sexually harassing behavior in general. Consistent with the

finding s above and based on the credible weight of the evidence,

Ms. Ford fail ed to establish that this alleged conduct was

sexual in nature and gender - related; thus, it cannot be

considered as part of the same harassment claim. Mahgoub , 2006

U.S. App. LEXIS 929 1, at *2 - 3; Menefee , 137 Fed. Appx. at

233 - 234; Gupta , 212 F.3d at 583. The same is true for Mr.

TrippÓs March 2017 vacation to the same resort as Ms. Ford,

which occurred two months after Ms. Ford left Lincare. Cf. Hipp

v. Liberty Nat'l Life Ins. Co. , 252 F.3d 1208, 1222 n.12 (11th

Cir. 2001) (holding that termination of employment starts clock

running on statute of limitations ).

75. Because the last incident that arguably could be

sexual harassment occurred in June 2016 and Ms. Ford did not

file her C omplaint until January 2018, her claim is time - barred.

VI II. Sexual Harassment Claim on the Merits

76. Even if Ms. FordÓs claim was timely, she fails to

establish a prima facie case of sexual harassment. To do so,

she must prove by a preponderance of the evidence that: ( 1) she

belongs to a protected group; (2) she was subjected to unwelcome

harassment; (3) the harassment was based on her status in a

protected group; (4) the harassment was sufficiently severe or

pervasive to alter the terms and conditi ons of her employment

and create a discriminatorily abusive working environment; and

(5) Lincare is directly or vicariously liable for such

environment. Miller , 277 F.3d at 1275; accord Maldonado v.

Publix Supermarkets , 939 So. 2d 290, 293 - 94 (Fla. 4th DC A 2006).

77. Elements (1), (2), and (3) require little explanation.

If the preponderance of the evidence establishes that Ms. Ford

belongs to a protected group and is subjected to unwelcome

sexual harassment at work because she is a woman ( i.e. , Ðthat

bu t for the fact of her sex, she would not have been the object

of harassmentÑ), the first three elements are met. Mendoza v.

Borden, Inc. , 195 F.3d 1238, 1248 (11th Cir. 1999) (quoting

Henson v. City of Dundee , 682 F.2d 897, 904 (11th Cir. 1982));

see also Gupta , 212 F.3d at 583 (noting that Ðconduct must be of

a sexual or gender - related natureÑ to be considered, whereas

acts Ðthat do not relate to the sex . . . of the offended party

(the plaintiff), are not countedÑ) .

78. The parties agree that Ms. Ford i s a woman and,

accordingly, belongs to a protected group.

79. However, consistent with the findings of fact and

credibility determinations above, Ms. Ford fail ed to prove by

the greater weight of the evidence that she was sexually

harassed. Even if all things credibility - wise were equal (they

are not), the undersigned would be constrained to find that

Ms. Ford failed to prove elements (2) and (3) by a preponderance

of the evidence.

80. Ms. Ford also fail ed to establish that the harassment

was severe o r pervasive. Ð[A] sexually objectionable

environment must be both objectively and subjectively offensive,

one that a reasonable person would find hostile or abusive, and

one that the victim in fact did perceive to be so.Ñ Faragher v.

Boca Raton , 524 U.S. 775, 787 (1998); accord Mendoza , 195 F.3d

at 1246. In evaluating objective severity, courts consider all

of the circumstances, such as the Ðfrequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a m ere offensive utterance; and

whether it unreasonably interferes with an employeeÓs work

performance.Ñ Faragher , 524 U.S. at 787 - 88 (quoting Harris , 510

U.S. at 23). The Ðconduct must be extreme to amount to a change

in the terms and conditions of employm ent.Ñ Faragher , 524 U.S.

at 788; see also Gupta , 212 F.3d at 586 (noting that cases with

sufficiently pervasive and severe harassment Ðhave involved

patterns or allegations of extensive, long lasting, unredressed,

and un inhibited sexual threats or conduct Ñ).

81. Although Ms. Ford testified that Mr. TrippÓs conduct

was severe, pervasive, and altered the terms and conditions of

her employment, the weight of the credible evidence fails to

establish that her belief was objectively and subjectively

reasonable. As already discussed, she both cultivated and

maintained a close personal friendship with Mripp throughout

this period. The incidents testified to with any specificity

occurred sporadically over 15 months, several were not sexual in

nature or gender - related, and, importantly, none involved

physical threats, physical contact, or threats of retaliation.

More egregious conduct has been found insufficiently severe and

pervasive. See , e .g. , Weiss v. Coca - Cola Bottling Co. , 990 F.

2d 333, 337 (7th Cir. 1 993) (holding that asking employee out,

calling her Ðdumb blond,Ñ putting his hand on her shoulder

several times, placing ÐI love youÑ signs in her work area, and

trying to kiss her at work and elsewhere were not severe and

pervasive). 7/

82. Moreover, M s. Ford fails to prove that the conduct

objectively and subjectively altered the terms of her

employment. Although Ms. Ford testified that she attempted to

avoid Mripp and that the work environment was the worst of

her career, she acted for much of th e time as if nothing was

wrong. The record is devoid of evidence that anyone at work

noticed changes in her behavior or mood. And, importantly, her

performance by all accounts was unaffected given that she

quarterbacked several deals to closing during th is period,

including the largest acquisition and divestiture of her career.

83. Lastly, even if Ms. Ford had sufficiently proven the

first four elements of her claim, the weight of the credible

evidence does not support a basis to hold Lincare liable. The

analysis of this element hinges on whether the harassment is

perpetrated by a coworker or a supervisor. 8/

84. Based on the weight of the credible evidence,

Mr. Tripp was Ms. FordÓs coworker not her supervisor. 9/ A

supervisor is one Ðempowered . . . to take tangible employment

actions against the victim, i.e. , to effect a Ò significant

change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits.ÓÑ Vance v. Ball State Univ. , 570 U.S. 421, 429 (2013)

(quoting Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761

(1998)).

85. The evidence here is undisputed that Lincare did not

empower Mripp to take any tangible employment action against

Ms. Ford. He did not hire her and had no authority to fire her,

discipline her, promote her, transfer her, or otherwise control

her compensation. In fact, they were equal on the corporate

chart and both answered directly to the CEO. 10/

86. Because Mr. Tripp was Ms. FordÓs coworker, Lincare can

only be liable if Ms. Ford proves Ð actual knowledge on the part

of the employer or conduct sufficiently severe and pervasive as

to constitute constructive knowledge to the employer.Ñ Miller ,

277 F.3d at 1275; accord Maldonado , 939 So. 2d at 293 - 94. It is

undisputed that Lincare had no actual knowledge of the alleged

harassment because Ms. Ford never reported it.

87. As to constructive knowledge, that requires an

analysis of: Ð( 1) the remoteness of the location of the

harassment as compared to the location of management;

(2) whether the harassment occurs intermittently over a long

period of time; (3) whether the victims were employed on a part -

time or full - time basis; and (4) whether there were only a few,

discrete instances of harassment.Ñ Miller , 277 F.3d at 1278 - 79

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

Cir. 1997)). Where an Ðemployer has Òpromulgated an effective

and comprehensiveÓ anti - harassment policy that is Òaggre ssively

and thoroughly disseminated Ó to its employees, an employeeÓ s

failure to utilize the policy Ó s grievance process will prevent

constructive knowledge of such harassment from adhering to the

employer.Ñ Miller , 277 F.3d at 1279 (quoting Farley v. Am. C ast

Iron Pipe Co. , 115 F.3d 1548, 1554 (11th Cir. 1997)).

88. Ms. FordÓs failure to report precludes a finding that

Lincare had constructive knowledge given its widely -

disseminated, comprehensive anti - harassment policy, of which

Ms. Ford acknowledged rec eipt and strategically chose not to

avail herself. And, given that the alleged harassing behavior

occurred in private, happened sporadically over a 15 - month

period, amounted to eight isolated incidents (testified to with

specificity), and was insufficient ly pervasive and severe,

Ms. Ford failed to establish constructive knowledge.

89. Because Ms. Ford has not proven by a preponderance of

the evidence that Lincare had actual or constructive knowledge

of the alleged harassment, this element also fails.

90. In sum, based on the weight of the credible evidence,

the undersigned concludes that Ms. FordÓs sexual harassment

claim is untimely and, regardless, fails on the merits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, i t is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Petitioner, Sharon

Ford, failed to timely file her Complaint and, regardless, that

Ms. Ford failed to establish that Respondent, Lincare, Inc.,

committed an un lawful employment practice against her, both of

which warrant dismissal of her Petition for Relief.

DONE AND ENTERED this 17 th day of May , 2019 , in

Tallahassee, Leon County, Florida.

S

ANDREW D. MANKO

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 17 th d ay of May , 2019 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (2018),

unless otherwise noted.

2/ The undersigned acknowledges that the parties dispute the

exact measure for how the d irector of a cquisitionÓs bonuses

should be calculate d, which is the subject of a separate lawsuit

between Ms. Ford and Lincare.

3/ The Commission also apparently rejected LincareÓs argument.

Had it deemed the Petition untimely, it was required to dismiss

it as time - barred, which it did not do. § 760.1 1(7), Fla. Stat.

4/ Contrary to Ms. FordÓs argument, the date of determination

does not include any additional days for mailing. See Fla.

Admin. Code R. 28 - 106.106 (Ð[n]o additional time shall be added

when the period of time begins pursuant to a type of notice

described in Rule 28 - 106.111, F.A.C.Ñ); see also Watson v.

Broward Cty. , 937 So. 2d 1264, 1266 (Fla. 5th DCA 2006)

(rejecting argument that party requesting administrative hearing

had additional five days to mail their request under rule

28 - 106 .103); Cann v. DepÓt of Child. & Fams . , 813 So. 2d 237,

238 - 39 (Fla. 2d DCA 2002) (same).

5/ LincareÓs other cases also do not support its argument. In

one case, FCHR ultimately rejected the ALJÓs findings because it

concluded that a petition post marked by the 35 - day deadline was

timely. See Clardy v. DepÓt of Corr. , Case No. 06 - 2815, 2007

Fla. Div. Adm. Hear. LEXIS 148 (Fla. DOAH Mar. 7, 2007)

(acknowledging that FCHR rescinded its prior dismissal order

based on fact that petition was post marked Ðwithi n the 35 - day

time period for filing the Petition For ReliefÑ). In several

others, the Commission ultimately either rejected an ALJÓs

findings as to untimeliness or found it unnecessary to consider

them because it agreed with the ALJÓs decision on the meri ts.

See Itule v. Muffler Corp. , Case No. 99 - 4035, 2000 Fla. Div.

Adm. Hear. LEXIS 5576 (Fla. DOAH Mar. 10, 2000), rejected in

p art , Case No. 01 - 54 (Fla. FCHR Feb. 13, 2002) (dismissing

petition on merits consistent with ALJÓs findings, but rejecting

ALJÓs conclusion that petition was untimely); Hernandez v.

Transp. Electronics, Inc. , Case No. 99 - 3576, 2000 Fla. Div. Adm.

Hear. LEXIS 5573 (Fla. DOAH June 6, 2000), rejected , Case No.

01 - 55 (Fla. FCHR Dec. 5, 2001) (rejecting ALJÓs findings as to

untimeliness and remanding to DOAH for hearing on the merits);

see also Tabak v. Office Depot , Case No. 04 - 1451, 2004 Fla. Div.

Adm. Hear. LEXIS 1982 (Fla. DOAH Oct. 1, 2004), adopted on

merits , Case No. 04 - 159 (Fla. FCHR Dec. 27, 2004) (dismissing

petition on merits consistent with ALJÓs findings and noting

that, as such, it was Ðunnecessary to either accept or reject the

[ALJÓs] conclusion that the Petition for Relief was not timely

filedÑ because it was not received until 38 days after the date

of determinationÑ). And, in another case, the ALJ acknowledged

that Ðthis is not a case where the Petition was mailed prior to

the deadline, but was not timely received by the FCHR due to a

delay in the delivery of the mail,Ñ which is exactly the scenario

here. See Carr v. S . Wine & Spirits , Case No. 16 - 2919 (Fla. DOAH

June 20, 2016) (recommending dismissal of petition where it was

dated and faxed on the 36th day).

6/ An analysis of whether these incidents are sufficiently

severe and pervasive so as to be actionable is incl uded below,

but will be assumed for purposes of addressing whether the claim

i s time - barred .

7/ See also Maldonado , 939 So. 2d at 292 - 97 (finding five

incidents over almost two years, involving touching the

coworkerÓs buttocks twice, saying she Ðwas go ing to be his,Ñ and

twice biting his lip in a way the coworker thought was sexual,

was insufficiently severe or pervasive); Mendoza , 195 F.3d at

1248 (finding four instances involving sexually - charged

comments, physical contact of rubbing hips and touching the

employeeÓs shoulder, and constant following and staring by the

accused were insufficiently severe); Sprague v. Thorn Ams.,

Inc. , 129 F.3d 1355, 1366 (10th Cir. 1997) (noting that five

incidents over a 16 - month period, involving sexual and

disparaging comments, including looking down the employeeÓs

dress, were too sporadic to constitute severe and pervasive

harassment); Baskerville v. Culligan IntÓl Co. , 50 F.3d 428, 430

(7th Cir. 1995) (holding that nine instances of repeated

references to the plaintif f as ÐtillyÑ and Ðpretty girlÑ and one

instance of simu lated masturbation over a seven - month period

were insufficiently severe or pervasive).

8/ The undersigned rejects Ms. FordÓs contention that Mr. Tripp

was LincareÓs proxy, subjecting it to automatic liability for

his conduct. Evaluating whether an individual is a proxy is a

factual question. Ackel v. Nat Ó l Comm cÓ ns., Inc. , 339 F.3d 376,

384 (5th Cir. 2003).

To be a proxy or alter ego, the Ðofficial must be high

enough in the management hierarc hy that his actions ÒspeakÓ for

the employer.Ñ Helm v. Kansas , 656 F.3d 1277, 1286 (10th Cir.

2011) (citing Faragher , 524 U.S. at 789). ÐOnly individuals

with exceptional authority and control within an organization

can meet that standard,Ñ Helm , 656 F.3 d at 1286, such as

corporate officers and di rectors, owners, and other high - level

managers with authority over corporate affairs and who can bind

the company. See Townsend v. Benjamin Enters. , 679 F.3d 41,

53 - 55 (2d Cir. 2012) (holding that jury could re asonably

conclude that accused was the corporationÓs alter ego where he

was the only vice president of the company, exercised

significant control over corporate affairs, was second - in -

command only to his wife, who was the president, and was a

corporate sha reholder); Ackel , 339 F.3d at 384 (reversing

summary judgment in companyÓs favor based, in part, on trial

courtÓs erroneous conclusion that president, general manager,

and director who was in charge of all business was not companyÓs

proxy); Mallinson - Monta gue v. Pocrnick , 224 F.3d 1224, 1233

(10th Cir. 2000) (holding that alter ego instruction was proper

where accused was the senior vice president of consumer lending

for the company, only answered to the president who in turn only

answered to the board of d irectors, Ðhad the authority to hire

and fire employees in the consumer lending department, was the

ultimate supervisor of all employees in the department, and had

the ultimate authority to disapprove all consumer loansÑ).

Conversely, middle - level managers who do not control

corporate affairs, are not authorized to bind or speak for the

company, and are subordinate to higher - level superiors cannot be

deemed proxies. See Johnson v. West , 218 F.3d 725, 730 (7th

Cir. 2000) (holding that the chief of p olice at a VA hospital

was not the VA Ó s proxy because he had at least two supervisors

in the hospital and others within the VA and Ðwas not a high -

level manager whose actions ÒspokeÓ for the VAÑ); Torres v.

Pisano , 116 F.3d 625, 634 - 635 & n.11 (2d Cir. 199 7) (holding

that middle - level manager of company was not alter ego because

he was not in a sufficiently high position Ðin the management

hierarchy of the company for his actions to be imputed

automatically to the employerÑ); see also Helm , 656 F.3d at 1286

(holding that a judge was not the proxy of the state because

judges Ðdo not exercise a sufficient degree of control over the

myriad operations of the state,Ñ they Ðoperate in a limited

sphere (the judicial branch) and perform a limited role

(interpreting and applying the law that is enacted by other

state officials),Ñ Ðtheir decisions are subject to review and

reversal by Òhigher rankingÓ state judges,Ñ and do not Ðspeak

for and represent the stateÑ).

Based on the weight of the credible evidence, Ms. Ford

fail ed to establish that Mr. Tripp is LincareÓs proxy. Mr. Tripp

was neither a corporate officer nor a director. He had no

authority to make business decisions on behalf of Lincare or

otherwise control the policies and procedures of any department

beyond legal. He had no ownership or stock interest in Lincare.

He also reported directly to the CEO and received instructions

from both the COO and CFO (similar to Ms. Ford); he did not

supervise or control any other manager, including Ms. Ford and

the e mployee r elations d irector. The fact that Mr. TrippÓs

office was in the ÐC - SuiteÑ along with the CEO, COO, and CFO,

does not render him a proxy, as the offices of several other

managers who were not corporate officers were in the C - Suite and

the only rea son Ms. FordÓs office was not there was due to a

lack of space.

9/ Ms. FordÓs claims to the contrary are insufficient. Although

Ms. Ford testified that Mripp assigned her tasks to do, she

assigned him tasks to do, as well. She admittedly quarterb acked

the deals and ensured that everyone, including Mripp, stayed

on task to ensure the deals closed, which included him

performing legal tasks requested by her. Further, Mr. TrippÓs

status as a supervisor or coworker is not dependent on how

Ms. For d viewed him or where his office was located, but rather

whether Lincare empowered him to take tangible employment action

against her, which it did not do.

10/ Even if Mripp was deemed a supervisor, Ms. Ford still

failed to establish LincareÓs liab ility. Where the perpetrator

is Ða supervisor with immediate (or successively higher)

authorityÑ over the victim, the Ðemployer is subject to

vicarious liability.Ñ Faragher , 524 U.S. at 807. ÐThe employer

will be strictly liable for the hostile environm ent if the

supervisor takes tangible employment action against the victim,Ñ

Miller , 277 F.3d at 1278; accord Vance , 570 U.S. at 424. But

where no such tangible employment action is taken, like here,

vicarious liability is subject to an affirmative defense :

The defense comprises two necessary

elements: (a) that the employer exercised

reasonable care to prevent and correct

promptly any sexually harassing behavior,

and (b) that the plaintiff employee

unreasonably failed to take advantage of any

preventive or corrective opportunities

provided by the employer or to avoid harm

otherwise. While proof that an employer had

promulgated an antiharassment policy with

complaint procedure is not necessary in

every instance as a matter of law, the need

for a stated p olicy suitable to the

employment circumstances may appropriately

be addressed in any case when litigating the

first element of the defense. And while

proof that an employee failed to fulfill the

corresponding obligation of reasonable care

to avoid harm is not limited to showing an

unreasonable failure to use any complaint

procedure provided by the employer,

a demonstration of such failure will

normally suffice to satisfy the employerÓ s

burden under the second element of the

defense.

Faragher , 524 U.S. at 807 - 08; accord Miller , 277 F.3d at 1278.

This defense must be established by the defendant by a

preponderance of the evidence. Faragher , 524 U.S. at 807 - 08.

Based on the weight of the credible evidence, Lincare

sufficiently establishes the Faragher defense. As previously

discussed, Lincare disseminated a detailed anti - harassment

policy to all of its employees and required them to acknowledge

receipt. The policy explicitly prohibited all forms of sexual

harassment at work and detailed the reporting procedure,

requiring anyone who had even a concern about harassment to

report to a particular HR director/manager. The policy also

detailed how reports were investigated and prohibited

retaliation of any kind, rendering it a Ðserious violation of

this po licyÑ that could subject the retaliator to immediate

discharge. And Ms. Adams, the h ead of e mployee r elations and

h uman r esources s ervices, testified at length how seriously

Lincare took the policy and its investigations, including

details as to prior rep orts and how they were handled.

Despite being aware of the policy and signing the forms in

2004, 2006, 2007, 2008, 2010, 2014, and June 2015, Ms. Ford

unreasonably failed to report the claim as required. She said

she did not report the harassment be cause Mripp could have

killed one of the two deals on which they were working, thereby

reducing her compensation. This claim is both (1) speculative,

in that Ms. Ford presented no evidence that Mripp had ever

done this in the past ; and (2) unpersu asive, in that Mr. Tripp

credibly testified that the CEO did not seek his advice in this

manner and he neither would nor could make that happen. It also

bears emphasizing that, by killing a deal that financially

benefitted Lincare to fulfill a personal ve ndetta against

Ms. Ford, Mripp would be shooting himself in the foot (as

his discretionary bonuses were tied to LincareÓs success),

risking his reputation with the CEO, and likely breaching his

ethical and fiduciary duties to the company. Second, Ms. Ford

claimed that she was concerned the CEO would fire her for

reporting the harassment because she liked Mripp. However,

the weight of the credible evidence established that Lincare

took such allegations seriously and, of course, it could have

been liable for retaliating against Ms. Ford in this manner.

And, the credibility of her testimony in this regard is further

undermined given that the deals closed over five months before

she left Lincare, she never reported the allegations during that

period, and, in fact, waited to inform Lincare until a mediation

of a wage - dispute lawsuit against Lincare a year after she left

the company.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tall ahassee, Florida 32399 - 7020

(eServed)

Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Robert Vencill Williams, Esquire

Burr Forman LLP

Suite 3200

201 North Franklin Street

Tampa, Florida 3 3602

(eServed)

Todd Aidman, Esquire

Ford and Harrison

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602 - 5133

(eServed)

Cheyanne Co stilla , General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32 399

(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.