94-005635 Elisa L. Scott vs. Village Inn
 Status: Closed
Recommended Order on Wednesday, May 24, 1995.


View Dockets  
Summary: While petitioner was subject to harassment, the nature of that treatment did not constitute sexual discrimination.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ELISA L. SCOTT, )

12)

13Petitioner, )

15)

16vs. ) CASE NO. 94-5635

21) FCHR NO. 94-8311

25MICHAEL W. TITZE COMPANY, INC., )

31d/b/a VILLAGE INN, )

35)

36Respondent. )

38________________________________)

39RECOMMENDED ORDER

41Notice was provided, and a formal hearing was held on January 6 and 20,

551995. Authority for conducting the hearing is set forth in Section 120.57(1),

67Florida Statutes. The Hearing was held at the Offices of the Division of

80Administrative Hearings, Tallahassee, Florida. Charles C. Adams was the hearing

90officer.

91APPEARANCES

92For Petitioner: Patricia A. Renovitch, Esquire

98OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A.

104Post Office Box 6507

108Tallahassee, Florida 32314-6507

111For Respondent: Stephen Marc Slepin, Esquire

117SLEPIN & SLEPIN

1201114 East Park Avenue

124Tallahassee, Florida 32301

127STATEMENT OF THE ISSUES

131Did Respondent engage in unlawful employment practices directed to

140Petitioner, as defined in Section 760.10(1), Florida Statutes? In particular,

150did Respondent knowingly maintain a sexually-hostile and abusive environment for

160its female servers which unreasonably interfered with their work, exposing the

171female employees to disadvantageous working conditions to which male employees

181were not exposed? Was the work place for female servers permeated with

193discriminatory ridicule and insults? Did Respondent maintain an intimidating

202environment which caused Petitioner's constructive discharge? Is Petitioner

210entitled to take up her former duties as a server at Respondent's restaurant?

223Has Petitioner sustained damages, including loss of back and future pay and

235related benefits?

237PRELIMINARY STATEMENT

239On August 26, 1994, the Florida Commission on Human Relations gave notice

251to Petitioner and Respondent that the Commission had reasonable cause to believe

263that an unlawful employment practice had occurred based upon Petitioner's sex.

274Following this determination and consistent with the instructions set forth in

285the notice, Petitioner filed a Petition for Relief on September 29, 1994 setting

298forth the allegations described in the Statement of Issues.

307On October 6, 1994, the Commission notified Respondent that Respondent had

31820 days to answer the Petition for Relief. On October 26, 1994, Respondent

331filed an Answer in opposition to the Petition for Relief.

341On October 6, 1994, the Commission requested the Division of Administrative

352Hearings to assign a hearing officer to conduct proceedings to resolve the

364dispute. On that same date, Respondent had requested the referral of the

376dispute to the Division of Administrative Hearings.

383The case was assigned to a hearing officer. The hearing was conducted on

396the aforementioned dates.

399Both parties presented witnesses and exhibits, as described in the Appendix

410to the hearing transcript. Respondent made a Motion in Limine to exclude the

423testimony of Jeri Williams. Petitioner responded to the motion. A ruling was

435made on the motion, as set forth in the hearing transcript. That ruling denied

449the motion.

451At hearing, the attorneys agreed to submit their proposed recommended

461orders within three (3) weeks of the filing of the transcript. That request for

475filing proposed recommended orders within (3) weeks of the filing of the

487transcript was accepted by the hearing officer. The transcript was filed on

499March 2, 1995. Counsel then asked for a further extension of time for filing

513proposed recommended orders. The new due date became March 28, 1995. The

525hearing officer advised counsel that the extension of time was granted.

536Proposed recommended orders were filed on March 28, 1995. Having requested that

548the proposed recommended orders be filed more than ten (10) days from the date

562upon which the transcript was filed, the parties waived their right to have the

576recommended order entered within 30 days from the date upon which the transcript

589was filed. See Rule 60Q-2.031, Florida Administrative Code.

597Petitioner requested and Respondent consented to have corrections made to

607Petitioner's proposed recommended order. That request for corrections is

616granted.

617Petitioner moved to strike Respondent's proposed recommended order, which

626contained 19 pages and additional 58-page Addenda. Respondent replied in

636opposition to the motion. The motion is denied; however, only those facts set

649forth in the 19-page proposed recommended order are deemed appropriate for fact

661finding in the recommended order. The Addenda are perceived as argument. The

673proposed facts in Respondent's 19-page proposed recommended order and those

683facts in the Petitioner's proposed recommended order are discussed in an

694Appendix to the recommended order.

699Upon agreement of counsel, consideration of the issue of reasonable costs

710of litigation, to include attorney's fees, was postponed until the Commission

721has entered its final order concerning the merits of the case. Under this

734arrangement, the hearing officer retains jurisdiction of the case for the

745limited purpose of entertaining evidence directed to reasonable costs of

755litigation, to include attorney's fees, should the Commission find in favor of

767Petitioner.

768FINDINGS OF FACT

7711. Respondent owns four (4) restaurants. Two are located in Tallahassee,

782Florida. One is located in Mary Esther, Florida; and one is located in

795Pensacola, Florida.

7972. The Tallahassee restaurants are located on North Monroe Street and

808Apalachee Parkway. It is the Apalachee Parkway restaurant that is the subject

820of this case.

8233. At times relevant to the inquiry, the Parkway restaurant operated with

835an average staff of 16-18 servers, who are mostly female, and 9-10 cooks, who

849are males.

8514. The Parkway restaurant had a high volume of business during the period

864under inquiry. At peak volume, the employees felt under pressure and were not

877especially respectful of fellow employees.

8825. Petitioner was employed at the Parkway restaurant from February 12

893through May 15, 1993.

8976. Petitioner is approximately 30 years old. Petitioner is a female,

908whose stature is one of average height and weight.

9177. Petitioner was hired by a manager at the Parkway restaurant. That

929manager was Erin Stowell.

9338. Respondent empowered Mr. Stowell to hire and fire employees at the

945Parkway restaurant and to impose the necessary controls to conduct business at

957the restaurant. Mr. Stowell had the supervisory authority to conduct the

968everyday business at the Parkway restaurant in the capacity of supervisor of

980servers and cooks.

9839. At times relevant to the inquiry, Petitioner worked the day shift. Mr.

996Stowell was her manager. On that shift, most servers were female. In

1008Petitioner's latter tenure, there was one male server working the day shift.

102010. At times relevant, a manual detailing appropriate employee conduct was

1031in place. Among the expectations for employees was that the employees not

1043engage in profane and vulgar language. Moreover, employees were expected to

1054engage in moral and proper behavior.

106011. Petitioner was given the employee manual.

106712. In the restaurant operation, servers were expected to fill out

1078customer food order tickets that accurately described the food orders. This

1089accuracy was vital to the restaurant's financial operation. All food items

1100served were to be charged for. The cooks had a corresponding responsibility to

1113make certain that the tickets were accurate and that they not prepare food that

1127was not described on the food order ticket. These arrangements led to conflicts

1140between the servers and the cooks concerning food preparation and its timely

1152delivery to the customer.

115613. Christopher Titze is the son of Michael Titze. Michael Titze owns

1168Respondent. Beth Titze is Michael Titze's wife and mother of Christopher Titze.

118014. Christopher Titze worked at the Parkway restaurant at times relevant

1191to the inquiry. He served as a host who greeted customers.

120215. In the event that problems occurred between servers and cooks that

1214affected service to the customer, Christopher Titze would mediate disputes

1224between servers and customers. In addition, if there were other problems

1235between cooks and servers, the server would seek Christopher Titze's

1245intervention or the cook might seek Christopher Titze's intervention as

1255mediator. This mediation function took place once or twice a day at most.

1268Specifically, cooks would ask for assistance if the servers were not charging

1280for food and when servers did not properly space the time for delivering food

1294order tickets to the cooks. Servers would complain when cooks were not getting

1307the food prepared fast enough.

131216. Christopher Titze observed that Petitioner often did not wear the

1323proper uniform for a server. She wore shoes that were other than required and

1337did not wear pantyhose as required. As host, Christopher Titze was expected to

1350inform Petitioner that she was not wearing the appropriate uniform. He did

1362inform her. These reminders were given to Petitioner on 15-20 occasions.

1373Christopher Titze did not have the authority to discipline Petitioner for

1384noncompliance with the uniform requirements.

138917. Christopher Titze would occasionally remind other servers that they

1399were not in proper uniform from time to time. By contrast, Petitioner was

1412chronically out of uniform.

141618. Christopher Titze was working at the restaurant on the Petitioner's

1427last day of employment. He overheard Petitioner yelling. He observed that

1438several customers in the lobby area to the restaurant were looking at him during

1452the outburst. Christopher Titze felt embarrassment and went running to the area

1464where Petitioner was located. When he arrived at that area, Petitioner and a

1477cook named O.C. Mack were there. Mr. Mack was a 250-pound man.

148919. Christopher Titze observed that Petitioner was "carrying on". Mr.

1500Mack appeared upset and seemed not to be paying attention to Petitioner.

1512Petitioner was getting more upset with Mr. Mack and was yelling and screaming

1525and cursing at him. At that time, the manager, Mr. Stowell was not in

1539attendance in the area where Petitioner and Mr. Mack were engaged.

155020. In particular, Christopher Titze heard Petitioner say to Mr. Mack:

"1561This is fucking bullshit and I don't have to put up with this shit from you or

1578anyone else".

158121. Christopher Titze tried to ascertain what had caused the outburst. It

1593took a couple of minutes for Petitioner to calm down and quit yelling. During

1607this time, Mr. Mack was cooking.

161322. Mr. Mack explained that Petitioner had not charged a customer for

1625hollandaise sauce.

162723. Petitioner told Christopher Titze that the problem had to do with

1639hollandaise sauce for a customer.

164424. Christopher Titze told Mr. Mack that he needed the hollandaise sauce

1656right now. Mr. Mack told Christopher Titze that he was not going to get it.

1671Christopher Titze then went up front and asked Mr. Stowell to go back and take

1686care of the problem. Before Christopher Titze went up front to get Mr. Stowell,

1700Mr. Mack told Christopher Titze that he was not going to give the hollandaise

1714sauce to him until it was charged for on the ticket.

172525. When Christopher Titze found Mr. Stowell he told Mr. Stowell that

1737Petitioner and Mr. Mack were having an argument and that he could not straighten

1751it out and that Mr. Stowell needed to go back there.

176226. Christopher Titze made sure that a server other than Petitioner

1773delivered the hollandaise sauce to the customer.

178027. Later, Christopher Titze observed Petitioner yelling and screaming and

1790saw her take her purse and comment "this is unfair" and that "she was leaving."

180528. The May 15, 1993 incident was the only occasion upon which Petitioner

1818complained to Christopher Titze about Mr. Mack's conduct. Other servers had

1829complained to Christopher Titze about Mr. Mack's conduct. They told Christopher

1840Titze that Mr. Mack was hard to work with and that he was very particular on

1856tickets, making sure that customers were charged for food. The servers reported

1868to Christopher Titze that Mr. Mack was concerned about food costs and that Mr.

1882Mack skimped on some things. The other servers reported that Mr. Mack was rude

1896about the way he went about doing his job and adhering to rules in the

1911restaurant.

191229. Christopher Titze observed that Mr. Mack was loud when operating under

1924stress. Mr. Mack especially did not like it when tickets were not properly

1937written, and he complained about it. Christopher Titze observed that Mr. Mack

1949would use the word "shit" and similar language when he was under stress. He

1963would direct his remarks to servers: "You need to write this shit right".

197730. Christopher Titze heard the kitchen staff call the servers "bitches"

1988on one or two occasions. Christopher Titze has no recollection of doing

2000anything in response to the remarks by the kitchen staff directed to the

2013servers.

201431. Christopher Titze never observed nor heard servers complain that the

2025cooks were not getting out their orders quickly as a means of being spiteful to

2040the servers.

204232. Christopher Titze never observed the kitchen staff holding or

2052manipulating their genitals in the presence of servers.

206033. Lori Helms was a server who worked on the shift with Christopher

2073Titze. She reported to Christopher Titze that a cook named Wendell Holmes had

2086been requested to prepare an employee meal for her, to which Mr. Holmes stated:

"2100I'll make you a cum sandwich." When the incident was reported to Christopher

2113Titze, he told Mr. Stowell. Mr. Stowell sent Mr. Holmes home that day. Mr.

2127Holmes was subsequently fired, having never been allowed to come back and work

2140at the restaurant beyond the day he was sent home.

215034. By Christopher Titze's observation Ms. Helms was made to cry by Mr.

2163Holmes' conduct.

216535. Christopher Titze has no recollection of the conduct of Mr. Mack

2177causing Ms. Helms to cry or observing her to cry on any occasion other than the

2193incident with Mr. Holmes.

219736. Terri Dixon was a server at the Parkway restaurant from November 2,

22101992 until April 1993, when she was fired by Mr. Stowell.

222137. Ms. Dixon observed that Mr. Mack was rude and that he would use vulgar

2236language. She observed that Mr. Mack would raise his fist at you and that his

2251conduct seemed threatening. Mr. Mack referred to Ms. Dixon as "you little white

2264girl", "you little bitch", and "you little honkey girl".

227438. Cooks would refer to Ms. Dixon as "whitey" "honkey" and "you white

2287bitch". This made her feel intimidated. Which cooks other than Mr. Mack made

2301these remarks was not proven.

230639. Ms. Dixon complained to a cook named Jason about an order that she

2320believed was not being prepared in a timely manner. Apparently, her customers

2332were complaining about the timeliness. Jason responded to her by saying, "shut

2344up, you white bitch" and "I will stomp your white ass into the ground".

235940. Ms. Dixon observed other cooks shaking spatulas at her.

236941. Ms. Dixon explained that when she thought that the cooks had had ample

2383time to prepare the food she complained to the cooks. The response by the cooks

2398was to the effect, "I will give you your food when I get well and ready to."

241542. Ms. Dixon had the experience that when service of the food was

2428delayed, customers did not want to tip her.

243643. A food preparation employee made a number of attempts at asking Ms.

2449Dixon to go out with him. She considered his actions to be harassment. This

2463same person also offered her drugs. Ms. Dixon complained to Mr. Stowell about

2476that conduct by the male employee. After her complaint, the situation did not

2489improve. What action, if any, that Mr. Stowell took to address her complaint is

2503not clear. Ms. Dixon did not indicate that she reported back to management to

2517inform management that she was continuing to be approached by the food

2529preparation employee.

253144. Ms. Dixon observed the incident between Ms. Helms and Mr. Holmes. She

2544saw Mr. Holmes grab his genitals and say "well how about I give you a cum

2560sandwich."

256145. Ms. Helms worked at the Parkway restaurant from around January or

2573February, 1993, until sometime in May 1993. She quit her job as a server at

2588about the same time that Petitioner last worked at the restaurant.

259946. Ms. Helms describes what she considered to be rude conduct by Mr.

2612Mack. These comments were directed to Ms. Helms pertaining to the manner in

2625which she hung or presented the customer food order tickets to the cook. He

2639made remarks calling her "stupid", "that drugs had eaten her brain" that "she

2652was crazy" and would refer to her as "bitch". Mr. Mack yelled at her and she

2669was afraid of him. These circumstances usually occurred when the restaurant was

2681busy. Otherwise, Mr. Mack was nice to Ms. Helms when she first came to work in

2697the morning. At busy times Mr. Mack would complain to Ms. Helms that she was

2712not writing her tickets right and would grab them off the wheel where they were

2727placed. To Ms. Helms, it seemed as if Mr. Mack would be under pressure and

2742would take it out on her.

274847. In the exchanges where Mr. Mack would use the terms "bitch, stupid and

2762crazy" directed to Ms. Helms, the food that she was responsible to serve would

2776be sitting at the service window and available to be served. On these occasions

2790Ms. Helms would direct argument back to Mr. Mack. She would then go back to the

2806bathroom area to collect herself sufficiently to serve the food. Under these

2818circumstances the food service would be delayed.

282548. At times when Ms. Helms complained about the delays in serving food to

2839the customers when the restaurant was especially busy, responses from the cooks

2851would be "hold on a damn second, baby, I can't do everything at once." At times

2867these remarks were made in a manner which Ms. Helms believed to be screaming.

2881The cooks would also say, "I'm going to do it and you are the one who messed it

2899up in the first place and this wouldn't never have happened in the first place

2914if you would have written the damn ticket wrong."

292349. Ms. Helms observed cooks dancing around and grabbing their crotches.

2934She did not indicate complaining about these observations to management.

294450. While working at the restaurant Ms. Helms would cry often. In this

2957respect Ms. Helms acknowledges that she is a very sensitive person and that when

2971she was yelled at, this made her cry. This conduct hurt her feelings. In

2985instances when she would cry Ms. Helms would go to Mr. Stowell and he would

3000console her by telling her to stop crying and go about her business and that it

3016would be okay and that Ms. Helms should not allow the conduct by the other

3031employees to get to her.

303651. Ms. Helms describes the incident with Mr. Holmes in which she asked

3049Mr. Holmes to make a sandwich for her and he replied, "baby I'll make you a cum

3066sandwich". She responded by telling Mr. Holmes not to talk to her that way.

3081The incident was one of the reasons that led her to quit her position at the

3097Parkway restaurant. As described before, Ms. Helms reported the incident to Mr.

3109Stowell. Soon after the incident with Mr. Holmes, Ms. Helms quit her job.

312252. As Ms. Helms observed, Mr. Stowell was present when cooks would use

3135words such as "bitch", "fuck", "shit", "damn" and "ass", in Ms. Helms' presence.

3148She considered these remarks to be directed to her. With the exception of the

3162word "bitch", it is not clear that the use of profane language was directed to

3177Ms. Helms as opposed to merely being stated in her presence.

318853. On Petitioner's last day, Ms. Helms, although she was not in the

3201immediate vicinity of the incident, overheard part of the exchange between the

3213Petitioner and Mr. Mack. She heard both Mr. Mack and the Petitioner yelling

3226back and forth about the hollandaise sauce. Ms. Helms then observed the

3238Petitioner go to the back of the restaurant to smoke a cigarette and that the

3253Petitioner was crying. Ms. Helms took the customer the hollandaise sauce.

326454. Ms. Helms was told not to wear socks as part of the attire for servers

3280because the servers were expected to wear pantyhose. Nonetheless, she wore

3291socks again after being told not to do so.

330055. Ms. Helms observed that cooks wore their clothes loosely and that they

3313would hang down to the extent where she could see their underwear and could see

3328Mr. Mack's "butt crack". She did not indicate that she complained about these

3342observations to management.

334556. Ms. Helms also had problems with a female server Kim Tuten whom Ms.

3359Helms described as making her feel unwelcome and treating her in a rude manner.

3373One time Ms. Tuten told Ms. Helms "I'll kill you." Ms. Tuten called Ms. Helms

"3388stupid." Ms. Helms said that she "hates Ms. Tuten." Ms. Helms observed Ms.

3401Tuten using profane language. Ms. Tuten used the words "fuck, damn, shit and

3414ass". Ms. Tuten also called Ms. Helms "a bitch".

342557. Linda McCord began work at the Parkway restaurant in 1992, working on

3438the night shift. She quit her position as a server at the restaurant because of

3453a conflict with her school schedule. She came back to work at the restaurant

3467and quit a second time because of Beth Titze's actions in "dressing down" Ms.

3481McCord.

348258. Although Mr. Mack worked on a different shift than Ms. McCord, the

3495shifts overlapped to some extent this allowed her to watch Mr. Mack perform as a

3510cook. She observed Mr. Mack to be intimidating. She saw him early in the

3524morning on weekends. When Mr. Mack first arrived he acted as if nothing was

3538right and "would just raise hell at everybody, whether you were a server, a

3552dishwasher, you know whatever."

355659. Ms. McCord observed Mr. Mack and his son Governor Mack, another cook,

3569use the words "fuck, fuck you and mother fucker", sometimes directed to her but

3583a lot of times in conversation between the cooks or with a dishwasher or with

3598other servers.

360060. Ms. McCord observed the cooks on Mr. Mack's shift, to include Mr.

3613Mack, "brag about their physical anatomy and what they do and how they do and

3628that they would talk sexually about women." The words that were used in the

3642discussions between the cooks about sexual matters made Ms. McCord feel

3653uncomfortable and offended.

365661. Ms. McCord complained to Mr. Stowell about the profane language by the

3669cooks. His response to the complaints was "I'll see about it". She made

3683similar complaints to the night manager who said he would talk to the day

3697manager who was Mr. Stowell. It is not clear whether Ms. McCord received a

3711satisfactory response to her complaint.

371662. Donna Land was a server at the Parkway restaurant. She is and has

3730been the Petitioner's roommate since 1989. Her employment at the Parkway

3741restaurant lasted a few days. She quit her job at the restaurant shortly after

3755Petitioner's last day as a server.

376163. Ms. Land observed that Mr. Mack was "fussy" on the day that Petitioner

3775was last employed at the restaurant. Ms. Land was standing near the window

3788where the food is delivered when she saw Petitioner approach that area.

3800Petitioner asked Mr. Mack to do her a favor and get the Petitioner some

3814hollandaise sauce. At that time Ms. land observed that Mr. Mack was real busy.

3828The ticket holder was full and Mr. Mack said "I've got to have a ticket in order

3845to do that." To which Petitioner responded that Mr. Stowell was coming with the

3859ticket. Shortly thereafter Mr. Stowell came into the conversation. After

3869Stowell showed up Mr. Mack started yelling and cursing Petitioner and shaking

3881his spatula in her direction. Mr. Mack said "I'm not going to get you this, god

3897damn this." Mr. Mack called Petitioner a "fucking white bitch" and told the

3910Petitioner to "drop dead" and that he was "going to kill her." At this juncture

3925Petitioner started to cry. Mr. Stowell then slid a bowl across and told Mr.

3939Mack to give Mr. Stowell some hollandaise sauce. Mr. Mack slid the bowl back

3953and said "you go to hell, I'm not giving you it either." Mr. Mack then said

"3969get that fucking white bitch out of my face before I stomp her to the ground."

3985As Ms. Land recalls, Mr. Stowell then told Petitioner to go home. Petitioner

3998replied "I can't believe you are letting him talk to me like this." Mr. Stowell

4013told Petitioner again to "go". Petitioner stepped away and remarked to the

4026effect that, "I'm not going anywhere" and asked Mr. Stowell if he was firing

4040her. Mr. Stowell then responded by telling the Petitioner that she was fired.

405364. It appears that Mr. Stowell was trying to remove Petitioner from a

4066threatening situation, not intending to fire her until Petitioner refused to

4077leave. Petitioner walked out of the restaurant at that time.

408765. Ms. Land was upset by these events. Mr. Stowell told Ms. Land that

4101the Petitioner would be all right and that he would give her a call later.

411666. In the conversation between the Petitioner and Mr. Mack that was

4128overheard by Ms. Land, Petitioner remarked that while the customer had been

4140served hollandaise sauce that it was not enough and the man wanted more as a

4155side order. The extra hollandaise sauce had not been put on the ticket as

4169required by restaurant policy.

417367. Ms. Land overheard the kitchen staff using the words "fucking, pussy

4185and bitch." Ms. Land perceived that the words were directed at her and she felt

4200a little embarrassed.

420368. Ms. Land observed the kitchen staff put their hands in their pants,

4216which they wore very low, meaning placing their hands in their groin area. Ms.

4230Land is not sure whether the manager, Mr. Stowell, observed this conduct and she

4244did not make a complaint about the conduct.

425269. Ms. Land observed cooks in the kitchen yell at Ms. Helms and that Ms.

4267Helms cried a lot.

427170. Ms. Land worked with a male server named Joe. She never observed the

4285cooks give Joe "a hard time."

429171. Angela Brumblaugh worked at the Parkway restaurant from September 1992

4302into August 1994 as a hostess, server and closing manager. She also lived with

4316Michael and Beth Titze for four months. Christopher Titze was her friend during

4329the time Ms. Brumblaugh worked at the restaurant.

433772. During the time that Ms. Brumblaugh worked at the restaurant she

4349overheard curse words and profanity from cooks, servers, bus-boys and

4359dishwashers. Those words that she heard were "damn, shit, and fuck." Among

4371others, she heard Petitioner use those words. The context in which she heard

4384those words used was related to a general griping about something that was not

4398going right while working at the restaurant. By example, food orders that did

4411not come out fast enough or someone getting in the way of employees' movements

4425or a customer that was too demanding. The context was one in which the

4439situation was stressful due to the time constraints for preparing and delivering

4451food orders.

445373. Ms. Brumblaugh observed that Mr. Mack was a stickler about marking

4465things that were to be charged for on the tickets. If they were not marked, and

4481other cooks were not enforcing the policy about requiring the tickets to be

4494marked so that items could be charged for, he would "get on" those other cooks.

450974. Ms. Brumblaugh never heard cooks refer to Petitioner as "fucking white

4521bitch."

452275. Ms. Brumblaugh never observed what she considered to be a sexual

4534problem involving employment discrimination.

453876. Ms. Brumblaugh observed Petitioner's overall disposition as being

4547happy and excited one minute and "pissed off and bitching and yelling" the next

4561minute.

456277. Ms. Brumblaugh overheard Petitioner yelling about food being late

4572coming out the window and in the course of these remarks Petitioner was profane.

458678. Petitioner never mentioned to Ms. Brumblaugh that she considered that

4597employment discrimination was being directed to the Petitioner based upon

4607Petitioner's sex.

460979. Ms. Brumblaugh observed kitchen personnel place their hands in their

4620crotch area. She perceived these actions to be to adjust shorts or to scratch.

463480. As hostess, Ms. Brumblaugh was expected to remind servers about the

4646correctness of their uniforms. She gave these reminders. If a server was

4658missing a bow tie she would get them another and at times when servers were

4673missing hose there were hose available at the restaurant; if not available, the

4686server was reprimanded and told to wear the hose.

469581. Kim Taylor has worked as a server at the Parkway restaurant on and off

4710for a period of ten years. She describes herself as a close friend of

4724Petitioner.

472582. Ms. Taylor worked on the day shift with Petitioner.

473583. Ms. Taylor would cry when Mr. Mack yelled at her for not writing the

4750tickets properly. She did not complain to management about this problem, but

4762resolved the issue by working in an area separate from Mr. Mack.

477484. Ms. Taylor heard kitchen employees refer to servers as "bitch".

478685. Ms. Taylor observed that when problems developed between the servers

4797and the cooks the food service was delayed and that influenced the amount of

4811money the servers earned.

481586. Ms. Taylor did not observe Mr. Stowell being present when the kitchen

4828employees used profane language, but surmises that Mr. Stowell heard it because

4840it could be heard throughout the restaurant. Furthermore, on those occasions

4851Mr. Stowell would come and tell the kitchen employees to "chill out" or "you

4865need to stop". In Ms. Taylor's view these attempts at correction were

4878unavailing. However, Ms. Taylor does not appear to have reminded management

4889that its attempts at correction were not successful.

489787. After Petitioner's last day, Ms. Taylor talked to the Petitioner and

4909following that conversation asked Beth Titze to rehire the Petitioner.

491988. Beth Titze worked at the Parkway restaurant between the hours of 8:00

4932a.m. and 2:00 p.m. on weekdays and from around 8:00 to 8:30 a.m. to 2:30 to 4:00

4949p.m. on weekends.

495289. Although Ms. Titze had no specific recollection as to the exact words

4965of the profanity that were used, she does recall profanity being used by the

4979cooks in her presence. When this occurred she told them to cease.

499190. When circumstances would occur between servers or cooks that involved

5002swearing and it was reported to her she would intercede. Usually this profanity

5015was based upon provocations by servers yelling at cooks, but sometimes it

5027involved cooks provoking servers. The circumstances for these exchanges were

5037related to times of stress. When informed of the problems Ms. Titze would go

5051into the area and yell, "watch your mouth", "what's the problem" or "what do you

5066need" or "what is the situation here".

507491. Ms. Titze expected Mr. Stowell to make decisions on whether an

5086employee should be dismissed. If an employee was repeatedly late, Ms. Titze

5098would remind Mr. Stowell that he had a problem and leave the decision to Mr.

5113Stowell to dismiss a server if the server continued to be late. Her general

5127experience was that most employees were on time for work.

513792. When employees were not in the proper uniform Ms. Titze expected Mr.

5150Stowell to see that they got into proper uniform. Whatever disciplinary action

5162was to be taken for not being in proper uniform was left over to Mr. Stowell.

517893. Ms. Titze has never observed a point in time when all servers were out

5193of the proper uniform.

519794. Ms. Titze established that the servers' earnings and benefits package

5208was a payment of $2.31 an hour, plus tips and a week's paid vacation for servers

5224who had worked at the restaurant for a year.

523395. Ms. Titze observed that Petitioner was often late for work, especially

5245on weekends or occasions when it was important for the Petitioner to be on time.

5260Ms. Titze indicated that Petitioner was habitually late for work.

527096. Ms. Titze described the fact that Petitioner was not always in

5282uniform, especially related to the refusal to wear nylons even in the instance

5295where Ms. Titze had bought nylons to provide Petitioner.

530497. Another problem that Ms. Titze observed was that the Petitioner did

5316not wear appropriate shoes. Petitioner wore cloth shoes that were a type of

5329canvas tennis shoes which were not acceptable foot wear.

533898. When Ms. Titze spoke to Mr. Stowell about Petitioner's problems with

5350being late for work and not being in the proper uniform, a conversation which

5364she had with him on frequent occasions, Mr. Stowell responded that he, "did not

5378have anyone to take her place at that time."

538799. As described before, Petitioner sought reemployment from Ms. Titze.

5397On that occasion Petitioner was in uniform, to include the proper foot wear.

5410Petitioner remarked to Ms. Titze that she had the correct shoes and could she

5424please have her job back. Ms. Titze replied that the fact that Petitioner was

5438always late and that she could never depend on her, made Ms. Titze feel that she

5454could not use Petitioner at that point. The decision on reemployment was made

5467by Ms. Titze because she was managing the Parkway restaurant at that time.

5480100. Ms. Titze has no personal knowledge of any conduct directed to

5492Petitioner that could be considered discrimination on the basis of sex and no

5505conduct of that type was reported to Ms. Titze.

5514101. Contrary to testimony by other witnesses, Ms. Titze did not say, in

5527jest, that she was going to cut Petitioner's legs with a razor blade, direct

5541profanity at servers or make an obscene gesture at servers with her middle

5554finger. Ms. Titze does admit to swearing under her breath by using the word

"5568damn" in certain circumstances that occur at the restaurant.

5577102. Ms. Titze has not observed the buttocks of the male cooks while they

5591were working at the restaurant, nor seen those cooks grab their crotches.

5603103. Ms. Titze, from her observations, believed that the slow downs in

5615service were related to the volume of business and not a deliberate ploy by the

5630cooks. She is correct. Moreover, the delays in service created by arguments

5642between servers and cooks explain why customers did not receive their food as

5655quickly as they would have preferred, not the idea that cooks alone contrived to

5669delay the service. As a consequence the servers' loss of tips for late service

5683cannot be equated to unilateral action by the cooks to interfere with the tips

5697received by servers.

5700104. Petitioner perceived the relationship with the kitchen employees as

5710being an intense situation, especially when the restaurant was busy.

5720105. Mr. Mack in particular was seen by the Petitioner as being upset when

5734the restaurant was busy. She observed him shaking his spatula and making

5746gestures with his hands and yelling out slurs at the slower servers and picking

5760out problems on the tickets which Petitioner did not believe to be a "big deal."

5775Petitioner described the conduct by Mr. Mack as "ranting and raving." He would

5788remark that he "was not going to do this damn food for you this way" and "this

5805ain't the way its on the fucking menu."

5813106. By virtue of complaints which Petitioner made to Mr. Stowell there

5825was a period in which Mr. Mack and the Petitioner "just laid off each other."

5840107. At times Mr. Mack and other cooks called Petitioner a "bitch" or

"5853fucking bitch".

5856108. Cooks would also refer to Petitioner as "stupid bitch".

5867109. Petitioner heard cooks refer to Ms. Dixon as "stupid bitch" and Ms.

5880Helms as a "dumb bitch". When this occurred Petitioner observed that Ms. Dixon

5894and Ms. Helms would often cry.

5900110. Petitioner observed Mr. Mack tell Ms. Helms that she was "crazy",

5912that "crack" drove her "crazy" and had "eaten her brain."

5922111. Governor Mack referred to Petitioner on one day as "damn bitch". She

5936replied that he was a kid and should not talk to people that way.

5950112. Petitioner observed the cooks wearing loose clothing such that you

5961could see part of their shorts with words written on the shorts like "yes" and

"5976no". When the cooks bent over in the kitchen Petitioner could see their

"5990cracks".

5992113. Petitioner considered the clothing that the cooks wore that allowed

6003her to see their shorts to be sexually offensive. What she meant by that is

6018further described as, she "did not like seeing a man with his pants half hanging

6033down" and that "this was a restaurant setting and they were representing the

6046restaurant and that they were dressed just like on the street" and that it was

"6061vulgar to her."

6064114. Petitioner observed the cooks place their hands in their crotch area

6076where the genitals are and at the same time observed that the cooks were talking

6091about girls using terms like "that baby" or "I got her".

6103115. Petitioner felt degraded by the profanity directed to her and the

6115conduct that she observed and the physical conduct that she observed on the part

6129of the kitchen employees.

6133116. Petitioner made a general complaint to Mr. Stowell about the vulgar

6145language used by the kitchen staff. She mentioned in "walking and talking

6157lightly" to Mr. Stowell that he should tell the cooks "to pull up their pants or

6173something and to tell the cooks to dress a little better."

6184117. Petitioner describes that she had problems getting her orders from

6195the kitchen when she probably did something to irritate the cook. On a few

6209occasions Petitioner believed that the cooks were deliberately delaying her

6219orders, but acknowledges that those were circumstances in which she did not have

6232her ticket correct, though she believes that it was correct enough to have

6245gotten the order out. When these arguments were engaged in with the cooks

6258concerning the delays, the food would be sitting there ready for serving, and it

6272would not be served while the argument went on between Petitioner and the cook.

6286On these occasions the cooks would say "I ain't gonna cook this shit for you"

6301and would call the Petitioner a "bitch".

6309118. On her last day Petitioner was told by Mr. Mack that he was the only

6325cook scheduled for his part of the restaurant and words to the effect that he

"6340could not believe" that circumstance and complained that Mr. Stowell can't get

6352things right and that he would be glad when Mr. Stowell was gone. Petitioner

6366remarked to Mr. Mack to the effect "are you having a bad morning", and he

6381replied that he was "sick of this." Throughout the morning Petitioner observed

6393that Mr. Mack was under stress and that he was the only cook working in that

6409area.

6410119. As Petitioner describes the situation on her last day, she delivered

6422a customer a skillet that had broccoli and hollandaise sauce. The customer did

6435not believe that it had enough hollandaise sauce and asked Petitioner to get

6448more. Petitioner left the food order ticket with the customer and took up other

6462duties. She then passed Mr. Stowell and asked him to get the ticket, because

6476she needed to get the customer some more hollandaise sauce. Mr. Stowell said

6489that he would. Petitioner then went to the kitchen area and asked Mr. Mack if

6504he would give her some hollandaise sauce, "this man needs some". Mr. Mack asked

6519where her ticket was for the extra hollandaise sauce. Petitioner told Mr. Mack

6532that Mr. Stowell was coming with the ticket. Mr. Mack said "I ain't giving you

6547shit". Petitioner made a further request for the hollandaise sauce and repeated

6560that Mr. Stowell was coming with the ticket. During this exchange Mr. Mack told

6574the Petitioner to "drop dead" and called her a "white fucking bitch" and that he

6589was "going to stomp her into the ground." When he make these remarks he was

6604yelling. When Mr. Stowell approached Petitioner and Mr. Mack, the cook

6615continued his remarks by saying he was "going to kill" Petitioner and calling

6628her a "fucking white bitch". Mr. Stowell said "here's your ticket, give me the

6643hollandaise sauce now". Mr. Mack responded "I ain't giving you shit either."

6656Mr. Mack told Mr. Stowell "you get that white fucking bitch out of my face, I'm

6672going to kill her. Get her out of this building, get her out of here. I'm

6688going to kill her or stomp her face into the ground".

6700120. Under these circumstances, in which Mr. Stowell perceived that the

6711Petitioner was at risk, Mr. Stowell told Petitioner to leave and go home.

6724Petitioner started to leave, then told Mr. Stowell, "you are going to have to

6738fire me if I have to leave this job for the way he just talked to me", referring

6756to Mr. Mack's remarks. Petitioner said to Mr. Stowell "please fire me". Mr.

6770Stowell then responded by saying, "go home, you're fired, Elisa; if that's what

6783you want, you are fired". Petitioner then stated to Mr. Stowell "that's all I

6798wanted to hear."

6801121. In her testimony Petitioner failed to acknowledge that she had been

6813profane to Mr. Mack.

6817122. Petitioner felt threatened by Mr. Mack and cried.

6826123. At hearing Petitioner described her motivation on the last day to be

6839that she was not going to quit the job. She was "not going to be cussed like a

6857dog and then have to walk away" and that "it was better to have been fired."

6873Under that arrangement Petitioner testified "I didn't have to ever come back

6885there".

6887124. After she left the restaurant on the last day that Petitioner was

6900employed at the Parkway restaurant, she told an acquaintance, Ruby Wilson, who

6912works part-time at the Village Inn restaurant on North Monroe Street, and part-

6925time at Jerry's restaurant at the airport, that Petitioner "quit" her job at the

6939Parkway restaurant. Petitioner further told Ms. Wilson that she "wasn't worried

6950about it and would go back, talk to Beth and get the job back".

6965125. Petitioner had also told the Unemployment Compensation Commission

6974referee, in her hearing on unemployment compensation, that she was "going to

6986make it final that day, and that day I finalized it." She also told the referee

7002that she would have probably quit anyway if circumstances did not improve at the

7016restaurant.

7017126. Petitioner acknowledged that she used profanity while working at the

7028restaurant such as "damn it, they are not getting my food out for me" or "damn

7044it, I can't believe I'm being cussed at again" or "I just can't take this shit

7060no more". By contrast Petitioner denies profane exchanges with the cooks. That

7073testimony related to exchanges is not accepted.

7080127. Petitioner remembers the reason Ms. Titze gave her for not

7091reemploying Petitioner was because the Petitioner did not wear pantyhose.

7101128. An Unemployment Compensation Commission employee advised Petitioner

7109to go back and try an obtain her job and this led to her conversation with Ms.

7126Titze requesting reemployment.

7129129. Joseph Halladay has worked as a server with Respondent on and off for

7143seven or eight years, but his employment on the shift with Petitioner was only

7157for a couple of weeks at the end of Petitioner's employment. During times when

7171he worked for the Respondent he did not receive any sexual or profane abuse by

7186any of the cooks. He did not observe what he considered to be sexual harassment

7201directed to any other server from the cooks.

7209130. Mr. Halladay noticed a difference in conduct by the employees at the

7222restaurant when they were in the rush period. In that setting things were

7235hectic. Mr. Halladay has heard employees yell things like "get out of my way or

7250move".

7252131. On the last day that Petitioner worked at the restaurant Mr. Halladay

7265observed Petitioner and Mr. Mack yelling back and forth one to the other. He

7279does not recall exactly what was being said. He describes the matter as "quite

7293a bit of bickering going on between both parties." As Mr. Halladay recalls, the

7307exchange between Petitioner and Mr. Mack was real loud.

7316132. Mr. Halladay did not observe the cooks flaunting their genitals or

7328grabbing their crotches or wearing their pants so low that the cooks buttocks

7341could be seen. He did observe their underwear showing. He made no complaint

7354about the latter observation.

7358133. Mary Darlene Roy worked ten years with Respondent to include part of

7371the time with Mr. Mack. She left that employment at the beginning of 1994.

7385134. While employed, Ms. Roy did not detect what she considered to be

7398sexual abuse or harassment by Mr. Mack or other cooks.

7408135. Ms. Roy did observe that when order tickets were not correctly filled

7421out the cooks would get upset. In particular, when the tickets were not right

7435and the cooks prepared the wrong food and had to redo the food preparation, this

7450would upset them.

7453136. When Petitioner was late to work Mr. Stowell would ask other servers,

7466to include Ms. Roy to cover Petitioner's work station.

7475137. On some occasions Mr. Stowell had requested Petitioner to pick up a

7488server named Kitty Roe and bring her to work. This made the Petitioner late.

7502On other occasions Petitioner was late for reasons of her own making.

7514138. On one occasion Ms. Roy overheard Mr. Stowell correct Petitioner for

7526not having a bow tie on.

7532139. Ms. Roy heard Petitioner and Mr. Mack arguing "a lot". The arguments

7546had to do with orders not being picked up that were "piling up" and tickets that

7562were not being written right. Mr. Mack yelled at Petitioner about those

7574problems. Ms. Roy recalls that Mr. Mack was a stickler about problems with

7587tickets. In Ms. Roy's experience other cooks would get upset when tickets were

7600not being written properly and orders were not being picked up on time. They

7614were not as verbal about the problems as Mr. Mack would be.

7626140. Ms. Roy never heard Mr. Mack refer to Petitioner as "a fucking white

7640bitch" or "a white bitch".

7646141. Mr. Titze established that Mr. Mack had worked for the Respondent for

7659approximately five years in the capacity of lead cook. This meant that Mr. Mack

7673was responsible for training cooks. Mr. Titze described Mr. Mack as being very

7686high strung. When tickets were not correct Mr. Mack would pull them down and

7700make the server correct them. If the tickets were not correct the cooks would

7714prepare the wrong food and this would throw the cycle of work off. Under these

7729circumstances Mr. Mack was observed by Mr. Titze to "fly off the handle".

7743142. Mr. Titze identified that the employee manual prohibits vulgar

7753language or failure to follow a supervisor's instructions. The managers,

7763according to the manual, are expected to squelch the profane language.

7774143. Mr. Titze confirmed that Mr. Holmes was fired for the sexual advances

7787that he made to Ms. Helms. Other than the Holmes incident, Mr. Titze was not

7802aware of conduct which might be considered sexual harassment.

7811144. Prior to the events involving the Petitioner's claims related to

7822discrimination on the basis of sex, neither Mr. Titze nor Ms. Titze had received

7836complaints of employment discrimination against Petitioner or other servers.

7845145. At the end of May, 1993, Petitioner applied for unemployment

7856compensation. She was granted that compensation in July, 1993.

7865146. Before applying for unemployment compensation Petitioner tried to

7874gain employment at several restaurants other than Respondent's restaurant. She

7884managed to obtain a job at Banjo's restaurant in Tallahassee, Florida, but only

7897worked there for a period of 20 minutes when she was told that she was being

7913dismissed for reasons that were apparently unrelated to her performance at that

7925restaurant.

7926147. In lieu of compensation, Petitioner participated in the Training

7936Investment Program which allowed her to receive schooling directed toward a

7947profession. That schooling was at Lively Vocational Technical School in

7957Tallahassee, Florida, to become a barber. The tuition at Lively was paid by

7970another program. The Training Investment Program paid $69.00 per week through

7981May, 1994, when Petitioner concluded her schooling to become a barber. In this

7994arrangement Petitioner was not required to seek employment while in school.

8005Petitioner began employment as a barber or hair stylist beginning June, 1994.

8017148. Petitioner's gross earnings for the period that she worked at the

8029Parkway restaurant were $3,167.50.

8034149. The value of the TIP income for the year that Petitioner received

8047that money was $3,588.00.

8052150. The $3167.50 earned by Petitioner when employed by Respondent was for

8064an 11-week period covered by a diary kept by Petitioner related to her earnings

8078as extrapolated by an employe with the Unemployment Compensations Commission.

8088When annualized to represent the period from the beginning of June 1993 until

8101the end of May, 1994, when Petitioner was unemployed and attending barber's

8113school, the anticipated earnings had Petitioner maintained her position with

8123Respondent would have been $14,971.00. That $14,971.00 is offset by the

8136$3,588.00 which she was paid as a participant in the TIP program. Therefore,

8150the backpay, including tips and wages, for the period that Petitioner was out of

8164work would amount to $11,383.00. The only benefit that Petitioner would be

8177entitled to is a week's earnings for a vacation period amounting to $72.00,

8190representing a work week of 34 hours at $2.13 per hour.

8201CONCLUSIONS OF LAW

8204151. The Division of Administrative Hearings has jurisdiction over the

8214subject matter and the parties to this action in accordance with Section

8226120.57(1), Florida Statutes.

8229152. Petitioner is a "person" within the meaning of Section 760.02(6),

8240Florida Statutes. Petitioner is an "aggrieved person" within the meaning of

8251Section 760.02(10), Florida Statutes.

8255153. Respondent is an "employer" within the meaning of Section 760.02(7),

8266Florida Statutes.

8268154. Petitioner claims that the Respondent has unlawfully discriminated

8277against her based upon her gender. Again Petitioner claims that Respondent:

8288knowingly maintained a sexually hostile and

8294abusive environment towards female servers that

8300unreasonably interfered with their work, exposing

8306them to disadvantageous working conditions to

8312which male employees were not exposed. The work

8320place for servers was permeated with discriminatory

8327ridicule and insults. Respondent's maintenance of

8333this intimidating environment caused Petitioner's

8338discharge or constructive discharge.

8342155. The statutory basis for Petitioner's claim is set forth in Section

8354760.10(1)(a) and (b), Florida Statutes, which states:

8361(1) It is an unlawful employment practice for

8369an employer:

8371(a) To discharge or to fail or refuse to hire

8381an individual, or otherwise to discriminate against

8388any individual with respect to compensation, terms,

8395conditions, or privileges of employment, because

8401of such individual's race, color, religion, sex,

8408national origin, age, handicap, or marital status.

8415(b) To limit, segregate, or classify employees

8422or applicants for employment in any way which would

8431deprive or tend to deprive any individual of employ-

8440ment opportunities, or adversely affect any

8446individual's status as an employee, because of such

8454individual's race, color religion, sex, national

8460origin, age, handicap, or marital status.

8466156. In resolving this dispute, reference may be made to the precedents

8478set forth in Title VII of the Civil Rights Act of 1964, 42 U.S.C. s.2000e et

8494seq., through court cases interpreting that law. This opportunity exists

8504because Chapter 760, Florida Statutes, "Florida Civil Rights Act of 1992", is

8516patterned after federal legislation. See Florida Dept. of Com. Affairs v.

8527Bryant, 580 So.2d 1205 (Fla. 1st DCA 1991).

8535157. In the Bryant case the court indicated that to resolve the issue of

8549discrimination one must question the facts presented and that includes dealing

8560with issues of weight and credibility of the evidence.

8569158. Having alleged that the Respondent maintained a hostile work

8579environment, Petitioner must offer objective proof about the environment,

8588together with Petitioner's subjective perceptions that the environment was

8597hostile. Moreover, Petitioner must show that the Respondent or its agents, to

8609include Mr. Stowell and Ms. Titze, knew or should have known of the conduct

8623constituting the hostile environment and with that knowledge failed to take

8634appropriate corrective action. See Meritor Savings Bank v. Vinson, 106 S.Ct.

86452399 (1986).

8647159. A sexually hostile or abusive environment exists "when the work place

8659is permeated with 'discriminatory intimidation, ridicule, and insult' that is

8669'sufficiently severe or pervasive to alter the conditions of the victim's

8680employment and create an abusive working environment' . . . ", Harris v.

8692Forklift Systems, Inc., 114 S.Ct. 370 (1993). Concerning the alleged victim's

8703subjective perception about the working environment, the Harris court stated,

"8713so long as the environment would reasonably be perceived and is perceived, as

8726hostile or abusive, there is no need for it to also be psychologically

8739injurious". However, the affect of the alleged discrimination on the employee's

8751psychological well-being has relevance in determining whether the employee

8760perceived that the environment was abusive.

8766160. In the Harris opinion, at 114 S.Ct. at 371, the court described the

8780test for measuring the quality of the environment and whether it constituted a

8793sexually hostile or abusive environment when it stated:

8801. . . whether an environment is 'hostile' or

8810'abusive' can be determined only by looking at

8818all the circumstances. These may include the

8825frequency of the discriminatory conduct; its

8831severity, whether it is physically threatening

8837or humiliating, or a mere offensive utterance;

8844and whether it unreasonably interferes with the

8851employee's work performance . . . no single factor

8860is required.

8862161. Again in the Harris case, at 114 S.Ct. 372, Justice Ginsburg in a

8876concurring opinion commented on the test for a sexually hostile or abusive

8888environment in this manner:

8892The critical issue, Title VII's text indicates,

8899is whether members of one sex are exposed to

8908disadvantageous terms or conditions of employment

8914to which members of the other sex are not exposed.

8924. . . It suffices to prove that a reasonable person

8935subjected to the discriminatory conduct would find,

8942as the Plaintiff did, that the harassment so altered

8951working conditions as to make it more difficult to

8960do the job.

8963162. Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (MD Fla.

89741991) speaks to the nature of the proof that must be demonstrated by Petitioner

8988to prevail in her claim where it is stated:

8997Five elements comprise a claim of sexual dis-

9005crimination based on the existence of hostile

9012working environment;

9014(1) Plaintiff belongs to a protected category;

9021(2) Plaintiff was subject to unwelcomed sexual

9028harassment;

9029(3) The harassment complained of was based

9036upon sex;

9038(4) The harassment complained of affected a

9045term, condition or privilege of employment; and

9052(5) Respondeat superior, that is Defendants

9058knew or should have known of the harassment and

9067failed to take prompt, effective remedial action.

9074163. Those elements of proof follow the holding in Jones v. Flagship

9086International, 793 Fed. 2d 714 (5th Cir. 1986).

9094164. Verbal abuse in an environment which allows verbal abuse of a female

9107worker is not condoned even in the instances where the individual committing the

9120harassment and the female worker/claimant do not like each other. See Burns v.

9133McGregory Electronics Industries, Inc., 989 F.2d 959 (8th Cir. 1993) and

9144unwelcomed sexual harassment by a co-worker cannot be justified even in the

9156instances where the Claimant is "unlady like". See Carr v. Allison Gas Turbine

9170Division, General Motors Corp., 32 F.3d 1007 (7th Cir. 1994).

9180165. As a female Petitioner belongs to a protected category.

9190166. Petitioner and other female servers were subject to unwelcomed

9200harassment by the profane language and non-verbal conduct by the kitchen

9211personnel. However, the overall circumstances point out that to some extent the

9223servers contributed to the hostile working environment in times of stress

9234through unpleasant exchanges with the cooks. In those instances interference

9244with the servers' work performance was as much influenced by the servers as by

9258the cooks.

9260167. The harassment complained of was not entirely based upon her sex

9272(female). As a means to compare whether, but for the fact of her sex,

9286Petitioner would not have been the object of the harassment, the circumstances

9298were such that all servers were females save one male server. The male server

9312worked as a server for a short period of time common to the period when

9327Petitioner worked. During that short period of time he was not subjected to

9340abusive treatment by the kitchen personnel. It was not shown that he did things

9354that might give rise to abusive responses by the cooks. The exchanges between

9367female servers and cooks were not so much in recognition of their gender, they

9381were more related to their employment positions.

9388168. While the harassment that Petitioner was subjected to affected her

9399basic condition of employment, there was no meaningful opportunity to compare

9410the treatment of Petitioner and other female servers to male servers to

9422determine whether male servers would be exposed to disadvantageous conditions of

9433employment. Petitioner's terms and privileges of employment were unaffected by

9443sexual harassment that male employees were principally responsible for, conduct

9453unrelated to the exchanges about food orders.

9460169. The persons in charge of the restaurant knew about the questionable

9472conduct by kitchen personnel in using profanity directed to or in the presence

9485of the female servers. The remedial action taken in response to this conduct

9498was prompt but ineffective. Management was not sufficiently apprised of the

9509non-verbal conduct to be expected to take remedial action.

9518170. Petitioner and other female servers perceived and reasonably so, that

9529the work environment was hostile and abusive.

9536171. However, on the whole Petititioner has failed to prove that she was

9549the victim of sexual discrimination.

9554172. The basis upon which Petitioner left her employment with Respondent

9565was unusual. She was a willing participant in the argument with Mr. Mack on

9579that last day. Mr. Stowell took actions to remove Petitioner from a situation

9592that was potentially harmful to Petitioner. When Petitioner would not leave the

9604job for that day voluntarily, but rather insisted that the matter be brought to

9618conclusion concerning her ultimate employment with Respondent, Petitioner

9626invited Mr. Stowell to fire her. He did so. By those actions he did not act in

9643a discriminatory fashion. His decision is measured against Petitioner's

9652employment history at the Parkway restaurant. Her performance was one in which

9664she was often late for work and did not meet uniform requirements for servers.

9678See Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991).

9691RECOMMENDATION

9692Based upon the findings of fact and the conclusions of law, it is,

9705RECOMMENDED:

9706That the final order be entered which dismisses Petitioner's claims of

9717discrimination based upon sex.

9721DONE and ENTERED this 24th day of May, 1995, in Tallahassee, Florida.

9733___________________________________

9734CHARLES C. ADAMS, Hearing Officer

9739Division of Administrative Hearings

9743The DeSoto Building

97461230 Apalachee Parkway

9749Tallahassee, Florida 32399-1550

9752(904) 488-9675

9754Filed with the Clerk of the

9760Division of Administrative Hearings

9764this 24th day of May, 1995.

9770APPENDIX

9771The following discussion is given concerning the proposed facts of the

9782parties:

9783Petitioner's Facts:

9785Paragraphs 1 and 2 are not necessary to the resolution of the dispute.

9798Paragraphs 3 through 7 are subordinate to facts found.

9807Paragraph 8 is rejected.

9811Paragraphs 9 through 12 are subordinate to facts found.

9820Paragraph 13 is not necessary to the resolution of the dispute.

9831Paragraph 14 is subordinate to facts found with the exception of the latter

9844phrases referring to "mother fuckers" and "fuck you, mother fucker" which

9855phrases are rejected.

9858Paragraphs 15 and 16 are subordinate to facts found.

9867Paragraph 17 is rejected.

9871Paragraph 18 is subordinate to facts found with the exception of the

9883reference to comments about breasts which is rejected.

9891Paragraph 19 is subordinate to facts found.

9898Paragraph 20 is contrary to facts found.

9905Paragraph 21 is accepted in the reference to verbal aggression and is

9917rejected in the reference to physical aggression.

9924Paragraph 22 is subordinate to facts found with the exception of the phrase

9937which says describing their genitals and "you want some of this baby" which is

9951rejected.

9952Paragraph 23 is subordinate to facts found with the exception that the

9964suggestion that the cooks were directing their conduct specifically to the

9975Petitioner is rejected.

9978Paragraphs 24 and 25 are not necessary to the resolution of the dispute.

9991The first sentence to Paragraph 26 is subordinate to facts found. The

10003latter sentence is rejected.

10007The first sentence to Paragraph 27 is rejected. The second sentence is

10019subordinate to facts found.

10023Paragraphs 28 through 30 are subordinate to facts found.

10032The first sentence to Paragraph 31 is contrary to facts found. The second

10045sentence is subordinate to facts found with the exception of the phrase that the

10059attempts to stop the conduct did not do any good which phrase is rejected. The

10074third sentence to Paragraph 31 is subordinate to facts found.

10084Paragraph 32 is subordinate to facts found in its first sentence. The

10096first phrase in the second sentence is subordinate to facts found. The latter

10109phrase is not necessary to the resolution of the dispute. The third sentence is

10123contrary to facts found. The fourth and fifth sentences are rejected in the

10136suggestion that the complaint by the server's father led to the dismissal of the

10150cook. The last sentence in Paragraph 32 is subordinate to facts found with the

10164exception of the suggestion that the complaint was to no avail, which is

10177rejected.

10178Paragraph 33 is subordinate to facts found.

10185Paragraphs 34 and 35 are contrary to facts found in the suggestion that

10198orders were deliberately slowed up resulting in lower tips to the servers. The

10211offensive language that is commented on in Paragraphs 34 and 35 is subordinate

10224to facts found.

10227Paragraphs 36 and 37 are subordinate to facts found.

10236Paragraph 38 is not necessary to the resolution of the dispute.

10247Paragraph 39 is rejected in its suggestion that the Petitioner's

10257nonconformance with uniform requirements were comparable to the experience with

10267other servers in terms of frequency.

10273Paragraph 40 is subordinate to facts found.

10280Paragraph 41 is not necessary to the resolution of the dispute.

10291Paragraph 42 is not necessary to the resolution of the dispute.

10302Paragraph 43 is contrary to facts found in the suggestion that Petitioner

10314was occasionally late, is subordinate to facts found in the remaining phrase.

10326Paragraph 44 is subordinate to facts found.

10333Paragraph 45 is not necessary to the resolution of the dispute.

10344Paragraphs 46 and 47 are not necessary to the resolution of the dispute.

10357Paragraph 48 is subordinate to facts found.

10364Paragraph 49 is not necessary to the resolution of the dispute.

10375Paragraph 50 is subordinate to facts found with the exception of the last

10388sentence which is not necessary to the resolution of the dispute.

10399Paragraph 51 is subordinate to facts found.

10406Paragraphs 52 through 54 are not necessary to the resolution of the

10418dispute.

10419Paragraphs 55 through 63 are subordinate to facts found.

10428The first sentence to Paragraph 64 is not necessary to the resolution of

10441the dispute. The latter sentence is subordinate to facts found.

10451Paragraphs 65, 66 and 67 in the non-parenthetical references are

10461subordinate to facts found. The parenthetical references are an incomplete

10471discussion of the facts found in the recommended order.

10480Paragraph 68 is subordinate to facts found.

10487Paragraphs 69 and 70 are not necessary to the resolution of the dispute.

10500The first sentence to Paragraph 71 is contrary to facts found. The second

10513and third sentences are subordinate to facts found.

10521Paragraph 72 is contrary to facts found in its suggestion that Petitioner

10533did not use profane language in the confrontation with the cook.

10544Paragraph 73 is contrary to facts found.

10551Paragraph 74 is a conclusion of law.

10558Paragraph 75 is contrary to facts found.

10565Paragraph 76 is not necessary to the resolution of the dispute.

10576Paragraph 77 is not necessary to the resolution of the dispute.

10587The first sentence to Paragraph 78 is not necessary to the resolution of

10600the dispute. The latter sentence to Paragraph 78 is subordinate to facts found.

10613Paragraphs 79 and 80 are not necessary to the resolution of the dispute.

10626Paragraph 81 is contrary to facts found.

10633Paragraphs 82 through 88 are not necessary to the resolution of the

10645dispute.

10646Concerning Paragraphs 89 and 90, whatever Petitioner's intentions prior to

10656the confrontation with the cook, once that confrontation transpired Petitioner

10666opted to be fired rather than be sent home to get away from the threats by the

10683cook or to quit her employment of her on volition.

10693Paragraph 91 is subordinate to facts found.

10700Paragraphs 92 through 95 are rejected.

10706Paragraphs 96 through 99 are subordinate to facts found.

10715Paragraph 100 is not necessary to the resolution of the dispute.

10726Paragraph 101 is subordinate to facts found in the first sentence. The

10738latter sentences in Paragraph 101 are irrelevant.

10745Paragraphs 102 through 104 are acknowledged as attempts at impeachment but

10756are rejected in favor of the facts found in the recommended order.

10768Paragraphs 105 through 114 are subordinate to facts found.

10777Paragraph 115 is not necessary to the resolution of the dispute.

10788Paragraphs 116 and 117 are subordinate to facts found.

10797Paragraphs 118 through 120 are not necessary to the resolution of the

10809dispute.

10810Paragraphs 121 through 124 are subordinate to facts found.

10819Paragraphs 125 through 133 are not necessary to the resolution of the

10831dispute.

10832Paragraph 134 is irrelevant with the exception of the last sentence which

10844is subordinate to facts found.

10849Paragraphs 135 through 145 constitute legal argument.

10856Respondent's Facts:

10858Paragraphs 1 and 2 are subordinate to facts found.

10867The first phrase to Paragraph 3 is accepted to the extent that conditions

10880were stressful and the expectation of timely service to patrons. The remaining

10892language in Paragraph 3 is rejected in that it was not established that the

10906employees were aware of any signs that incrementally addressed the time

10917standards for service.

10920Paragraphs 4 through the first two sentences of Paragraph 8 are subordinate

10932to facts found. The phrase pertaining to Petitioner's former employment is not

10944relevant. The remaining portions of Paragraph 8 are subordinate to facts found.

10956Paragraphs 9 and 10 constitutes legal argument.

10963Paragraphs 11 through 13 are not necessary to the resolution of the

10975dispute.

10976Paragraph 14 is subordinate to facts found.

10983Paragraph 15 is not necessary to the resolution of the dispute with the

10996exception of the discussion of the basis for Petitioner's departure from the

11008restaurant on May 15, 1993, which is subordinate to facts found.

11019Paragraphs 16 and 17 are not necessary to the resolution of the dispute.

11032Paragraph 18 is not relevant.

11037Paragraph 19 is subordinate to facts found.

11044Paragraph 20 is not necessary to the resolution of the dispute.

11055Paragraphs 21 through 24 are subordinate to facts found.

11064Paragraph 25 is not necessary to the resolution of the dispute.

11075Paragraph 26 and the first sentence to Paragraph 27 are subordinate to

11087facts found. The remaining sentences within Paragraph 27 constitute legal

11097argument.

11098Paragraph 28 is subordinate to facts found.

11105Paragraph 29 is contrary to facts found.

11112Paragraph 30 constitutes a correct portrayal of the process engaged in by

11124the hearing officer; however, it is not necessary to report those activities in

11137the fact finding.

11140COPIES FURNISHED:

11142Patricia A. Renovitch, Esq.

11146P. O. Box 6507

11150Tallahassee, FL 32314-6507

11153Stephen Marc Slepin, Esq.

111571114 E. Park Ave.

11161Tallahassee, FL 32301

11164Sharon Moultry, Clerk

11167Human Relations Commission

11170325 John Knox Rd.

11174Bldg. F, Ste. 240

11178Tallahassee, FL 32303-4149

11181Dana Baird, General Counsel

11185Human Relations Commission

11188325 John Knox Rd.

11192Bldg. F, Ste. 240

11196Tallahassee, FL 32303-4149

11199NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

11205All parties have the right to submit written exceptions to this Recommended

11217Order. All agencies allow each party at least 10 days in which to submit

11231written exceptions. Some agencies allow a larger period within which to submit

11243written exceptions. You should contact the agency that will issue the final

11255order in this case concerning agency rules on the deadline for filing exceptions

11268to this Recommended Order. Any exceptions to this Recommended Order should be

11280filed with the agency that will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 12/13/1996
Proceedings: Final Order Dismissing Petition for Relief From An Unlawful Employment Practice filed.
PDF:
Date: 12/11/1996
Proceedings: Agency Final Order
PDF:
Date: 12/11/1996
Proceedings: Recommended Order
Date: 12/13/1995
Proceedings: (5) Subpoena Duces Tecum; Letter to S. Slepin from P. Renovitch re: Accepting Service for B. Titze filed.
PDF:
Date: 05/24/1995
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 01/06 & 20/95.
Date: 04/03/1995
Proceedings: Respondent`s Reply to Petitioner`s Motion to Strike Addenda to Respondent`s Proposed Recommended Order w/cover letter filed.
Date: 03/29/1995
Proceedings: Consented Motion to Correct Petitioner`s Proposed Recommended Order; Motion to Strike Addenda to Respondent`s Proposed Recommended Order filed.
Date: 03/28/1995
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 03/28/1995
Proceedings: Respondent`s Proposed Recommended Order and Addenda filed.
Date: 03/20/1995
Proceedings: (Respondent) Motion for Extension of Time Within Which to File Proposed Recommended Orders filed.
Date: 03/02/1995
Proceedings: Transcripts (Volumes I, II, III, IV, tagged) filed.
Date: 02/01/1995
Proceedings: (Petitioner) Post-Hearing Submission of Documents w/cover letter; Exhibits filed.
Date: 01/30/1995
Proceedings: Letter to Hearing Officer from P. Renovitch re: Delay in filing additional documentation concerning Petitioner`s attendance at Tallahassee Community College filed.
Date: 01/20/1995
Proceedings: CASE STATUS: Hearing Held.
Date: 01/19/1995
Proceedings: (Respondent) Beth Titze`s Compliance with Subpoena Duces Tecum filed.
Date: 01/10/1995
Proceedings: (Petitioner) Notice of Taking Depositions Duces Tecum filed.
Date: 01/09/1995
Proceedings: Order Rescheduling Hearing sent out. (hearing rescheduled for 1/20/95; 9:00am; Tallahassee)
Date: 01/06/1995
Proceedings: Petitioner`s Response to Respondent`s Motion in Limine; Affidavit of Jeri Williams; Unemployment Compensation Appeal Hearing of Elisa L. Scott July 22, 1993 filed.
Date: 01/04/1995
Proceedings: (6) Subpoena Duces Tecum; Letter to S. Slepin from P. Renovitch re: Accepting service for B. Tize and K. Taylor filed.
Date: 01/03/1995
Proceedings: Order sent out. (deposition of Kim Tuten denied)
Date: 01/03/1995
Proceedings: Respondent`s Motion in Limine filed.
Date: 12/30/1994
Proceedings: Letter to Hearing Officer from S. Slepin re: Hearing dates; Respondent`s Motion for Protective Order filed.
Date: 12/21/1994
Proceedings: (Petitioner) Notice of Taking Deposition Duces Tecum filed.
Date: 12/19/1994
Proceedings: Respondent`s Supplement To Answers To Interrogatories filed.
Date: 12/16/1994
Proceedings: Order sent out. (motion to continue denied)
Date: 12/12/1994
Proceedings: Respondent`s Supplement To Interrogatories w/cover letter; Notice of Taking Deposition filed.
Date: 12/09/1994
Proceedings: (Petitioner) Notice of Answering Interrogatories filed.
Date: 12/08/1994
Proceedings: (Petitioner) Notice of Taking Depositions Duces Tecum filed.
Date: 12/06/1994
Proceedings: Respondent`s Response To First Request for Production of Documents; Respondent`s Answers To First Set of Interrogatories with cover letter filed.
Date: 12/02/1994
Proceedings: Respondent`s Motion for Continuance filed.
Date: 11/29/1994
Proceedings: (Respondent) Notice of Service of Interrogatories filed.
Date: 11/09/1994
Proceedings: Notice of Taking Deposition filed.
Date: 11/04/1994
Proceedings: (Petitioner) Notice of Service of Interrogatories; Petitioner`s First Request for Production of Documents filed.
Date: 11/01/1994
Proceedings: Motion to correct Notice of Hearing (Respondent) filed.
Date: 10/28/1994
Proceedings: (Respondent) Answer filed.
Date: 10/26/1994
Proceedings: Notice of Hearing sent out. (hearing set for 1/6/95; 9:00am; Tallahassee)
Date: 10/21/1994
Proceedings: (Petitioner) Response to Initial Order filed.
Date: 10/20/1994
Proceedings: Letter to DOAH from B. Minnick (RE: Notice that he no longer represents Respondent; CC: Letter to E. Robinson from B. Minnick (withdrawal from case) filed.
Date: 10/14/1994
Proceedings: Initial Order issued.
Date: 10/12/1994
Proceedings: Respondent`s Request for Referral to DOAH; & Cover Letter from S. Slepin filed.
Date: 10/07/1994
Proceedings: Transmittal of Petition; Charge of Discrimination; Notice of Determination: No Cause; Determination: (1) Sex: Cause (2) Race: No Cause; Petition for Relief; Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practice filed.

Case Information

Judge:
CHARLES C. ADAMS
Date Filed:
10/07/1994
Date Assignment:
10/14/1994
Last Docket Entry:
12/13/1996
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Related DOAH Cases(s) (1):

Related Florida Statute(s) (3):