Landmark Sexual Harassment case in Florida. Sexual Harassment by a coworker.

Landmark Sexual Harassment case in Florida. Sexual Harassment by a coworker.

Sexual HarassmentHere is the final 5th District Court of Appeals Ruling:

Allen and Arcadier, currently known as Arcadier and Associates, represented Plaintiff all the way to the Supreme Court.

SPEEDWAY SUPERAMERICA, LLC, Appellant, v. ERMA DUPONT, Appellee.

Case No. 5D04-14

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

933 So. 2d 75; 2006 Fla. App. LEXIS 8251; 98 Fair Empl. Prac. Cas. (BNA) 459; 31 Fla. L. Weekly D 1471

May 26, 2006, Opinion Filed

SUBSEQUENT HISTORY: As Corrected July 21, 2006. Released for Publication July 31, 2006.
Later proceeding at Speedway Superamerica, LLC v. Dupont, 2006 Fla. App. LEXIS 13272 (Fla. Dist. Ct. App. 5th Dist., July 12, 2006)
Review granted by Speedway Superamerica, LLC v. Dupont, 937 So. 2d 123, 2006 Fla. LEXIS 1952 (Fla., 2006)
Review dismissed by Speedway SuperAmerica, LLC v. Dupont, 2007 Fla. LEXIS 572 (Fla., Apr. 5, 2007)

PRIOR HISTORY: [**1] Appeal from the Circuit Court for Brevard County, John Dean Moxley, Judge.
Speedway SuperAmerica, LLC v. Dupont, 2005 Fla. App. LEXIS 10129 (Fla. Dist. Ct. App. 5th Dist., July 1, 2005)

DISPOSITION: AFFIRMED.

CASE SUMMARYPROCEDURAL POSTURE: Upon further discussion and review, the original opinion in an appeal filed by appellant employer was withdrawn and the instant opinion was substituted. The employer had sought review of a judgment of the Circuit Court for Brevard County (Florida), which was entered after a jury trial in appellee employee’s Florida action based on sexual harassment and hostile work environment. The employee was awarded both compensatory and punitive damages.

OVERVIEW: The employee quit her job at a convenience store after the solution management provided for the harassment the employee asserted was directed at her by a co-worker fell apart, and the employee was forced to work with the co-employee again. The court affirmed, holding in part that (1) evidence of the co-worker’s uninvited touching, though it was not frequent, was sufficient to support a finding of sexual harassment in light of the employee’s evidence that she was subjectively damaged by the conduct; (2) whether a reasonable person would have been so affected by the co-worker’s actions was a jury question that was expressly resolved against the employer by the jury; (3) the evidence showed that the co-worker’s improper behavior was directed at females; (4) evidence that the employee first reported the co-worker’s behavior in March 1997 but that no action was taken until May 1997 supported the finding that the employer’s remedial actions were not “prompt”; (5) the employer’s remedial actions were insufficient; and (6) although the standard for awarding punitive damages was not clear, punitive damages were properly awarded in the instant case.

OUTCOME: The trial court’s decision was affirmed. The court certified the question of whether the rule announced in Mercury Motors Express Inc. v. Smith, under which an employer could be held vicariously liable for punitive damages based upon the willful and wanton conduct of its employee, applied to punitive damage awards under Fla. Stat. § 760.11(5).

CORE TERMS: harassment, punitive damages, sexual harassment, sexual, hostile, manager, supervisor, work environment, pervasive, severe, female, sex, male, workplace, customer, punitive, actionable, remedial action, harasser, coworker, employer liability, summary judgment, co-worker, prompt, notice, reckless indifference, discriminatory, harassing, shoulder, crew

LexisNexis – Headnotes Hide

Civil Procedure > Summary Judgment > Appellate Review > Standards of Review
HN1 Florida’s standard for appellate review of whether a trial court erred in failing to grant summary judgment is the same as the standard utilized by the trial court. To be entitled to a summary judgment, a party moving for summary judgment must conclusively demonstrate the nonexistence of an issue of material fact, and the court must draw every possible, reasonable inference in favor of the party against whom the summary judgment is sought. More Like This Headnote

Civil Procedure > Trials > Jury Trials > General Overview
HN2 Florida has a long-standing policy favoring jury trials and determinations on the merits. This policy is expressly incorporated in Fla. Stat. § 760.11(5), which provides that in civil actions brought under this chapter, the right to trial by jury is preserved in any such private right of action in which the aggrieved party is seeking compensatory or punitive damages and any party may demand a trial by jury. More Like This Headnote | Shepardize: Restrict By Headnote

Civil Procedure > Trials > Judgment as Matter of Law > Directed Verdicts
Civil Procedure > Trials > Judgment as Matter of Law > Judgments Notwithstanding Verdicts
HN3 With regard to directed verdicts and judgments notwithstanding the verdict (JNOVs), the test used by Florida trial courts, as well as appellate courts, is whether the verdict is for JNOVs or would be for directed verdicts supported by competent, substantial evidence. More Like This Headnote

Civil Procedure > Trials > Judgment as Matter of Law > Directed Verdicts
HN4 A motion for directed verdict should be granted only if no view of the evidence could support a verdict for the non-moving party and the trial court therefore determines that no reasonable jury could render a verdict for that party. When considering a motion for directed verdict, the trial court is required to evaluate the evidence in the light most favorable to the plaintiff and every reasonable inference therefrom must be indulged in the plaintiff’s favor. If there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law. More Like This Headnote | Shepardize: Restrict By Headnote

Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
HN5 Fla. Stat. § 760.10 (1998), the Florida Civil Rights Act, is patterned after the 1964 federal statute, Title VII, and the state statutory cause of action has been defined according to federal case law. The state statute provides broader coverage than the federal one, as it includes provisions barring discrimination for age, handicap or marital status, as well as race, color, religion, sex and national origin. However its general language follows that of the federal statute which provides that it is an unlawful employment practice for an employer to discharge or fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap or marital status. More Like This Headnote | Shepardize: Restrict By Headnote

Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Burdens of Proof > Employee Burdens
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Coverage & Definitions > Sexual Harassment
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
HN6 From the general language of Title VII, the federal courts have established the required elements that a party claiming discrimination based on gender or sex, must establish to prove a cause of action for sexual harassment against an employer, when the harassment is perpetrated by a co-worker (as opposed to a supervisor or manager), and creates a hostile work environment. They are: (1) that he or she belongs to a protected group; (2) that the employee has been subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable. More Like This Headnote | Shepardize: Restrict By Headnote

Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Coverage & Definitions > Sexual Harassment
HN7 Federal courts require that the conduct/harassment asserted in a Title VII sexual harassment action be more than merely insulting or rude and boorish behavior. These statutes were not intended to be “general civility codes.” The required standard is to establish that the conduct/harassment was so severe or pervasive, that it adversely affected the terms or conditions of the employee’s employment. The adverse effect on the employee must be subjective, as well as objective. Not only must the employee suffer from the harassment, but it is also required that a reasonable person in the shoes of the employee would likely have suffered from such conduct. The latter is primarily a jury issue, if a minimum of bad conduct on the part of a co-worker or supervisor, is established. More Like This Headnote | Shepardize: Restrict By Headnote

Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN8 One instance of physically harassing conduct, if extreme, can constitute a hostile work environment. More Like This Headnote

Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Coverage & Definitions > Sexual Harassment
HN9 Uninvited fondling or groping, in contexts other than sexual harassment, constitutes actionable sexual battery, and clearly should not be tolerated in the work place. More Like This Headnote

Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN10 In determining the existence of a hostile work environment, a court must look at the totality of the course of conduct and not micro-bites of behavior in isolation. More Like This Headnote

Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN11 As used in Title VII, the phrase “terms, conditions or privileges of employment” evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment–when the workplace is permeated with discriminatory intimidation, ridicule and insult,–that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. More Like This Headnote | Shepardize: Restrict By Headnote

Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN12 In the context of a hostile work environment, all offensive conduct is not required to include sexual overtures, if the behavior is motivated by hostility towards women because of their gender. More Like This Headnote

Governments > Legislation > Interpretation
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > General Overview
HN13 Florida has opted for a strong policy against sexual harassment in the work place. The Legislature passed Fla. Stat. § 760.10 (1998), a remedial statute, directed at this form of discrimination based on gender and it should be liberally, not strictly, construed. More Like This Headnote

Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Employer Liability > General Overview
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Remedies > Compensatory Damages
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Remedies > Punitive Damages
HN14 If an employer is aware of the sexual harassment and takes no remedial action or inadequate steps are taken to prevent recurrence of the harassment, then the employer can be held liable under Fla. Stat. § 760.11 for damages; compensatory for lost wages, and mental pain and suffering. More Like This Headnote

Civil Procedure > Removal > Postremoval Remands > Jurisdictional Defects
HN15 To avoid remand after removing a case to federal court, a defendant must establish, to a legal certainty, that a plaintiff’s counsel has pled in bad faith, or incompetency, and that the plaintiff’s claim clearly exceeds the federal jurisdiction amount. It is a very strict standard. The fact that the plaintiff may ask for, or recover, more than the federal jurisdictional amount after removal is not sufficient to support federal jurisdiction. More Like This Headnote

Civil Procedure > Removal > Postremoval Remands > Jurisdictional Defects
HN16 Good faith pleading of the amount in controversy, not the amount actually recovered, is the rule of law for the state courts as well as where court jurisdiction is at issue with regard to remand after removal to federal court. More Like This Headnote

Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Remedies > Punitive Damages
HN17 It is not clear what the standard is for punitive damages awarded under Fla. Stat. § 760.11. The Florida statute contains no express requirement that actions appropriate for punitive damage awards must be willful, malicious or constitute wanton conduct by the employer, as opposed to Title VII of the federal statute, which does contain such a provision. A complaining party may recover punitive damages under Title VII against a respondent (other than a government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual. In contrast, the Florida statute simply provides that punitive damages may be awarded. A court may also award compensatory damages including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries, and punitive damages. Fla. Stat. § 760.11 further limits punitive awards to $ 100,000 and exempts recoveries of punitive damages under the chapter from the limitations and restrictions imposed on other civil awards pursuant to Fla. Stat. §§ 768.72 and 768.73. More Like This Headnote | Shepardize: Restrict By Headnote

COUNSEL: Mark L. Van Valkenburgh of Allen, Norton & Blue, P.A., Winter Park, Susan Potter Norton, of Allen, Norton & Blue, P.A., Coral Gables and Brian Koji of Allen, Norton & Blue, P.A., Tampa, for Appellant.

Wayne L. Allen and Adrienne E. Trent of Wayne L. Allen & Associates, P.A., Melbourne, for Appellee.

JUDGES: SHARP, W., J. PLEUS, CJ., GRIFFIN, SAWAYA, PALMER, MONACO, TORPY and LAWSON, JJ., concur. ORFINGER, J., concurs and concurs specially with opinion. THOMPSON, J., dissents with opinion.

OPINION BY: W. SHARP

OPINION

[*78] SHARP, W., J.

ON REHEARING EN BANC

We have considered appellee’s (Dupont) motion to rehear en banc. Following further discussion and review, we withdraw our prior opinion dated July 1, 2005, and substitute the following.

Speedway SuperAmerica LLC (Speedway) appeals from a judgment rendered after a jury trial, which awarded Dupont $ 80,740.54 in damages for her sexual harassment, hostile work environment lawsuit 1 filed against her employer, Speedway. The damages award includes the following items, which were specifically determined by the jury; $ 88.80 for lost wages, $ [**2] 40,000.00 for mental pain and suffering, and $ 40,000 for punitive damages.

FOOTNOTES

1 Dupont brought this suit under the Florida Civil Rights Act, section 760.10, Florida Statutes (1998). She also alleged a claim for retaliation. The trial court granted a direct verdict for Speedway on that count, and Dupont has not cross-appealed.

On appeal, Speedway argues that the trial court erred in not granting Speedway’s motion for summary judgment, a directed verdict, or a judgment notwithstanding the verdict, for two reasons: (a) the record and evidence did not establish that the misconduct was directed at Dupont because of her gender, and (b) the record and evidence did not establish that the conduct was so severe or pervasive that it established a hostile work environment which was sufficient to alter the terms and conditions of Dupont’s employment, as required under controlling federal case law.

Speedway also asserts it was entitled to a directed verdict or JNOV, because the record established, [**3] as a matter of law, that it took prompt remedial action to adequately address Dupont’s complaints when its management level employees were informed of Dupont’s charges against a co-worker, Coryell. Specifically, Speedway contends that testimony about Dupont’s complaints to Ruben in mid-March 1997 should have been excluded, because Ruben was not a supervisor or manager.

Finally, Speedway contends that Dupont’s recovery should be reduced below to $ 75,000, because after Speedway removed the case to federal court, Dupont successfully obtained a remand to state court on the ground that less than $ 75,000 was in controversy. It also contends that the conduct of Speedway’s managers and supervisors established in this record was not sufficiently egregious to support a punitive damage award. We affirm in all regards.

HN1Florida’s standard for appellate review of whether a trial court erred in failing to grant summary judgment is the same as the standard utilized by the trial court. To be entitled to a summary judgment, a party moving for summary judgment must conclusively demonstrate the nonexistence of an issue of material fact, and the court must draw every possible, reasonable inference [**4] in favor of the party against whom the summary judgment is sought. 2 This is a difficult bar to reach for a moving party and it is meant to be so. HN2Florida has a [*79] long-standing policy favoring jury trials and determinations on the merits. 3 This policy is expressly incorporated in section 760.11(5), which provides that in civil actions brought under this chapter, “[t]he right to trial by jury is preserved in any such private right of action in which the aggrieved party is seeking compensatory or punitive damages and any party may demand a trial by jury.”

FOOTNOTES

2 See Kitchen v. Ebonite Recreation Centers, Inc., 856 So. 2d 1083 (Fla. 5th DCA 2003); Quilling v. County of Sumter, 726 So. 2d 795 (Fla. 5th DCA 1999); Green v. CSX Transportation, Inc., 626 So. 2d 974 (Fla. 1st DCA 1993).

3 See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla. 1962); Vera v. Adeland, 881 So. 2d 707, 710 (Fla. 3d DCA 2004).

At the two hearings [**5] below on Speedway’s motions for summary judgment, it conceded Dupont had established a basis for a hostile work environment case under section 760.10, by the statements in her affidavit in opposition to the motions. But Speedway argued that Dupont’s affidavit was defeated by contradictions and admissions in her deposition. Both trial judges who heard these motions pointed out that the deposition was not in the court file and that Speedway had not filed a motion to strike the affidavit. Thus we do not address this issue further.

HN3With regard to directed verdicts and JNOV’s, the test used by Florida trial courts, as well as appellate courts, is whether the verdict is [for JNOVs] or would be [for directed verdicts] supported by competent, substantial evidence. See Irven v. Department of Health and Rehabilitative Services, 790 So. 2d 403 (Fla. 2001); Russell v. KSL Hotel Corp., 887 So. 2d 372 (Fla. 3d DCA 2004); Natson v. Eckerd Corp., Inc., 885 So. 2d 945 (Fla. 4th DCA 2004); Fast Laundry II v. Gray, 861 So. 2d 81 (Fla. 3d DCA 2003); Jackson County Hospital Corp., v. Aldrich, 835 So. 2d 318 (Fla. 1st DCA 2002); [**6] Cecile Resort, Ltd. v. Hokanson, 729 So. 2d 446, 447 (Fla. 5th DCA 1999).

In Scott v. TPI Restaurants, Inc., 798 So. 2d 907 (Fla. 5th DCA 2001), this court stated:

HN4[A] motion for directed verdict should be granted only if no view of the evidence could support a verdict for the non-moving party and the trial court therefore determines that no reasonable jury could render a verdict for that party.

When considering a motion for directed verdict, the trial court is required to evaluate the evidence in the light most favorable to the plaintiff and every reasonable inference therefrom must be indulged in the plaintiff’s favor. If there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.

Scott at 908.

In order to address the propriety of the trial court’s rulings in denying Speedway’s motions for directed verdict and JNOV, we must determine from the record whether Dupont presented competent, substantial evidence to establish a hostile work environment case based on [**7] sexual harassment, and draw all reasonable inferences and resolve all credibility issues, in Dupont’s favor. Both parties agree that HN5section 760.10, The Florida Civil Rights Act, is patterned after the 1964 federal statute, Title VII, and that the state statutory cause of action has been defined according to federal case law. 4 The state statute [*80] provides broader coverage than the federal one, as it includes provisions barring discrimination for age, handicap or marital status, as well as race, color, religion, sex and national origin. However its general language, which is applicable to this case, follows that of the federal statute:
(1) It is an unlawful employment practice for an employer:
(a) To discharge or fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap or marital status.

FOOTNOTES

4 See Natson v. Eckerd Corp., Inc., 885 So. 2d 945, 947 (Fla. 4th DCA 2004). Cf. Razner v. Wellington Regional Medical Center, Inc., 837 So. 2d 437 (Fla. 4th DCA 2002); Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028 (Fla.1st DCA 2002); Norton v. Leon County School Board, 2003 WL 21467095 (Fla. Cir. Ct. June 5, 2003).

[**8] HN6From this general language, the federal courts have established the required elements that a party claiming discrimination based on gender or sex, must establish to prove a cause of action for sexual harassment against an employer, when the harassment is perpetrated by a co-worker (as opposed to a supervisor or manager), and creates a hostile work environment. They are:
1. that he or she belongs to a protected group;

2. that the employee has been subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature;

3. that the harassment must have been based on the sex of the employee;

4. that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and

5. a basis for holding the employer liable. 5

See Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999). See also Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501 (11th Cir. 2000); Breda v. Wolf Camera & Video, 222 F.3d 886 (11th Cir. 2000); Dees v. Johnson Controls World Services, Inc., 168 F.3d 417 (11th Cir. 1999); [**9] Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).

FOOTNOTES

5 In the case of co-worker harassment, the employee must establish that the employer knew or should have known about the harassment and took no (or insufficient) remedial action.

Speedway primarily contends that the fourth and fifth elements of Dupont’s cause of action were not established. The jury was specifically instructed on all of the elements of this cause of action and found in Dupont’s favor on each element. Thus, to determine whether there was substantial, competent evidence to support the jury’s verdict, we must examine the record.

Dupont testified that she applied for a job as a cashier/store clerk in a Speedway store, in September 1996. She was hired by Barbara Bressner (Bressner), the store manager, who trained her. Dupont’s first assignment was to work the less desirable shift, 11:00 p.m. to 7:00 a.m., an all night shift. Dupont worked alone on this shift, in the locked store, had little customer interaction, and did primarily [**10] store cleaning and housekeeping chores. There were two other work shifts; 7:00 a.m. to 3:00 p.m., and 3:00 p.m. to 11:00 p.m., which involved a lot of customer contact and working with at least one other co-worker, and from time-to-time, the manager or assistant manager.

In February of 1997, Dupont’s shift was changed to the second shift, from 3:00 p.m. to 11:00 p.m. In March, she began working a couple of times a week in the store [*81] with Joel Coryell (Coryell), a cashier/store clerk, co-worker. She explained that she soon began experiencing problems with Coryell and that he made her uncomfortable. He would say things to compliment her, but did it in an offensive manner or made ugly gestures, so that she did not perceive his comments as compliments. She tried to ignore him and move to another area of the store to work, but he would follow her.

Dupont became frightened of Coryell and felt he was humiliating her. She would be standing at the register and he would sneak up behind her and put his hands on her. She dodged and ran, but he was a very large person and the space behind the counter at the store was small. If she tried to work in another part of the store, he would follow her [**11] and start talking about his sex life. He said he could not sleep; that he needed a girlfriend; he needed a sex life. To discourage him, she gave him dirty looks and tried to ignore him. This made Coryell angry. He would start raging and screaming. He would also throw and slam things. He threw pencils, cartons of cigarettes, clothes pins, keys, whatever was at hand. Dupont said she had to jump out of the way, and that the items often fell within a foot of her. She believed he was the most violent person she had ever met.

Coryell used foul language as well. He called customers stupid, a bitch, a dumb bastard. He called her a stupid bitch and a dumb blond. He told her dumb blond jokes and said things to make her feel humiliated. He referred to women as dumb and stupid. He said she would look good as a biker chick, and she looked “hot” in her Speedway outfit. After female customers left the store, he made remarks like: “I wish I could get some of that” and would make sexual body motions. He rubbed her buttocks once and smacked her buttocks once.

One of their jobs as cashiers was to count the safe. Both had to count it independently. When she was counting, Coryell would stand over her, [**12] watching, only two or three inches away. No other employee ever stood over her like that. She felt intimidated and scared and found it hard to concentrate. Coryell would laugh at her, call her a dumb blond, and remark that women can’t do anything.

Dupont was subjected to Coryell’s behavior every time she worked with him on a typical eight-hour shift, for a span of nine weeks before leaving her job. She first complained to Rosemary “Rosie” Ruben (Ruben), the assistant store manager, in March of 1997. Ruben was in charge of the store’s operation when Larry Gelbert, who was then the store manager, was not present. She testified she told Ruben everything that had happened. She expected Ruben to take some action to help her, but no action was taken. Ruben later denied she had been told “everything” by Dupont, but she admitted she was told about Coryell rubbing Dupont’s neck and shoulders, and she reported this to Gelbert. Ruben did not recall whether she told Gelbert more than that, although in a written statement she had given earlier, she said Dupont came to her about Coryell “harassing her.” Gelbert did not question her further about Dupont’s complaints, or question Dupont.

At trial, [**13] Gelbert admitted that when Ruben worked the store without him, she was the active supervisor of the store, had authority to act on complaints of sexual harassment and violence, and had a duty to report it to higher management. She received a higher pay than other workers, although she had no express power to hire or fire employees. Work schedules were made up by the managers in advance, but [*82] if a change needed to be made while she was in charge of the store, she would make it; i.e., call in other employees. She had sole access to the keys to the store office and directed the employees as to their tasks when the manager was not present.

Coryell’s harassment continued unabated. In April he began to get physical. Dupont testified Coryell put his hands on her buttocks. He also rubbed her neck and shoulders and asked if it felt good. He intentionally bumped her as he walked by. Dupont looked for Gelbert to voice her complaints, but he was in Ohio for management training. Bressner filled in for him the week he was away. Dupont testified that in early April she told Bressner all of what was happening and that Bressner said she would report it to Julie Rambo, the District Manager. Apparently [**14] she did, but neither considered it sexual harassment. Bressner admitted she had not asked Dupont for any details because she was only a fill-in manager for the store at that time. Rambo testified she thought it was a personality conflict and she did not make any further investigation. No remedial action was taken.

The harassment continued and worsened, with Coryell grabbing Dupont’s wrist and then pulling her body against his. At trial, Gelbert admitted those acts constitute sexual harassment. When Gelbert returned to the store following his training course in early May, Dupont reported all of Coryell’s conduct to him “from the get-go,” although Gelbert minimized at trial what she had told him.

Gelbert testified he had not been told anything about Coryell’s conduct by Ruben, Rambo, or anyone else, and said he was surprised when Dupont told him of her difficulties with Coryell. In May 1997, immediately following his conversation with Dupont, he talked with Rambo. At the trial, Gelbert testified that Rambo did not tell him she had received prior complaints from Dupont about Coryell from Ruben or Bressner. He testified that they decided to change the work schedules so that Dupont would [**15] not work any shifts with Coryell. He explained that to Dupont, who accepted it on the understanding she would not have to work again with Coryell.

Gelbert said that he talked to Coryell about not acting in an intimidating way towards other employees because of his size, but he did not use the words sexual harassment, did not discipline him in any way for his conduct towards Dupont, did not put anything in Coryell’s file in the form of a warning or reprimand, and did not investigate Dupont’s complaints. Nor did he ask Dupont for a written statement. In fact, he recommended Coryell for a management position. Gelbert also denied receiving any other complaints from other employees about Coryell even though there was other testimony that he had.

Coryell’s conduct toward Dupont did not stop after the work-shift change took place. Dupont was placed back on the less desirable 11:00 p.m. to 7:00 a.m. shift, and Coryell was left on the more desirable shifts. However, occasionally their shifts would overlap. Dupont testified that Coryell would hang around after the other employees left and stay longer than needed. Coryell would intimidate Dupont by hovering over her, saying she was not counting [**16] the safe correctly, and calling her a stupid, dumb blond. On one occasion, after the shift change, Dupont was working with Ruben. Ruben told Dupont she was going to call in Coryell to work the balance of the shift because she needed to make a bank deposit and there had to be two employees in the store at all times. Dupont begged her not to do that, and she told Ruben that she was afraid of Coryell and did not want to be left alone with him. [*83] According to Dupont’s testimony, Ruben said that Dupont had to stay and that if she left she would be fired. No harassment happened during that shift, but Dupont was frightened and she was constantly looking over her shoulder.

When Dupont called to get her schedule for the next week’s work, an employee told her she was scheduled to work a 3:00 to 11:00 shift with Coryell. She called Gelbert and complained about Coryell hanging around too long on shift changes, about Ruben calling Coryell in to work part of a shift with her, and about her being assigned to work a shift with Coryell the next week. She testified Gelbert responded that he could not help it; it was just how the schedule worked out. He said that had he been Ruben, he would have called [**17] Coryell to work also. Dupont quit, saying she was too tense and nervous to work at the store under those circumstances. She testified she felt she had no choice.

Dupont also testified that due to the harassment she experienced she was not as friendly with customers, particularly males. She could not pay attention to her job while trying to figure out what Coryell was doing. She made mistakes counting the safe, she could not sleep and was nervous. She saw a doctor, who prescribed Prozac. Coryell’s treatment of her affected her social life and her relationship with her husband. She testified that for the first time in her life she had a fear of males.

Dupont stated she had discussed her problems with a co-worker, Linda Ford, in April or May of 1997. Linda confirmed that she had had similar experiences with Coryell. He had brushed against her breasts a dozen times, came up behind her and massaged her shoulders and the back of her neck. She testified he had a habit of accidentally, “on purpose,” brushing up against her body and making it out to be an accident. She testified she complained to Gelbert about this behavior before Dupont quit. She also told him she did not want to work with [**18] Coryell. Coryell had had too many accidents brushing up against her, and she was afraid of him and felt he was a time bomb waiting to explode. Ford confirmed Coryell had a bad temper and slammed things around the store. He also commented on female customers having nice derrieres. Gelbert changed Ford’s work schedule so as to avoid her working with Coryell, before he changed Dupont’s.

Rambo, the District Manager, testified she and Gelbert remedied Dupont’s complaint by agreeing to put Coryell and Dupont on different work shifts. However, she testified this meant working full shifts, not partial shifts. As she put it, the business had to operate, and paths do cross. Rambo testified she did not investigate Dupont’s complaints; did not seek a written statement from Dupont; did not speak to Coryell about Dupont; did not seek to view store video tapes; and said she had not been told that Coryell had a similar problem with another female employee.

Speedway had a written sexual harassment policy at the time these incidents occurred, and it was posted on the bulletin board in the store. Dupont claimed she never saw it or read it, nor was she told about it when she was hired. However, she [**19] assumed the company had such a policy since all the other companies for which she had worked had sexual harassment policies. Speedway’s policy, in essence, provided that an employee experiencing sexual harassment should call a 1-800 number that was posted, to make a complaint, or bring the matter to the attention of a manager or supervisor.
[*84] I. SUFFICIENCY OF THE EVIDENCE – HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT.

Although cases brought under Title VII and section 760.10 for sexual harassment, hostile work environment, are fact-specific in the extreme, 6 the federal courts have set out a few guidelines. First and perhaps the most important, HN7federal courts require that the conduct/harassment be more than merely insulting or rude and boorish behavior. These statutes were not intended to be “general civility codes.” 7 The required standard is to establish that the conduct/harassment was so severe or pervasive, that it adversely affected the terms or conditions of the employee’s employment. The adverse effect on the employee must be subjective, as well as objective. 8 Not only must the employee suffer from the harassment, but it is also required that a reasonable [**20] person in the shoes of the employee would likely have suffered from such conduct. The latter is primarily a jury issue, if a minimum of bad conduct on the part of a co-worker or supervisor, is established.

FOOTNOTES

6 See Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).

7 Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998); Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 37 (1st Cir. 2003).

8 Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).

In this case, Speedway contends that sexual harassment did not occur because the physical touching of Dupont’s buttocks and body occurred only a few times over the months the two worked together. 9 However, only HN8one instance of physically harassing conduct, if extreme, can constitute a hostile work environment. 10 There are also cases where a few physical and intimate touching or batteries, as were established in this case, when coupled [**21] with verbal intimidation, humiliation, and threats of physical violence over a course of time (here continuously over a number of weeks) have been held sufficient to constitute a hostile work environment and appropriate for determination by a jury. 11 HN9Uninvited fondling or groping, as was established in this record, in other contexts constitutes actionable sexual battery, and clearly should not be tolerated in the work place. 12 Further, HN10the court must look at the totality of the course of conduct and not micro-bites of behavior in isolation. 13 Justice O’Conner wrote in Harris [*85] v. Forklift Systems, Inc.:

HN11The phrase ’terms, conditions or privileges of employment evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment,’ which includes requiring people to work in a discriminatorily hostile or abusive environment–when the workplace is permeated with ’discriminatory intimidation, ridicule and insult,’–that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

510 U.S. at 21.

FOOTNOTES

9 Dupont’s deposition was used effectively at trial to try to impeach some of her trial testimony. However, she explained that at the time she gave her deposition she was embarrassed and felt she was somehow at fault for Coryell’s behavior, so she did not go into as much detail concerning his conduct towards her as she did at trial. She also pointed out that the attorney deposing her had not asked the specific questions she was called on to answer at trial. The jury was the proper entity to sort out her credibility, not a directed verdict or JNOV. This was not an extreme case where it appears the process of the trial was subverted with factual inconsistencies and false statements. See Cross v. Pumpco, Inc., 910 So. 2d 324 (Fla. 4th DCA 2005). [**22]

10 See Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001).

11 See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); Worth v. Tyer, 276 F.3d 249 (7th Cir. 2001); Russell v. Midwest-Werner & Pfleiderer, Inc., 949 F. Supp. 792 (D. Kan. 1996).

12 See Ortola v. Alfonso, 917 So. 2d 252, 30 Fla. L. Weekly D2824 (Fla. 3d DCA 2005).

13 Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).

In this case, Dupont clearly established she was subjectively damaged by Coryell’s conduct. She testified she was unable to competently perform her work because of Coryell. She could not sleep, was nervous and upset, and eventually sought medical help. 14 However, to be actionable, the harassment need not seriously affect an employee’s psychological well being or lead him or her to suffer injury. 15 Eventually, when faced with the prospect of having to work with Coryell in the future, Dupont felt she had to [**23] leave the job and resign. Whether or not a reasonable person would have been so affected by Coryell’s behavior was a jury issue that was resolved against Speedway, by the jury’s express finding.

FOOTNOTES

14 See Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001).

15 Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).

Speedway also contends that the behavior was not sexual, but merely violent and directed at both genders, not just females. However, the evidence shows that the bulk of Coryell’s improper behavior was directed at females, and specifically at Dupont. Coryell did not proposition or rape Dupont. However, the evidence at trial, taken in the light most favorable to Dupont, established that she perceived Coryell’s remarks, jokes, and physical touching as sexual and that his demeaning and intimidating actions were directed at her because she was female. His verbal abuse confirmed that he both lusted after females and enjoyed demeaning [**24] them. Although there is evidence he swore at male customers after they left the store, there was no evidence adduced at trial that he remarked to Dupont or others that he craved their body parts or wanted sex with them, as he did with female customers. In any event, HN12all offensive conduct is not required to include sexual overtures, if the behavior is motivated by hostility towards women because of their gender. 16

FOOTNOTES

16 Hall v. Gus Construction Co., Inc., 842 F.2d 1010, 1013 (8th Cir. 1988).

The testimony of another female co-worker, Ford, corroborated that similar harassment/conduct by Coryell, was directed at her as well, shortly before Dupont complained to Bressner. There was no evidence Coryell behaved in such a manner with any male co-worker. Again, the jury was instructed that it must find Coryell’s behavior was directed at Dupont because of her gender, and it did so, based on competent and sufficient evidence in the record.

We agree with Speedway that there are a few federal cases that, [**25] on facts similar or worse than the ones in this case, have determined there was insufficient sexual harassment to establish a hostile work environment. 17 But there are other cases that reach the opposite result, and which have found that a prima facie case was established on a similar, or even a lesser, [*86] factual basis. 18 The two Florida cases which have addressed this issue in the context of section 760.10, Florida Statutes, have held prima facie cases were established on the basis of a similar record of harassment. See Russell v. KSL Hotel Corp.; Natson.

FOOTNOTES

17 See Gupta v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000); Mendoza v. Borden, Inc., 195 F.3d 1238 at 1256 (11th Cir. 1999).

18 Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993); Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001); Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501 (11th Cir. 2000); Knabe v. Boury Corp., 114 F.3d 407 (3d Cir. 1997); Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). Cf. Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317 (11th Cir. 1999); Degitz v. Southern Management Services, Inc., 996 F. Supp. 1451 (M.D. Fla. 1998).

[**26] HN13Florida has opted for a strong policy against sexual harassment in the work place. The Legislature passed section 760.10, a remedial statute, directed at this form of discrimination based on gender and it should be liberally, not strictly, construed. 19 Almost every state agency and governmental entity is covered by rules and policies which make the type of conduct engaged in by Coryell illegal and unacceptable in the workplace. 20 For us to hold that Coryell’s conduct, as established by this record, is so minimal that it does not constitute a prima facie case of sexual harassment under section 760.10, would weaken and demean the statute’s purpose.

FOOTNOTES

19 Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000); Byrd v. Richardson-Greenshields Securities, Inc., 552 So. 2d 1099, 1103 (Fla. 1989); Green v. Burger King Corp., 728 So. 2d 369, 371 (Fla. 3d DCA 1999). Cf. Irven v. Department of Health and Rehabilitation Services, 790 So. 2d 403 (Fla. 2001).

20 Byrd v. Richardson-Greenshields Securities, Inc., 552 So. 2d 1099 (Fla. 1989).

[**27]
II. SUFFICIENCY OF THE EVIDENCE TO HOLD SPEEDWAY LIABLE FOR FAILURE TO TAKE PROMPT AND ADEQUATE REMEDIAL ACTION AFTER NOTICE OF THE HARASSMENT.

The fifth element that a plaintiff must establish in hostile work environment cases is that the employer failed to take prompt and adequate remedial measures, after receiving actual notice or constructive notice of the harassing behavior by a co-worker. 21 HN14If an employer is aware of the sexual harassment and takes no remedial action or inadequate steps are taken to prevent recurrence of the harassment, then the employer can be held liable under section 760.10 for damages; compensatory for lost wages, and mental pain and suffering. 22 Speedway argues that promptly after being notified of Dupont’s complaints, it took adequate measures to prevent further harassment by separating the two employees from working together and that as a matter of law, it cannot be held liable.

FOOTNOTES

21 See Dees v. Johnson Controls World Services, Inc., 168 F.3d 417 (11th Cir. 1999); Bouton v. BMW of North America, Inc., 29 F.3d 103 (3d Cir. 1994). [**28]

22 See Russell v. Midwest-Werner & Pfleiderer, Inc., 949 F. Supp. 792 (D. Kan. 1996); Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028 (Fla. 1st DCA 2002).

The answer to whether adequate measures were taken by Speedway, lies partly in when Speedway had notice of Dupont’s complaints. Was it in May of 1997 when Dupont reported Coryell’s conduct to her store manage, Gelbert; or was it earlier, in March of 1997, when she reported it first to Ruben? The shift changes were done fairly promptly after Dupont complained to Gelbert in May. However, if her March complaints to Ruben were to a “supervisor,” the steps taken in May were not prompt.

[*87] Based on our reading of the record and the admissions of Gelbert at trial, it appears to us that Ruben was Dupont’s “supervisor” when she worked the store with Dupont. Ruben was designated assistant manager, and exercised managerial responsibilities when Gelbert was not at the store. She had the authority and power to direct the work of the other employees at Dupont’s level, when Gelbert was not present. She received [**29] greater compensation than workers at Dupont’s level, and together with Gelbert had sole access to the store office. Gelbert also admitted that Ruben had a duty to report complaints of sexual harassment to her supervisors. Thus, we conclude that the trial court properly permitted the jury to consider Dupont’s testimony that she told Ruben “everything” about Coryell’s behavior in March of 1997. Pursuant to Speedway’s sexual harassment policy, that was sufficient to put Speedway on notice of Coryell’s conduct in March. 23

FOOTNOTES

23 See Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000); Natson v. Eckerd Corp. 885 So. 2d 945 (Fla. 4th DCA 2004).

Speedway also contends that its supervisor and management employees were not told by Dupont that Coryell’s behavior constituted sexual harassment. This is a disputed issue of fact. Dupont testified she told her supervisors “everything” from the “get-go.” At trial, Bressner, Ruben and Gelbert were unable to recall what Dupont said and minimized what they did recall. This is a classic question of credibility for the jury to resolve. 24 [**30]

FOOTNOTES

24 See Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000);

Another component of this issue is whether or not Speedway took adequate steps to prevent the harassment from continuing. 25 Based on this record, the jury could have determined that Speedway took no steps to do anything about Dupont’s complaints until May, despite having received a report by Bressner, the temporary manager, to Rambo, the District Manager in April, and a report by Ruben, the assistant store manager, to Gelbert in March.

FOOTNOTES

25 Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001); Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997).

Based on this record, the jury could have also found that the remedial steps that were taken in May were inadequate. When Gelbert, the store manager, was told by Dupont about the problems she experienced with Coryell, in late April, he alerted his District [**31] Manager, Rambo. They decided to change Dupont’s work schedule so she would not work shifts with Coryell. They could have moved Coryell to the less desirable 11:00 p.m. to 7:00 a.m. shift or moved him to another store, but they chose to require Dupont to work that shift. This was improper, in itself, but Dupont did not complain. However, Speedway’s remedy to keep Dupont and Coryell separated on work shifts was not adhered to. Dupont was required to work with Coryell when he was called in unexpectedly by Ruben, and Dupont was told by Gelbert that she would be required to work with Coryell in the future, if the schedule worked out that way. Rambo admitted she did not intend that Dupont would never be required to work with Coryell.

Based on the federal case law and reading the record and inferences in favor of Dupont, the jury could have reasonably concluded that Speedway’s remedial actions [*88] were both inadequate and not prompt. An additional basic failure on the part of Speedway was that it did not investigate Dupont’s complaints at any time. 26 None of Speedway’s supervisors nor managerial staff took Dupont’s written statement or talked with her or the other employees in detail. [**32] Although there were store video tapes made daily that stored one week or more of activities, which were kept in the store and were available to possibly corroborate Dupont’s description of Coryell’s harassing behavior, no one looked at them. Ironically, these same tapes were looked at promptly when Coryell was suspected of stealing from the store.

FOOTNOTES

26 Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001).

Failure to investigate Dupont’s complaints resulted in no effective measures being taken by Speedway to stop the harassment. No disciplinary action was taken against Coryell. He was given no verbal or written reprimand that might have halted his behavior towards Dupont, 27 and in fact, he was recommended by Gelbert for a management position because he was such a “good worker.”

FOOTNOTES

27 Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001).

[**33] Speedway’s contention that the behavior complained about by Dupont to Ruben, Bressner and Gelbert was not sexual harassment because she did not use that term and because she did not tell the managers and supervisors enough facts, was a credibility issue resolved against Speedway by the jury. Dupont testified she told Ruben, Bressner and Gelbert, “everything.” Further, the record established without conflict, that none of the three, nor Rambo, asked Dupont further questions, or for a written statement.
III. PROPRIETY OF THE $ 40,000.00 AWARD OF PUNITIVE DAMAGES

Speedway makes a two-fold argument to limit or strike the punitive damage award. First, it contends that Dupont should not be permitted to keep an award larger than $ 74,999 because she obtained a remand from the federal trial court when she contended the amount in controversy was below the federal court’s jurisdictional amount; i.e., $ 75,000. Second, Speedway argues that its conduct was not sufficiently egregious, willful or wanton, to provide a basis for the jury’s award of punitive damages.

We have been unable to find any case on point where a state law suit was filed, then removed to the federal court, [**34] and then remanded back to state court based on the plaintiff’s assertion that the amount in controversy did not reach the federal court’s jurisdictional amount, where the court later determined that the plaintiff could not retain the full judgment later obtained in state court, even though the amount of the award would have triggered the jurisdiction of the federal court.

The general rule followed by the federal courts is that when the propriety of removal jurisdiction is challenged, the party who obtained the removal from state court, e.g., Speedway, had the burden of proof that the amount in controversy exceeded $ 75,000. Any doubt about subject matter jurisdiction is resolved against the moving party. 28 HN15To avoid remand, a defendant must establish, to a legal certainty, that plaintiff’s counsel has pled in bad faith, or incompetency, and that the plaintiff’s claim clearly exceeds the federal jurisdiction [*89] amount. It is a very strict standard. The fact that the plaintiff may ask for, or recover, more than the federal jurisdictional amount after removal is not sufficient to support federal jurisdiction. 29

FOOTNOTES

28 See Burns v. Windsor Ins. Co., 31 F.3d 1092 (11th Cir. 1994); Butler v. Polk, 592 F.2d 1293 (5th Cir. 1979); Tremblay v. Philip Morris Inc., 2002 DNH 201, 231 F. Supp. 2d 411 (D. N.H. 2002). [**35]

29 See Burns v. Windsor Ins. Co., 31 F.3d 1092 (11th Cir. 1994); Watson v. ITT Sheraton Corp., 61 F. Supp. 2d 529 (N.D. Miss. 1997).

In this case, the federal court, in granting the remand to the state court, looked at the complaint, which asserted the amount in controversy was below $ 50,000. It considered the fact that Dupont was seeking only $ 88.00 for lost back pay and an indeterminate amount for general damages (pain and suffering). It also looked at her claim for punitive damages, which requested no specific amount. It concluded that the plaintiff’s attorney acted in good faith in asserting that the amount in controversy was below the federal jurisdiction amount and that to base federal jurisdiction solely on a claim for punitive damages was too speculative. HN16Good faith pleading of the amount in controversy, not the amount actually recovered, is the rule of law for the state courts as well as where court jurisdiction is at issue. See Rappa v. Island Club West Development, Inc., 890 So. 2d 477 (Fla. 5th DCA 2004).

Even though the federal [**36] court acted correctly in remanding this case back to the state court, Speedway contends Dupont should be estopped from recovering more than $ 74,999. It cites Roger Holler Chevrolet Co v. Arvey., 314 So. 2d 633 (Fla. 4th DCA 1975). However, that case turned on a pleading by the plaintiffs in which they specifically asked for $ 2,000 in punitive damages and were awarded $ 5,000. The appellate court said that was an unfair “surprise” at trial and directed reduction of the award to $ 2,000. In this case, Dupont specified no sum for punitive damages.

Speedway also cites Schilling v. Chrysler Finance Co., L.L.C., 2000 U.S. Dist. LEXIS 5896, 2000 WL 549730 (S.D. Ala. 2000), in which the court adopted a magistrate’s order that approved remand of a case to the state court where the defendant consented to the removal. In Schilling, the plaintiff stipulated as to damages below the $ 75,000 jurisdictional amount. The order contained a warning that if the plaintiff attempted to recover more than $ 74,999 the defendant should bring it to the attention of the court and the court would conduct a Rule 11 hearing as to why plaintiff’s counsel should not be sanctioned. No such events took [**37] place in this case.

Similarly, in Watson v. ITT Sheraton Corp., 61 F. Supp. 2d 529 (N.D. Miss. 1997), the court treated the motion to remand as a stipulation, which would preclude the plaintiff from increasing the amount requested in the ad damnum clause in the state court. This ruling was based on Mississippi law that limits a plaintiff’s recovery to the amount pled. As noted in this case, no specific amount was pled.

The more difficult issue is whether, based on the most favorable, reasonable inferences, in this record in Dupont’s favor, there was a basis for the punitive damage award. The trial court directed the jury that in order to award punitive damages it had to determine Speedway acted willfully, intentionally, or with callous and reckless indifference to Dupont’s rights. It made that determination in Dupont’s favor.

However, HN17it is not clear what the standard is for punitive damages awarded under section 760.10. The Florida statute contains no express requirement that actions appropriate for punitive damage [*90] awards must be willful, malicious or constitute wanton conduct by the employer, as opposed to Title VII of the federal statute, which does contain [**38] such a provision.
A complaining party may recover punitive damages under this section against a respondent (other than a government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.

In contrast, the Florida statute simply provides that punitive damages may be awarded.
The court may also award compensatory damages including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries, and punitive damages.
It further limits punitive awards to $ 100,000 and exempts recoveries of punitive damages under this chapter from the limitations and restrictions imposed on other civil awards pursuant to sections 768.72 and 768.73.

Because state law governs state statutes, 30 it may well be that Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545 (Fla. 1981) is controlling. That case held that an employer may be held vicariously liable for acts of its employees for punitive damages if the acts of the employee [**39] are willful and wanton, and there is some basis to find fault on the part of the employer itself, independent of the employee’s action. However, the action or non-action of the employer need not be willful or wanton. Ordinary negligence is sufficient. Mercury Motors. These views were recently affirmed in a more recent opinion. See Schropp v. Crown Eurocars, Inc., 654 So. 2d 1158 (Fla. 1995).

FOOTNOTES

30 See Stockett v. Tolin, 791 F. Supp. 1536 (S.D. Fla. 1992).

Applying that ruling to the present case, Coryell’s harassment of Dupont was clearly willful and wanton and based on the jury’s verdict, and Speedway was at fault, or at least negligent, for not taking prompt, remedial action after having notice of Coryell’s conduct. Thus, punitive damages would have been sustainable without a finding by the jury that Speedway itself acted in a willful, wanton manner. However, the effect of applying this rule to section 760.10 cases would result in allowing punitive damages in almost every [**40] case.

On the other hand, if willful and wanton behavior on the part of an employer in a sexual harassment case by a co-worker must be established, this is a close case. In Harris v. L & L Wings, Inc., 132 F.3d 978 (4th Cir. 1997), the court sustained a jury’s award of punitive damages in a sexual harassment case brought under Title VII. The harassment facts in that case were more egregious than those in this case. However, in sustaining the punitive damage award, the court made note of the large number of complaints made by the victims to their managers over a two-month period. It also noted there was no written sexual harassment policy so the victims did not have a contact in the event of a problem. It concluded that to sustain punitive damages in such cases, more than mere notice of the harassment must be established. Whether an employer responded adequately to harassment complaints, whether it ignored its own harassment policy, and whether it moved the complaining employee to a less attractive job to avoid the harasser were key considerations. Harris. The court also concluded that the employer’s “utter failure to respond to repeated complaints of pervasive [**41] [*91] sexual harassment” was sufficient to sustain the punitive damage award.

In the case sub judice, the jury could have found, based on this record, that Speedway had notice of Dupont’s sexual harassment complaints in March and took no action until May. Dupont complained to three supervisors or managers and they reported to the District Manager, yet nothing was initially done about these complaints. The later remedy was quickly dissolved under scheduling difficulties and Dupont was left, in the end, with no remedy.

Further, the employer, in contravention of its sexual harassment policy, undertook no investigation to ascertain the veracity of Dupont’s complaints. It also did not counsel Coryell or discipline him in any way. At trial, the testimony of the management level employees to whom Dupont complained, contradicted one another as to when and what they reported to Rambo and Gelbert. Gelbert denied knowing about Dupont’s complaints, despite earlier testimony which established he was told by Ruben. He also denied knowing about Ford’s similar complaints about Coryell, even though Ford testified she told him and obtained a shift change to get away from Coryell.

Thus, the jury could [**42] have concluded Speedway’s management-level employees were not truthful, and that Speedway’s reckless indifference to Dupont’s complaints about sexual harassment allowed the harassment to continue for weeks and eventually forced her to leave her job. The jury also could have concluded that the belated and inconsistent shift change remedy was both not prompt and/or inadequate and allowed the harassment to continue unabated. This demonst

More Information: Sexual Harassment in the work place
Attorney: Arcadier & Associates, P.A.
Status: Judgment Awarded
Date Filed: 2004-11-21

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