Ms. Blizzard sued Appliance DIrect for sexual harassment perpetuated by her supervisor at Appliance Direct’s Melbourne store. Case went to trial and judge granted a direct verdict. Case was appealed and the 5th DCA in a unanimous decision overturned the directed verdict. This case will now be tried in September 2010. The Appellate Court’s ruling below is a victory for employees who are harmed by a sexually charged hostile work environment even if the hostilities are not directly targeted against the employee.
Here is the 5th DCA’s ruling, and the winning brief below the decision!
NEINA BLIZZARD, Appellant, v. APPLIANCE DIRECT, INC., Appellee.
Case No. 5D08-4070
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
16 So. 3d 922; 2009 Fla. App. LEXIS 10978; 107 Fair Empl. Prac. Cas. (BNA) 197; 34 Fla. L. Weekly D 1604
August 7, 2009, Opinion Filed
PRIOR HISTORY: [**1]
Appeal from the Circuit Court for Brevard County, Bruce Jacobus, Judge.
CASE SUMMARYPROCEDURAL POSTURE: Appellant former employee filed an action against appellee former employer under § 760.10, Fla. Stat. (2007) in which she sought damages for sexual harassment and retaliation. The Circuit Court for Brevard County (Florida) granted a directed verdict for the employer. The employee appealed.
OVERVIEW: The employee alleged that her store manager constantly talked about his penis and his sexual prowess, made lewd comments about female workers and customers, and showed favoritism to women who flirted with him. The court held that there was sufficient evidence to defeat a motion for directed verdict on the retaliation claim. The employee asserted that the manager’s actions constituted sexual harassment, that she brought her objections to his practices to the attention of managers, supervisors, and co-workers, and that her alleged firing occurred the day after she complained to a person in human resources. As for sexual harassment, the evidence concerning the constancy of the crude, sexually laden remarks and boorish behavior of the manager was at least sufficient to have a jury consider whether the ambient workplace atmosphere was severe or pervasive. Although the manager’s remarks and actions had not been specifically directed to the employee, offensive language did not necessarily have to be targeted at a plaintiff in order to support a claim of hostile workplace environment, particularly where the offensive conduct was by the plaintiff’s supervisor.
OUTCOME: The court reversed the trial court’s decision. It remanded the case for a new trial.
CORE TERMS: harassment, sexual, manager, pervasive, severe, directed verdict, sexual harassment, retaliation, supervisor, employment practice, hostile work environment, workplace, sexually, hostile, female employee, sexual harassment, sufficient evidence, nonmoving party, causes of action, conditions of employment, offensive, management style, favoritism, female, penis, fired, zone, Civil Rights Act, working environment, point of view
LexisNexis- Headnotes Hide
Civil Procedure > Trials > Judgment as Matter of Law > Directed Verdicts
HN1 A motion for directed verdict should be granted only where no view of the evidence, and no view of the inferences drawn from the evidence could support a verdict for the nonmoving party. More specifically, when considering a motion for directed verdict, the court is required to evaluate the testimony in the light most favorable to the nonmoving party, and every reasonable evidentiary inference must be considered in favor of the nonmoving party. If there is conflicting evidence or if different reasonable inferences may be drawn from the evidence, then the issue is factual and should be submitted to the jury for resolution. More Like This Headnote
Labor & Employment Law > Discrimination > Retaliation > Statutory Application > General Overview
HN2 See § 760.10(7), Fla. Stat. (2007).
Labor & Employment Law > Discrimination > Retaliation > Statutory Application > General Overview
HN3 Because § 760.10(7), Fla. Stat. (2007) is almost identical to its federal counterpart, 42 U.S.C.S. § 2000e-3(a), Florida courts generally follow federal case law when examining similar state claims. More Like This Headnote
Labor & Employment Law > Discrimination > Gender & Sex Discrimination > Employment Practices > General Overview
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN4 Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, forbids sex-based discrimination that alters the terms and conditions of employment in either of two ways: first, by way of a tangible employment action, such as a demotion, pay reduction or firing; or second, by creation of a hostile workplace environment caused by sexual harassment that is severe enough to effect an alteration. More Like This Headnote
Labor & Employment Law > Discrimination > Retaliation > Elements > General Overview
HN5 To establish a prima facie case of retaliation under § 760.10(7), Fla. Stat. (2007), a plaintiff must demonstrate: (1) that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action; and (3) that the adverse employment action was causally related to the protected activity. Once the plaintiff makes a prima facie showing, the burden shifts and the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. The plaintiff must then respond by demonstrating that defendant’s asserted reasons for the adverse action are pretextual. More Like This Headnote
Labor & Employment Law > Discrimination > Gender & Sex Discrimination > Employment Practices > General Overview
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN6 The grounds for a sexual harassment claim under either Title VII of the Civil Rights Act of 1964 or under § 760.10(7), Fla. Stat. (2007) can be either a tangible employment action or creation of a hostile work environment caused by sexual harassment that is sufficiently severe or pervasive to alter the terms and conditions of work. More Like This Headnote
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Employer Liability > Supervisors
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN7 To establish a hostile work environment sexual harassment claim based on harassment by a supervisor, a plaintiff is required to show: (1) that she is a member of a protected group; (2) that she was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on the sex of the employee; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) there is a basis for holding the employer liable. Moreover, the employee must show that the employer knew or should have known of the harassment, and yet failed to take remedial action. More Like This Headnote
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Employer Liability > Supervisors
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN8 The United States Supreme Court has held that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. More Like This Headnote
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN9 The “severe or pervasive” part of the fourth element required to establish a hostile work environment sexual harassment claim includes both a subjective and an objective component. Thus, a plaintiff has to show not only that she subjectively perceived the harassment to be sufficiently severe or pervasive to violate both the federal and state statutes, but also from an objective point of view that her perception was reasonable. More Like This Headnote
Labor & Employment Law > Discrimination > Harassment > Sexual Harassment > Hostile Work Environment
HN10 Offensive language need not necessarily be targeted at the plaintiff in order to support a claim of hostile workplace environment, particularly where the offensive conduct was by the employee’s supervisor. More Like This Headnote
COUNSEL: Maurice Arcadier of Allen & Arcadier, P.A., Melbourne, for Appellant.
Christopher J. Coleman and Karl W. Bohne, Jr. , of Schillinger & Coleman, P.A., Melbourne, for Appellee.
JUDGES: MONACO , C.J. GRIFFIN and ORFINGER , JJ., concur.
OPINION BY: MONACO
OPINION
[*924] MONACO , C.J.
In this appeal we consider whether the trial court erred in granting a directed verdict during a trial in which the appellant, Neina Blizzard, sought damages against her former employer, Appliance Direct, Inc., for sexual harassment and retaliation in accordance with section 760.10, Florida Statutes. Because we conclude that there was sufficient evidence requiring that the case be submitted to the jury, we reverse.
At the times critical to this case Ms. Blizzard worked as a sales associate in the Melbourne facility owned by Appliance Direct. Ms. Blizzard had a relatively long history of employment with Appliance Direct, and generally found the job and work environment to be somewhere between satisfactory and wonderful. Eventually, however, she began to work under the supervision of one Jeff Rock, who was the manager of the Melbourne store.
According to Ms. Blizzard and other employees [**2] who testified, Mr. Rock was a “hothead,” whose management style included yelling, screaming and berating her and the other employees around her. Much more troubling was her testimony that Mr. Rock constantly talked about his penis, including graphic descriptions of its size, and his sexual prowess, history, successes and aspirations. He would make lewd comments about female workers and customers, and whinny like a horse when an attractive woman would come into the store. Typical was the testimony of another female worker who said that on a couple of occasions Mr. Rock asked her what type of underwear she was wearing, and would stand inappropriately close to her when she was checking a sales ticket. A third female employee described Mr. Rock as “very unprofessional. Very, very dirty mouthed.” She confirmed that he “constantly” made sexual comments, and described his comments as follows:
He was always like referring to his private parts, quote/unquote, making jokes about his sexual abilities, always bragging about how he was a ladies’ man or whatever, but he was just very dirty mouthed.
This witness also confirmed that he “would always degrade women and was feared by many employees.” At [**3] trial Mr. Rock denied making sexual comments, but agreed that if he had discussed his penis, used profanity and asked a female employee about her underwear, that would at least constitute a violation of Appliance Direct’s policies and procedures.
One of the difficulties presented by this case arises out of the fact that according to Ms. Blizzard, Mr. Rock’s sexual comments were not directed to her, nor did he ever touch her or make any sexual advances toward her. She, in fact, was under the impression that he did not like her at all. She did testify, however, about the favors and preferences that Mr. Rock would give to other women who were more receptive to his management style. She said in this respect:
You can blow off whatever. But it was affecting my job personally, yes, because he gave favoritism to the three that went along with it, like unbelievable favoritism. They lived by a whole different set of rules.
[*925] When someone complained to upper management about Mr. Rock — we do not know whether it was about his running sexual commentary, or about other complaints associated with his management methods, he called a meeting and told his staff:
Somebody here has gone upstairs and complained [**4] about me. . . . I’m here to tell you right now, they don’t care what I do down here . . .You salespeople sell $ 80,000 a month for Appliance Direct. I make them hundreds of thousands a month. . . .Who do you think they are going to get rid of? Me, you, or you?
Mr. Rock then threatened serious repercussions if anyone else complained.
Ms. Blizzard did not complain much. She did talk to a zone manager, but did not tell him that Mr. Rock was making sexual comments. Rather, she discussed his attitude and management style. She said that she asked the zone manager if he knew what was happening in the Melbourne store, but did not go into great detail because she thought he knew what she was talking about. She also discussed her concerns about Mr. Rock in generalities with an acting manager during a period when Mr. Rock was away from the store. She described the acting manager as sympathetic, but not willing to make waves. A similar discussion with an assistant manager had about the same conclusion.
Finally, Ms. Blizzard ran into a woman who worked in the human relations department of Appliance Direct who appeared to be very willing to help. Ms. Blizzard’s employment was concluded the following [**5] day, however, before she had the opportunity to meet with her. The end came when Mr. Rock was ranting to another female employee. Ms. Blizzard then told him that she thought he was prejudiced and “don’t like white women.” According to Ms. Blizzard, Mr. Rock fired her on the spot. According to Mr. Rock, she just walked out. Either way, Ms. Blizzard filed suit.
In her two-count complaint Ms. Blizzard sought damages for sexual harassment and for maintenance of a hostile work environment in the first count, and back pay and damages for retaliation in the second count. At the conclusion of the plaintiff’s presentation of evidence the trial court granted a motion for directed verdict on both counts. Ms. Blizzard timely appealed.
HN1A motion for directed verdict should be granted only where no view of the evidence, and no view of the inferences drawn from the evidence could support a verdict for the nonmoving party. Tenny v. Allen, 858 So. 2d 1192, 1195 (Fla. 5th DCA 2003); see also Marriott Int’l, Inc. v. Perez-Melendez, 855 So. 2d 624 (Fla. 5th DCA 2003). More specifically, when considering a motion for directed verdict, the court is required to evaluate the testimony in the light most favorable [**6] to the nonmoving party, and every reasonable evidentiary inference must be considered in favor of the nonmoving party. Id. If there is conflicting evidence or if different reasonable inferences may be drawn from the evidence, then the issue is factual and should be submitted to the jury for resolution. Marriott Int’l.
Ms. Blizzard’s two causes of action are grounded in section 760.10(7), Florida Statutes (2007), which reads:
HN2It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has [*926] made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
(Emphasis supplied). Historically this subsection has been divided into the “opposition clause” and the “participation clause.” Both parties agree that Ms. Blizzard’s claim would have to fall under the opposition clause; specifically, that she “opposed any practice which is an unlawful employment practice under this section.” HN3Because this [**7] provision of the Florida Statutes is almost identical to its federal counterpart, 42 U.S.C. § 2000e-3(a), Florida courts generally follow federal case law when examining similar state claims. Hinton v. Supervision Int’l, Inc., 942 So. 2d 986, 989 (Fla. 5th DCA 2006).
HN4Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, in turn, forbids sex-based discrimination that alters the terms and conditions of employment in either of two ways: First, by way of a tangible employment action, such as a demotion, pay reduction or firing; or Second, by creation of a hostile workplace environment caused by sexual harassment that is severe enough to effect an alteration. Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287 (11th Cir.) cert. denied, 128 S. Ct. 499, 169 L. Ed. 2d 341 (2007); Thornton v. Flavor House Products, Inc., 105 Fair Empl. Prac. Cas. (BNA) 336 (M.D. Ala. 2008). We deal with the latter category here. Ms. Blizzard charged that the alleged harassment gave rise to two causes of action, one for creation of a hostile workplace environment, and the other for retaliation.
A. The Retaliation Claim:
HN5To establish a prima facie case of retaliation under section 760.10(7), a plaintiff must demonstrate: [**8] (1) that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action; and (3) that the adverse employment action was causally related to the protected activity. See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385 (11th Cir.), cert. denied, 525 U.S. 1000, 119 S. Ct. 509, 142 L. Ed. 2d 422 (1998). Once the plaintiff makes a prima facie showing, the burden shifts and the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Wells v. Colorado Dep’t of Transp., 325 F.3d 1205, 1212 (10th Cir. 2003). The plaintiff must then respond by demonstrating that defendant’s asserted reasons for the adverse action are pretextual. Id.
Here, there is sufficient evidence with respect to the first element because Ms. Blizzard asserted that Mr. Rock’s actions constituted sexual harassment, an unlawful employment practice, and because there is some evidence that she brought her objections about his practices to the attention of some of her managers, supervisors and co-workers. The second element, an adverse employment action, is supported by the disputed evidence that she was fired. Finally, the causal relationship element is supported by the fact [**9] that she was purportedly fired on the day after she complained to a person from the Human Resources Department of Appliance Direct.
It appears that there was enough evidence brought forward on each element of the retaliation claim to defeat a motion for directed verdict. Accordingly, we conclude that it was error to grant the motion.
B. The Sexual Harassment Claim.
HN6The grounds for a sexual harassment claim under either Title VII of the Civil Rights Act of 1964, or under section 760.10(7), Florida Statutes (2007), can be either a tangible employment action or, as Ms. Blizzard asserts in this case, the [*927] “creation of a hostile work environment caused by sexual harassment that is sufficiently severe or pervasive to alter the terms and conditions of work.” Baldwin. HN7To establish a hostile work environment sexual harassment claim based on harassment by a supervisor, Ms. Blizzard was required to show: (1) that she is a member of a protected group; (2) that she was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on the sex of the employee; (4) the harassment was sufficiently severe [**10] or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) there is a basis for holding the employer liable. Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999), cert. denied, 529 U.S. 1068, 120 S. Ct. 1674, 146 L. Ed. 2d 483 (2000); Speedway Superamerica, L.L.C. v. Dupont, 933 So. 2d 75 (Fla. 5th DCA 2006). Moreover, the “employee must show that the employer knew or should have known of the harassment, and yet failed to take remedial action.” Natson v. Eckerd Corp., Inc., 885 So. 2d 945, 947 (Fla. 4th DCA 2004) (quoting Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 1029-30 (Fla. 1st DCA 2002)). HN8The United States Supreme Court has held in this regard that “An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Faragher v. City of Boca Raton, 524 U.S. 775, 777, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).
It is undisputed that Ms. Blizzard established the first element, as she is a female. Appliance Direct argues, however, that she failed to present evidence of the remaining elements. With respect to the second element, Ms. Blizzard [**11] contends, and we agree, that there was certainly evidence adduced of the unwelcome nature of Mr. Rock’s conduct because, among other things, she complained to her co-workers, the zone manager and other managers, and to human resources. Likewise, there was ample evidence that the harassment was based on her sex in light of the fact that Mr. Rock verbally offered sexually explicit descriptions, talked extensively about his penis and sexual prowess, made sexually suggestive sounds (whinnying like a horse), and by showing favoritism to women who flirted with him. She argues, as well, that his propensity to commit sex-based harassment was demonstrated by evidence that he sexually harassed two other female employees. Thus, her evidence satisfies the third element. It is the fourth and fifth elements that give us pause.
The fourth element of a cause of action for harassment required Ms. Blizzard to produce evidence that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and to create a discriminatorily abusive working environment. In this connection we note that HN9the “severe or pervasive” part of the fourth element includes both a subjective [**12] and an objective component. Mendoza, 195 F.3d at 1246. Thus, Ms. Blizzard would have to show not only that she subjectively perceived the harassment to be sufficiently severe or pervasive to violate both the federal and state statutes, but also from an objective point of view that her perception was reasonable. Jennings v. Univ. of North Carolina, 482 F.3d 686, 695 (4th Cir.), cert. denied, 128 S. Ct. 247, 169 L. Ed. 2d 147 (2007); Id. We are satisfied that the testimonial evidence concerning the constancy of the crude, sexually laden remarks and boorish behavior of Mr. Rock [*928] that was patently degrading to women was at least sufficient to have a jury consider whether the ambient workplace atmosphere was severe or pervasive, both from a subjective and objective point of view. See Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. 2009).
Finally, there is the fifth element — that there is a basis for holding the employer liable. Appliance Direct properly underscores one of the perceived fundamental weaknesses in Ms. Blizzard’s case; that the remarks and actions of her supervisor were not specifically directed to her. Ms. Blizzard posits, on the other hand, that her evidence demonstrated how [**13] pervasive the harassment was, and how she was essentially swept up in its backwash. Thus, we are faced with the knotty question of whether harassment in the form of offensive language can be “based on” Ms. Blizzard’s membership in a protected group, even when she was not the target of the language, and even though other employees were equally exposed to it.
Fortunately, we have the benefit of the case of Jennings, which answers this very question. 1 We note that this case was not brought to the attention of the trial judge at the time that he directed the verdict. The United States Court of Appeals for the Fourth Circuit examined the issue that currently confronts us in light of a number of race discrimination cases, such as Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001). Spriggs held that racially HN10offensive language need not necessarily be targeted at the plaintiff in order to support a claim of hostile workplace environment. We find ourselves in agreement with the Jennings holding, particularly where, as here, the offensive conduct was by the employee’s supervisor. Cf., Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998).
FOOTNOTES
1 We also take note of the [**14] case of Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1145 (11th Cir. 2008), reh’g en banc granted, vacated by 569 F.3d 1290 (11th Cir. 2009), which likewise concludes that the activity involved in a hostile work environment claim does not require the plaintiff herself to be targeted. As the Eleventh Circuit has vacated its opinion in order to consider the case en banc, however, we do not rely on it, even though we agree with its reasoning.
Accordingly, we conclude that the trial court erred in granting a directed verdict with respect to both counts of Ms. Blizzard’s claim. There was, we conclude, sufficient evidence to have this case considered by the jury. We, therefore, reverse and remand for a new trial.
REVERSED and REMANDED.
GRIFFIN and ORFINGER , JJ., concur.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA,
FIFTH DISTRICT
NEINA BLIZZARD,
Appellant,
v. Case No: 5D08-4070
APPLIANCE DIRECT, INC.
Appellee.
_______________________________/
BRIEF OF APPELLANT
On Appeal from the Circuit Court of the Eighteenth Judicial Circuit
In and for Brevard County, Florida
Maurice Arcadier, Esquire
Florida Bar No.: 0131180
ALLEN & ARCADIER, P.A.
2815 W. New Haven, #304
Melbourne, Florida 32904
Phone: (321) 953-5998
Attorney for Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS ..1
TABLE OF AUTHORITIES 2-3
INTRODUCTION TO BRIEF FORMAT 6
STATEMENT OF JURISDICTION 6
STATEMENT OF THE ISSUES 7
STATEMENT OF THE CASE AND FACTS 7-15
Informational Background / relevant witnesses 7-8
Basic facts 8
Facts supporting gender-based discrimination 9-11
Facts supporting disparate treatment 11-12
Facts supporting retaliation 12-14
Facts supporting pretext 14-15
STANDARD OF REVIEW 15-16
SUMMARY OF THE ARGUMENT 16-17
ARGUMENT 17 -29
I. THE TRIAL COURT ERRED IN GRANTING A DIRECTED
VERDICT ON MRS. BLIZZARD’S CLAIMS OF RETALIATION 17-21
II. THE TRIAL COURT ERRED IN GRANTING A DIRECTED
VERDICT ON MRS. BLIZZARD’S CLAIMS FOR SEXUAL
HARASSMENT BASED ON THE EXISTENCE OF A
HOSTILE WORK ENVIRONMENT AND DISPARATE
TREATMENT 22-29
III. THE TRIAL COURT ERRED ON ITS RULING BY NOT
EXPLAINING ITS REASONING FOR GRANTING A DIRECTED
VERDICT ON ALL COUNTS 29-31
CONCLUSION 32
RELIEF REQUESTED 34
CERTIFICATE OF SERVICE 35
CERTIFICATE OF COMPLAINCE 35
Appendix 1 TAB 1
Appendix 2 TAB 2
Appendix 3 TAB 3
TABLE OF AUTHORITIES
CASES
Boazman v. Econ. Labs., Inc.,
537 F.2d 210, 213 n.5 (5th Cir. 1976) 31
Burlington v. Ellerth,
118 S. Ct. 2257 (U.S. 1998) 22
Burlington/Santa Fe v. White,
126 S. Ct. 2405 (2006). 19
Byrd v. Richardson,
552 So. 2d 1099 (Fla. 1989). 26, 27
Carter v. Stanton,
405 U.S. 669, 671, 92 S. Ct. 1232, 1234, 31 L. Ed. 2d 569 (1972) 31
Cassell v. India,
964 So. 2d 190 (Fla. 4th DCA 2007). 16
Clay v. Equifax, Inc.,
762 F.2d 952, 957 (11th Cir. 1985) 30
Conetta v. National Hair Care Centers, Inc.,
236 F. 3d 67, 76 (1st Cir. 2001). 19
Coszalter v. City of Salem,
320 F. 3d 968 (9th Cir. 2003). 20, 21
DeCarlo v. Griffin,
827 So. 2d 348 (Fla. 4th DCA 2002). 16
Erco Indus. Ltd. v. Seaboard Coast Line R.R. Co.,
644 F.2d 424, 434 (5th Cir. Unit B 1981) 31
Faragher v. City of Boca Raton,
118 S. Ct. 2275 (U.S. 1998). 22
Farley v. Nationwide ,
197 F. 3d 1322 (9th Cir. 1999). 18, 20
Farpella-Crosby v. Horizon ,
97 F. 3d 803 (5th Cir. 1996). 25
Ford v. GMC,
305 F. 3d 545 (6th Cir. 2002). 18
Goolsby v. Ozai,
847 So. 2d 1001 (Fla. DCA 2003). 16
Hanson v. Aetna Life & Cas.,
625 F.2d 573, 575 (5th Cir. 1980) 30, 31
Harper v. Blockbuster,
139 F.3d 1385 (11th Cir. 1998). 18
Harris v. Forklift Systems Inc.,
510 U.S. 17 (U.S. 1993). 24, 27
Hulsey v. Pride Restaurants, LLC,
367 F.3d 1274 (11th Cir. 2004) 30, 31
Little v. United Technologies,
103 F. 3d 956 (11th Cir. 1997). 19 fn 4
Mendoza v. Borden, Inc.,
195 F. 3d 1238 (11th Cir. 1999). 22
O’Neal v. Ferguson Const. Co.,
237 F. 3d 1248, 1255 (10th Cir. 2001). 19, 20
Owens v. Publix,
802 So. 2d 315 (Fla. 2001). 16
Pantropic v. Fireman’s Fund Ins. Co.,
F. Supp. 2d 141 (S.D. Fla. 2001). 19
Scott v. TPI Restaurants, Inc.,
768 So. 2d 907 (Fla. 5th DCA 2001). 15
Speedway v. Dupont,
933 So. 2d 75 (Fla. 5th DCA 2006). 15, 16, 24, 26
Tenny v. Allen,
828 So. 2d 1192 (Fla. 5th DCA 2003). 16
Wells v. Colorado Dept. of Transp.,
325 F.3d 1205 (10th Cir. 2003). 18
STATUTES AND ADMINISTRATIVE CODES
9 U.S.C. § 2 (2000) 10
Florida Statute § 760 15, 23
Florida Statutes § 760.11(5) 13
Title VII of the Federal Civil Rights Act 15
RULES
Fla. R. App. P. 9.030(b)(1) 6
Fla. R. App. P. 9.210(a)(2) 35
INTRODUCTION TO BRIEF FORMAT
In this brief, Appliance Direct, Inc., will be referred to as the Defendant or Appellee or Appliance Direct. Neina Blizzard will be referred to as the Plaintiff or Appellant or Mrs. Blizzard.
At the time of submitting this brief, the record was incomplete, which necessitated Appellant to cite to the trial transcript. A motion to supplement the record has been filed with the circuit court (See Appendix 2). Citations to the transcript of the trial are designated with the letter “T” with the corresponding page number as well as a designation with the letter “L” representing the corresponding line number. In Appendix 1 of this brief, a copy of the relevant trial transcript portions are enclosed. Appendix 3 of this brief contains the Trial Court’s ruling granting a directed verdict with the corresponding order granting verdict in favor of defendant and judgment. Appendix 3, pg. 7.
STATEMENT OF JURISDICTION
This Court has jurisdiction to consider this case because this is a direct appeal from the Eighteenth Judicial Circuit’s final order dated November 6, 2008 granting Defendant’s Motion for Directed Verdict on all counts (two Counts) of Plaintiff’s complaint. See Appendix 3, pg. 7. Jurisdiction lies in the District Court of Appeal of the State of Florida for the Fifth District pursuant to Florida Rules of Appellate Procedure 9.030(b)(1). Appellant timely filed this appeal.
STATEMENT OF THE ISSUES
1. WHETHER THERE IS A CLAIM FOR RETALIATION?
2. WHETHER THERE IS A CLAIM FOR SEXUAL HARRASMENT HOSTILE WORK ENVIRONMENT AND DISPARATE TREATMENT DUE TO SEX?
3. WHETHER THE TRIAL COURT ERRED IN NOT EXPLAINING ITS REASONING FOR GRANTING A DIRECTED VERDICT ON ALL COUNTS
STATEMENT OF THE CASE AND FACTS
This is a retaliation and hostile work environment case based on gender. As has been pointed out by the United States Supreme Court, these cases are fact intensive and require a totality of the circumstances analysis; Appellant respectfully requests this Court to review the facts provided and draw reasonable inferences in light most favorable to Appellant.
A. Informational Background Concerning Cast of Relevant Witnesses Who Testified:
1. Neina Blizzard – Plaintiff
2. Susan Kirby – Similar situated employee. Terminated with Plaintiff.
3. Cindy Stebbins – Appliance Direct employee. Harassed by same supervisor as Mrs. Blizzard and Ms. Kirby, but at another store.
4. Jeff Rock – Manager of Appliance Direct who harassed Stebbins, Kirby, Blizzard and others based on Gender. Jeff Rock was Mrs. Kirby’s direct supervisor.
B. Basic Facts:
Neina Blizzard began working for Appliance Direct around May 2003 (T7, L2-3). After approximately seven (7) months, due to personal reasons, Mrs. Blizzard left Appliance Direct on good terms (T7, L6-12). In June 2005, Mrs. Blizzard reapplied to Appliance Direct and got rehired (T7, L14). Mrs. Blizzard was hired to sell appliances (T9, L16-19). Prior to Jeff Rock becoming Mrs. Blizzard’s supervisor, she had had approximately fifteen (15) different supervisors and had never had an issue with them (T10, L13-21).
Although Mrs. Blizzard described the job as hard and intense, she loved her job (T10, L22-25; T11, L1). During Mrs. Blizzard’s entire time working at Appliance Direct, she was never reprimanded or written-up (T11, L15-19). Jeff Rock became Mrs. Blizzard’s supervisor in April or May of 2006 (T12, L3). According to Mr. Rock’s testimony, Jeff Rock has never been counseled or reprimanded as an employee of Appliance Direct for anything concerning his employment (T139, L1-5).
C. Facts Supporting Gender Based Discrimination / Hostile Work Environment:
Once Jeff Rock became Mrs. Blizzard’s supervisor, Mrs. Blizzard began observing Jeff Rock doing inappropriate things (T13, L10-12). Mr. Rock would talk about his penis all the time (T14, L22-23). Mr. Rock would constantly talk about how large his penis was, and how he had to strap it down to his leg in order to be able to dance (T14, L23-24; T154, L9-19). When a secretary walked by, Jeff Rock said, “if I got a hold of her, she’d have a knot in her back.” (T15, L4-5). It was constantly like that (T15, L5-6).
Mr. Rock, while playing ball with the guys in the showroom, would hit a ball with a bat-like object and say, “This is what you are dealing with when you are dealing with me,” again, insinuating the size of his penis (T69, L11-23). Mr. Rock would talk and describe his use of Viagra, and how his penis stayed hard all weekend and how he could hang a hat on his penis (T15, L4-10). Mr. Rock bragged about his sexual conduct and about picking up women at bars (T15, L12-15). Mr. Rock bragged about how he was a dog and how he cheated on his wife (T65, L15-17). Mr. Rock made whinnying horse sounds when pretty women would walk by (T19, L9-18). Mrs. Blizzard described Jeff Rock as abusive, who yelled, constantly screamed, berated and treated certain people differently (T13, L14-17; T14, L2-3).
Every time an employee by the name of Miho walked by the sales floor, Mr. Rock would make sexual comments about her and what Mr. Rock would do to Miho sexually. This would happen five (5) times a week, breakfast, lunch and dinner (T63, L7-11; T63, L21-23; T153, L1-7). Mr. Rock even stated that he would F#@#! Miho so hard he would put a knot in her back (T153, L7-8). Every day Jeff Rock would say completely improper things in the workplace (T152, L15-18; T153, L9). Mr. Rock asked a co-worker, Susan Kirby on a couple of occasions, what type of underwear she was wearing (T153, L13-15). Mr. Rock would come to work, hang around the girls and explain how he stayed in the bedroom all day because he had taken Viagra, and how he had stayed hard all day (T154, L9-24). When Mr. Rock would get mad, he would pound on things, throw things, and snorted (T21, L18-21). From the time Mr. Rock began working as a supervisor at the Melbourne store, he made the atmosphere fearful (T14, L6). Mr. Rock would use the F-Bomb and swear a lot (T90, L10-12). There was a lot of sexual tension in the room. “We all knew that [Mr Rock] talked sexually. He did it every day.” (T174, L5-6). Ms. Stebbins testified that Mr. Rock was “always referring to his private parts, making jokes about his sexual abilities, always bragging about how he was a ladies’ man, he was just very dirty mouthed (T179, L2-6). Mr. Rock would always degrade women and was feared by many employees (T182, L2-3). Ms. Stebbins also stated a time when Mr. Rock “said his thing was so big he had to stick it in a sock.” (T183, L25; T184, L2).
D. Facts Supporting Disparate Treatment / Changing Conditions of Employment:
The girls that got the preferential treatment were the girls who rubbed- up against Jeff Rock, whispered in his ear, and had physical contact with him (T67, L4-10). Some people got to make their own hours and lunch hours (T13, L18-19). The three (3) girls that went along with his statements, such as Carissa, Shawna and Rebecca were given unbelievable favoritism (T16, L4-6; L12; T17, L16-23). Those that didn’t, such as Mrs. Blizzard, were traumatized in fear of their job (T16, L1-8). Carissa would receive house tickets so that she would make more commissions, get a better paycheck, and receive a better performance level (T16, L17-24; T150-151, L16-5). Carissa would also be allowed to come in earlier and allowed to eat breakfast at her table (T16, L25). When Jeff Rock was confronted with the favoritism showed to Carissa, Jeff Rock stated, “I’ll give my house tickets to whoever I want, you guys don’t know what Carissa does for me” (T83, L4-6). Shawna and Rebecca also went along with Jeff Rock’s sexual statements and received favoritism such as being allowed to sit down during working hours, taking long lunches and missing a lot of work (T16, L4-5; T17, L16-23). Mrs. Blizzard on the other hand was not even allowed to sit at her desk, and would get screamed at if she did (T18, L4-5). Susan Kirby also described the favoritism that went on between girls that flirted with Jeff Rock and the girls that didn’t (T161, L11- T162, L18).
E. Facts Supporting Retaliation Claim:
In May, 2006, Jeff Rock held a Saturday 7a.m. meeting. (T19, L22-24). The meeting came about after Mrs. Blizzard spoke with Mr. Sherman (a senior salesperson, presumably about Mr. Rock) (T20, L2-5). Mr. Sherman then went upstairs to complaint about Mr. Rock (T21, L1-8). Mr. Rock then disappeared for a little while, and then came back mad with fire out of his ears (T21, L20-21). Mr. Rock had gotten wind that somebody had complained about him (T21,L23-25). That is when Mr. Rock called the Saturday morning meeting (T21-22, L25-1). The Saturday meeting was the most brutal meeting Mrs. Blizzard had ever been in her entire life (T22, L1-3). At the meeting, Jeff Rock said, “somebody here has gone upstairs and complained about me. I am here to tell you right now, they (meaning corporate) don’t care what I do down here. You salespeople sell $80,000 a month for Appliance Direct. I make them Hundreds of Thousands a month. Who do you think they are going to get rid of, me or you?” (T22, L7-13). “It was a blatant out-and-out scary threat.” (T71, L12-15). Jeff Rock also stated at this meeting: “the next person that goes up and complains about [Jeff Rock] will be fired.” (T152, L9-10).
Mrs. Blizzard personally reported the actions of Mr. Rock to Jonathan Hess, who was the zone manager for four stores (T22, L24-25, T23, L14-15). After reporting the horrific situation to the zone manager regarding Mr. Rock, the zone manager responded: “a tiger doesn’t change his stripes” (T25, L24-25; T52, L2). Mrs. Blizzard was fired shortly thereafter by Mr. Rock (T26, L15-16).
Although Mrs. Blizzard was afraid to complain to anybody (T49,L21), she also discussed the situation concerning the inappropriate language used by Jeff Rock with a manager who was covering for Jeff Rock during the two (2) weeks prior to her being terminated (T61,L9-14). Additionally, Mrs. Blizzard also discussed the situation with Mr. Sierra who was the manager of the Sebastian store who told Mrs. Blizzard that the same thing happened at the Sebastian store when Jeff Rock was there (T93-94, L21-2). More importantly, Mrs. Blizzard also reported Mr. Rock to Ellen Berry, head of Human Resources for Appliance Direct (T27, L8 & T137, L14). Mrs. Blizzard reported to Ellen Berry on September 29, 2008 that Jeff Rock was terrible and stated “[we] have to be hush-hush [here] (T28, L21-23; T29, L8) as well as reported the offensive sexual comments made by Jeff Rock (T53, L5-8). Ellen Berry then stated: “These are the problems they have hired me to take care of.” (T28, L24-25). The very next day, while Jeff was screaming at a coworker (Susan Kirby), Mrs. Blizzard told Jeff Rock that he was prejudiced against white women, and Jeff Rock fired Mrs. Blizzard on the spot. (T29, L10 & T31L17-21). Jeff Rock admits that a person to complain concerning harassment at the Melbourne store is Ellen Berry (T141, L20-24).
Susan Kirby also reported Jeff Rock to Ellen Berry from Human Resources on September 29, 2008 (T155, L10-18). Ms. Kirby reported Jeff Rock’s inappropriate language, and how he was hard to some of the women (T155, L20-24). On the day that Jeff Rock fired Neina Blizzard, Jeff Rock said, “Looks like you guys have all been doing things behind my back when I’ve been gone” (T157, L15-17). This presumably means that both Susan Kirby and Neina Blizzard had gone behind Jeff Rock’s back and reported him to Human Resources.
When Jeff Rock testified, he couldn’t recall if he fired Mrs. Blizzard. He simply stated “I may have fired her” (T132, L20-21), but he did not articulate as to why he “may” have done that.
F. Facts Supporting Pretext / No Legitimate Reason To Terminate Mrs. Blizzard’s Employment:
Mr. Rock did not have any complaints against Mrs. Blizzard and does not recall anyone complaining to Mrs. Blizzard. Mr. Rock does not recall firing Mrs. Blizzard (T132, L22-25), and Mr. Rock does not know why Mrs. Blizzard is no longer working at Appliance Direct (T132, L14-17). Mr. Rock also did not recall an incident where Mrs. Blizzard quit (T135, L2-4). Mr. Rock never wrote up Mrs. Blizzard and never disciplined her (T135, L8-11).
STANDARD OF APPELLATE REVIEW
In Speedway v. Dupont, 933 So.2d 75 (5th DCA 2006) citing Scott v. TPI Restaurants, Inc., 768 So.2d 907 (Fla. 5th DCA 2001), this Court, en banc, stated: “A motion for directed verdict should be granted only if no view of 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 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.” Speedway, at 79.
Additionally, this Court, en banc, specifically noted: “Florida has a long standing policy favoring jury trials and determinations on the merits. This policy is expressly incorporated in [Florida Statute] section 760.11(5)” Id.
This Court reviews a directed verdict decision de novo. The standard of review on appeal of the trial court’s ruling on a motion for directed verdict is de novo and is the same as the test used by the trial court in ruling on that motion. Cassell v. India, 964 So. 2d 190, 193 (Fla. 4th DCA 2007). In considering a defendant’s motion, the court is required to evaluate testimony in the light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in plaintiff’s favor. Owens v. Publix Supermarkets, Inc. 802 So. 2d 315, 329 (Fla. 2001); DeCarlo v. Griffin, 827 So. 2d 348 (Fla. 4th DCA 2002); Goolsby v. Oazi, 847 So. 2d 1001(Fla. 5th DCA 2003); Tenny v. Allen, 858 So. 2d 1192 (Fla. 5th DCA 2003).
SUMMARY OF THE ARGUMENT
The trial court improperly granted Appellee’s motions for directed verdict concerning both Counts of Plaintiff’s Claims. The evidence presented at trial clearly meets the Prima Facie elements of a retaliation claim. Moreover, the evidence, when taking all reasonable inferences in favor of Mrs. Blizzard, also depicts an actionable claim for hostile work environment based on gender. The Jury heard all evidence, but was prevented from deliberating. A claim of employment discrimination of this type generally requires a fact-intensive inquiry that precludes a directed verdict. Moreover, the evidence presented at trial raised several issues of material fact that required resolution by a jury. The Trial Court, on the facts of this case, should not have substituted its Judgment for that of the trier of fact, and the directed verdict should be reversed.
The facts presented at trial clearly show that the Plaintiff met the prima facie elements of retaliation, and the Defendant failed to articulate a legitimate non-discriminatory reason for terminating the Plaintiff just one day after she complained about what was happening to Human Resources.
The Plaintiff also met its burden of a hostile work environment based on her gender because there is an abundance of evidence of gender-based quid pro quo favoritism, as well as numerous and constant sexually charged comments, which objectively meets the severe or pervasive test analyzed under the totality of the circumstances, as explained in landmark United States Supreme Court opinions.
ARGUMENT
I. THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT ON MRS. BLIZZARD’S CLAIMS OF RETALIATION
As humbly as may be possible stated, the trial Court clearly erred in entering an order for Directed Verdict on the Retaliation claim. The sexual harassment claim dismissed by the trial court (addressed later in this brief) has valid arguments on both sides and requires careful analysis. However, the existence of Mrs. Blizzard’s Retaliation claim is clear under all reasonable interpretations of the law, both under Florida Statute Chapter 760 and its Title VII of the Civil Rights Act counterpart.
In order to prove a retaliation claim under the Act, Mrs. Blizzard needs to establish:
(1) she participated in a protected activity;
(2) she suffered an adverse employment action; and
(3) a causal connection between the adverse action and the protected activity. Harper v. Blockbuster Entertainment Corporation, 139 F.3d 1385, 1388 (11th Cir. 1998).
Once the Plaintiff established the prima facie elements, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the challenged employment decision. Wells v. Colorado Dept. of Transp., 325 F.3d 1205, 1212 (10th Cir 2003); Ford v. GMC, 305 F.3d 545, 553 (6th Cir. 2002). See also: Farley v. Nationwide Mutual Insurance Company, 197 F.3rd 1322, 1336 (1999) (The employer has the burden of articulating a legitimate non-discriminatory reason for the adverse employment decision; disbelief of defendant employer’s proffered reasons is sufficient to support a finding of discrimination).
The first element is satisfied because Mrs. Blizzard recognized Mr. Rock’s sexual harassment as an unlawful employment practice and opposed it by bringing it to the attention of her coworkers, managers, supervisors and Human Resources. Under Pantropic Power Products v. Fireman’s Fund Insurance Company, F. Supp. 2d 141 (S.D. Fla. 2001) internal complaints can form basis of retaliation claim. A plaintiff does not even need to prove the underlying discriminatory conduct she opposed.
The second element is satisfied because the Plaintiff was fired from her job. Being terminated from your job definitely constitutes adverse employment action. In Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, (2006) the United States Supreme Court defined adverse employment action as any action which would deter a reasonable employee from complaining to management. Certainly, termination of employment is an adverse employment action. Id.
The third element is satisfied through the direct evidence of retaliation introduced at trial and because of the temporal proximity between the adverse action (being fired) and reporting the acts of Mr. Rock to Human Resources the day before she got fired. By reporting Mr. Rock to Human Resources and other managers, Mrs. Blizzard was clearly engaged in protected activity. In O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1255 (10th Cir. 2001) which determined that “informal complaints to supervisors constitutes protected activity” and in Conetta v. National Hair Care Centers, Inc., 236 F.3d 67, 76 (1st Cir. 2001) the Courts determined that “Expressing opposition to harassment to management or anyone else is protected conduct that may support liability if it resulted in an adverse job action.”
The direct evidence of retaliation are the statements made by Mr. Rock at the May 2006 meeting and the statements made on the day of termination. At the May 2006 Saturday meeting, Mr. Rock threatened the employees and told them that if anyone were to complain about him, they would be fired. Mr. Rock fulfilled his threat when he fired Mrs. Blizzard just one day after Mrs. Blizzard complained to Human Resources. On October 1, 2006, during the discussion that led to Mrs. Blizzard’s firing, Mr. Rock stated, “looks like you guys have all been doing things behind my back when I’ve been gone” (T157, L15-17). This comment refers to the lodged complaints made by Mrs. Blizzard and Ms. Kirby to Human Resources the day before they were terminated. In addition to the direct evidence introduced at trial, it is well settled law that a causal connection between the adverse action and the protected activity can be established through temporal proximity. In Farley v. Nationwide Mutual Ins. Co., 197 F.3d 1322 (11th Cir. 1999) a period of seven weeks was sufficient to establish the required causal connection. In Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003) (“Depending on the circumstances, three to eight months is easily within a time range that can support an inference of retaliation”). Clearly, a day after reporting Mr. Rock to Human Resources establishes the requisite element of causation.
Lastly, the record establishes that Defendant has not proffered a legitimate non-discriminatory reason for firing Mrs. Blizzard. Indeed, Mr. Rock is not even sure if he even fired Mrs. Blizzard. Mrs. Blizzard, on the other hand, testified that she got fired the next day after she reported Mr. Rock to Human Resources and immediately after she told Jeff Rock that he discriminated against white women. Defendant’s failure to articulate a legitimate reason for terminating an employee (Mrs. Blizzard) who never had any disciplinary action and no negative employment history forecloses any defense to Mrs. Blizzard’s retaliation claim.
For each of these reasons, the trial court’s decision granting a directed verdict to Appliance Direct on Mrs. Blizzard’s retaliation claims must be reversed.
II. THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT ON MRS. BLIZZARD’S CLAIMS FOR SEXUAL HARASSMENT BASED ON THE EXISTENCE OF A HOSTILE WORK ENVIRONMENT AND DISPARATE TREATMENT
The circuit court ruled that Defendant was entitled to a directed verdict on Mrs. Blizzard’s claims for hostile work environment sexual harassment and retaliation. The trial court’s decision to grant a directed verdict on Mrs. Blizzard’s claims against Appliance Direct is contrary to Florida Law.
To establish a hostile work environment sexual harassment claim, the following elements must be shown: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subject to unwelcome sexual harassment such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on the plaintiff’s sex; and (4) the harassment was sufficiently severe or pervasive to alter or affect the terms or conditions of employment and create an abusive working environment. Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir 1999). Because this case involves harassment from a supervisor to a subordinate, the employer is automatically held responsible for the acts of its supervisor. In Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998), the Supreme Court held that “an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Id. at 2292 – 2293. See also Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2700 (U.S. 1998).
The first element is satisfied because Plaintiff is part of a protected group (women). Elements two, three and four are interrelated and will be considered collectively. The evidence shows that the sexual harassment was unwelcome, was based on her sex, and was sufficiently severe or pervasive to alter the terms and conditions of her employment.
The unwelcome nature of Mr. Rock’s conduct was established by Mrs. Blizzard’s complaints to her co-workers, the Zone Manager, Mr. Hess; other managers, and more specifically, by her complaints to Ellen Berry, the head human resource representative. The harassment was based on the plaintiff’s sex, as shown by incidents including but not limited to Mr. Rock’s sexually exploit descriptions, his constant talk about his penis and sexual prowess, his sexually suggestive sounds, his attitude and demeanor towards women, and his quid pro quo favoritism towards the women that flirted with him and went along with his comments as compared to the ones that did not. Mr. Rock’s propensity to commit sex-based harassment was also demonstrated by the evidence of Mr. Rock sexually harassing other female employees, including Susan Kirby and Cynthia Stebbins. Mr. Rock did not treat all male and female employees alike as no evidence was introduced that showed that Jeff Rock sexually harassed the male employees.
The subjective and objective severity or pervasiveness of the conduct was shown by considering the totality of the circumstances and behavior that occurred herein. There is no doubt that Mrs. Blizzard subjectively perceived the harassment to be severe or pervasive, leading her to complain to management and confront her supervisor, which subsequently led her termination from a job she loved.
The objective factor is determined by considering the frequency and severity of the conduct, whether the conduct was physically threatening or humiliating, and whether it unreasonably interfered with her job performance. In Speedway, en banc, this Court points out, “if a minimum of bad conduct on the part of a co-worker or supervisor is established [then it is primarily a Jury question].” Speedway, 933 So.2d at 84. The bad conduct that Mrs. Blizzard established was the constant barrage of sexually charged expression exhibited by Mr. Rock, and how he gave employment advantages to the women that favorably responded to his sexual acts. Mr. Rock admitted that he was aware of the anti-sexual harassment policy of Appliance Direct and that sexual harassment included creating an intimidating, hostile or offensive working environment or atmosphere by verbal actions (T142). Although Mr. Rock denied doing any of the acts he is being accused of, Mr. Rock understood and agreed that doing the acts he was accused of, violated Defendant’s sexual harassment policies.
The Speedway, en banc Court further noted, “The court must look at the totality of the circumstances and not micro-bites of behavior in isolation.” Id. at 84. Further, the Speedway Court, cited Justice O’Conner’s opinion in Harris v. Forklift Systems, Inc., 510 U.S. 17 at 21 (1993) where she states:
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.
Here, the conduct complained of was not infrequent and occurred on a regular basis over the approximately six months Mrs. Blizzard worked with Mr. Rock. They were not isolated events but constituted a continuing course of behavior consisting of suggestive and offensive comments, making disparaging remarks towards her and women in general, violent outbursts of temper including slamming store equipment and throwing store property, swearing at Mrs. Blizzard, threatening her, using abusive language, causing her to fear for her safety and making her constantly nervous and fearful at work. This frequent and continuing pattern of behavior led to Plaintiff complaining to various members of store management on more than one occasion. The objective factors of frequency and severity of the conduct, the physically threatening or humiliating nature of the conduct, and its unreasonable interference with her job performance, is more than amply demonstrated by this evidence.
As a result, both the subjective and objective aspects of the severe and pervasive element have been satisfied. Moreover, Mrs. Blizzard easily demonstrated that the harassment conduct by Mr. Rock changed the terms and conditions of her employment. Mrs. Blizzard lost commissions as a result of Jeff Rock giving house tickets, which were supposed to be evenly distributed, to the women that supported his sexual advances. Losing commissions as a result of the preferential treatment, alone, constitutes a change in condition of the terms of employment. Additional preferential treatment given to the “favored” women was that they were allowed to miss more work, rest more while at work, eat at their desk, and overall, more favorable treatment.
While Appellant recognizes that there are numerous examples of more severe sexual harassment cases, which Federal Courts have determined not to have violated Title VII, the sovereign State of Florida “has opted for a strong policy against sexual harassment in the workplace. The [Florida] Legislature passed section 760.10, a remedial statute, directed at this form of discrimination based on gender and it should be liberally construed, not strictly construed.” Speedway, 86. Moreover, the Speedway Court also noted: “[F.S. 760] provides broader coverage than the federal one.” (Id. 79-80). Additionally, Florida’s policy concerning sexual harassment cases has been carefully delineated by the Supreme Court of Florida in Byrd v. Richardson-Greenfield Securities, Inc., 552 So.2d 1099 (Fla. 1989). In this case, the Supreme Court provided us with the following guidance as Florida’s “overwhelming public policy”:
The clear public policy emanating from federal and Florida law holds that an employer is charged with maintaining a workplace free from sexual harassment.
Public policy now requires that employers be held accountable in tort for the sexually harassing environments they permit to exist, whether the tort claim is premised on a remedial statute or on the common law.
n.7. We conclude that, as a matter of public policy, sexual harassment should not and cannot be recognized as a “risk” inherent in any work environment.
Byrd. at 1104.
Despite the existence of more severe sexual harassment cases that were dismissed by Federal Circuit Courts, the landmark Supreme Court in the Harris case held that actionable sexual harassment existed with facts less severe than the instant case. In, Harris, the Court explains the inappropriate conduct of Teresa Harris’ manager. The plaintiff in that case, Teresa Harris, was not subjected to any improper touching but instead was verbally exposed to inappropriate comments and sexual innuendos similar in severity and pervasiveness as the instant case. Id. at 300. The Supreme Court, in a unanimous opinion, held that comments by a manager to an employee can be enough for a sexual harassment hostile environment claim.
The record evidence not only raises a genuine issue of material fact concerning the allegations of hostile work environment sexual harassment such that the case should have been submitted to the jury for resolution, but the evidence is clearly more than sufficient to allow the jury to evaluate this case.
The above cases illustrate that harassing conduct similar to that found in the instant case has been held sufficient to sustain a claim of hostile work environment sexual harassment. At a minimum, such conduct presents genuine issues of material fact requiring submission to the fact-finder and precluding resolution by way of a directed verdict. As a result, the trial court’s granting Defendant’s motion for directed verdict was in error.
Finally, in Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996), the court held that “a judgment n.o.v. should be granted only when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.” Id. at 805-806. Furthermore, just as in a summary judgment motion, the court considers all the evidence in the light most favorable to the nonmovant and indulges all reasonable inferences in favor of the nonmovant. “If there is substantial evidence opposed to the motion, the motion should be denied. Substantial evidence means ev
Attorney: Maurice Arcadier
Status: Pending New Trial
Date Filed: April 19, 2007
Our Melbourne office is centrally located in Brevard County, enabling our lawyers to serve clients throughout “the Space Coast”, including Cocoa Beach, Palm Bay and Vero Beach.
