Women and minorities working for St. Johns County government have a right to be treated with dignity respect and consideration.
While documenting elements of a sexist, misogynist, fat-shaming hostile working environment, the June 16, 2017 ROPER REPORT found no lawbreaking by St. Johns County Administrator MICHAEL DAVID WANCHIK.
There is no moral reasoning in the ROPER REPORT
This is what defense lawyers do for employers.
This report is a maladroit cover-up.
Employer defense attorney MICHAEL ROPER:
St. Johns County says it did not pay for the report, raising concerns about why it was written and who did pay for it.
Was this part of run-of-mine insurance defense work?
Or did a developer or property owner pay for it?
By delaying this report until June 16, 2017, months after the interviews were completed, WANCHIK was able to finagle his way into contract renewal on January 17, 2017.
Rev. Dr. Martin Luther King, Jr. called this "the most lawless" county in America.
WANCHIK and County PR man MICHAEL RYAN, who came with WANHCIK from Texas, failed and refused to attend remedial training in 2017.
ROPER, WANCHIK and County PR man MICHAEL RYAN, have NOT responded to my requests for comment as of 5:10 PM EDT on May 20, 2019.
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While documenting elements of a sexist, misogynist, fat-shaming hostile working environment, the June 16, 2017 ROPER REPORT found no lawbreaking by St. Johns County Administrator MICHAEL DAVID WANCHIK.
There is no moral reasoning in the ROPER REPORT
This is what defense lawyers do for employers.
This report is a maladroit cover-up.
Employer defense attorney MICHAEL ROPER:
- destroyed his notes,
- did not videotape statements,
- did not take affidavits and
- wrote a report that breached the standard of care
St. Johns County says it did not pay for the report, raising concerns about why it was written and who did pay for it.
Was this part of run-of-mine insurance defense work?
Or did a developer or property owner pay for it?
By delaying this report until June 16, 2017, months after the interviews were completed, WANCHIK was able to finagle his way into contract renewal on January 17, 2017.
Rev. Dr. Martin Luther King, Jr. called this "the most lawless" county in America.
WANCHIK and County PR man MICHAEL RYAN, who came with WANHCIK from Texas, failed and refused to attend remedial training in 2017.
ROPER, WANCHIK and County PR man MICHAEL RYAN, have NOT responded to my requests for comment as of 5:10 PM EDT on May 20, 2019.
Bell & Roper, P.A.
ATTORNEYS AT LAW
TO Patrick McCormack, Esquire, St. Johns County, County Attorney
FROM: Michael J. Roper, Esquire
DATE: June 16, 2017
SUBJECT:EmploymentInvestigation
- Scope of Investigation and InvestigatoryProcess:
The undersigned was contacted by County Attorney, Patrick McCormack, Esquire, who requestedthatIconductanindependentemploymentinvestigation,onbehalfofSt.John'sCounty, FL("County"),regardingcertainallegationsofworkplaceharassmentand/ordiscriminationwhich had been brought forward by a current County employee and a former County employee. 1 Specifically, said individuals have alleged that the County Administrator, Michael Wanchick ("Wanchick"), has made certain inappropriate and offensive comments in the workplace. In essence, the complaints are that certain comments were gender specific and derogatory towards women and that other comments were offensive to persons who might be overweight, thereby creating a hostile work environment for the affected persons working within the Executive Suite at the County AdministrationBuilding.
These employee complaints were originally brought to Mr . McCormack' s attention by County Commissioner Jeb Smith ("Smith") who, in turn, had been contacted separately by these individuals, who were seeking to report these complaints to the County. In light of the fact that the County Administrator is the subject of the complaints, Mr. McCormack determined that it wouldbemostappropriatetohavetheinvestigationconductedbyanoutsideentity,asopposedto an internal investigation conducted by the County's Personnel Services Department ("HR"), in order to avoid any appearance of impropriety or undue influence over the investigation. Accordingly, this investigator was tasked by Mr. McCormack on behalf of the County to conduct an investigation of the allegations , utilizing the assistance of the County Attorney's office for purposes of contacting witnesses, scheduling interviews and obtaining necessary documents or information.
1 Within this report, the terms "harassment"and "discrimi nation"are used interchangeably .
It is my understanding that the scope of the investigation included a determination of:
- the details of the alleged inappropriate conduct which is the subject of thecomplaints;
- whether said conduct may have violated the County's policy prohibiting unlawful harassment intheworkplace("Title:411ProhibitionofUnlawfulHarassment-IssuedJanuary2006-Revised June, 2012"); (3) whether said conduct constituted potentially actionable discrimination or harassment(hostileworkenvironment)pursuanttoeithertheFloridaCivilRightsActof1992,§§ 760.01-760.11, Florida Statutes and/or Title VII of the Civil Rights Act of 1964; and (4) whether any corrective employment action would berecommended.
Inordertoinitiallydeterminethenatureandextentoftheemployment-relatedcomplaints, for purposes of planning the future investigatory steps to be taken, I first interviewed Smith. I also interviewed the two individuals whom I learned had brought their respective complaints to the attention of Smith, namely current County employee, Laura Taylor ("Taylo r") and former County emplo yee, Heather Bailey ("Bailey").
Thereafter,Iinterviewedthefollowingindividualswithrespecttotheincidentsandissues which were implicated by Taylor and Bailey's complaints about Wanchick's behavior : Lauren Ferro("Ferro"),MichaelWanchick,StaceyStanish ("Stanish"),DevinCousins,PauletteBallard, Billy Zeits ("Zeits"), Melissa Lundquist ("Lundquist") , Darrell Locklear ("Locklea r"), Wade Schroeder, Suzanne Konchan, Melissa Glasgow ("Glasgow" ), Linda Stoughton , Diane Lehman, Linda Darty ("Darty"), Joy Andrews, Michael Ryan ("Ryan") and Mary Ann Blount ("Blount"). Eachwitnesswasadvisedastothenatureoftheinvestigationandtheroleoftheinvestigator;was askedtobecandidandforthright intheirinterview;wasaskednottodiscussthesubstanceoftheir interviewwithanyoneelseduringthependencyoftheinvestigation;advisedastotheirprotection from retaliation for their participation in the process; and was encouraged to contact me should any new or different pertinent information come to light which had not been discussed in our interview.
I also reviewed the following pertinent documents: (1) St. Johns County Administrative Code,Section:Personnel;(2)EmployeeExitInterviewSurveypertainingtoBailey,dated August 4,2016,providedbySmith;(3)CountypersonnelfilesofTaylorandBailey;(4)St.JohnsCounty BOCC Organizational Chart; (5) E-mail exchange(s) between Taylor and Stanish, dated August 30, 2012 and September 3, 2012; (6) Personnel data regarding the appointment of women to management/leadership positions with County during Wanchick's tenure as County Administrator;(7)ChristmascardfromTaylortoWanchick;and,(8)Bosses'Daymagazinecover mock up, provided by Wanch ick.
That section of the County's Administrative Code which was relevant to my investigation was "Section: 411 - Prohibition of Unlawful Harassment - Issued January 2006 - Revised June, 2012 ,"which describes the Coun ty's policy with respect to the prohibition of harassment or discrimination in the workplace and establishes a procedure for the reporting, investigation and correctiveactionassociated withsuchconduct.AcopyofsaidpolicyisattachedheretoasExhibit "A"and incorporated herein byreference.
- Summary ofFindings:
Taylor and Bailey assert that Wanchick made inappropriate workplace comments which can best be characterized as falling into two separate categor ies, namely (i) gender specific comments which are disparaging towards women; and (ii) comments about fellow employees' eatinghabitsorweight.BothtoldmethattheircomplaintsrelatedsolelytoWanchickandthatthey were not complaining about the behavior of any other County employee. Both individuals were further clear that their complaints related to Wanchick's speech only and that Wanchick's alleged comments were restricted to the two areas described above. They confirmed that they had not heard Wanchick make inappropriate comments regarding any other protected class and they were not claiming that he had discriminated against any other protected class of employees (i.e., on the basis ofrace, religion, disability, etc.). They also confirmed that, although they were alleging that Wanchick had made offensive gender specific comments, they were not contending that any comment or behavior by Wanchick was in any way sexual or sexually harassing innature.
Comments Regarding Eating Habits or Weight
It would be appropriate to first address the allegations which have been raised regarding Wanchick's alleged comments about his fellow employees'food choices, eating habits and/or, by implication, weight. Taylor and Bailey (as well as other employees whom I interviewed) allege thatWanchickwouldoftencommentinadisparagingmanneraboutthefactthatcertainemployees wereeatingcertainfooditems(i.e.,bread,donuts,candy,etc.)andindicatethattheyreallyshould not be doing so because it would cause them to gain weight. They also assert that he would tell theseemployees thathewasgoingtobringinascaletoweighthem.Thereisnoallegationthathe made any specific reference to any employee's weight or called anyone disparaging names based upon their weight. However, they assert that the implication from his comments was that these employeesshould notbeeatingthosetypesoffoodbecausetheywereoverweightandeatingthose types of food would cause them to gain weight. The complaints were that these comments caused employees to be embarrassed and upset because they were being criticized because they were overweight. None of the employees who reported these comments to me had ever told Wanchick thattheyfoundhiscommentstobeoffensiveoraskedhimtorefrainfrommakingthesestatements. They explained that they were concerned about telling him that his comments were offensive because of his position as County Administrator. The employees noted that Wanchick would sometimes also comment about his own weight and his need to be careful about his own diet. When interviewed, Wanchick, in tum , stated that he certainly could have made occasional comments about the importance of maintaining a healthy diet or his own need to be careful about eating certain items to avoid weight gain. He could not recall any specific instance on which he made any such remarks but was confident that any such comments would have been made in a positive, encouraging manner and were never intended to be critical or disparaging. He denied telling any employees that they should not be eating bread /donuts /cake, etc. or telling any employees that he was going to weigh them or even suggesting that they wereoverweight.
There was a dispute amongst the witnesses whom I interviewed as to whether Wanchick hadevermadedisparagingcommentsaboutanemployee'sweightoreatinghabits.Additionally, there was some uncertainty as to the context or circumstances under which the subject matterof
diet or food choices may have come up in mutual, consensual conversation amongst co-workers. Forexample,contemporaneouswiththeallegedconductatissuehere,theCountywaspromoting a "wellness "initiative for its employees, and so witnesses commented that the subject matter of diet,weightlossandassociatedhealthbenefitsmaywellhavebeendiscussedinthatcontext.Some ofthe witnesses supportedTaylor'sandBailey's("Complainants")allegationsthatWanchickhad made these types of comments. Other witnesses refuted said allegations, informing me that they had never heard him make any such comments within the workplace. Ultimately, it was unnecessaryforthisinvestigatortoresolvethosefactualdisputesorengageinanyfurtheranalysis of these particular complaints in order to complete the assignment, given the fact that a person's weight, size or dietary habits are not protected characteristics under Title VII or the FCRA or, therefore, under the St. Johns County personnel policy.2
Any comments which Wanchick may have made regarding an employee's weight, their size or their dietary habits are simply not relevant for consideration as to whether there has been a violation of law or County policy in the instant investigation. That is because overweight (or, for that matter, underweight) individuals are not considered to be a protected class under Title VII or the FCRA. Nowhere in Title VII or the FCRA is weight mentioned as a protected characteristic. SeeBillv.CityofNorthLauderdale,2013WL1289165(S.D.Fla,2013);Armstrongv.Cityof Dallas, 997 F.2d 62, 67 N 19 (5th Cir. 1993); Taylor v. Small, 350 F.3d 1286-1292 (D.C. Cir 2003).SeealsoAsante-Addaev.Sodexo,Inc.,2015WL1471927(D.Conn.2015)(Courtnoted that while certainly unple asant, comments or remarks regarding a person's weight are not actionable under Title VII). The same would be true for comments regarding the amount or type of food which they areconsuming.
If the comments regarding weight, size or eating habits had been directed to persons of particular gender, one might be able to infer some gender bias into these otherwise gender-neutral comments.3 However, based upon the factual record presented, it does not appear that there is any evidence to suggest that Wanchick had any gender-based animus associated with said speech, if
those comments were indeed made by Wanchick. 4
Finally, the alleged comments regarding diet would also not likely support an actionable claimforahostileworkenvironmentbasedupontheabsenceofotherrequiredelementsnecessary to establish such a cause of action, i.e . showing that said comments were sufficiently frequent, severe, pervasive, etc. However, because no protected class is implicated by thesealleged
2 Title VII and FCRA hostile work environment claims have the same elements and are subject to the same analytical framework. Further, since the Coun ty's policy prohibits unlawful harassment, an employee would have to make a showing that the conduct was unlawful (i.e. the same showing necessary to support an action under Title VII or the FCRA) in order to establish a violation of the Coun ty'sharassmentpolicy.·
3 The interviews conducted in this i nvestigation reflect that Wanchick has allegedly made comments about eating habits and implications about weight to/about both male and female employees, and alsoabout himself.
4 As noted above, Wanchick denied making disparaging or offensive comments about weight or food choice attributed to him by some of the employees whom I interviewed. Additi ona lly, other employees who worked with Wanchick on a regular basis informed me that they had never heard him make any inappropriate or disparaging comments aboutany employee's weight, diet or what theywere eating.
comments, it is unnecessary to engage in any more comprehensive discussion or analysis of the alleged behavior. Certainly , any insensitive comments (about weight or other non-protected characteristic) which might be offensiv e, hurtful or cause embarrassment to fellow employees should be discouraged by management , as a matter of common courtesy, and in the interests of promoting a professional and productive work environment. Along the same lines, it would seem reasonable to expect that an employee would notify his or her fellow workers, in a timely fashion, if certain topics or comments make them un comfortable , so that said individual can voluntarily alter or cease said behavior. However , such considerations are beyond the scope of this investigation and more appropriately considered and addressed within the framework of the County's personnel or HR program.
Gender Bias Comments
The Complainants assert that Wanchick made certain disparaging and demeaning gender specific comments in the workpla ce, which they found to be offensive and harassing. They both contend that Wanchick made certain comments which exhibited that he held a disdain or animus towards women. These comments were to the effect that women did not belong in the workplace andwerenotasintelligentorcompetentasmen.Giventhelengthyperiodoftimeoverwhichsaid conduct is alleged to have occurred and the amount of time which passed between the alleged occurrence(s)andtheirreportofsame,bothComplainantshadsignificantdifficultyrecountingthe specific words or comments allegedly spoken by Wanchick. They were also unable to provide certain other specific information about the circumstances surrounding some of the alleged comments , such as date(s) , time(s), location(s), persons present, etc. Where dates could be discernedfromeitheroftheComplainants,otherwitnessesordocuments,thosehavebeenincluded in the report below. Taylor advised me that she was unable to identif y any "true smoking gun"when it came to Wanchick's comments and that he would likely attribute her complaints to the fact that she was being overlysensitive.
The Complainants were able to provide certain information about particular comments which they allege were made by Wanchick during certain incidents which they allege occurred and which caused them to be uncomfortable. Those incidents , as described by Complainants and certain witnesses whom they identified, are outlined in this report. During her int ervie w, Ferro described certain additional alleged in cidents , not reported by Taylor or Bailey , and for which neither Taylor nor Bailey were present. However, I have included those reports below, since they bear upon the subject matter of the complaints raised by Taylor and Bailey. Ferro was able to provide specific dates of certain alleged events , and I have included same whereavailable.
Itshouldbenotedthat,duringtheirinterviews,ComplainantsassertedthatWanchickoften madeoffensive,genderspecificcommentsintheworkplace,butbeyondthatbroadstatementcould provide no further detail. I inquired as to whether they could quantify, with any additional detail , either the specific instances or the frequency with which Wanchick made these alleged gender specificcommentsatwork,buttheywereunabletodosowithanygreaterspecificity.Conversely, other witnesses (predominantly female) whom I interviewed , told me that Wanchick had never madeanysuchcommentsintheirpresenceandthatitwouldhavebeencompletelyoutofcharacter for him to have made sex ist, disparaging comments of the nature alleged byComplainants.
5
Accordingly, beyond the incidents outlined below , I was unable to quantify , with any degree of accuracy, the date, context, content, frequency or severity of any other gender specific discriminatory comments allegedly made by Wanch ick.
The specific incidents of alleged improper workplace conduct by Wanchick described to me during the course of my interviews were as follows:
(1) August 23, 2012.
Taylor contends that during the course of an agenda preparation meeting , held on August 23, 2012, Wanchick criticized her job performance and the manner in which she wasdressed,inacondescendingandnastymanner.Shecharacterizedthiseventasthemost serious,concerningandupsettinginteractionthatshehadwithWanchickduringtheperiod of her employment at the County. She told me that his comments were offensive to her and caused her to be very uncomfortable and upset. She was unable to recount for me the specific words spoken by Wanchick during said meeting . She did not remember exactly what he said about her job performance or appearance, just that he was being critical. She couldnotremembertheidentitiesoftheotherspecificpersonspresentduringthemeeting, but noted they would have been members of "senior staff' because the comments were made during a regularly scheduled agenda prep meeting, for a BOCC meeting.
She left work following the meeting because she was upset and subsequently met with Stanish, the County's Personnel Services Director, on August 24, 2012, to discuss said event. Stanish counseled her to speak with Wanchick and explain to him that his comments had upset her. Stanish offered to sit in on the meeting if Taylor would be more comfortable with her being present. Taylor decided that she would prefer to speak to Wanchick alone. When Taylor met with Wanchick , he told her that he did not remember making any offensive comments but apologized for upsetting her. Wanchick told her that he was trying to keep a lighter tone in the meeting, did not mean any offense and did not have problems with her job performance. Taylor felt the matter had been suitably addressed at that point and did not identify any subsequent retaliation or other adverse employment action from Wanch ick following that discussion.
Thereafter, on August 30, 2012, Taylor wrote an E-mail to Stanish, essentially outlining the above interaction, and she provided me with a copy of same. Her E-mail confirms that she met with Wanchick and expressed her displeasure with the fact that he had criticized her job performance in front of other employees. She noted in the E-ma il that she had informedWanchickthathiscommentsmadeher"uncomfortable,"andhadrequestedthat he talk to her privately, if he had any future criticism of her job performance. Her E-mai l does not mention that Wanchick made any comments about her manner of dress or her appearance . There were no overtly sexist , gender specific comments attributed to Wanchick in either Taylor's E-mail or her verbal description of the incident, given to me during her interview. Taylor's E-mail further reflects that she had a candid exchange with Wanchick, following which she believed that he understood that his comments bothered her. She thanked Stanish for taking the time to assist her in this confidentialmatter.
Stanish provided me with a copy of her E-mail response to Taylor, dated September 3, 2012. In that E-mai l, Stanish thanked Taylor for having confidence in her and speaking with her about the matter. Stanish told Taylor that she was happy to listen to her and encouraged Taylor to let her know if she could be of further help. Taylor did not seek any further assistance or input from Stanish on thisissue.
Stanish recalled the above-described meeting and E-mail exchange with Taylor but could provide no further insight into the specific nature of the comments allegedly made by Wanchick. Stanish felt as if this had been successfully handled on an informal basis between the two employees. She did not think that there was any need for further formal action from her. She did not receive any further complaint from Taylor about Wanchick until December, 2015 (incident described below). It was her impression that Taylor and Wanchickhadagoodworkingrelationshipandmutualrespectforeachother.Sherecalled Wanchick being very accommodating and understanding about Taylor's work schedule andtimemissedfromworkinthepast.Stanishdidnotrecallreceivinganycomplaintfrom Taylor to the effect that Wanchick was making sexist comments which were offensive to her. Rather, she recalled the focus of Taylor's complaints being about the fact that Wanchick had criticized her performance in front of other Countyemployees.
Wanchick did not have any recollection of this specific incident. He did recall speaking with Taylor on several occasions during the time that she served as his administrative assistant when she was upset that he had criticized her job performance. However, he denied ever making any sexist or derogatory gender-based comments to or about Taylor (oranyotheremployee)atthisoranyothertime.HealsostatedthatTaylorhadnevertold him that any comment which he had made was inappropriate, sexist or disparaging to women.HestatedthathiscriticismsofTaylor'sworkwerebaseduponlegitimateconcerns whichhehadaboutvariousaspectsofherperformance.Heexplainedthathismanagement style was different than his predecessor , for whom Taylor had worked, and that he had different expectations than his predecessor about the environment in the Executive Suite orAdministrationOfficeand alsoaboutTaylor'sscopeofduties.Therewerecertaintasks which his predecessor had assigned to Taylor, which Wanchick believed were more appropriate for him to handle personally. Nonetheless, he believed that he and Taylor, overall, had a good working relationship and noted that he had been very accommodating of her work schedule because of her family situation in the past, and so was surprised that she was complaining now that he had offendedher.
- November/December2014.
Bailey alleges that she witnessed a conversation which took place in the common area of the Executive Suite between Wanch ic k, Zeits, and Ryan. Bailey could not provide a specific date or time for this inci dent , but the conversation surrounded the fact that three
- womenhadbeenrecentlyelectedtopoliticalofficeinSt.JohnsCounty,namelyRachel Bennett,ChairoftheBOCC;AndreaSamuels, MayoroftheCityofSt.AugustineBeach; and, Nancy Shaver, Mayor of the City of St.Augustine.
Bailey alleges that, during this conversation, Zeits was proposing that the County issue a proclamation, recognizing the fact that these three women had been elected to and were serving in high political office within St John's County. Bailey contends that Wanchick said words to the effect that they were not going to do that because they did not want to, "...tellwomenthattheyhaveanyotherplacebutthekitchen."BaileystatedthatWanchick made the statement in a joking fashion and that he and Ryan were laughing at the time the commentwasmade.Shedidnotfindthecommenttobeamusingand wasoffendedbythe comment.ShedidnotsayanythingtoWanchickortheotherpersonspresentwhenhemade the comment nor did she subsequently speak to any of those involved afterwards or report the incident to HR. She does not know whether staff ever submitted a proposed proclamation to the BOCC or whether the BOCC ever issued any such proclamation.
Wanchick denied memory of this specific conversation or any conversation with these individuals involving the fact that three women had been elected to political office in St. John'sCountyand/orthesuggestionthattheCountyissueaproclamation.Hespecifically denied that he ever made any comment about women belonging in the kitchen on this or any other occasion, even in joking. He stated that making a sexist comment of that nature wouldbeverymuchoutofcharacterforhimandwouldnotbeanappropriate commentfor any County employee to make within the workplaceenvironment.
Zeits generally recalls the time period when these three women held elected office in St. JohnsCounty.However,hedoesnotrecalleverdiscussingtheissueofwhethertheCounty shouldissueaproclamationinrecognitionofthatfact,witheitherWanchickorRyan.Zeits does not recall Wanchick ever saying anything about women belonging in the kitchen or making the type of sexist, disparaging comment attributed to him by Bailey at any time when they were together. Zeits told me that, in part because he was raised in the San FranciscoBayarea,heisveryattunedtoequalrightsandEEOissuesintheworkplace.He believes that a comment of that nature (which he characterized as "pretty egregious ") wouldlikelyhavecaughthisattentionandisthetypeofcommentthathewouldlikelyhave remembered,ifmadewhenhewaspresent.Accordingly,hedoesnotbelievethatcomment was ever made by Wanchick during a conversation to which he was aparty.
Ryan did not recall being a party to this alleged conversation and does not remember hearing Wanchick make a statement of this nature at any time during his employment. Ryan agreed that if a proclamation was going to be issued by the BOCC, then his departmentwouldhavebeenresponsibleforpreparingtheinitialdraftofsuchadocument. However, he commented that, given his position with the County, it would have been somewhat unusual for Zeits to be the person proposing such a proclamation. He did not recall a proclamation of this nature ever being issued by the County. He stated that, based uponhisexperienceandobservationsworkingcloselywithWanchickoverthepastseveral years, it would be very much out of character for Wanchick to make a comment of that nature . Further, Ryan believes that a comment of this nature would have stood out in his memory, even if said in a joking manner because it would have been so blatant and inappropriate.
- Augus t/Se ptember,2015.
This incident was not described by either Taylor or Bailey and did not constitute a basis for either of their complaints. Instead, this is an incident described by Ferro during her interviewandisincludedhereinforthesakeofcompleteness,sinceFerrocontendsthatthe alleged comment by Wanchick suggested gender bias or an animus towardswomen.
Ferro explained that she was asked to take a photograph of several senior staff personnel, including Glasgow , to be sent to Jerry Cameron, the former Assistant County Administrator who had recently retired from the County. While taking the photograph, she told Glasgow to stop smiling and in response Wanchick made a comment to the effect that was just, "... her (Glasgow 's) stupid face."Ferro told Wanchick that he could not say that about Glasgow, but everyone else just laughed it off. Ferro stated she was offended by the comment even though it was not directed to her. She thought that the comment was disparaging towards Glasgow and reflected Wanchick's attitude towards women in the workplace. She did not speak further with anyone else who was present for the photograph about Wanchick's comment nor did she complain to HR. She does not know whether Glasgow was offended by thecomment.
WanchickdeniedmemoryofevermakingthecommentattributedtohimbyFerro.Hedid recall sitting for a photograph which was sent to Cameron, but recalls nothing remarkable aboutthatevent.Glasgow,whoisemployedwiththeCountyastheDirectorofEconomic Development, recalls the time when senior staff took a photograph to be sent to Jerry Cameron. However, she does not recall Wanchick making the comment to her which was described by Ferro. Further , Glasgow does not know of any other occasions on which Wanchick has made inapp ropriate, insulting or demeaning gender specific comments to her or anyone else during her employment with the County. Glasgow described Wanchick as being approachable and friendly in the office, but noted he is very busy, so prefers that employees get to the point when they come to see him. Glasgow described Wanchick as professionalanddetailorientedinhisdemeanorand,baseduponherexperienceofworking withhim,itwouldbeoutofcharacterforWanchicktomakeadisparaging,sexistcomment about women or their status in the workplace. She informed me that she had a good, comfortable and professional working relation ship with Wanchick. Other employees whom I interviewed did recall the event when a photograph was taken to be sent to Cameron,butalsodeniedanymemoryofWanchickmakingtheabove-describedcomment attributed to him byFerro.
- September/October,2015.
BaileyrecountedanincidentwhichoccurredintheSanSebastianConferenceRoom,atthe County Administration building , during the time that the County 's sales tax increase proposal was being discussed by County staff. Bailey could not recall the date or approximate time frame when this event occurred, but my research reveals that the County'ssalestaxincreasewasadopted inNovember,2015.Accordingly,Ihavepresumed
that the alleged incident took place in the days or weeks leading up to the vote on that proposal, but have no additional basis for more accurately estimating the specific date of the alleged incident.
Bailey informed me that she was called to the conference room by her supervisor, Ryan because staff was having difficulty getting the "iThoughts"program to operate properly. When she arrived, several male members of the senior staff, including Wanchick, were present. She does not recall all of the specific persons who were present. Ryan asked her to fix and/or demonstrate how to properly use the program. She started to do so, but experienced some technical difficult y getting the program to work properly. She alleges that, at that point , Wanchick said words to the effect of "You are just a woman. No one expects you to know how to do it."It did not appear to her that Wanchick was joking and none of the other staff members said anything in response to Wanchick's comment. She foundhiscommenttobeoffensiveanditcausedhertobeuncomfortableandembarrassed. She did not say anything in response to Wanchick at that time but concentrated her efforts on getting the program working properly and left the conferenceroom.
Bailey subsequently approached Ryan, told him that Wanchick's comment had made her feel uncomfortable and asked him why Wanchick had to make those types of comments. Ryanrespondedthatitwasjust Wanchick'ssense ofhumoranditwouldn'tdoanygood to go to HR, as Stanish would just say that Wanchick was joking. Bailey did not report the incident to HR because she thought it would be futile , and she would be seen as a troublemaker, potentially jeopardizing her job. She did not speak to Wanchick about his comment at any laterdate.
Wanchick told me that he had no recollection of participating in this particular meeting. However, he denied that he ever made a comment of that nature , because that was not the type of comment that he would make to a fellow employee, even as a joke. He stated that it would be inappropriate for anyone, including him, to make such a comment in the workplace.HedidrecalloccasionsonwhichBaileywouldassist infixingAVorITissues theymight beexperiencing,butdeniesmakingthestatementsattributedtohimbyBailey.
Ryan did not remember being present for this specific meeting , nor does he recall being presentatanytimewhenWanchickmadeacomment ofthisnaturetoBailey,oranyother femaleemployee.RyantoldmethatitcertainlywouldnothavebeenunusualforBaileyto be asked to come to the conference room to address an AV issue , particularly if the issue involved technical difficultie s with an Apple product. He explained that Bailey was more proficient and knowledgeable than him, in working on Apple equipment , programs, etc., and that Wanchick (whom Ryan described as "an Apple guy") had a great deal of confidence in Bail ey's ability to work with the County' s Apple equipment & programs. Accordingly,hethinksitwouldhavebeenveryunusualforWanchicktomakethattypeof comment to Bailey, since he respected her technicalabilities.
Ryan adamantly denied that Bailey ever approached him to discuss or complain about inappropriate conduct or comments by any County employee, including Wanchick. He
also denied ever telling Bailey that it would be futile to complain about Wanchick to HR. He stated that he was aware of his responsibilities as a supervisor under the County's harassment policy and that, if an employee were to ever come to him with complaints that they were uncomfortable because of inappropriate workplace conduct, then he would immediately refer them to HR. He explained that he was not going to jeopardize his job andcareertoprotectsomeonewhomightpossiblybeviolatingthelaw.Healsostatedthat he"... knows better thanthat "
I interviewed several other members of senior staff regarding their recollection of this alleged event and/or comment. Although several employees remember general staff discussions regarding the County's sales tax issue during the relevant time period, none of the other senior staff members whom I interviewed had any recollection of the alleged genderspecificcommentwhichwasattributed toWanchickbyBailey.Allofthemembers of senior staff whom I interviewed also stated that, in their respective experience, it would be very unusual for Wanchick to have made a comment of this nature, even in jest. They further told me that Wanchick was not in the habit or routine of making sexist comments or jokes at work and it was not his prevalent behavior. The majority of these individuals whom I interviewed were women. Several employees whom I interviewed agreed that it was common for Bailey to assist with technical AV or IT issues, particularly in that conference room, but had no memory of the alleged exchange described by Bailey.
- December,2015.
BaileyandFerrobothrecountedanexchangewithWanchickwhichoccurred inDecember 2015 when Bailey was filming Taylor and Ferro in the Executive Suit e, for purposes of recordingaholidaygreetingvideo.TheyexplainedthattheCountyhadatraditionwhereby employees from each department would be filmed giving a holiday greeting on camera, which would then be played on the County's television station (GTV), as part of the County's community outreach efforts. Taylor and Ferro had volunteered to give the greetingforAdministrationandtheyweregoingtofilmthegreetingintheopenareaofthe ExecutiveSuite.
Prior to commencing filming, Taylor and Ferro taped a cue card to Bailey's camera with theirintendedgreetingwrittenonit,sothattheywouldnotforgettheirlines.Astheywere in the process of filming the holiday greeting, Wanchick came out of his office and made a harsh comment to Taylor and Ferro. Bailey recalls that he asked Taylor and Ferro whether they needed the cue card taped to the camera because they were too stupid to remember their lines and asked Taylor what she was "... trying to say..."with the red lipstickshewaswearing.BaileystatedthatWanchickappearedangrywhenhewasmaking those statements and that he did not appear to be joking. It appeared to Bailey that Taylor was upset by the comment, and she knows that Taylor complained later to Stanish about Wanchick 's behavior. No one said anything to Wanchick at the time he made these comments and Bailey did not complain toHR.
Ferro recounted a very similar version of events as outlined above. She recalled Wanchick having a "nasty "tone and that he made comments about them being too stupid to remember their lines and about Taylor putting on li pstic k, but could not recall exactly what words he used. Ferro was not sure that Wanchick knew that they would be taping the holiday greeting outside of his office and confirmed that Wanchick preferred a quiet office environment , without much conversation between the employees. She agreed that Taylor was visibly upset by the comments and that Taylor complained to Stanish about Wanchick'sbehavior.
Taylordidnotmentionthiseventtomeduringherinterview,anditwas notincludedasa specific event or item of complaint by her. However, the event obviously occurred, and it is certainly possible that this could be one of the events which Taylor was referencing in her broad complaint that Wanchick often made offensive gender specificcomments.
Wanchickrememberedthisincidentandexplainedthathewasnotaware,inadvance,that theemployeeswouldbefilmingthisholidaygreetingintheExecutiveSuite.Theyhadnot sought and did not have his permission to film the greetin g, and he felt their actions were disruptive to the work environment and not appropriate behavior to be taking place in the Administration Office. Wanchick stated that he was unhappy with the behavior and acknowledgedthatheprobablymadeasharpcommenttothem,includingacommentabout the fact that they had their lines written down. He does not remember the exact words he used, but is confident that he did not make a sexist , gender specific remark. Wanchick acknowledgedthatTaylorappearedtobeupsetbyhisstatementsandrecalledmeetingwith TaylorandStanishaftertheincidenttodiscusssameandapologizingtoTaylorbecausehe had not intended to upset her. He did not perceive that Taylor was making any gender specificcomplaintabouthisreprimandofher,andwasinstead merelycomplainingthathe had spoken harshly to her.
Stanish was off work on the day of this i ncid ent, but when she returned to work, Taylor reported the incident to her. Stanish did not recall the specifics of the event, just that Wanchick had spoken harshly to Taylor. At that point, Stanish scheduled a meeting with both Taylor and Wanchick to discuss the event and give Taylor an opportunity to express her concerns to Wanchick. She recalls that during that meeting , Wanchick apologized to Taylor and told her that he did not intend his comments to be offensive and thanked her for bringing her concerns to his attention. It was Stanish's impression that the issue was resolved between the two employees. She received no further complaints from Taylor about Wanchick following that meeting and no one else ever complained to her about Wanchick's comments on this occasion. Stanish did not recall Taylor complaining that Wanchick's comments had any gender bias aspect or that Taylor was making a complaint of that nature , jus t that she was upset he had reprimanded her in a harsh andpublic manner.
- September 22,2016.
Ferro informed me that on the above date, a cake was brought into the Administration Office to celebrate Darty's bi rthday . Darty was employed as Locklear's administrative
assistant for several years. Several other staff members were present to celebrate Darty's birthday, including Wanchick and Lockle ar. Ferro did not recall exactly who else was present, but does not believe Taylor was there. Bailey had already resigned her position with the County , so she would not have been present. In order to surprise Darty, the cake was placed in the kitchen and then Ferro, as a pretext, asked Darty to help her in the kitchen. Ferro stated during that exchange that Locklear then made a comment to the effect that was ". ..where women belong..."referring to the kitchen. Ferro indicated that the comment was probably intended by Locklear as a joke, but she did not find it funny or appropriate for the workp lace. She further complained that Wanchick heard the comment but did not reprimand Lockle ar. Ferro did not tell either Locklear or Wanchick, at that time or later, that she found the comment to be inappropriate nor did she report the incident to HR. Darty did not express any objection to the comment in Ferro's presence. She does not know whether Darty wasoffended.
Neither Wanchick nor Locklear recalled being present for the above-described incident or comment. They stated that there were multiple occasions on which Darty's birthday was celebrated at the County but they do not remember any such comment or joke ever being made about women belonging in the kitchen.
Darty, who has since voluntarily retired from her employment with the County, did not rememberthiscommentbeingmadeeither.ShetoldmethatsheisfondofbothWanchick and Locklear and has a great deal of respect for both of them. She believes that both men treated her with respect and neither of them were ever demeaning or disrespectful to her, or to other women in her presence, during her employment with the County. She stated that, in her opi nion , there was a comforta ble, professional work environment in the ExecutiveSuiteduringthetimethatsheworkedasLocklear'sadministrativeassistant.It was her impression that both Wanchick and Locklear held her in high regard as an employee and respected her abilities. She was made to feel that her opinions and input wereimportanttothemandthatshewasavaluedemployee.ShedeniedhearingWanchick ever make disparaging or offensive gender specific comments about women in general, or specific female employees, during her employment with theCounty.
Legal Analysis
At the outset , it should be noted that there were certain inherent challenges to conducting this investigation due to the significant passage of time between the date(s) of this alleged inappropriatebehaviorandthereportingofthesecomplaintstotheCounty.Iwouldnotethat,due tothatdelay,ithasbeendifficultformetoascertainwithanydegreeofaccuracy:(1)thespecific language which may have been used as part of the alleged offensive comments; (2) whether Wanchick, in fact , made any of the gender-based comments which are attributed to him; or, (3) thecontextorcircumstancesunderwhichthoseallegedcommentsmayhavebeenmade,including theevents/interactionleadinguptothecomments,thedemeanorofparticipants,toneofthespeech, whether the participants may have been joking with each other, andother similar details which
mightcastlightupontheseverity oftheconductandfacilitateananalysisofwhethersaidconduct might unreasonably interfere with the terms and conditions ofemployment.
Given the passage of time, inability of witnesses to recall important deta ils , lack of supporting documentation and the stark conflicts in key testimony, it was also difficult for me to resolve many of the key disputed issues of fact. The law contemplates that employees will "promptly" report alleged harassment or discrimination to their employer. Early reporting facilitatesamoretimelyandthoroughinvestigation,whilewitnesses'memoriesarestillfreshand also serves to discourage or avoid further harassment. In this case, many witnesses simply had no recollection whatsoever of the alleged events, even after I tried to refresh their memories with the limited detail available to me. It is certainly understandable that witnesses had difficulty recalling ordescribingeventssincesomeoftheincidents areallegedtohaveoccurredmorethanfouryears ago, but this does present a challenge to theinvestigation.
Ultimately, I determined that it was unnecessary for me to resolve many of the factual disputesinordertoreachareasonedconclusionastowhethertherehadbeenaviolation ofCounty policy or applicable law. That is the case because , even if one were to accept Taylor and Bailey's complaints at face value, giving them every benefit of doubt, it is clear that Wanchick's alleged conduct was not sufficiently egregious or pervasive to amount to a violation of either the law or Countypolicy.
InordertoproveunlawfulemploymentdiscriminationunderTitleVII,theemployee"may rely on either a 'tangible employment action'theory or a 'hostile work environment'theory."Hyde v. K.B. Home, Inc., 355 F.App'x 266,271 (11th Cir. 2009). "A tangible employment action is a significant hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits ."Id. This is essentially the same test used to determine the existence of an "adverse employment action" used for gender discrimination and retaliation claims. Id. "A Title VII harassment claim under the 'hostile work environment'theory[ontheotherhand]isestablisheduponproofthat'theworkplaceispermeated with discriminatory intimidati on, ridicule , and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."'Thereisnoallegationherethatanyemployeehassufferedanadversetangibleemployment action, and, therefore, these complaints must necessarily be considered under the framework of a hostile work environmenttheory.
In order to state a viable hostile work environment claim under Title VII or the FCRA, a claimant must allege (and support with plausible facts), that (1) she belongs to a protectedgroup;
- she was subjected to unwelcome harassment; (3) the harassment was based upon her membershipintheprotectedgroup;(4)theharassmentwassevereorpervasiveenoughtoalterthe termsandconditionsofemploymentandcreateahostileorabusiveworkingenvironment;and(5) the employer is responsible for that environment under a theory of either vicarious or direct liability. See Edwards v. Prime Inc., 602 F.3d 1276, 1300 (11th Cir. 2010); Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). A claim for hostile work environment only lies where "the workplace is permeated with discriminatory intimidat ion, ridicule, and insult [that] create an abusiveworking
environment" for the plaintiff. See Trask v. Sec'y, Dep't of Veterans Affairs, 822 F.3d 1179 , 1195 (11th Cir. 2016).
Words and conduct that are sufficiently gender spec ific, and either severe or pervasive, may state a claim of a hostile work env i ronment , even if the words are not directed specifically at the complaining employee. Further , either severity or pervasiveness is sufficient to establish a violation of Title VII. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir.2010). However, it should be noted that , Title VII is not intended to be a "gene ral civility code" and "simp le teasing... offhand comments, and isolated incidents are insufficient to constitute a hostile work env ironmen t."Guthrie v. Waffle House, Inc., 460 Fed.Appx. 803, 806 (11th Cir.2012). When considering a hostile environment claim, a court must filter out complaints regarding "the ordinary tribulations of the workpla ce, such as the sporadic use of abusive language , gender-related jokes, and occasional teasing."Faragher, 524 U.S. at 788, 118 S.Ct. at 2284 (quoting B. Lindemann and D. Kadue , Sexual Harassment in Emp loyment Law 175 (1992)). As stated by another court, "Title VII ... does not operate as a general ban on yell ing, sw earin g, screaming and other rude or offensive behav ior." Paap e v. Wall Data, Inc., 934 F.Supp. 969, 977(N.D.111.1996).
Establishing that allegedly harassing conduct was sufficiently severe or pervasive to alter an employee's terms or conditions of employment includes both a subjective and an objective component."Mendoza v. Borden, Inc., 195 F.3d 12 38, 1246 (11th Cir. 1999) (en bane). The Supreme Court and Eleventh Circuit have identified the following four factors that should be considered in determining whether harassment objectively altered an employee's terms or conditions of employment: (1) the frequency of the conduct; (2) the severity of the conduct;
- whether the conduct is physically threatening or humi liati ng, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance. Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir.1997) (citing Harris, 510 U.S. at 23, 114 S.Ct.367). Thecourtsexaminetheconductincontext,notasisolatedacts,anddetermineunderthetotalityof the circumstances whether the harassing conduct is suffic ient ly severe or pervasive to alter the terms or conditions of the plaintiffs employment and create a hostile or abusive working environment. Id.; See Harris, 510 U.S. at 23, 114 S.Ct. 367; Henson, 682 F.2d at 904; Faragher,118 S.Ct. at 2283 (citing Harris, 510 U.S. at 23, 114 S.Ct. 367, and explaining that "[w]e directed courtstodeterminewhetheranenvironmentissufficientlyhostileorabusiveby'lookingatallthe circumstances"').
InconsideringtheelementsforaviablehostileworkenvironmentclaimunderTitleVIIor the FCRA, it is undisputed that both Taylor and Bailey are members of a protected class. Additionally, their allegations are that they were subjected to unwe lc ome, derogatory comments regarding their gender. Accordingly, they have at least made allegations sufficient to satisfy the first three elements of a prima facie claim for hostile work environment based upon their gender. However, their complaints fall well short of satisfying the fourth element necessary to establish a viable hostile work envi ronment , claim nam ely, that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive workingenvironment.
In the instant matter, Taylor and Bailey have specifically described four (4) separate incid ents, over a period of more than three (3) years (August 23, 2012-December, 2015) wherein they contend that Wanchick allegedly made gender specific comments which were derogatory towards women. Ferro has identified two (2) additional alleged incidents where such comments were allegedly made by Wanchick or in his presence, namely August/September, 2015 and September 22, 2016. Certainly, the comments allegedly made by Wanchick or in his presence during four (4) of these incidents (November/December 2014, September/October 2015, August/September, 2015 and September 22, 2016) can be reasonably characterized as derogatory gender specific comments. However, it is more difficult to determine whether the comments allegedly made by Wanchick in August, 2012 and December 2015 fall into that category.
TheAugust 23,2012commentsseemtohaveprimarilyinvolvedWanchick'scriticismof Taylor's job performance. During her interview, Taylor could not identify any specific comment made by Wanchick during that incident which could reasonably be characterized as evidence of gender specific discrimination. The closest that she came was saying that Wanchick criticized her appearance. However, that characterization, in and of itself without further detail , does not necessarilywarrantaconclusionthathiscommentsweredisparagingtowardswomen.Itisnotable that Taylor's E-mail sent to Stanish directly after the incident, makes no reference to any gender bias or gender specific language used byWanch ick.
The December, 2015 comments seem to have been primarily a criticism of Taylor and Ferro's intelligence or memory (i.e. ability to remember their li nes), which certainly might have beenintendedasagenderspecificcomment,sinceitwasdirectedtotwowomen,butcouldjustas easily have been a gender-neutral reprimand , made at time when the speaker was upset or frustrated . The alleged question regarding Taylor's lipstick could likewise be susceptible to the same interpretation. In any event, all told, there are a total of five (5) separate incidents, over a period of more than four years, wherein Wanchick is alleged to have made comments which are characterizedbyComplainantsasdisparaging,genderspecificcomments,evidencing Wanchick's animustowardsorintenttodiscriminateagainstwomen.Thereisone(1)additionalincidentwhere Wanchick is alleged to have been present when a comment of that nature was made by a fellow employee, where Wanchick failed to correct or reprimand theemployee.
First of all, given the existing jurisprudence in this Circuit, it would be impossible to conclude that the conduct described by these employees was sufficiently frequent to satisfy the "frequency"element necessary to establish an actionable hostile work environment claim. See Sutherlandv. Boehringer-Ingelheim Pharmaceu ticals, Inc., 2016 WL 1092641 (M. D. Fla. 2016) (Conduct which occurred less than once a month was insufficient to satisfy the frequency requirement for a hostile work environment claim). The Eleventh Circuit has issued numerous decisions finding conduct far more frequent and severe than the conduct alleged by these employees to not rise to the level of a hostile work environment. See Gupta v. Florida Bd. of Regents, 212 F.3d 571, 584-86 (11th Cir. 2000), abrogated on other grounds as recognized by Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008); Mitchell v. Pope, 189 Fed.Appx.911,
912-15(11thCir.2006);Mendozav.Borden,Inc.,195F.3d1238,1245(11thCir.1999)(enbane); SeealsoWebb-Edwardsv.OrangeCnty.SheriffsOffice,525F.3d1013,1027-28(11thCir.2008) (finding taunting and boorish comments that were not physically threatening or humiliatingwere
not reasonably hostile or abusiv e). See Lockett v. Choice Hotels Intern., Inc.,315 Fed.Appx. 862, 866(11thCir.2009)(notingthatharassmentoccurringoverafour-monthperiodwasnotfrequent and holding that the conduct was insufficiently severe or pervasive to beactionable).
Second ly, the alleged comments fall well short of the types of behavior that have been recognized by the United States Supreme Court and this Circuit as being sufficiently severe and humiliating to give rise to a claim for an actionable hostile work environment. Although there is no claim of sexual harassment her e, those cases are instructive in terms of the level of conduct necessarytosupportafindingthatconductwassufficientlyseveretoamounttoanunlawfulhostile work environment. See Indest v. Freeman Decorating, 164 F.3d 258,264 (5th Cir. 1999) ("All of the sexual hostile environment claims decided by the Supreme Court have involved patterns or allegations of extensive, long-lasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs work env ironmen t."). See e.g., Webb-Edwards v. Orange County Sheriffs Office, 525 F.3d 1013 , 1027 (11th Cir. 2008) (gender related comments made on at least weekly basis over eight weeks, including comments that Plaintiff "looked hot ,""shou ld wear tighter clothing,"and that "women who dye their hair have issues at home,"along with telling Plaintiffs husband in her presence that he was "eating your wife" were not severe or pervasive). SeeHockmanv.WestwardComms.LLC,407F.3d317,328(5thCir.2004)(holdingthatsexually suggestivecomments,slappingtheplaintiffonthebehind withanewspaper,grabbingorbrushing up against the plaintiffs breasts and behind , and attempting to kiss the plaintiff did not qualify as severe); Penry v. Federal Home Loan Bank of Topeka , 155 F.3d 1257, 1261-62 (10th Cir. 1998) (finding comments directed toward one plaintiff about wet dreams , the plaintiffs exposed bra strap, a double entendre about the plaintiffs desk drawers , and a comment about what plaintiff was wearing under her dress, and evidence that the other plaintiff was subjected to four specific acts of unwanted physical conduc t, in addition to other touching that occurred periodically, were insufficient to state hostile work environmentclaims).
Instead, even if taken as completely accurate and unrefuted for purposes of analyzing whether the conduct was unlaw ful, the comments and behavior attributed to Wanchick are more akin to the type of conduct which the courts have described as constituting sporadic, boorish, gender-related jokes, teasing or comments, which although not desirable for a professional working environment , would not amount to an actionable hostile work environment.
There is no evidence to suggest that Wanchick 's alleged conduct was either physically threatening, altered the terms and conditions of the Complainant's employment or unreasonably interfered with either employee's job performance. Bailey explained to me that when she was originally hired at the County, it was with the understanding that her job duties would primarily involve creating and producing original program content for GTV. That was where her interest and aptitude lay. However, due to other personnel changes within the department, she found herself working primarily on addressing technical or equipment related issues , which she acknowledged was neither her strong suit nor interest. Because of her dissatisfaction with her work assignments and role at the County, she sought new employment in a news media environment and accepted a job with a television station in the Cle arwater/St. Petersburg area, whereshehadpreviouslyworked.Inhercurrentposition,sheisworkingforthetelevisionstation
as a field producer and is very happy with her job duties. Ms. Bailey did not complain to me that the alleged comments interfered with her ability to do her job at theCounty.
During her exit interview following her resignation of her employment with the County, she listed her reason for leaving as "new job opportunity"and made several comments regarding difficulties associated with the equipment being old and need for the County to hire an employee with a technical or engineering background. She also indicated that she was "Gen uinel y happy with job."That being said, it is also important to note that she did make reference in response to the "Work ing Conditio ns"section of her exit interview to the effect that "comme nts regarding gende r"made "upstairs"caused her to be "uncom fortable. "Nonetheless, that description of the alleged work environment would fall well short of a complaint or finding that the conduct altered the terms and conditions ofher employment.
Similarly, Taylor explained to me that she sought her new position in the County's Risk Management Department based upon her understanding that she had no opportunities for advancement within the Administration Department and her desire to take on new responsibilities andchallenges.ShedidnotcontendthatshedecidedtoleaveherjobasWanchick'sadministrative assistant because his behavior was interfering with her ability to do her job or in any way altered the terms and conditions of her employment. Taylor informed me that she was very satisfied with her current position in Risk Management, that she enjoys the environment in her new department and that she likes the people with whom she works. In considering this iss ue , I also found Wanchick's past accommodation of Taylor's work duties and schedule and the material provided byWanchicktoberelevanttomyconsiderationofthiselement.Specifically,duringthesametime period that Taylor contends that Wanchick was making some of these inappropriate comments, it is undisputed that Wanchick extended a great deal of consideration and latitude to Taylo r, well beyond any legally required accomm odation, with respect to her taking time off from work and adjustingherduties.Duringthissametimeframe,thereisevidencethatTaylorthankedWanchick for his kindness , compassion and generosity and created a "mock up"of a magazine cover proclaiming Wanchick to be "The Best Boss."Once again , it would be difficult for this investigator to conclude that Wanch ic k's alleged inappropriate comments rose to the level of altering the terms and conditions of Taylor's employment with theCounty.
To the extent Taylor complained that Wanchick criticized her job performance without justification or in front of other employees, this allegation also fails to state a claim for a hostile work environment. It is well settled in this Circuit that, "]o b performance criticism from a supervisor or manager is a common vicissitude of life in the working world, even if harsh or unjustified."Pierri v. Cingular Wireless, LLC, 397 F.Supp.2d 1364, 1380 (N.D.Ga.2005) (emphasis added). Indeed , Title VII was not intended "to permit discrimination lawsuits predicated only on unwelcome day-to-day and assertedly unjustified negative evaluations."Davis
v. Town of Lake Park , Fla., 245 F.3d 1232 , 1242 (11th Cir.2001 ). Thus , the fact that anemployee
may have her feelings hurt by what she believes to be "unw arranted job criticism or performance rev ie w"generally does not give rise to an actionable claim under TitleVII.
It does not appear that the assertion from Complainants that they decided not to report Wanchick's alleged inappropriate behavior to HR because "nothin g would be done ," is supported by the findings from my inv estigation. Prior to her exit i nterview, Bailey had never raised any complaint to HR regarding Wanch ick's alleged behavior. Accord in gly, there seems to be no legitimate support for her belief that the County or HR would take no action if she complained about Wanchick 's behavior. In fact, Taylor's experiences when she did complain to HR about Wanchick, seem to understate the argument that HR would ignore their complaints. Taylor did complain to HR on two occasions (August 23, 2012 and December 2015) regarding Wanch ick's behavior. Contrary to the Complai nants 'position that HR would do "nothin g,"the findings from my investigation are that, on both occasions, Stanish did respond in a timely fashion to Tay lor's complaints and appears to have facilitated a dialogue between the two employees in order to resolve the dispute. On both occasions , Wanchick apologized to Taylor for any offense his comments may have caused , and there is no indication that Taylor ever requested additional action from HR which was denied or ignored. Add iti onally, the fact that there was a gap of more than three years between the first and second complaints and no additional complaints after December 2015 , would warrant the County's conclu s ion that the employee conferences had been effective in curtailing any alleged problematicbehavior.
Finally, with respect to the implication that Wanch ick's comments demonstrated a discriminatory animus towards women and reflected a disdain for female employees, it would be reasonable to review Wanch ick's track record with respect to the employment and promotion of female employees to management and leadership positions with the County. Presumably, if Wanchickdidharboradiscriminatoryanimustowardswomen,thatwouldbelikewise reflectedin his hiring and promotion practices. However, the data provided to me reflects that Wanchick has routinely hired and promoted female employees to positions of leadership within the County, including, Assistant County Administ rator, Joy Andrews; Personnel Services Director, Stacey Stanish; and Economic Development Director, Melissa Glasgow. Presently , of the 17 leadership positionswiththeCounty,eightarefilledbywomen,asignificantlyhigherpercentagethanbefore Wanchick was initially hired as the County Administrator.Most, if not all, of those women hired into leadership positions with the County, were approved for hire or promotion by Wanchick. Accordingly, the employment data does not support a conclusion that Wanchick exhibited gender bias or a discriminatory animus towards women who were employed by theCounty.
Conclusion
In conclusi on, I was unable to independently substantiate whether Wanchick ever made those d is paraging , gender specific workplace comments which Tay lor, Bailey and other witnesses attributed to him. Taylor, Bailey and Ferro described three(3)separateincidentswherein Wanchick was alleged to have made inappropriate comments which were clearly gender specific. Those incidents are described above in this report as occurring in November/December 2014 , August/September 2015 and September/October 2015. However, Wanchick denies making the comments attributed to him by these employees and the other alleged witnesses to said comments inc l uding , in one i nstan ce, the woman to whom the comments were allegedly directed , do not recall Wanchick making any such statements in their presence. There was no substantiveevidence
which would allow me to resolve this dispute of fact and or failure of witnesses'memory.For the same reasons outlined above, I was unable to verify whether Wanchick was present on September 22, 2016, when Locklear allegedly made the d is paragi ng, gender specific comment which was attributed to him, byFerro.
IwasabletosubstantiatethatthereweretwooccasionsonwhichTaylorcomplainedabout Wanchick's treatment of her within the workplace. Those events are detailed above as occurring on August 23, 2012 and in December 2015. However , I could not substantiate that either event involved a gender specific discriminatory animus or motivation on the part of Wanchick. Nothing about Taylor's or any other witness 'description of said events caused me to conclude that these events would support a finding of gender bias by Wanchick or his creation of a hostile work environmentbasedupongender.Obviously,themerefactthathisreprimands/criticismsofTaylor (and Ferro) were directed to a woman would not, absent other facts, support a finding of genderbias.TherewasnothingovertlygenderspecificaboutthecommentsattributedtoWanchickduring either of theseevents.
Ultimately , it was my determination that it was unnecessary for me to resolve the factual disputes in order to determine whether the conduct attributed to Wanchick was unlawful. I concluded that, even if I were to accept all of Complain ants'description of events as undisputed , the comments attributed to Wanchick would not support a determination that he had created an unlawful hostile work environment because they were not sufficiently frequent, severe or pervasive to satisfy the legal standard . I further concluded that there was no evidence to suggest that said comments in any way appreciably altered the terms and conditions of Complain ants'employment or unreasonably interfered with either employee's job performance with the County.
Based upon my reading and interpretation of the County's harassment polic y, which precludes unlawful ha rassment, I therefore concluded that the alleged conduct would likewise not constitute a violation of the County's personnel policies.
Recommended future emp loyment action:
There are a couple of suggested chan ges in procedure which the County may wish to consider in addressing certain issues which came to my attention during the investigation:
- I believe that additional efforts should have been made by HR to follow up on Bailey's"gender"comments during her exit in terv iew, in order to gain a better understanding as to the nature and extent of any employment issues to which she was referring, and when she expressed those sentiments. Those follow up efforts and any information revealed by that review should have been specifically documented in order to either rule out an existing employment issue or to facilitate any necessary corrective action.In this instan ce, HR simply documented that the exiting employee had expressed concern regarding gender issues, but there was no indication that an effort had been made to delve further into that expressed concern or any confirmation that the issue had been investigated further and either confirmed or eliminated as a potential employment is sue to be addressed by the County.
- The County may wish to consider formally adding an additional avenue by which employees can report harassment under its personnel policies. During my interviews, various witnesses expressed concern that County employees did not have a reasonable avenue to report ha rassment, if the complaint related to the misconduct of the chief executive or other senior level executive . As noted above, I saw no evidence that any harassment reports involving the chief executive were ignored by the County, but to the extent employees have articulated this perception, it might be worthwhile for the County to consider adoption of another reportingoption.
During interviews of certain senior staff mem bers, it was suggested to me that employees had the ability to report workplace harassment through the "Fraud, Waste and Abuse Hotli ne"administered by the St Johns Coun ty, Clerk of the Circuit Court. However, the County 's formal reporting procedure for employees set forth in the above-referenced harassment policy does not describe that avenue ofr eporting. If the County does intend for this hotline to be a potential avenue of reporting harassment and discrimination , it should be added to the formal personnel procedure.
- The County may wish to review its training program to reinforce with employees the importance of promptly addressing or reporting incidents of perceived harassment or inappropriate conduct at the time said conduct occurs, in order to allow for prompt resolution, investigation and, if necessary , remedial action by the County. I have not reviewed nor considered the extent of the County's training in this regard, and this should not be construed as a criticism of that existing program. Instead, given the amount of time which expired between the alleged misconduct here and any report of same to the County, it is merely a suggestion for a potential point of emphasis in the future.
Thank you for retaining my firm for this assignment, and if you have any questions, please do not hesitate to contact me.
MJR/ph Attachment
St. Johns County Administrative Code Section: Personnel
Title: 411 Prohibition of Unlawful Harassment | Issued: Jan 2006 |
Reference: U.S. Code Title VII | Revised: June 2012 |
- Commitment
St. Johns County is committed to maintaining a work environment free of harassment on the basis of race, color, religion, gender, national origin, age, marital status, disability, and genetics. The County will not tolerate unlawful harassment of any employee by any supervisor, co worker, vendor, client, or other parties while on the job. Workplace harassment may violate one or more of the following: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, as Amended or the Florida Civil Rights Act. All employees are responsible for maintaining a workplace that is free of unlawful harassmentandintimidation.TheCountyiscommittedtopromptlyandthoroughlyinvestigating allcomplaints ofunlawfulharassment.If,afterathoroughinvestigation, itisdeterminedthatthe County's policy against unlawful harassment has been violated, immediate and appropriate disciplinary action up to and including termination of employment may betaken.
- Definition and Examples of UnlawfulHarassment
Unlawful harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of the individual's race, color, religion, gender, national origin, age, marital status, disability, or genetics. Violations of the County's policy prohibiting unlawful harassment may in clud e, but are not limited to, the following:
- Conduct that has the purpose or effect of creating an intimidating, hostile, or offensive workingenvironment.
- Conduct that has the purpose or effect of unreasonably interfering with anindividual's work performance or creating an intimidating, hostile or offensiveenvironment.
- Conduct that otherwise adversely affects an individual's employment opportunities; epithets, slurs, negative stereotyping, or threatening, intimidating, or hostile acts that relate to race, color, religion, gender, national origin, age, marital status, disability or genetics;andwrittenorgraphicmaterial,includinge-mailsandcomputerscreendisplays, that denigrates or shows hostility toward an individual or group because of race, color , religion, gender, national origin, age, marital status, disability or genetics and that is placed on walls, bulletin boards , or elsewhere on the County's premises, or circulated in the workplace. This also includes acts that purports to, or are meant to be, jokes or pranks,butthatarehostileordemeaning,suchashatemail,threats,defacedphotographs, or other suchconduct.
Violations of the County's policy prohibiting unlawful harassment may also occur when the intended target of the conduct is not offended, but others reasonably find the conduct to be intimidating, hostile or abusive.
The County is equally committed to maintaining a work environment free of sexual harassment. The County will not tolerate the sexual harassment of any employees by any superv iso rs, co workers, vendors, clients, or anyone else. All employees are responsible for maintaining a workplace that is free of sexual harassment and intimidation. The County is committed to promptly and thoroughly investigating all complaints of sexua l harassment. If, after a thorough in vestig ation, it is determined that a violation of the County's policy prohibiting sexual harassment has occurred, immediate and appropriate disciplinary action up to and including discharge may be taken.
- Definition and Examples of SexualHarassment
Unwelcome sexual advances, requests for sexual favors and any other physical, verbal or visual conduct of a sexual nature constitute sexual harassment when:
- Submission to the conduct is an explicit or implicit term or condition of employment or continuedemployment.
- Submission to or rejection of the conduct is used as a basis for employment decisions affecting an employee, such as promotion, demotion orevaluation.
- The conduct has the purpose or effect of creating a hostile or offensive work environment.
Violations of the County's policy prohibiting sexual harassment may include, but are not necessarily limited to:
- Unwelcome sexualpropositions.
- Sexual innuendo.
- Sexually suggestiveremarks.
- Vulgar or sexually explicit comments , gestures orconduct.
- Sexually oriented kidd i ng, teasing or practicaljokes.
- Physical contact such as brushing against another's body, pinching orpatting.
- Thepublic;action,toanyone,ofdocuments(includingpicturesand text)inthe workplace that contain any material that is of a sexualnature.
- Using the computer or any other electronic device to access any Web site, newsgroup, CD, floppy disk, or any other resource that contains material that is of a sexualnature.
- Abusive or intimidating conduct or remarks directed at a person or persons based upon their gender.
Violations of the County's policy prohibiting sexual harassment may also occur when the intended target of the conduct is not offended, but others reasonably find the conduct to be intimidating, hostile or abusive.
Responsibility
Since knowledge by management is legally construed as knowledge by the County, all managers and supervisors shall be responsible for immediately notifying the Personnel Services Department of any complaints of harassment. It is the responsibility of all employees to attend harassment training as requ ired. Managers and supervisors are expected to prevent and eliminate harassment in their respective work areas. It is the responsibility of all employees to report harassing or discriminating conduct.
- Unlawful Harassment ComplaintProcedure
An employee who believes they are being harassed should confront whoever is doing the
ha rassing , state how they feel about such activities or remarks and request that the person cease such activities or remarks immediately. If the employee does not feel confinable approaching the person they feel is harassing them or if that person does not respect and follow the employee's request , the employee should immediately report the complaint to anyone of the following persons:
- Immediate supervis or/manager
- Department/DivisionDirector
- A Personnel Services Department staffmember
If the complaint involves a Personnel Services employee, the employee should immediately report the complaint to County Administrator's office.
The Personnel Services Department will investigate or coordinate the investigation of any complaint of ha rassment, except in any instance where a member of the Personnel Services Department is either a complainant or is accused of harassment. In such a case, the employee's Assistant County Administrator or their designee shall conduct or coordinate an investigation. The investigation of the complaint will normally include conferring with the parties involved and any named or apparent witness. Because of their sensitive nature, complaints of harassment will be investigated with care and will remain confidential to the extent possible. Information concerning an allegation of harassment will not be released to third parties except as required for the legitimate business purposes of the investigation or as required or allowed by law.
Any employee found to be in violation of the County's policy prohibiting harassment will be subject to disciplinary action up to and including termination of employment.
There shall be no retaliation against any applicant, employee or volunteer who files a harassment charge or who participates in an investigation of a harassment charge. Accusations of retaliation shall be investigated in accordance with this policy. Employees found to have retaliated against an employee will be disciplined up to and including termination of employment.
St Johns County also recognizes that false accusations of harassment can have a serious effect on innocent individuals . Therefore, false accusations may result in disciplinary action including termination of employment. Any non-employee found to be harassing a County employee will have their employernotified.