Speedway Superamerica, LLC v. Dupont

• Decision Date: 26 May 2006
• Docket Number: No. 5D04-14.,5D04-14.
• Citation: 933 So.2d 75
• Parties: SPEEDWAY SUPERAMERICA, LLC, Appellant, v. Erma DUPONT, Appellee.
• Court: Florida District Court of Appeals

Page 75

933 So.2d 75

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

No. 5D04-14.

District Court of Appeal of Florida, Fifth District.

May 26, 2006.

Certification Denied July 12, 2006.

COPYRIGHT MATERIAL OMITTED

Mark L. Van Valkenburgh of Allen, Norton & Blue, P.A., Winter Park, Susan

Potter Norton, of Allen, Norton & Blue, P.A., Coral Gables and Brian Koji of Allen, Norton & Blue, P.A., Tampa, for Appellant.

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

ON REHEARING EN BANC

SHARP, W., J.

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

Speedway SuperAmerica LLC (Speedway) appeals from a judgment rendered after a jury trial, which awarded Dupont $80,740.54 in damages for her sexual harassment, hostile work environment lawsuit¹ filed against her employer, Speedway. The damages award includes the following items, which were specifically determined by the jury; $88.80 for lost wages, $40,000.00 for mental pain and suffering, and $40,000 for punitive damages.

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

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

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

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

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

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

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

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

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

Scott at 908.

In order to address the propriety of the trial court's rulings in denying Speedway's motions for directed verdict and JNOV, we must determine from the record whether Dupont presented competent, substantial evidence to establish a hostile work environment case based on sexual harassment, and draw all reasonable inferences and resolve all credibility issues, in Dupont's favor. Both parties agree that section 760.10, The Florida Civil Rights Act, is patterned after the 1964 federal statute, Title VII, and that the state statutory cause of action has been defined according to federal case law.⁴ The state statute provides broader coverage than the federal one, as it includes provisions barring discrimination for age, handicap or marital status, as well as race, color, religion, sex and national origin. However its general language, which is applicable to this case, follows that of the federal statute:

(1) It is an unlawful employment practice for an employer:

(a) To discharge or fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap or marital status.

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

1. that he or she belongs to a protected group;

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

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

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

5. a basis for holding the employer liable.⁵

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

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

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

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

Dupont became frightened of Coryell and felt he was humiliating her. She would be standing at the register and he would sneak up behind her and put his hands on her. She dodged and ran, but he was a very large person and the space...