Wednesday, May 22, 2019

"Something Is Rotten in St. Johns County New developments in the O’Connell case cry out for the FBI," by Georgio Valentino Folio Weekly Editor

Folio Weekly broke the Michelle O'Connell story in 2011, in an editorial by then-Editor Anne Schindler, now with First Coast News.  Anne Schindler rightly got the first credit in the 2013 PBS Frontline story, by Walt Bogdanich and Glenn Silber.

In Anne Schindler's tradition, Folio Weekly Editor Georgio Valentino today calls for an FBI investigation of two related homicides.  Salud, brother!


Something Is Rotten in St. Johns County

New developments in the O’Connell case cry out for the FBI

When Michelle O’Connell’s body was found on September 2, 2010, there was ample reason to suspect her boyfriend, St. Johns County Sheriff’s deputy Jeremy Banks. The 24-year-old single mother had, after all, been killed in Banks’ St. Augustine home and with his service weapon. What’s more, Banks had allegedly been drinking that night, and O’Connell was reportedly preparing to break off their relationship. No matter. The deputy’s brothers-in-arms duly arrived, summoned by Banks himself to what he claimed was the scene of O’Connell’s suicide. After a perfunctory investigation, Sheriff David Shoar rubber-stamped the boyfriend’s version of events.
It was a breathtakingly brazen assertion of omerta, and it didn’t sit well with many in the community—or state authorities. The Florida Department of Law Enforcement opened its own investigation and challenged Shoar’s conclusion, suggesting O’Connell’s death was not suicide but homicide. The mystery has also been scrutinized by national media over the years, with reporting in The New York Times, PBS Frontline and ABC’s 20/20.
Yet the cause of death remains, officially, suicide. And Banks remains on Shoar’s force, even as the sheriff suffers more scandals. In November, SJSO finance director, Raye Brutnell, was arrested and charged with fraud and embezzlement. Shoar learned from his mistake; this time he referred the investigation to his counterpart in Polk County, thus avoiding both the apparent conflict of interest and state scrutiny.
Still, scrutiny in the O’Connell case continued. The 2010 death was being actively investigated by a private detective as recently as Jan. 31, 2019, when said sleuth, Ellie Marie Washtock, 38, was found dead in their St. Augustine home, victim of a single gunshot wound. Washtock was in regular contact with O’Connell’s mother, Patty O’Connell, and had requested records relating to the O’Connell case in August 2018.
To forestall state and possibly federal intervention, Sheriff Shoar again invited a neutral but presumably friendly counterpart (this time the Putnam County Sheriff’s Office) to handle the investigation, which is now starting to bear fruit. On May 6, the Putnam County Medical Examiner’s Office announced what many already suspected: that Washtock’s death was a homicide.
This is a promising sign that we will not see another rush to cover-up. Putnam County assures that this is an ongoing investigation—a homicide investigation—but we don’t believe that a neighboring sheriff’s office is the appropriate authority. What St. Johns County needs now is a law enforcement agency with the means and the mandate to put the pieces together and deliver justice for both Michelle O’Connell and Ellie Washtock—before more blood is shed. We know now that a murderer is at large. Since the FDLE recused itself from the Washtock investigation early on, it might be time for the Federal Bureau of Investigation to intervene.

Tuesday, May 21, 2019

County Administrator MICHAEL DAVID WANCHIK Contract not renewed -- another public interest victory!

By 4-1 vote, County Administrator MICHEL DAVID WANCHIK was given notice today by St. Johns County Commission.  

The sexiest misogynist authoritarian retaliatory developer-coddling bigot will soon be gone. 

Three cheers for our County Commissioners, who have all read the Roper report!

WANCHIK had no rebuttal to my presentation at the SJC BoCC, and made no affirmative case for retention of his "services," such as they are. 

I was the only person who spoke out against WANCHIK's retention at the meeting.

More later.

From The St. Augustine Record:

County Commission does not renew Wanchick’s contract
By Stuart Korfhage
Posted May 21, 2019 at 6:03 PM
Updated May 21, 2019 at 6:31 PM

St. Johns County will have a new county administrator at least by 2021, but it could be a lot sooner.

The County Commission on Tuesday decided not to renew Michael Wanchick’s contract for the two-year period that it stipulates. However, instead of terminating the agreement at the end of the calendar year, the board offered an extension through 2020, to expire Jan. 1, 2021.

His current agreement automatically renews for another two-year term unless the Commission gives Wanchick 180 days prior written notice of its intent not to renew. The deadline to provide the notice is July 5, which is why the Commission took up the issue in May.

Wanchick was not asked to immediately answer whether he will accept the new term. He wanted the full extension of the current contract, which is set to expire Jan. 1, 2020. But three commissioners — Jeb Smith, Paul Waldron and Jimmy Johns — voted against that plan.

That meant the Commission could inform Wanchick that it will let his current contract end as scheduled without renewal, or it could offer a new term.

After talking to Wanchick about it during the meeting, he indicated that he would like to to have two more full years in the job and would accept an extension through Aug. 1, 2021. Instead, the Commission voted for a shorter term.

Now the decision rests with Wanchick, who has been the administrator since June 2007. He is expected to give an official answer as soon as the next scheduled Commission meeting, which is June 4.

During the discussion of his contract, Wanchick suggested he would not be amendable to the shorter extension.

“If we’re going to end my contract prematurely, I’d like to do it a year-and-a-half extension so I have at least two years (from now),” he said. “Otherwise, I’ll just pursue other interests. I’d rather do that while I can and am in good position to do that.

“If you’re asking my preference, it would be nothing less than a year and a half from the end of this particular contract I’m under.”

When deciding whether to renew Wanchick’s contract fully, Commissioner Henry Dean gave the biggest show of support. He said in his career with the St. Johns Water Management District, he’s met many county administrators and city managers and considers Wanchick among the best he’s ever worked with.

“I have found him to be ... he’s been open, he’s been honest, he’s been forthright,” Dean said. “I whole-heartedly endorse extending his contract.”

On the other side, Smith has been a critic of Wanchick during his tenure on the Commission. He said Wanchick was very professional and did some things well. While using a very lengthy football metaphor, Smith said it was time to give someone else a chance.

“At the end of this contract, he will have served 12 years, and I believe he will be close to 70 years old at the end of this,” Smith said. “I believe personally it’s time to move on. It’s my opinion that leadership can stay too long.”

Waldron voted against Wanchick’s last contract and remained opposed to retaining him, saying some of his previous concerns were never addressed. Johns was ambiguous in his evaluation of Wanchick but did say he wants the current board to have the chance to pick his successor.

If Wanchick elects not to go with the offer presented, he can resign at any time. But he must provide 90 days notice.

In other business

Although the exact details of the access to County Road 16A are still to be determined, a new high school site for SilverLeaf on C.R. 16A rather than inside the development was approved Tuesday.

After being first rejected and then a revision accepted by the St. Johns County School Board, the Commission gave the move its final approval.

SilverLeaf is a 10,700-home development that stretches from County Road 210 all the way to State Road 16. The developer is the Hutson Companies, which is run by David Hutson. His son, Travis, is a vice president in the company and a Republican state senator for the county who previously served in the Florida House of Representatives.

The school site issue was part of a larger change to the SilverLeaf Development of Regional Impact to make it a total of 8,384 acres. At the same time, the SilverLeaf Planned Unit Development (PUD) will incorporate and rezone approximately 358 acres of land, known as Trout Creek North, St. Thomas East, St. Thomas West and Signage Parcel to be into the existing SilverLeaf PUD.

The PUD will be approximately 6,450 acres in size. There is no change in the existing approved development entitlements; however, those approved entitlements will be extended onto the added properties.

But the only serious debate was surrounding the site of a future high school. When first approved, SilverLeaf had four total school sites within the main part of the development. But this change put the 103-acre high school site just outside the main development.

The controversial part of that change was the access to the school at C.R. 16A. Several members of the community opposed that, due to road safety concerns and increased traffic.

Some commissioners expressed interest in limiting access off of that two-lane road since SilverLeaf has already agreed to provide an access road to the school from within the development.

Yet the School District, represented Tuesday by Nicole Cubbedge, said it prefers two access roads for safety reasons. Most county schools do not have more than one access road even though they normally have at least two points of ingress and egress.

The Commission voted 5-0 to approve SilverLeaf’s plans, but the county and the School District agreed to continue to negotiate the issues with C.R. 16A.

There are no immediate plans to improve C.R. 16A, but there are also no immediate plans to build the SilverLeaf high school.

Cubbedge said it’s not on the current five-year plan. There is another school site being considered in the World Golf Village area right now. The School District’s most pressing concern is to build a school to relieve crowding at Nease and Bartram Trail, Cubbedge said.

Monday, May 20, 2019


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: 

  • 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.

TO Patrick McCormack, Esquire, St. Johns County, County Attorney 
FROM: Michael J. Roper, Esquire
DATE: June 16, 2017

SUBJECT: Employment Investigation

  1. Scope of Investigation and Investigatory Process:

The undersigned was contacted by County Attorney, Patrick McCormack, Esquire, who requested that I conduct an independent employment investigation, on behalf of St. John' s County, FL ("County"), regarding certain allegations of workplace harassment and/or discrimination which 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 Administration Building.

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 would be most appropriate to have the investigation conducted by an outside entity, as opposed to 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:
  1. the details of the alleged inappropriate conduct which is the subject of the complaints;
  2. whether said conduct may have violated the County' s policy prohibiting unlawful harassment in the workplace ("Title: 411 Prohibition of Unlawful Harassment - Issued January 2006 - Revised June, 2012"); (3) whether said conduct constituted potentially actionable discrimination or harassment (hostile work environment) pursuant to either the Florida Civil Rights Act of 1992, §§ 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 be recommended.

In order to initially determine the nature and extent of the employment-relate d compla ints, 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 ("Baile y").

Thereafter , I interviewed the following individuals with respect to the incidents and issues which were implicated by Taylor and Bailey's complaints about Wanchick's behavior : Lauren Ferro ("Ferro" ), Michael Wanchick, Stacey Stanish ("Stanish"), Devin Cousins, Paulette Ballard, 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"). Each witness was advised as to the nature of the investigation and the role of the investigator; was asked to be candid and forthright in their interview; was asked not to discuss the substance of their interview with anyone else during the pendency of the investigation; advised as to their protection 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) Employee Exit Interview Survey pertaining to Bailey, dated August 4, 2016, provided by Smith; (3) County personnel files of Taylor and Bailey ; (4) St. Johns County 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) Christmas card from Taylor to Wanchick; and, (8) Bosses' Day magazine cover mock up, provided by Wanch ic k.

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 corrective action associated with such conduct. A copy of said policy is attached hereto as Exhibit "A" and incorporated herein by reference.

  1. Summary of Findings:

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' eating habits or weight. Both told me that their complaints related solely to Wanchick and that they 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 in nature.

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 that Wanchick would often comment in a disparaging manner about the fact that certain employees were eating certain food items (i. e . , bread , donuts , candy, etc.) and indicate that they really should not be doing so because it would cause them to gain weight. They also assert that he would tell these employees that he was going to bring in a scale to weigh them. There is no allegation that he 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 employees should not be eating those types of food because they were overweight and eating those 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 that they found his comments to be offensive or asked him to refrain from making these statements. 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 were overweight.

There was a dispute amongst the witnesses whom I interviewed as to whether Wanchick had ever made disparaging comments about an emp loyee' s weight or eating habits. Additi onally, there was some uncertainty as to the context or circumstances under which the subject matter of

diet or food choices may have come up in mutual, consensual conversation amongst co-workers. For examp le , contemporaneous with the alleged conduct at issue here, the County was promoting a "wellness " initiative for its employees, and so witnesses commented that the subject matter of diet, weight loss and associated health benefits may well have been discussed in that context. Some of the witnesses supported Taylor's and Baile y' s ("Complainants") allegations that Wanchick had 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 unnecessary for this investigator to resolve those factual disputes or engage in any further analysis 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. See Bill v. City of North Lauderdale, 2013 WL 1289165 (S.D.Fla, 2013); Armstrong v. City of Dallas, 997 F.2d 62, 67 N 19 (5th Cir. 1993); Taylor v. Small, 350 F.3d 1286-1292 (D.C. Cir 2003). See also Asante-Addae v. Sodexo, Inc., 2015 WL 1471927 (D.Conn. 2015) (Court noted 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 are consuming.

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 claim for a hostile work environment based upon the absence of other required elements necessary 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 these alleged

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' s harassment policy. ·

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 also about 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 about any employee's weight, diet or what they were 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 and were not as intelligent or competent as men. Given the lengthy period of time over which said conduct is alleged to have occurred and the amount of time which passed between the alleged occurrence(s) and their report of same, both Complainants had significant difficulty recounting the 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 discerned from either of the Complai nants, other witnesses or documents, those have been included 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 overly sensitive.

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 in cidents , 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 where available.

It should be noted that, during their interviews , Complainants asserted that Wanchick often made offensive, gender specific comments in the workplace, but beyond that broad statement could 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 specific comments at work, but they were unable to do so with any greater specificity. Conversely, other witnesses (predominantly female) whom I interviewed , told me that Wanchick had never made any such comments in their presence and that it would have been completely out of character for him to have made sex ist, disparaging comments of the nature alleged by Complainants.


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 was dressed , in a condescending and nasty manner. She characterized this event as the most serious, concerning and upsetting interaction that she had with Wanchick during the period 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 could not remember the identities of the other specific persons present during the meeting, 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, 2012to  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 discus sion.

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 informed Wanchick that his comments made her " uncom fortable, " and had requested that 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 confidential matter.

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 this issue.

Stanish recalled the above-descr ibed 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 Wanchick had a good working relationship and mutual respect for each other. She recalled Wanchick being very accommodating and understanding about Taylor' s work schedule and time missed from work in the past. Stanish did not recall receiving any complaint from 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 County employees.

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 (or any other employee) at this or any other time. He also stated that Taylor had never told him that any comment which he had made was inappropriate, sexist or disparaging to women. He stated that his criticisms of Taylor's work were based upon legitimate concerns which he had about various aspectsof her performance. He explained that his management 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 or Administration Office and also about Taylor' s scope of duties. There were certain tasks 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 offended her.

  1. November/December 2014.

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
  1. women had been recently elected to political office in St. Johns County, namely Rachel Bennett, Chair of the BOCC; Andrea Samuels , Mayor of the City of St. Augustine Beach; 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,  " ... tell women that they have any other place but the kitchen ." Bailey stated that Wanchick made the statement in a joking fashion and that he and Ryan were laughing at the time the comment was made . She did not find the comment to be amusing and was offended by the comment. She did not say anything to Wanchick or the other persons present when he made 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 proclamat ion.

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' s County and/or the suggestion that the County issue a proclamation. He specifically 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 would be very much out of character for him and would not be an appropriate comment for any County employee to make within the workplace environment.

Zeits generally recalls the time period when these three women held elected office in St. Johns County. However, he does not recall ever discussing the issue of whether the County should issue a proclamation in recognition of that fact, with either Wanchick or Ryan. 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 Francisco Bay area, he is very attuned to equal rights and EEO issues in the workplace. He believes that a comment of that nature (which he characterized as "pretty egregious " ) would likely have caught his attention and is the type of comment that he would likely have remembered, if made when he was present. Accordin gly, he does not believe that comment was ever made by Wanchick during a conversation to which he was a party.

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 department would have been responsible for preparing the initial draft of such a document. 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 upon his experience and observations working closely with Wanchick over the past several 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.

  1. 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 interview and is included herein for the sake of comple teness, since Ferro contends that the alleged comment by Wanchick suggested gender bias or an animus towards women.

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 the comment.

Wanchick denied memory of ever making the comment attributed to him by Ferro. He did recall sitting for a photograph which was sent to Cameron, but recalls nothing remarkable about that event. Glasg ow, who is employed with the County as the Director of Economic 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 professional and detail oriented in his demeanor and, based upon her experience of working with him, it would be out of character for Wanchick to make a disparaging, sexist comment 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, but also denied any memor y of Wanchick making the above-described comment attributed to him by Ferro.

  1. September/October, 2015.

Bailey recounted an incident which occurred in the San Sebastian Conference Room, at the 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's sales tax increase was adopted in November, 2015. Accordingly, I have presumed

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 found his comment to be offensive and it caused her to be uncomfortable and embarrassed. 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 conference room.

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. Ryan responded that it was just Wanchick ' s sense of humor and it would n' t do any good 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 later date.

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. He did recall occasions on which Bailey would assist in fixing AV or IT issues they might be experienc ing, but denies making the statements attributed to him by Bailey.

Ryan did not remember being present for this specific meeting , nor does he recall being present at any time when Wanchick made a comment of this nature to Bailey, or any other female employee. Ryan told me that it certainly would not have been unusual for Bailey to 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 , he thinks it would have been very unusual for Wanchick to make that type of comment to Bailey, since he respected her technical abilities.

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 and career to protect someone who might possibly be violating the law. He also stated that he" ... knows better than that "

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 gender specific comment which was attributed to Wanchick by Bailey. All of the members 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 Baile y.

  1. December, 2015.

Bailey and Ferro both recounted an exchange with Wanchick which occurred in December 2015 when Bailey was filming Taylor and Ferro in the Executive Suit e, for purposes of recording a holiday greeting video. They explained that the County had a tradition whereby 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 greeting for Administration and they were going to film the greeting in the open area of the Executive Suite.

Prior to commencing filming, Taylor and Ferro taped a cue card to Bailey's camera with their intended greeting written on it, so that they would not forget their lin es. As they were 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 lipstick she was wearing. Bailey stated that Wanchick appeared angry when he was making 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 to HR.

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's behavior.

Taylor did not mention this event to me during her in tervie w, and it was not included as a 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 specific comments.

Wanchick remembered this incident and explained that he was not aware, in advance , that the employees would be filming this holiday greeting in the Executive Suite. They had not 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 acknowledged that he probably made a sharp comment to them, including a comment about 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 acknowledged that Taylor appeared to be upset by his statements and recalled meeting with Taylor and Stanish after the incident to discuss same and apologizing to Taylor because he had not intended to upset her. He did not perceive that Taylor was making any gender specific complaint about his reprimand of her, and was instead merely complaining that he 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 and public manner.

  1. 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 was offended.

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 remember this comment being made either. She told me that she is fond of both Wanchick 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 Executive Suite during the time that she worked as Lockle ar' s administrative assistant. 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 were important to them and that she was a valued employee. She denied hearing Wanchick ever make disparaging or offensive gender specific comments about women in general, or specific female employees, during her employment with the County.

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 inappropriate behavior and the reporting of these complaints to the County. I would note that, due to that delay , it has been difficult for me to ascertain with any degree of accuracy: (1) the specific 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) the context or circumstances under which those alleged comments may have been made , including the events/ interaction leading up to the comments, the demeanor of participants, tone of the speech, whether the participants may have been joking with each other, and other similar details which

might cast light upon the severity of the conduct and facilitate an analysis of whether said conduct might unreasonably interfere with the terms and conditions of employment.

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 facilitates a more timely and thorough invest igation, while witnesses' memories are still fresh and 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 or describing events since some of the incidents are alleged to have occurred more than four years ago, but this does present a challenge to the investigation.

Ultimately, I determined that it was unnecessary for me to resolve many of the factual disputes in order to reach a reasoned conclusion as to whether there had been a violation of County 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 County policy.

In order to prove unlawful employment discrimination under Title VII, the employee "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 [on the other hand] is established upon proof that 'the workplace is permeated 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."' There is no allegation here that any employee has suffered an adverse tangible employment action, and, therefore, these complaints must necessarily be considered under the framework of a hostile work environment theory.

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 protected group;
  1. she was subjected to unwelcome harassment; (3) the harassment was based upon her membership in the protected group; (4) the harassment was severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive working environment; 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   abusive working

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  codeand "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 ;
  1. 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). The courts examine the conduct in context , not as isolated acts, and determine under the totality of 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 courts to determine whether an environment is sufficiently hostile or abusive by ' looking at all the circumstances"').

In considering the elements for a viable hostile work environment claim under Title VII or 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 working environment.

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.

The August 23, 2012 comments seem to have primarily involved Wanchick ' s criticism of 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 necessarily warrant a conclusion that his comments were disparaging towards women. It is notable that Taylor's E-mail sent to Stanish directly after the incident, makes no reference to any gender bias or gender specific language used by Wanch 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 been intended as a gender specific comment, since it was directed to two women, but could just as 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 characterized by Complainants as dispa ragin g, gender specific comments, evidencing Wanch ic k' s animus towards or intent to discriminate against women. There is one (1) additional incident where 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 the employee.

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 (11th Cir. 2006); Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999)(en bane); See also Webb-Edwards v. Orange Cnty. Sheriffs Office, 525 F.3d 1013, 1027-28 (11th Cir. 2008) (finding taunting and boorish comments that were not physically threatening or humiliating were

not reasonably hostile or abusiv e). See Lockett v. Choice Hotels Intern., Inc., 315 Fed.Appx. 862, 866 (11th Cir. 2009) (noting that harassment occurring over a four-month period was not frequent and holding that the conduct was insufficiently severe or pervasive to be actionable).

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 necessary to support a finding that conduct was sufficiently severe to amount to an unlawful hostile work environment. See Indest vFreeman 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). See Hockman v. Westward Comms. LLC , 407 F.3d 317, 328 (5th Cir. 2004) (holding that sexually suggestive comments , slapping the plaintiff on the behind with a newspaper, grabbing or brushing 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 environment claims).

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, where she had previously worked. In her current position, she is working for the television station

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 the County.

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 of her 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 and challenges. She did not contend that she decided to leave her job as Wanchick ' s administrative 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 by Wanchick to be relevant to my consideration of this element. Specifically, during the same time 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 adjusting her duties. During this same timeframe, there is evidence that Taylor thanked Wanchick 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 the County.

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 an employee
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 Title VII.

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 problematic behavior.

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 Wanchick did harbor a discriminatory animus towards women, that would be likewise reflected in 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 positions with the County, eight are filled by women , a significantly higher percentage than before 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 the County.


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) separate incidents wherein 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 substantive evidence

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, by Ferro.

I was able to substantiate that there were two occasions on which Taylor complained about 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 environment based upon gender. Obviously, the mere fact that his repr imands /crit icisms of Taylor (and Ferro) were directed to a woman would not, absent other facts, support a finding of gender bias. There was nothing overtly gender specific about the comments attributed to Wanchick during either of these events.

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:

  1. 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 .

  1. 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 reporting option.

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.

  1. 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

  1. 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 harassment and int imidation . The County is committed to promptly and thoroughly investigating all complaints of unlawful harassment. If , after a thorough investi gation, it is determined that the County's policy against unlawful harassment has been violated, immediate and appropriate disciplinary action up to and including termination of employment may be taken.

    1. Definition and Examples of Unlawful Harassment
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 working environment.
    • Conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive environment.
    • 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; and written or graphic material , including e-mails and computer screen displays, 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, but that are hostile or demeaning , such as hate mail, threats, defaced photographs, or other such conduct.

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.

    1. Definition and Examples of Sexual Harassment
Unwelcome sexual advances, requests for sexual favors and any other physical, verbal or visual conduct of a sexual nature constitute sexual harassment when:
  1. Submission to the conduct is an explicit or implicit term or condition of employment or continued employment.
  2. Submission to or rejection of the conduct is used as a basis for employment decisions affecting an employee, such as promotion, demotion or evaluation.
  3. 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 sexual propositions.
    • Sexual innuendo .
    • Sexually suggestive remarks.
    • Vulgar or sexually explicit comments , gestures or conduct.
    • Sexually oriented kidd i ng, teasing or practical jokes.
  • Physical contact such as brushing against another's body, pinching or patting.
  • The public; action , to anyone, of documents (including pictures and text) in the workplace that contain any material that is of a sexual nature.
  • 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 sexual nature.
  • 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 abus ive.

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.
    1. Unlawful Harassment Complaint Procedure
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/mana ger
    • Department/Division Director
    • A Personnel Services Department staff member

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 appli cant, 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 employer notified.