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The Florida Supreme Court has agreed to hear the case of a former city of Miami police department dispatcher who claims she was the target of an on-going campaign of sexual harassment. If justices rule in favor of Alina Guerra, it could open the door to allow common law negligence as a basis for sexual harassment lawsuits, an option that currently does not exist. Sexual harassment cases typically are filed under Title VII of the Federal Civil Rights Act and the Florida Civil Rights Act, which allow plaintiffs to seek monetary damages and injunctive relief. But Guerra is suing the city for negligence, claiming that the city, by allowing the sexual harassment to take place, failed to provide her with a nonhostile work environment. Guerra’s case dates to the early 1990s, when, she claims, her supervisor engaged in a pattern of harassment. Guerra alleged then that she was the victim of unwanted touching, sexual innuendo and other acts that created a hostile work place. Guerra complained and an internal affairs investigation took place. During the year-long probe, Guerra was fired for missing too much work. She claimed she had become ill as a result of the harassment. Since then, says her attorney, Donna Ballman, Guerra has not been able to hold down a job and has been forced to file for bankruptcy. Despite a year-long internal affairs investigation, which found there had been a violation of the city’s sexual harassment policy, Ballman says, no recommendations were made on what should be done to handle the situation. In 1994, Guerra filed suit against the city in Miami-Dade Circuit Court. Before the case went to trial in January 1999, city attorneys asked that the judge rule in the city’s favor on the grounds that “there is no recognition in Florida law for a negligence action based on alleged sexual harassment in the work place,” according to City Attorney Murray H. Dubbin. The judge denied the motion for summary judgment and allowed the trial to proceed. Ballman said that because Guerra failed to file sexual harassment charges against the city with agencies that investigate such discrimination, such as the Equal Employment Opportunity Commission, she was barred from bringing any claim for sexual harassment. As a result, Ballman said, Guerra was “stuck with having to sue for negligence.” After four days, the jury came back with a verdict in favor of Guerra and awarded her $275,000, minus 25 percent for what it determined was negligence on her part. Her attorney had sought $363,000. “The jury found the employer allowed a sexually harassing work place to exist and we believe that the Florida Supreme Court, as well as the U.S. Supreme Court, has recognized that the [employer] has a duty to maintain a sexual-harassment-free work place,” Ballman says. Last November, the 3rd District Court of Appeal overturned the verdict and agreed with the defense’s argument that Florida does not recognize a cause of action for sexual harassment under a common law negligence theory. But last week, the Florida Supreme Court agreed to hear the case and scheduled oral arguments for Nov. 28. Though he couldn’t say with certainty the reason behind the Supreme Court’s decision to hear the case, Henry Latimer, a labor lawyer with Eckert Seamans Cherin & Mellott in Fort Lauderdale, Fla., says it may be that the court wants to put the issue to rest by either expanding such sexual harassment claims or by agreeing with the 3rd District. “It could make a statement on whether Florida can or should recognize common law negligence as a basis for sexual harassment claims,” says Latimer, who is not involved in the case. Dubbin, the city attorney, maintains the position that there is no such thing as a cause of action for negligence in sexual harassment cases, saying Ballman has misinterpreted decisions by the U.S. and Florida supreme courts. “I suspect the Supreme Court will deal with it the way the 3rd District did,” he says.

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