Judges: R. L. CALEEN, JR.
Agency: Commissions
Latest Update: Nov. 15, 1990
Summary: Whether Respondent Employer discharged Petitioner because of her sex, in violation of Section 23.167(1), Florida Statutes (1979).Petitioner established prima facie case of discrimination but Respondent rebutted it with non-discriminatory reason for discharge.
80-0472.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ANNA M. PETTIGREW, )
)
Petitioner, )
)
vs. ) CASE NO. 80-472
)
REGENCY TOWERS OWNERS )
ASSOCIATION, INC., )
)
Respondent, )
)
)
) NORMAN A. JACKSON, EXECUTIVE ) DIRECTOR, FLORIDA COMMISSION ON ) HUMAN RELATIONS, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on October 9, 1980, at Panama City, Florida.
APPEARANCES
For Petitioner: Carroll L. McCauley, Esquire
Post Office Box 3567
Panama City, Florida 32401
For Respondent: John F. Daniel, Esquire
Post Office Box 2522
Panama City, Florida 32401
ISSUE
Whether Respondent Employer discharged Petitioner because of her sex, in violation of Section 23.167(1), Florida Statutes (1979).
CONCLUSIONS AND RECOMMENDATION
Petitioner established a prima facie case of sexual discrimination; Respondent stated a legitimate, nondiscriminatory reason for its action. Petitioner, however, failed to prove that Respondent's stated reason--her poor work performance--is a pretext for a discriminatory motive.
The Commission on Human Relations should, therefore, enter an order finding Respondent not guilty of the alleged unlawful employment practice, and denying Petitioner's petition for relief.
BACKGROUND
On February 5, 1980, Petitioner, Anna M. Pettigrew ("COMPLAINANT"), filed a petition for relief with the Florida Commission on Human Relations ("COMMISSION") charging that Respondent, Regency Towers Owners Association, Inc. ("EMPLOYER"), terminated her employment on the basis of sex in violation of Section 13.261, Florida Statutes (1977). By per petition, COMPLAINANT seeks damages from EMPLOYER, including back pay, reinstatement of employment, and attorney's fees.
On March 14, 1980, the COMMISSION forwarded her petition to the Division of Administrative Hearings for the conducting of a Section 120.57 hearing.
On April 10, 1980, the COMMISSION's motion to intervene was, without objection, granted, and final hearing was set for June 2, 1980.
On May 16, 1980, EMPLOYER moved to dismiss COMPLAINANT's petition for relief on grounds of lack of jurisdiction, and requested a continuance pending disposition of the motion. COMPLAINANT agreed to such continuance and an evidentiary hearing on EMPLOYER's motion was set for June 1980. However, on June 4, 1980, COMPLAINANT requested additional time to prepare for the motion hearing; the parties also agreed to submit memoranda of law on the motion, and hearing was reset for July 25, 1980.
On August 6, 1980, after receiving evidence on the motion, EMPLOYER's motion to dismiss was denied. Final hearing was then reset for October 9,1980.
At final hearing, COMPLAINANT testified in her own behalf and called the following witnesses: E. L. Truman, J. H. Christmas, Otis Rosborough, Lomas Johnson, Russel L.. Sullivan, Jewell Williams, Charlene Weaver, H. B. James, and Charles M. Hawkins. COMPLAINANT offered Petitioner's Exhibit 1/ Nos. 1, 2, 3, 4, 5 and 7 into evidence, each of which was received.
EMPLOYER called Anna M. Pettigrew, Charles Webb, James H. Hodges, Inga McKay, Barbara Wade, Marj B. Thigpen, Barbara Coleman, Sarah Davis, Pauline J. Martin, and James G. Lee as its witnesses; it offered Respondent's Exhibit1 Nos. 1, 2, 3, 4, 6, 7, 8, and 9 into evidence, each of which was received.
The COMMISSION did not attend or participate in final hearing.
The COMPLAINANT and EMPLOYER requested, and were granted, the opportunity to submit proposed findings of fact and conclusions of law within 30 days of filing of the transcript of hearing. On November 24, 1980, COMPLAINANT moved for an extension of time, until December 15, 1980, for filing of proposed findings of fact; EMPLOYER voiced no objection to the extension, provided it would be allowed to file a reply brief within ten days of COMPLAINANT's filing. Thereafter, COMPLAINANT's motion for extension was granted, subject to EMPLOYER's request to file a reply brief within the time requested.
COMPLAINANT's proposed findings of fact were subsequently received on December 10, 1980; no reply brief was filed by EMPLOYER.
FINDINGS OF FACT
Based on the evidence presented at hearing, the following findings are determined and organized in accordance with the allocation of proof applicable to employment discrimination cases.
I.
The Parties
The EMPLOYER is an incorporated condominium association responsible for the operation and maintenance of Regency Towers Condominium, a 171-unit condominium in Panama City Beach, Florida. In 1977, the developer of Regency Towers relinquished responsibility for and control over the completed condominium to the nearly formed association. The association ("EMPLOYER") is owned by the Regency Tower Condominium unit owners who elect a Board of Directors; the Board, in turn, hires and supervises a condominium manager who directs and is responsible for the day-to-day operations and maintenance of the facility. (Testimony of Pettigrew.)
COMPLAINANT, a female, was employed by EMPLOYER as its manager from February 1976, until September 5, 1978, when she was terminated by its Board of Directors. In addition to her salary, the EMPLOYER allowed COMPLAINANT to engage in resale of condominium units through the office of a local real estate broker. (Testimony of Pettigrew.)
During 1978, the calendar year preceding COMPLAINANT's termination, EMPLOYER employed 15 or more employees during 20 or more calendar weeks. In this connection, Findings of Fact Nos. 1 through 10 as contained in the previous Order Denying Respondent's Motion to Dismiss, entered on August 6, 1980, are adopted and incorporated by reference. (Order Denying Respondent's Motion to Dismiss, dated August 6, 1980.)
II.
Complainant's Initial Burden: Establish Prima Facie Case of Employment Discrimination Based on Sex
COMPLAINANT presented evidence sufficient to establish a prima facie case of employment discrimination on the basis of her sex, the EMPLOYER admits such prima facie showing was made. (See Respondent's Suggested Findings of Fact, p. 1.)
COMPLAINANT is a female who was discharged by EMPLOYER; thereafter, her position was filled by a male, David Lacey. Prior to and after her termination, there was a small but vocal group of condominium unit owners who openly expressed a view that the job of condominium manager cold not be performed by a woman: that it could be better done by a man. Remarks were made such as: "we need a man to run this business"; (Tr. 79) "the place won't run with a woman in there . . ." (Tr. 116); "a man could do . . . [the job] better," (Tr. 131) and "a man [is] needed to have that position, that a woman could not . . . adequately fill, [or] fulfill the job." (P-2, p. 13) The COMPLAINANT testified that the sole basis for her termination was her sex. (Tr. 236) One of the owners who articulated such a bias in favor of a male, as opposed to a female manager, was Henry Christmas; he was also a member of EMPLOYER's Board of Directors, and made the motion which resulted in COMPLAINANT's termination. 2/ (Testimony of Pettigrew, Truman, Sullivan, Williams, Johnson, Christmas.)
EMPLOYER's actions toward COMPLAINANT, infra, standing alone, support a reasonable inference that she was terminated because of her sex. The burden, therefore, shifts to EMPLOYER to articulate some legitimate, nondiscriminatory reason for its action.
III
Employer's Burden: Articulate Legitimate Nondiscriminatory Reason for Complainant's Termination
EMPLOYER denied that its termination of COMPLAINANT was motivated by her sex, and supplied a legitimate, nondiscriminatory reason: her poor work performance. Members of EMPLOYER's Board of Directors had received numerous complaints concerning COMPLAINANT's job performance from owners, renters, and employees. At the Board's meeting on September 3, 1978, the decision to terminate COMPLAINANT was preceded by a discussion of numerous examples of her inefficiency, ineffectiveness, and failure to satisfactorily perform her job. Specific deficiencies discussed and offered as cause for her termination were her:
Refusal to implement Board directives;
Inability to get along with owners;
Inability to supervise and get maximum efficiency from employees, including high turnover and expense involved in training and hiring new employees;
Failure to submit to the Board a job description for herself and other employees;
Failure to place ads in newspapers for the condominium's rental program; and
Failure to keep adequate records and daily check sheets required by the rental program.
(Testimony of Truman, Hodges, Lee, Christmas, Rosborough; R-2)
During 1978, complaints had been received by Board members from owners, renters, and employees claiming she:
Failed to adequately maintain grounds, parking lot, walkways, and shrubbery;
Was unable to get along with owners and renters;
Was verbally abusive and rude toward renters and owners; and
Inadequately managed employees. (Testimony of Lee, Hodges, Truman)
EMPLOYER having articulated the above legitimate, nondiscriminatory reason for its termination of COMPLAINANT, the burden then shifts to the COMPLAINANT to show that the stated reason--poor work performance--is, in fact, a pretext or mask for a discriminatory decision.
IV.
Complainant's Burden: Show Employer's Stated Nondiscriminatory Reason is Pretextual
COMPLAINANT did not establish or provide a sufficient basis to infer that EMPLOYER's stated reason for her termination was pretextual, or a mask for a discriminatory motive. Events which occurred before and after COMPLAINANT's termination substantiate EMPLOYER's contention that there were numerous and serious deficiencies in COMPLAINANT's job performance, and increasing criticism of her actions by owners. (Testimony of Webb, Johnson)
Charles T. Webb served as president of EMPLOYER's Board of Directors from September 1977 through August 1978. He had regular contact with COMPLAINANT and received numerous complaints from owners concerning her job performance and attitude toward owners. It occurred to him that, during 1978, COMPLAINANT became increasingly unable to effectively carry out her duties. She would call him at his business and his home--sometimes late in the evening--to discuss matters which, in his view, she should have routinely handled. (Testimony of Webb)
Since her hiring in 1977, there was a small group of owners who openly and constantly criticized COMPLAINANT. J. H. Christmas and Otis Rosborough were its most vocal members. On most days, they and several others could be found in the lobby in the vicinity of COMPLAINANT's office. There, over coffee, they would continually criticize her actions in the presence of owners and employees. Sometimes they would interfere with her directives to employees, and attempt to undermine her authority. It seemed to the head housekeeper that nothing that COMPLAINANT did was acceptable to these critics, that they could not be satisfied. It is clear that the actions of this handful of owners were, at least in part, motivated by their frequently voiced belief, that a woman could not properly do the job, that a man could do it better. (Testimony of Williams, Pettigrew, Weaver, Truman, Williams, Lilly)
The unrelenting criticism of this small group of owners, the pressing and sometimes unreasonable demands of owners and renters, employee turnover and complaints--all imposed a heavy burden on COMPLAINANT. Owners increasingly began to complain about her rude treatment; her job performance began to deteriorate. Friction and conflict between COMPLAINANT and others became more frequent. Incidents would upset her, and sometimes she would be crying when she called Webb for his assistance. Owner dissatisfaction became so widespread that, several times during Webb's term as president, the Board of Directors considered terminating her. (Testimony of Webb, Truman, Pettigrew, Williams; R- 7, R-9)
In July 1978, Webb met with COMPLAINANT to discuss her worsening work performance. He gave her the choice of resigning, or improving her performance. She indicated she desired to remain. At 2:00 a.m., on July 21, 1978, she called him, in tears, to relate an incident involving an owner. On July 22, 1978, Webb wrote her a letter listing problems with her work performance, including her difficulties with employees and owners, and her failure to carry out one of his previous requests. He asked for attention to those problems, "so that no other administrative action will be necessary." (R-7) (Testimony of Webb, Pettigrew; R-7)
On September 1, 1978, at the end of his term of office as president of the Board of Directors, Webb wrote the newly elected Board describing his
problems with COMPLAINANT's work performance. He cited her "continuous turmoil" with owners and renters, her failure to carry out the Board's directives, and her inability to handle routine management problems. Two days later, the newly elected Board of Directors discussed numerous deficiencies in COMPLAINANT's performance and terminated her employment. (Testimony of Webb, Truman; R-6, R-2)
At the time of COMPLAINANT's termination, the owners had split into factions opposing and supporting her. On September 21, 1978, Lomax Johnson, one of the owners who supported COMPLAINANT, polled, by written ballot, all unit owners and members of EMPLOYER for the purpose of "trying to right a wrong that has been done to an individual . . ." (R-3) The principle question on the ballot was whether they agreed or disagreed with the Board's termination of COMPLAINANT. Of the 54 owners' ballots responding, 26-27 disagreed with her termination, 24 agreed, and 3-4 abstained. (Testimony of Johnson; R-4)
In a lengthy explanatory letter accompanying the ballot, Johnson gave COMPLAINANT's answer to each of the reasons given as cause for her discharge. He defended her work performance, and maintained that she had been unjustly treated. However, in criticizing the Board's treatment of COMPLAINANT, Johnson did not assert that it was motivated by sex discrimination. (Testimony of Johnson; P-3)
The Board of Directors which terminated COMPLAINANT contained both males and females. Board members who testified denied that their action was motivated by her sex, and no member testified otherwise. Prior to and after her termination, both male and female owners expressed dissatisfaction with COMPLAINANT's job performance. The fact that some of the complaints were unwarranted and self-serving does not negate their existence or the Board's belief that complaints were occurring with increasing frequency. (Testimony of McKay, Wade, Thigpen, Davis, Martin, Lee, Truman, Webb; P-2, R-4)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 23.167(1), Florida Statutes (1979), formerly Section 13.261, Florida Statutes (1977), provides in pertinent part:
It is an unlawful employment practice for an employer:
To discharge . . . any individual . . . because of such individual's . . . sex. . . .
Any person aggrieved by a violation of this provision may file a complaint with the COMMISSION. If the COMMISSION finds that a violation occurred, it may issue an order providing affirmative relief. Section 23.167(10), Florida Statutes (1979).
EMPLOYER is an "employer" within the meaning of Section 23.162(6), Florida Statutes (1979).
Since this statute is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000 e.-2(a), federal case law offer useful guidance. See, Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116, (Fla. 1st DCA 1977).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), sets forth the order and allocation of proof in individual disparate treatment cases; these are cases where the employer simply teats a person less favorably than others because of, inter alia, her sex. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-336 (1977).
Complainant's Prima Facie Case
Under McDonnell Douglas, COMPLAINANT bears the initial burden of establishing a prima facie case of sex discrimination. This is accomplished by showing that EMPLOYER took actions against her which, if left unexplained, support an inference that they were based on a discriminatory motive. See, Funco Construction Corp. v. Waters, 435 U.S. 567, 576 (1977); McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976).
It is concluded, infra, that COMPLAINANT presented sufficient evidence to sustain her initial burden. COMPLAINANT was discharged, and replaced by a male, prior to her discharge, numerous condominium unit owners, and at least one member of the Board of Directors, had voiced a belief that the job could not be performed by a woman--that a man could do it better.
Employer's Statement of Legitimate Nondiscriminatory Reason for Her Discharge
COMPLAINANT having successfully raised an inference of sex discrimination, the burden shifts to EMPLOYER to articulate some legitimate nondiscriminatory reason for her discharge. McDonnell, supra, at 802.
It is concluded, infra, that EMPLOYER met its burden by articulating a nondiscriminatory reason for its discharge of COMPLAINT: poor work performance.
Complainant's Rebuttal: That Employer's Stated Reason is Pretextual
The burden, then, shifts to COMPLAINT to show that EMPLOYER's stated nondiscriminatory reason is a pretext, or mask for a discriminatory motive. McDonnell, supra, at 804, Funco, supra, at 578.
It is concluded that COMPLAINANT has not met this burden; she failed to establish, by a preponderance of evidence, that EMPLOYER's alleged reason for her discharge--poor work performance--is, in fact, a pretext or mask for a discriminatory motive. (See Findings 10-18, infra.)
COMPLAINANT's work performance worsened during 1978, resulting in increasing numbers of complaints by owners, renters, and employees. Several times, EMPLOYER's Board of Directors considered discharging her. She was counseled on her deficiencies, and given an opportunity to improve. See, e.g., Macey v. World Airways, Inc., 14 FEP 1426 (N.D. Cal. 1977). After her discharge, a poll of unit owners revealed that almost one-half of those responding, including male and female, agreed with the Board's actions.
There was a small group of owners who persistently criticized COMPLAINT, and evinced a sexual bias against her. Those individuals, no doubt, contributed to her increasing frustration and inability to cope with the demands of her job. This extenuating circumstances may render her resulting termination unfair, and inequitable. But, unfair and inequitable discharge of an employee is not prohibited by Section 23.167, Florida Statutes, and the COMMISSION is unable to remedy it.
While a small group of condominium owners displayed a sexual bias against COMPLAINANT, and in favor of a male replacement, the evidence was insufficient to establish a casual link between their complaints and the Board's actions in discharging her on September 3, 1978. Although their complaints contributed, in some degree, to the increasing level of owner dissatisfaction with COMPLAINT's performance, insufficient evidence was presented to show that the Board's action was taken because of those complaints. 3/ Those sexually motivated complaints were soon outweighed by a crescendo of complaints voiced by a cross-section of owners. COMPLAINANT failed to establish that her sexual gender was a "but for" cause of her discharge. McDonald, supra, at 283.
In light of COMPLAINANT's failure of proof, the EMPLOYER must be found not guilty of the alleged unlawful employment practice, and her petition for relief, denied.
To the extent the proposed findings of fact and conclusions of law submitted by the parties are incorporated herein, they are adopted. 4/ Otherwise they are rejected as unsupported by the evidence, irrelevant to the issues to be decided, or contrary to law.
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the Florida Commission on Human Relations enter a final order finding the EMPLOYER not guilty of the unlawful employment practice alleged by COMPLAINANT, and denying her petition for relief.
DONE AND ENTERED this 20th day of January 1981, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1981.
ENDNOTES
1/ Petitioner's and Respondent's Exhibits will be referred to as "P- " and "R- ," respectively.
2/ Henry Christmas denied ever making a statement that the manager position should be filled by a man, not a woman. Two witnesses heard him make such a statement (Tr. 88; P-2, p. 13) His denial also conflicts with his prior statement by deposition (Tr. 69) and is unpersuasive.
3/ Only one Board member had previously indicated sexual bias against COMPLAINT. Also, it appears that the complaints of her small group of persistent, and sexually biased, critics were given little credence by Webb. (R-7)
4/ Paragraph 2, p 2, of COMPLAINANT's proposed findings, beginning with the work, "Petitioner's," and ending with "manager," is hereby adopted.
COPIES FURNISHED:
Carrol L. McCauley, Esquire Post Office Box 3567
Panama City, Florida 32401
John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401
================================================================= AGENCY FINAL ORDER
================================================================= BEFORE THE FLORIDA COMMISSION ON HUMAN RELATIONS
ANNA M. PETTIGREW,
Petitioner, FCHR CASE NO. 463-79 DOAH CASE NO. 80-472
vs. FCHR ORDER NO. 810020
REGENCY TOWERS, OWNERS ASSOCIATION, INC.,
Respondent,
v.
NORMAN A. JACKSON, Executive Director, Florida Commission on Human Relations,
Intervenor.
/
The following Commissioners participated in the deposition of this matter: Commissioner Reese Marshall, Chairperson
Commissioner Robert Billingslea Commissioner Gabriel Cazares Commissioner Marjorie M. Hart Commissioner Robert L. Joyce
Commissioner Melvin L. Levitt Commissioner Thomas H. Poole, Sr. Commissioner William Wynn
APPEARANCES HOWELL L. FERGUSON, Esquire
318 Barnett Bank Building
Post Office Box 150 Tallahassee, Florida 32302 Attorney for Petitioner
JOHN F. DANIEL, Esquire Post Office Box 2522
Panama City, Florida 32401 Attorney for Respondent
AURELIO DURANA, Esquire
Assistant General Counsel
Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
Attorney for Intervenor
FINAL ORDER I.
Preliminary Matters
On January 16, 1979, Petitioner, a female, filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission (EEOC) alleging that Regency Towers Resort Condominiums (Respondent) unlawfully discriminated against her on the basis of her sex (female) in violation of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C s. 2000e, et. seq.). Pursuant to s. 706(c) of the Civil Rights Act, the EEOC deferred the charge to this Commission, which accepted jurisdiction in accordance with the Human Rights Act of 1977, as amended (Part IX, Chapter 23, Florida Statutes). Petitioner alleged in her charge (complaint) that the discriminatory act occurred on or about September 5, 1978.
Pursuant to the requirements of Part IX, Chapter 23, F. S. (then Part II, Chapter 13, F.S.) and Rule 9D-9.03, Florida Administrative Code, the allegations contained in the complaint were investigated by this Commission's Office of Field Services. As required by the Rules of the Commission, an investigatory report was prepared and submitted to the Executive Director. On November 20, 1979, the Executive Director issued a Determination: Cause, pursuant to Rule 9D- 9.04, F.A.C., which concluded that the investigation revealed reasonable cause to believe that an unlawful employment practice had occurred in violation of the Human Rights Act of 1977.
Subsequent to the issuance of the Determination, efforts were made to conciliate the dispute. Upon failure of the conciliation attempts, the Petitioner filed a petition for relief, as provided by Rule 9D-9.05(3), F. A. C. The petition was duly referred to the Division of Administrative Hearings for assignment of a Hearing Officer, pursuant to Rule 9D-9.06(2), F. A. C. and Chapter 120, F. S.
After due notice, a hearing was held in this matter on January 20, 1981, at Panama City, Florida, before R. L. Caleen, Jr., Hearing Officer.
II.
Findings of Fact
The Recommended Order of the Hearing Officer was issued on January 20, 1981. A copy of the Recommended Order is fully set forth as an appendix to this Order. On February 5, 1981, Petitioner filed its Exceptions to the Recommended Order and a request for oral argument on the issues presented. On February 9, 1981, Intervenor filed its Exceptions to the Hearing Officer's Recommended Order. Subsequently, both the Petitioner and Intervenor filed Notices of Supplemental Authority.
A public hearing to consider the Recommended Order, the exceptions and oral argument of the parties was held at Tallahassee, Florida on April 24, 1981, before this Commission.
Pursuant to Section 120.57(1)(b)(9), Florida Statutes, an agency shall not reject or modify a DOAH Hearing Officer's Findings of Fact unless it can determine, after a review of the complete record, that the findings were not based upon competent substantial evidence or that the proceedings did not comply with the essential requirements of law. Having considered the Hearing Officer's Findings of Fact and having reviewed the complete record of proceedings in this cause, it is concluded that such Findings of Fact are based upon the competent substantial evidence of record and are, therefore, adopted by this Commission as its Findings of Fact.
III.
Conclusions of Law
The Commission on Human Relations has jurisdiction over the subject matter and the parties to this proceeding. Sections 23.161 through 23.167, Florida Statutes (1979). Petitioner, a female is a person within the meaning of Section 23.162(5), Florida Statutes (1979) and Respondent is an employer within the meaning of Section 23.162(6), Florida Statutes (1979).
Section 23.167, Florida Statutes (1979), provides in pertinent part, that:
It is an unlawful employment practice for
an employee: (a) To discharge . . . or other- wise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such indi- vidual's . . . sex . . .
(10) Any person aggrieved by a violation of this section may file a complaint with the commission within 180 days of the alleged violation.
(13) In the event that the commission, in the case of a complaint under subsection (10) finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief
from the effects of the practice, including reasonable attorney's fees.
Title VII of the Federal Civil Rights Act of 1964, as amended (42
s. 2000e, et. seq.), provides, in pertinent part:
It shall be an unlawful employment practice for an employer --
To . . . discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's
sex . . . . [42 U.S.C. s. 2000e - 2(a)].
As this Commission has held in prior cases, [Hargis v. Leon County School Board, II FALR 957-A (7/28/80); Smith v. International Paper Co., III FALR 626-A (4/6/81)], since the Human Rights Act of 1977 is patterned after the Federal Civil Rights Acts then the federal cases construing Title VII are persuasive and offer guidance in interpreting the similar Florida Statutes.
See: Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1977).
The standards and allocation of the burden of proof governing the disposition of individual actions involving disparate treatment were set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 892 (1973), cited with approval in Texas Department of Community Affairs v. Burdine, 25 FEP Cases 113, U.S. (1981), and as adopted by this Commission in Hargis v. Leon County School Board, II FALR 957-A (7/28/80).
Under these cases, the Petitioner carries the initial burden of establishing a prima facie case of sex discrimination by showing the actions taken by the employer from which it can be inferred, if the employer's, actions are unexplained, that it is more likely than not that such actions were based on a discriminatory motive. See: Furnco Construction Corp. v. Waters, 438 U.S.
567, 576 (1977); McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273
1976).
To dispel the adverse inference from the Petitioner's prima facie cases, the burden then shifts to the respondent employer. The employer, then, must articulate some legitimate nondiscriminatory reason for discharging the petitioner. McDonnell, supra, at 802. "To accomplish this, the [employer] must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's [discharge]. The explanation provided must be legally sufficient to justify a judgment for the [employer]." Burdine, supra, at 114.
If the employer successfully meets its burden, then the petitioner is required to establish, by a preponderance of the evidence, that the articulated reason was not the employer's true reason, but was a pretext, or cover-up, for a discriminatory motive. Burdine, supra, at 115; McDonnell, supra at, 804; Furnco, supra, at 578. Petitioner may proceed in meeting her burden, "either directly by persuading the court that discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proferred explanation is unworthy of credence." Burdine, at 115.
The Hearing Officer correctly concluded that there is substantial competent evidence of record to support a conclusion that the Petitioner successfully established a prima facie case of discrimination. (R.O. 4, 5, & 11). Ms. Pettigrew was discharged by the Respondent; she was subsequently replaced by a male; prior to her discharge, numerous condominium owners, had openly voiced a belief that the job could not be performed by a woman and that a man could do it better. (R.O. 5). One such owner who articulated such bias was also a member of the Respondent's Board of Directors and was the board member who made the motion which resulted in Petitioner's discharge. (R.O. 5).
Petitioner's establishment of a prima facie case, in the absence of an explanation, raises an inference that her discharge was based on a discriminatory motive.
The employer articulated, as its legitimate, nondiscriminatory reason for discharging the Petitioner, as being based on her poor work performance (R.O. 5, 6). The decision to terminate the petitioner was made at a September 3, 1978, Board of Directors Meeting. "The decision to terminate COMPLAINANT was preceded by a discussion of numerous examples of her inefficiency, ineffectiveness, and failure to satisfactorily perform her job. (R.O. 6). The employer, then, has clearly set forth, through admissible evidence, its reasons for terminating the Petitioner. Such evidence, if unrebutted, would have allowed the hearing officer to conclude that the employment decision had not been "motivated by discriminatory animus." Burdine, supra, at 115.
The hearing officer erred in concluding that the petitioner "did not establish or provide a sufficient basis to infer that EMPLOYER'S stated reason for her termination was pretextual . . . ." (R.O. 7).
Relevant to the issue of pretextuality are the following Findings of Fact made by the Hearing Officer:
5. COMPLAINANT is a female who was discharged by EMPLOYER; thereafter, her position was filled by a male, David Lacey. Prior to and after her termi- nation, there was a small but vocal group of con- dominium unit owners who openly expressed a view that the job of condominium manager could not be performed by a woman: that it could be better done by a man. Remarks were made such as: "we need a man to run this business;" (Tr. 88) "a
man should discharge the duties of resident manager;" (Tr. 79); "the place won't run with a woman in
there . . ." (Tr. 116); "a man could do
[the job] better," (Tr. 131); and, "a man [is] needed to have that position, that a woman could
not . . . adequately fill, [or] fulfill the job." (P-2, p. 13.) The COMPLAINANT testified that the sole basis for her termination was her sex. (Tr.
236.) One of the owners who articulated such a bias in favor of a male, as opposed to a female manager, was Henry Christmas; he was also a mem- ber of the EMPLOYER'S Board of Directors, and made the motion which resulted in COMPLAINANT'S termina-
tion. 2/ (Testimony of Pettigrew, Truman, Sullivan, Williams, Johnson, Christmas.) [footnote omitted] [R.O. 5]
Since her hiring in 1977, there was a small group of owners who openly and constantly criticized COMPLAINANT. J. H. Christmas and Otis Rosborough were its most vocal members. On most days, they
and several others could be found in the lobby in the vicinity of COMPLAINANT'S office. There, over coffee, they would continually criticize her actions in the presence of owners and employees. Sometimes,
they would interfere with her directives to employees, and attempt to undermine her authority. It seemed to the head housekeeper that nothing that COMPLAINANT
did was acceptable to these critics, that they could not be satisfied. It is clear that the actions of this handful of owners were, at least in part, moti- vated by their frequently voiced belief, that a woman could not properly do the job, that a man could do it better. (Testimony of Williams, Pettigrew, Weaver, Webb, Truman, Williams, Lilly.) [R.O. 7]
The unrelenting criticism of this small group of owners, the pressing and sometimes unreasonable demands of owners and renters, employee turnover and complaints -- all imposed a heavy burden on COMPLAINANT. Owners increasingly began to complain about her rude treatment; her job performance began to deteriorate. Friction and conflict between COMPLAINANT and others became more frequent. Inci- dents would upset her, and sometimes she would be crying when she called Webb for his assistance. Owner dissatisfaction became so widespread that, several times during Webb's term as president, the Board of Directors considered terminating her. (Testimony of Webb, Truman, Pettigrew, Williams;
R-7, R-9.) [R.O. 8]
The foregoing Findings of Fact clearly demonstrate that Ms. Pettigrew proved that she was the victim of a practice of a sexually discriminatory work environment permitted to exist by her employer. Thus, her rights under the Human Rights Act were violated. Accordingly, we reject the Hearing Officer's conclusions on the issue of pretextuality.
On page 12 of the Recommended Order, the Hearing Officer concluded:
There was a small group of owners who persistently criticized COMPLAINANT, and evinced a sexual bias against her. Those individuals, no doubt, con- tributed to her increasing frustration and inability to cope with the demands of her job.
Although [such] complaints contributed, in some degree, to the increasing level of owner dis- satisfaction with COMPLAINANT's performance, insufficient evidence was presented to show that the Board's action was taken because of these complaints. (emphasis added.)
From the cases construing the similar statutory provisions of Title VII, it is clear that the employer's decision to terminate Petitioner, is unlawful discrimination so long as sex is a factor in the employment decision, it need not be the sole factor. Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981), citing, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), Tonkins v.
Public Service Electric and Gas Co., 568 F.2d 1044 (3rd Cir. 1977); Gerber v. Saxon Business Products, Inc., 552 F.2d 1032 (4th Cir. 1977); and see McDonald
v. Santa Fe Trail Trans. Co., 96 S. Ct. 2574 (1976); Jones v. Trailways Corp.,
20 FEP Cases 154)(D.D.C. 1979); Voce v. Palm Beach County Sheriff's Dept., FCHR Case No. 792-79, III FALR 755-A (4/20/81).
The kind of sexual harassment (sexually biased and derogatory comments) inflicted upon Ms. Pettigrew is sex discrimination with respect to the "terms, conditions [and] privileges of employment." Under Title VII, numerous courts have found violations "where an employer created or condoned a substantially discriminatory work environment, regardless of whether the complaining employees lost any tangible job benefits as a result of the discrimination." Bundy, supra, at 943-944.
In analyzing the meaning of the words "terms, conditions, or privileges of employment", the Fifth Circuit has stated that:
employees' psychological as well as emotional fringes are statutorily entitled to protection from employer abuse, and that the phrase "terms, conditions, or privileges of employment", is an expansive con-
cept which sweeps within its protective ambit the practice of creating a work environment heavily charged with . . . discrimination.
One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers . . .
Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234 (5 Cir. 1971). See Bundy, supra at 944-945, citing numerous federal cases in accord.
We conclude therefore, that the poisoned work environment is violative of the Human Rights Act (Section 23.167, Florida statutes). This conclusion is consistent with the Hearing Officer's findings that Ms. Pettigrew's performance of duty was no doubt adversely affected by the constant sexually derogatory comments of the employer and condominium owners. This work environment undoubtedly affected petitioner's emotional and psychological conditions of employment. In reaching this conclusion, we are cognizant of the fact that the legislature intended that the Human Rights Act should be given a liberal construction in order to effectuate the stated purpose of "promoting and encouraging fair treatment and equal opportunity for all persons regardless of .
. . sex." Section 23.165, Florida Statutes and 23.161(3), Florida statutes.
Further, it is concluded that an employer will not be permitted to stand by and allow an employee to be subjected to a course of sexual harassment by the employer and its agents. Therefore, the Respondent must accept responsibility for its agent's actions. DeGrace v. Rumsfeld, 21 FEP Cases 1444, 1448 (1st Cir. 1980), Miller v. Bank of America, 600 F.2d 211, 213 (9th Cir. 1979).
This Commission has fully considered the exceptions and oral argument of the parties, as well as the Findings of Fact and Conclusions of Law as set forth in the Hearing Officer's Recommended Order, dated January 20, 1981, together with record of the proceedings in this cause. For the reasons stated hereinabove, to the extent the Conclusions of Law of the Hearing Officer conflict with, or are inconsistent with the Final Order, each such Conclusion of Law is hereby expressly rejected and modified accordingly. Any remaining Conclusions of Law of the Hearing Officer are hereby adopted as the Conclusions of Law of this Commission. Those portions of the exceptions of the parties not incorporated in this Order are deemed to be unnecessary, irrelevant or unwarranted in law or fact, and are hereby rejected.
Affirmative Relief. Section 23.167(13), Florida Statutes, provides that where this Commission "finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees."
It is clear that the Petitioner in this case has suffered a loss of wages as a result of Respondent's unlawful employment practice which resulted in her termination. However, at the time of the hearing, the Commission did not have, before it, adequate evidence upon which to base a specific award of affirmative relief and any reasonable attorney's fees. Accordingly, the parties were advised to submit affidavits in support of, or against, such awards and that, if necessary, an evidentiary hearing would be scheduled at a future date to consider the appropriateness of any relief and fees to be awarded.
Having considered all of the foregoing, it is therefore, ORDERED:
The Recommendation of the Hearing Officer is rejected;
Respondent shall forthwith cease and desist from the discriminatory practices found to be unlawful in this Order; and,
Respondent shall take such affirmative steps to make Petitioner whole and to effectuate the purposes and policies of the Florida Human Rights Act of 1977, as amended, such affirmative steps to be Ordered by this Commission in subsequent proceedings after due notice to all parties herein.
It is so Ordered this 19th day of May, 1981. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
REESE MARSHALL, Commission Chair Commissioner Robert Billingslea Commissioner Gabriel Cazares Commissioner Marjorie M. Hart Commissioner Melvin L. Levitt Commissioner Thomas H. Poole, Sr. Commissioner Robert L. Joyce Commissioner William Wynn
FILED this 1st day of June, 1981 at Tallahassee, Florida.
BY: AURORA T. PASCUAL
Clerk, Florida Commission on Human Relations
Copies Furnished:
Howell L. Ferguson, Esquire, Attorney for Petitioner, 476731 John F. Daniel, Esquire, Attorney for Respondent, 476732
Aurelio Durana, Esquire, Attorney for Intervenor Commission Clerk
Docket for Case No: 80-000472
Orders for Case No: 80-000472
| Issue Date |
Document |
Summary |
|
May 19, 1981 |
Agency Final Order
|
|
|
Jan. 20, 1981 |
Recommended Order
|
Petitioner established prima facie case of discrimination but Respondent rebutted it with non-discriminatory reason for discharge.
|
