LOUISE S. FORREST, )
vs. ) CASE NO. 80-1156
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on October 20 - 21, 1980, in Tallahassee, Florida.
For Petitioner: Ben R. Patterson, Esquire
For Respondent: Louise S. Forrest
C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Tallahassee, Florida
Petitioner filed her Petition for Relief from Unlawful Employment Practice, alleging that the Respondent had discriminated against her on the basis of her sex and age by denying her a promotion to the position of Assistant Controller at The Tallahassee Democrat, and further alleging that the Respondent had retaliated against her because she charged it with discriminating against her.
The Petition contained no factual allegations of monetary damage or entitlement to attorney's fees. Respondent filed its Answer denying any discrimination against Petitioner and affirmatively alleging that Petitioner was not qualified for the position. The undersigned sua sponte named the Florida Commission on Human Relations as a party to this proceeding but granted the Commission's Motion to Drop Agency as party.
Petitioner presented the testimony of the following witnesses: Louise S. Forrest, the Petitioner; Nick Leslie, an employee of the Florida Department of Labor and Employment Security; Philip E. Horne, an accounting clerk at The Tallahassee Democrat and a co-employee of the Petitioner; Doris Dunlap, the Personnel Director of The Tallahassee Democrat; Arend Jan Steenblik, a former building superintendent and purchasing manager for The Tallahassee Democrat; Lady Haskins, an accounting clerk at The Tallahassee Democrat and a co-employee of the Petitioner; Bruce Mitchell, the Coordinator for Research Services of the Florida Board of Regents; Robert B. Johnson, the President of Mobile Home Industries; and Gail C. Selvaggio, a former secretary at The Tallahassee Democrat and former co-employee of the Petitioner.
Respondent presented the testimony of the following witnesses: Roger L. Hester, Jr., a former Controller of The Tallahassee Democrat; Evan A. Ray, a former Assistant Controller and present Controller of The Tallahassee Democrat; Walter H. Harwell, Jr., the publisher of The Tallahassee Democrat; and Mary Grabill, the General Accounting Supervisor at The Tallahassee Democrat and a co- employee of the Petitioner, by way of her deposition which was admitted into evidence.
A Joint Composite Exhibit 1 was offered and received into evidence.
Petitioner offered her Composite Exhibit 1 and Exhibits 2, 3 and 4.
Petitioner's Composite Exhibit 1 and Exhibits 2 and 3 were received in evidence. Respondent offered its Exhibits 1, 2 and 3, all of which were received in evidence.
At the close of Petitioner's case in chief, Respondent moved for dismissal of the petitioner's claim of age discrimination. That motion was granted.
Both parties submitted post-hearing proposed findings of fact in the form of a recommended order, and Respondent submitted a memorandum in support thereof. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein or as constituting unsupported argument of counsel or conclusions of law.
Petitioner is a female who was born on September 6, 1930, and who resides in Tallahassee, Florida.
Respondent publishes the Tallahassee Democrat (hereinafter "The Democrat") and maintains its principal place of business in Tallahassee, Leon County, Florida.
Petitioner applied for employment by The Democrat as a bookkeeper and was hired on March 8, 1972. In March, 1975, she was promoted to the position of accounting supervisor. Even after that promotion, her duties consisted primarily of routine bookkeeping. Although varied, her work was not complicated and did not involve complex accounting principles or tax planning.
Petitioner also supervised and trained the accounting clerks in The Democrat's accounting department. Normally, this involved supervising between eight and ten people. The only persons to whom she was subordinate in the department were the Assistant Controller and Controller.
Petitioner has no formal education or training in accounting. She once enrolled in an accounting correspondence course from LaSalle Extension University but never completed the course.
When Petitioner was hired, Bill McMasters was the Controller. Roger Hester became the Controller in February, 1974.
The position of Assistant Controller was instituted at The Democrat in 1972. The first Assistant Controller was Gary Coates. Coates filled in as the Controller between the time McMasters left The Democrat and Hester arrived.
The second Assistant Controller was Hewitt Dupont. Dupont had an accounting degree, had experience with a CPA firm, and was capable of filling in
for the Controller. When Dupont was hired, his salary was $12,000 per year. When he left, his salary was $14,400 per year.
The third Assistant Controller was Peggy Hively. She was qualified to fill in for the Controller. When Hively was hired, her salary was $12,500 per year. When she left, her salary was $16,400 per year.
The fourth Assistant Controller was Evan Ray, who was hired in March, 1979, at a salary of $16,000 per year.
All Assistant Controllers at The Democrat have had degrees in accounting and, in some cases, CPA experience as well.
When Dupont was hired in 1974, Petitioner discussed with Hester the possibility of her being given the Assistant Controller position when it again became open. Petitioner asked if an accounting degree from Florida A & M university would help her secure that position. Hester advised her that he considered a degree in accounting from Florida A & M University to be of negligible benefit. However, he told Petitioner he would consider her the next time the job was vacant if she learned more about depreciation and end-of-the- month functions.
Hester told Petitioner that she should take some accounting courses. However, Petitioner failed to do so.
After Hively was hired as the Assistant Controller, Petitioner again discussed with Hester the possibility of her being given the Assistant Controller position the next time it became open. Hester promised her the position if she would continue to work on her depreciation skills.
When an employee at The Democrat is seeking a promotion or a transfer to another department, it is not necessary for that employee to file a new application with the personnel department in order to be considered for the new position.
During the time Hively held the position of Assistant Controller, she performed many clerical and bookkeeping tasks which could have been performed by the accounting clerks, such as inventories. These functions were performed by the Assistant Controller because there was a limited number of people in The Democrat's work force at that time. By the time Evan Ray was hired, many of these tasks had been reassigned to various accounting clerks.
Mrs. Hively went on maternity leave in 1977. During her absence, her duties were assumed by several other persons, including Petitioner. However, Petitioner did not fill in completely for Hively. Philip Horne, Elke Allen and Mary Grabill also assisted with Hively's duties.
The functions assumed by Petitioner and the accounting clerks were primarily bookkeeping functions. Hester assumed the more complicated Assistant Controller functions himself.
Hively resigned from The Democrat in December, 1978, and her position was vacant for several months. During this time, the Assistant Controller duties were again assumed by several other people, including Petitioner. However, Petitioner did not fill in completely for Mrs. Hively. Philip Horne, Elke Allen and Mary Grabill took over some of Hively's functions. Hester assumed, once again, the more complicated functions of the Assistant Controller.
During the years between the time Hively was hired as Assistant Controller and the time Ray was hired in that position, the operations at The Democrat expanded and became more complex. As a result, the position of Assistant Controller changed as new responsibilities were added. Hester found it necessary to rely more on the Assistant Controller for assistance with the more complicated accounting functions which he had previously done himself.
Petitioner did not have the experience or technical knowledge of higher accounting to adequately perform the Assistant Controller functions as they were when Ray was hired.
Hester considered Petitioner for the job of Assistant Controller when Hively left. However, he concluded she did not have the accounting skills to be able to fill the increased responsibilities of the Assistant Controller's position. He further concluded that it would have taken two to three years to train Petitioner to be able to adequately fill the position. One of the requirements for the Assistant Controller job at The Democrat was the ability to fill in for the Controller when required. Mr. Harwell, the publisher of The Democrat, told Hester that no one at The Democrat other than the person occupying the Assistant Controller position was capable of filling in for the Controller. Harwell instructed Hester that he must select someone for the Assistant Controller position who was capable of assuming the full duties of the Controller.
A degree in accounting was not an absolute requirement for the position of Assistant Controller. The criteria for selection for that position were the ability to perform the complete job of the Assistant Controller and the ability to perform the complete job of the Controller when required.
Petitioner was harsh when correcting employees under her supervision and displayed a weakness in her ability to effectively supervise people in her department. She corrected employees in a loud and abusive manner in front of other people often enough to cause a morale problem in the accounting department.
Evan Ray, the current Controller of The Democrat, was hired as Assistant Controller on March 5, 1979. Ray holds a degree in accounting and business management information systems. He is enrolled in an MBA program. He has managerial experience and experience in computers.
Ray, by virtue of his education and prior experience, was more qualified than Petitioner for the position of Assistant Controller.
Assistant Controllers at The Democrat may fill in completely for the Controller and must be able to handle the Controller's duties. Coates filled in for the Controller after McMasters left The Democrat in December, 1973, until Hester arrived in February, 1974. Ray filled in for the Controller during the interim between Hester and Denise Brooks when she replaced Hester as the Controller of The Democrat.
At the time when Hively left her position as Assistant Controller, Petitioner was not qualified to fill the Assistant Controller position either by experience or by education. She did not have a degree in accounting. She did not have any academic training in accounting. She had not held any position of employment wherein she dealt with any complex accounting procedures, either at The Democrat or at any other employment. In the preceding ten years, Petitioner
had not taken any course work in accounting, had not engaged in any study of accounting at home, had not purchased a book in the accounting field and had not borrowed any book in the accounting field from any library.
Petitioner left a prior place of employment, Mobile Home Industries, because her job had too much pressure to suit her. When she applied for employment at The Democrat, she specifically stated she did not want a job with a lot of pressure. She admits she does not want either the responsibility or the pressure of being the Controller at The Democrat.
According to the 1970 Census, 19,450 of a total work force in Leon County of 43,271, or 44.9 percent, were female.
According to the 1970 Census, 3,825 of a total professional work force in Leon County of 9,676, or 39.5 percent, were female.
According to projections of the Florida Department of Labor and Employment Security for 1979, 16.4 percent of the managerial and administrative work force in Tallahassee was female, and 28.7 percent of the "other professional" work force in Tallahassee was female. Accountants fall within that agency's category of "other professional."
Petitioner's Position at The Democrat is in the officials and management category. In March, 1980, 100 of 264 total employees of The Democrat, or 38 percent, were female; 20 of 48 professional employees, or 41.7 percent, were female; and 9 of 51 managerial and administrative employees, or
17.6 percent, were female. In the accounting department of The Democrat, more than 40 percent of the employees are female.
In October, 1980, The Democrat was 2 to 3 percent below the percentage of females in the Tallahassee SMSA. In the professional and technical and in the officials and managers categories, The Democrat was several percent above the area female work force percentages.
When The Democrat advertises for a position, it advertises in 13 counties in Florida and 3 in Georgia. It also notifies other papers in the Knight-Ridder newspapers chain of the opening.
In 1974, the advertisement for the Assistant Controller position at The Democrat specified "degree preferred." There were 19 applicants for the position, 3 of whom, or 15.8 percent, were female.
In 1975, the advertisement for the Assistant Controller position at The Democrat specified "degree preferred." Three of 5, or 60 percent, of the applicants for the position were female.
In 1979, the advertisement for the Assistant Controller position at The Democrat specified "degree required." Three of 14 applicants, or 21.4 percent, were female.
In 1980, the advertisement for the Assistant Controller position at The Democrat specified "degree required." Five of 20, or 25 percent, of the applicants were female.
In the 4 times that the assistant Controller position at The Democrat has been advertised, 14 of 58 applicants, or 24.1 percent, have been female. When the advertisement for the Assistant Controller position specified "degree
preferred," 8 of 24 applicants, or 25 percent, were female. When the advertisement specified "degree required," 8 of 34 applicants, or 23.5 percent, were female.
Specification of "degree required" in the advertisement for the Assistant Controller position at The Democrat did not have an appreciable effect on the percentage of women who applied for the job or on the percentage of women who were selected.
At the time Evan Ray was hired as Assistant Controller, when Petitioner alleges she was denied a promotion to that position because of her sex and age, there were four persons who had held the Assistant Controller position at The Democrat. These persons were Mr. Coates, Mr. Dupont, Mrs. Hively, and Mr. Ray. One of these 4 persons, or 25 percent, is a female.
Prior to the time Evan Ray was Promoted to the position of Controller at The Democrat, there were three persons who had held the Controller position during Petitioner's employment at The Democrat. One of those persons, Denise Brooks, is a female. When Mrs. Brooks left her position as Controller, her salary was $30,000 per year. Evan Ray was promoted into that position at a salary of $25,000 per year.
Petitioner does not believe that The Democrat discriminates against women in general or against women in the position of Assistant Controller.
Prior to April, 1980, Denise Brooks, the Controller, and Evan Ray, the Assistant Controller, discussed with Harwell, the publisher, and Doris Dunlap, the Personnel Director, the reorganization of the accounting department at The Democrat. The reasons for the reorganization were to distribute the work load more evenly, provide cross-training within the department, relieve the lack of promotability in the department, ease the training burden on Petitioner and provide more effective training, and free Petitioner and two other long-term employees from some of their tasks so they would be able to assist in special projects.
The actual reorganization took place in April, 1980, when Evan Ray was promoted to the position of Controller of The Democrat. As a result of the reorganization, the accounting department was divided into three divisions: advertising accounting, circulation accounting, and general accounting. Petitioner remained in charge of advertising accounting, and Mary Grabill and Marilyn Plaskett were promoted to Petitioner's level as supervisors of the other two divisions. Some of petitioner's previous responsibilities were assigned to Grabill and Plaskett, and Petitioner had fewer people to train and supervise after reorganization.
Even after reorganization, Petitioner continued to have one of the most important positions at The Democrat in which she is responsible for recording approximately 80 to 85 percent of the company's revenue.
When Grabill and Plaskett were promoted, they were given a salary increase. However, even with the increase, they continued to make less than Petitioner. Petitioner's salary was not reduced as a result of reorganization, and it remained higher than the salaries of the other supervisors on her same level. Petitioner continued to receive the third highest salary in the department with only the Assistant Controller and the Controller earning more than she.
Grabill had always been in charge of the monthly payroll, which is confidential, and the quarterly payroll reports. With reorganization, she also assumed the time card payroll done by Petitioner so that one person would have the entire payroll. Petitioner was disappointed that her payroll function was taken from her, and she felt humiliated. She would like to have had certain areas of the accounting department under her responsibility after the reorganization rather than some of the areas she was assigned.
Prior to reorganization, Petitioner was not able, because of time pressures, to do a good job of training new employees. Additionally, Petitioner was required to fill in for anyone who was absent in addition to performing her own duties. The reorganization of the department has helped the department to run more efficiently than before. For example, Petitioner has more time to spend with the people she is responsible for training and can do a better job of training them.
The reorganization of the accounting department was not undertaken to retaliate against Petitioner in any way, but was done solely to improve the efficiency and the managerial accountability of the department.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57, Florida Statutes (1979).
Section 23.167, Florida Statutes (1979), provides, in pertinent part:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensa- tion, terms, conditions, or privileges of employment, because of such indi- vidual's ... sex ... [or] age ...
(7) It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this section.
Petitioner failed to offer, and the record is devoid of any evidence of age discrimination. The only mention of age during the course of this proceeding was Petitioner's testimony as to her own age. Accordingly, Petitioner's claim of discrimination based upon age must be dismissed.
Petitioner's complaint is a private, non-class action employment discrimination claim brought by her as an individual. In such an individual discrimination action, a plaintiff may establish a prima facie case of employment discrimination by showing that (1) he (or she) is a member of a
minority; (2) He applied and was qualified for a position for which the employer was seeking applicants; (3) he was rejected despite his qualifications; and (4) the position remained open, and the employer continued to seek applicants of plaintiff's qualifications. By analogy, these same elements apply to a case of discriminatory failure to promote. Therefore, in order for Petitioner to prove her claim of discriminatory failure to promote based upon her sex, she must prove: (1) that she is a member of a protected class; (2) that she was qualified for the Assistant Controller position; (3) that she was rejected; and
(4) that The Democrat hired a male with the same qualifications as Petitioner possessed. She must show a causal relationship between her status as a female and the denial of the promotion and that she was denied the promotion because of a discriminatory motive in her employer.
The order of proof in a case alleging discriminatory treatment is proof by the employee of a prima facie case, articulation by the employer of legitimate, nondiscriminatory reasons for the employment option taken, followed by proof by the employee that the reasons offered are a pretext for discrimination. The employer need not prove the absence of discrimination but need only articulate some legitimate reason for the action taken. The ultimate burden of proving discrimination remains on the Petitioner throughout the proceeding.
In the case at bar, Petitioner was clearly qualified to perform some of the duties of the Assistant Controller's position at a former time. She was capable of performing, and did in fact perform, some of the bookkeeping duties performed by Hively. However, the duties of the position held by Hively changed substantially when Hively left, and the bookkeeping duties performed by Hively were no longer performed by the Assistant Controller but rather were performed by Petitioner and the clerks Petitioner supervised. Further, every Assistant Controller has been able to fill in completely for the Controller. Petitioner admits she is not able to fill in for the Controller and, moreover, states unequivocally that she does not want the Controller's responsibilities or the pressures that go with that job. In conformance with the Respondent's policy of promoting from within, Respondent's witnesses testified that had Petitioner been capable of fulfilling the duties of the position, a degree in accounting would not have been required of her. However, Petitioner is not qualified to fulfill the requirements of the position of Assistant Controller as the position had evolved since she lacked both the technical skills and the supervisory and management skills required for the position. The person hired for the position, Evan Ray, was far more qualified than Petitioner, and Respondent was clearly justified in hiring someone capable of performing the job duties rather than promoting someone incapable of performing the job duties. Accordingly, Petitioner has failed to show any discriminatory motive in its failure to promote her either because she is a female or because the Respondent discriminates against females in general.
Petitioner's claim that the reorganization of the accounting department was done for the purpose of retaliating against her is unsupported by any evidence. The evidence is uncontroverted that the reorganization eased Petitioner's work load and made it easier for her to more effectively supervise and train a lesser number of accounting clerks than before. After the reorganization, Petitioner remained a supervisor at the same level and continued to make the same salary. Only the Controller and the Assistant Controller earn more money than she in the entire accounting department. She is recognized as holding one of the most important positions at The Democrat. It would appear that Petitioner's real complaint regarding the reorganization of the accounting department revolves around the fact that she is no longer the only supervisor
there and the fact that she was not allowed to pick and choose what duties she might be assigned regardless of any logical placement of those duties within the entire department. Petitioner states that she is embarrassed because she no longer does part of the payroll. The fact that Petitioner chooses to be embarrassed over a work assignment or lack thereof falls far short of establishing a discriminatory motive on the part of the employer. Respondent articulated legitimate reasons for the reorganization, and Petitioner has failed to make even a prima facie showing that the reorganization was done to in any way discriminate against her. In other words, Petitioner has failed to show any causal relationship between her filing her complaint of discrimination against the Respondent and the reorganization of Respondent's entire accounting department.
Based upon the foregoing findings of fact and conclusions of law, it is, therefore,
A final order be entered by the Florida Commission on Human Relations finding that Petitioner, Louise S. Forrest, was not discriminated against on the basis of her sex or age, finding that Petitioner, Louise S. Forrest, was not retaliated against for charging Respondent with discrimination, and dismissing her Petition for Relief with prejudice.
RECOMMENDED this 16th day of September, 1981, in Tallahassee, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1981.
Ben R. Patterson, Esquire Patterson & Traynham
C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee,
Mr. Norman A. Jackson, Executive Director Florida Commission on Human Relations Montgomery Building, Suite 100
