STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN SCHMERMUND, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2913

)

HYGROPONICS, INC., )

)

Respondent. )

and )

) RICHARD E. WILLIAMS, Executive ) Director, FLORIDA COMMISSION ON ) HUMAN RELATIONS, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on September 10, 1982, in Panama City, Florida.

APPEARANCES

For Petitioner: James H. White, Jr., Esquire

229 McKenzie Avenue

Panama City, Florida 32401

For Respondent: John F. Daniel, Esquire

Post Office Box 2522

Panama City, Florida 32401

For Intervenor: Dana Baird, Esquire

Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301

On May 12, 1980, Petitioner filed a complaint with the Florida Commission on Human Relations, alleging that Respondent discriminatorily discharged her on the basis of her sex. On September 16, 1981, a panel of the Human Relations Commission entered an order finding that there was reasonable cause to believe that Respondent had committed an unlawful employment practice within the intent and meaning of Section 23.167(1), Florida Statutes.

After the parties failed to conciliate or informally resolve their dispute, Petitioner filed a Petition for Relief with the Florida Commission of Human Relations on November 12, 1981. Thereafter, the petition was forwarded to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a formal hearing.

Final hearing was initially scheduled for March 11 and 12, 1982. Upon Joint Motion for Continuance, the hearing was continued and rescheduled for May

20 and 21, 1982. Thereafter, at the request of Respondent, and without objection from any of the other parties to this proceeding, the hearing was again continued and reset for September 2 and 3, 1982, by Notice of Hearing dated June 11, 1982.

At the final hearing, Petitioner testified in her own behalf, and called Nell Skeen, Norma Faircloth, Steve Schmermund, and Richard L. Destival as her witnesses. Petitioner offered Petitioner's Exhibits A through E, and G through H, which were received into evidence.

Respondent called Lynn Munyon, Marvin F. Gench, Jim Dickerson, Marsha Mongoven, Arlene Howard, Richard Jeffery, Emmett Singleton, Eugene A. Crist, and Nary Helen Dutton as its witnesses. Respondent offered Respondent's Exhibits A through O, which were received into evidence.

The Hearing Officer received Hearing Officer's Exhibit A into evidence, and took official notice that (1) pregnancy is a condition unique to the female sex; and (2) the ability to become pregnant is a primary characteristic of the female sex.

Counsel for each of the parties in this proceeding have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as either being irrelevant to the issues involved in this proceeding or as not having been supported by evidence of record.

FINDINGS OF FACT

1. On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc.

   
   

2. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance.

   
   

3. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit.

4. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979:

   
   

   HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART

   
   

   | President |

   /| W. J. Crist |\

   / | | \

   / | \ \

   \

   | Purch. Agent | | Controller | \ | Technical Service |

   | Dick Destival | | James Jobe |" \ | Dick Jeffery |

   | | | | "" \ | |

   " / | | " "\ |

   " / | | " \" |

   " / | | " \ " |

   " / | | " \ " |

   " / | | " \ " |

   " / | | " \ " |

   " / | | "\ "|

   
   

   | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy |

   | | | | | | | | | | | |

   
   

   /|\ Direct lines of authority.

   Answerable to this person at all times

   
   

   " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available.

   
   

5. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems.

   
   

6. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller.

   
   

7. Emmett Singleton was hired to fill the position of controller on October 29, 1979.

   
   

8. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an

   eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled.

   Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". .

   .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80."

   
   

9. In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position.

   
   

10. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager.

    
    

11. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child.

    
    

12. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work.

    
    

13. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state.

14. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton.

    
    

15. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist.

    
    

16. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows:

    
    

    It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she:

    
    

    "by-passed you, her immediate superior and by-passed me, her next-in-line superior."

    
    

    and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore."

    
    

    I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems.

    
    

    1. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist.

       
       

    2. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager.

       
       

    3. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has

    she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.)

    
    

17. The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone.

    
    

18. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems.

    
    

19. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

21. The Florida Commission on Human Relations is charged with the duty of enforcing the Human Rights Act of 1977, codified at Sections 23.161-23.167, Florida Statutes, Section 23.167, Florida Statutes, provides, in part, as follows:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's

          . . .sex. . .

          
          

22. Hygroponics, Inc., is an "employer" within the meaning of Section 23.162(6), Florida Statutes, and is thereby subject to the requirements of the Human Rights Act of 1977.

23. The Human Rights Act of 1977 was patterned after and contains language markedly similar to that contained in Title VII of the Federal Civil Rights Act of 1964, as amended. Thus, as pointed out by the court in Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 4th DCA 1977):

    
    

    If a Florida Statute is patterned after a Federal Law, on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the Federal courts, insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject.

    
    

24. Thus, in Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089 (1981), the Supreme Court of the United States, in construing Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e, et seq., pointed out that:

    
    

    In McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving this prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection'. . .Third, should the defendant carry the burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination

    . . .The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the tryer of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. . .

    
    

    . . .We have stated consistently that the employee's prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the tryer of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. . .at 1096.

    . . .When the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions.

    . .at 1097.

    
    

25. In the instant case, Respondent has demonstrated legitimate nondiscriminatory reasons for Petitioner's discharge, and has therefore overcome any circumstantial evidence from which it could be concluded that Petitioner's termination was sex-related. Petitioner has failed to bear her burden of demonstrating that these legitimate reasons were but a pretext for discrimination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice.

DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983.

COPIES FURNISHED:

James H. White, Jr., Esquire

229 McKenzie Avenue

Panama City, Florida 32401

John F. Daniel, Esquire Post Office Box 2522

Panama City, Florida 32401

Dana Baird, Esquire

Florida Commission on Human Relations

2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301

Richard E. Williams Executive Director Florida Commission on

Human Relations

2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301

Docket for Case No: 81-002913

Orders for Case No: 81-002913