STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCE A. DYKES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2191

)

QUINCY TELEPHONE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on December 7, 1984, in Quincy, Florida.

APPEARANCES

For Petitioner: Paul D. Srygley, Esquire

Caminez & Srygley, Attorneys at Law 1030 East Lafayette Street, Suite 101

Tallahassee, Florida 32301

For Respondent: Blucher Lines, Esquire

Lines, Hinson & Lines, P.A. Post Office Box 550 Quincy, Florida 32351

ISSUE

The issue presented for decision herein is whether or not Petitioner was unlawfully discriminated against, by being separated from her employment with Respondent, because she sustained a back injury which Respondent perceived as a potential problem and whether she was the subject of disparate treatment as relates to the treatment Respondent afforded its other employees.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

   
   

2. Petitioner, Joyce A. Dykes, was employed by Respondent, Quincy Telephone Company, for a period of approximately thirteen (13) years where she served as a service representative/cashier and an operator.

   
   

3. Petitioner was laid off on May 27, 1983 based upon a company-wide employment reduction mandated by economic factors.

4. Prior to her employment with Respondent, Petitioner was formerly employed as a bookkeeper with Higdon Furniture Company for approximately 17 years.

   
   

5. Petitioner's first date of employment with Respondent was September 28, 1970. Approximately 7 years later, i.e., on November 21, 1977, Petitioner, during the course of her duties as an operator, left her work area and, upon return, sat down in a chair which she described as "wobbly." Petitioner fell backwards from the chair and "landed on her buttocks." Ann Kirkland, a fellow employee, was summoned to the scene of the incident and took Petitioner to the hospital for an examination. Petitioner stayed in the hospital approximately 3 days and returned to work.

   
   

6. Since she returned to work, Petitioner has not requested any special treatment such as a convenient parking space, less strenuous duties or other more favorable treatment based on her "back problem."

   
   

7. Petitioner expressed that she was leery of complaining to Respondent, and/or its agents, based on her back problem and therefore refused to make noises about that problem.

   
   

8. During the summer of 1981, Petitioner experienced a traumatic incident involving the drowning of her son at the pool of a local motel. Petitioner's fellow employees, including Bladis Crow, an employee of Respondent during December, 1980 to October, 1981, and who was in overall charge of Petitioner, attempted to console her during her period of mourning by suggesting that she return to work where she would be in the company of fellow employees who could console her during this low period in her life.

   
   

9. During the period of 1980-81 when Petitioner was under the supervision of supervisor Crow, she was "cross-trained" such that she could fill in for other employees during periods of other employee absences including vacations and other leaves.

   
   

10. Petitioner, like other employees who were "cross-trained" did not like the idea of learning new tasks and being assigned to perform other duties temporarily.

    
    

11. Supervisor Crow perceived Petitioner to be a valuable employee and considered that she got along well with other employees.

    
    

12. One other employee, Eunice Hancock, a cashier and service representative, recalled Petitioner bringing in a heating pad and, on occasion, voicing complaints about a backache.

    
    

13. During her period of employment with Respondent, Petitioner was perceived as a divisive employee in the minds of Respondent's managerial employees. (Testimony of supervisor Geary 1/; Lila D. Corbin, president and general manager; and Ann Kirkland, a former supervisor and business representative). Petitioner was viewed as an employee with a morale problem and often appeared unhappy and was a source of constant bickering between other employees.

    
    

14. Petitioner was reprimanded by Bill Geary, who served as Respondent's supervisor for approximately one year from mid-1982 to the time of her layoff on May 26, 1983.

15. Supervisor Geary interviewed Petitioner respecting a written reprimand he issued her on January 21, 1983. All of the items listed on that reprimand were discussed with Petitioner. Among the items discussed were Petitioner's fellow employees' complaints about her activities including moodiness, low morale and other problems dealing with the quantity and quality of Petitioner's work. Throughout the discussions with supervisor Geary, Petitioner repeatedly attempted to digress from the purpose of her interview and attempted to compare her work with that of other employees.

    
    

16. From the time that Petitioner was employed by Respondent, Respondent has undergone three changes of ownership and is presently owned by Teledata Systems (TDS). With the change in ownership by TDS, a number of changes were instituted, some of which stem from the deregulation of the telephone industry. Upon becoming the owner, TDS immediately commissioned an overall forecast study of the operations in Quincy. Following that study, TDS determined that cutbacks in operating costs were necessary to insure profitability. The decision was therefore made to reduce employees and, in some instances, to reclassify positions or redefine the duties of its employees. In keeping with that goal, TDS, through its management, issued a directive to implement a work force reduction during May of 1983.

    
    

17. Ms. Corbin, then the president and general manager, first learned of TDS' plans to institute the work force reduction during March of 1983. The plan was divulged to other supervisory and management employees during the week of approximately May 22, 1983.

    
    

18. Pursuant to the company-wide reduction plan, TDS determined that of its complement of 83 employees when it took over during January of 1983, the work force needed to be reduced by approximately 11 employees. When the policy directive was issued to managers and supervisors, they were told to rid themselves of employees who did not meet certain criteria deemed critical by management such as the skills of each employee; the difficulty in replacing certain skilled employees and in training replacements; customer relationship; productivity level; ability to learn new skills; ability for overtime work, if and when needed; attendance; salary level; ability to work as a member of a new organizational structure and to be a team player; and the overall attitude toward company, customer and fellow employees. (Respondent's Exhibit 1) Those employees considered as fitting within the category of employees needing to be laid off were employees who came in late and left early; were repeatedly absent; performed sloppy work; wasted time and material; engaged in personal telephoning; stretched breaks and lunch hours; spent too much time in the washrooms and talked to other employees about personal activities; rudeness that causes customer irritation and costly work errors. (Respondent's Exhibit 1)

    
    

19. During the time when the work force reduction was implemented, Petitioner was on vacation. Prior to that time, she had been afforded training as a keypunch operator. Of the 3 employees who were given keypunch training with Petitioner, Petitioner was tested as having the least leadership skills of the three.

    
    

20. When the work force reduction was implemented, 11 employees were laid off. Presently that number has increased from 11 to 19. The only area where there has been one (1) employee hired is an employee trained to operate the Respondent's "complex" PBX and PABX systems.

    
    

21. It is true that there were employees with less seniority than Petitioner who were retained, however seniority (length of service) was

    considered to be only a factor if it is also indicative of the experience gained and versatility (of the employee). Respondent considered that there were other factors more paramount which would influence the retention decision. (Respondent's Exhibit 1, paragraph 2)

    
    

22. Respecting Respondent's claim that the Respondent perceived her back injury as a handicap or a potential problem, the evidence fails to sustain her claim in that regard. What the facts show is that while Petitioner did sustain an on-the-job injury during 1977, evidence fails to support Petitioner's claim that the injury was perceived the Respondent as a problem it needed to rid itself of or that it was a physical handicap which could or would be the source of a problem for Respondent. Noteworthy is the fact that Petitioner never requested any preferential treatment in her job assignments based on this claimed handicap other than one isolated incident wherein she spoke to her then- supervisor Geary at the time that she was asked if she desired training as a keypunch operator. For all of these reasons and the wide range of layoffs implemented by this Respondent during May of 1983, Petitioner's claim does not appear meritorious but was rather necessitated by changes in the telephone industry which continues today to have an economic impact on the Respondent. Respondent developed nondiscriminatory criteria which were given to all management types to use in determining what employees should be retained. The criteria was not designed to weed out or eliminate troublesome employees but, rather, to determine those employees to be retained and the criteria which guided that retention decision. That decision appeared to have been based solely on economic and business decisions of the Respondent company as a whole. 2/ Petitioner failed to establish that she was the subject of unlawful disparate treatment.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1) and Chapter 760, Florida Statutes, and Rule Chapters 22T and 28-5, Florida Administrative Code.

   
   

2. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

3. Insufficient evidence was offered herein to establish that the Petitioner was unlawfully discriminated against in her employment relationship with Respondent based on what Respondent perceived to be a back injury and, therefore, a potential problem, or that she was otherwise the subject of disparity in treatment as relates to the treatment given other employees. Evidence reveals that the Petitioner's layoff was based upon a company-wide employment reduction mandated by economic factors.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice.

RECOMMENDED this 25th day of March, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 25th day of March, 1985.

ENDNOTES

1/ Geary left the Respondent's employ during April of 1984 and he is presently the executive vice-president and general manager of the telephone company in Alma, Georgia.

2/ Petitioner's other claim that she was being discharged or laid off because she had mentioned union was not substantiated during the hearing. In any event, such a claim is more properly considered by the filing of a charge with the Public Employees Relations Commission under Chapter 447, Florida Statutes.

COPIES FURNISHED:

Paul Syrgley, Esquire

Caminez & Srygley, Attorneys at Law 1030 E. Lafayette St., Suite 101

Tallahassee, Fl. 32301

Blucher Lines, Esquire Lines, Hinson & Lines, P.A.

P.O. Box 550 Quincy, Fl. 32351

Donald Griffin Executive Director

Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Fl. 32303

Docket for Case No: 84-002191

Orders for Case No: 84-002191