STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRI TRIBBLE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2866

) RETIREMENT ACCOUNTS, INCORPORATED, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for final formal hearing in Orlando, Florida, on October 30, 1986, before Ella Jane P. Davis, duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Terri Tibble pro se

3040 Aloma Avenue, Apt. J-9 Winter Park, Florida 32792

For Respondent: Thomas R. Pepplar, Esquire

Graham, Clark, Pohl & Jones

369 N. New York Avenue Post Office Drawer 1690

Winter Park, Florida 32790

The Petitioner testified on her own behalf and had admitted 3 exhibits.

The Respondent presented oral testimony of John R. Christman, Walter E. Wilfong, and Sandra Howell and offered no exhibits.

No transcript was provided.

Petitioner waived filing post-hearing proposals. The Proposed Findings of Fact of the Respondent have been considered and are ruled on in the appendix hereto pursuant to Section 120.59(2).

FINDINGS OF FACT

1. Petitioner was a lead operator on the first shift of the data entry section of Respondent company. Mr. John Goolsby was also a lead operator but on the second shift in the data entry section. Petitioner was discharged due to elimination of the position of lead operator and Mr. Goolsby was not. During the period encompassing the elimination of Petitioner's job, Respondent reduced its staff from 73 to 57 people and the data entry staff was reduced from 12 to less than 8 people.

   
   

2. The decision as to which lead operator in the data entry section would be released from employment was based upon a decision to keep the most

   productive employee on the basis of quality and quantity of work. Although both the Petitioner and Mr. Goolsby were satisfactory employees, the most productive individual was identified through a series of evaluations by interviewing management personnel to Mr. Christman, Respondent's Executive Vice-President.

   
   

3. Probably the most significant- input in the decision-making process was from Sandra Howell, immediate supervisor of both Petitioner and Goolsby, and the tabulations and comparisons of data were done by Walter E. Wilfong, Operations Manager. They all identified John Goolsby as the most productive individual and the decision to release Petitioner was made by Mr. Christman. At the time she was released, the company had no alternative position to offer Petitioner. She has since been offered reemployment in a different position.

   
   

4. Petitioner was unable to establish that in making their recommendations to Mr. Christman either of the middle managers gave special or undue consideration to Mr. Goolsby's school schedule.

   
   

5. Petitioner never received any written complaints or warnings or reprimands about her work performance and it was unrebutted that her job performance was satisfactory.

   
   

6. Petitioner testified that the comparison of production between herself and Mr. Goolsby was invalid because Mr. Goolsby worked the night shift and Petitioner worked the day shift. Witnesses for the Respondent conceded that the night shift was generally not as productive as the day shift. However, the immediate supervisor of both the Petitioner and Mr. Goolsby both before and Mr. Goolsby after Petitioner's termination testified that Mr. Goolsby's work quality and quantity was superior to that of the Petitioner. This testimony was unrebutted. In addition, it was unrebutted that Mr. Goolsby had been nominated for company-wide awards for his quality as an employee on several occasions both before and after the Petitioner's termination and the Petitioner had never been nominated.

   
   

7. Although there is some indication in Mr. Wilfong's testimony that Mr. Goolsby had the "edge" with him because Wilfong wanted someone who could communicate with Wilfong for liaison between various shifts, the evidence falls short of establishing this consideration was a deciding factor or that any edge was given Goolsby in the evaluation reports. Further, Wilfong attempted to compensate for Goolsby's showing greater productivity due to the "less people- more work" element of the night shift by reviewing Petitioner's productivity records from then she had previously been on the night shift, which did not compare favorably with Goolsby's for quantity.

   
   

8. There is no competent evidence that Respondent terminated Petitioner on the basis of her gender, female, by the ruse of eliminating her position. Further, at the date of formal hearing, Mr. Goolsby's supervisor remained female (Sandra Howell) and there are 6 female/6 male supervisors and a higher female to male ratio of the total 57 retained employees.

   
   

   CONCLUSIONS OF LAW

   
   

9. There is no reasonable cause to believe Respondent has discriminated against Petitioner on the basis of her sex (gender) FEMALE.

   
   

10. There is a prima facie violation of the Human Rights Act of 1977, Section 760.10 F.S. (1985).

11. Respondent has articulated and substantiated legitimate, nondiscriminatory reasons for the actions complained of.

    
    

12. Petitioner has not shown the reasons to be pretextual.

RECOMMENDATION

It is recommended that the Human Relations Commission enter a final order dismissing the Petition/Complaint herein.

DONE AND ENTERED this 4th day of November, 1986, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 4th day of November, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2866

All of the Respondent's Proposed Findings of Fact are accepted. All are adopted, as modified to conform more closely to the record in this cause.

COPIES FURNISHED:

Ms. Terri Tibble

3040 Aloma Avenue, Apt. J-9 Winter Park, Florida 32791

Thomas R. Pepplar, Esquire Graham, Clark, Pohl & Jones

369 New York Avenue Post Office Drawer 1690

Winter Park, Florida 32790

Dana Baird, Esquire General Counsel Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Donald A. Griffin, Executive Director Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32299-1570

Docket for Case No: 86-002866

Orders for Case No: 86-002866