Judges: DIANE K. KIESLING
Agency: Commissions
Latest Update: Sep. 25, 1987
Summary: Whether Respondent, Monsanto Company (Monsanto), engaged in an unlawful employment practice by discriminatorily denying Petitioner, Charles Martin, the right to displace a less senior person in a critical skill secretary position because of sex. Petitioner presented the testimony of Cheryl Love and Charles Martin, together with Petitioner's Exhibits 1-4 which were admitted in evidence. Respondent presented the testimony of Earl Slayton, John Green, Lois Wright, Pamela Reeves, Laura Summers, Fran
Summary: Whether Respondent, Monsanto Company (Monsanto), engaged in an unlawful employment practice by discriminatorily denying Petitioner, Charles Martin, the right to displace a less senior person in a critical skill secretary position because of sex. Petitioner presented the testimony of Cheryl Love and Charles Martin, together with Petitioner's Exhibits 1-4 which were admitted in evidence. Respondent presented the testimony of Earl Slayton, John Green, Lois Wright, Pamela Reeves, Laura Summers, Frances Jernigan, and Paul Ward. Respondent's Exhibits 1, 4-10, 15, and 16 were admitted in evidence. Petitioner presented one rebuttal witness, Linda Greer. A transcript was filed on August 10, 1987. The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.Failure to establish prima facie case where reduction in force eliminated male's job and company refused to let him displace qualified female secretary.
More
vs. ) CASE NO. 87-1489
Respondent. )
Pursuant to notice, a formal hearing was held on July 27, 1987, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
For Respondent: James H. Coil, III, Esquire
Whether Respondent, Monsanto Company (Monsanto), engaged in an unlawful employment practice by discriminatorily denying Petitioner, Charles Martin, the right to displace a less senior person in a critical skill secretary position because of sex.
Petitioner presented the testimony of Cheryl Love and Charles Martin, together with Petitioner's Exhibits 1-4 which were admitted in evidence.
Respondent presented the testimony of Earl Slayton, John Green, Lois Wright, Pamela Reeves, Laura Summers, Frances Jernigan, and Paul Ward. Respondent's Exhibits 1, 4-10, 15, and 16 were admitted in evidence. Petitioner presented one rebuttal witness, Linda Greer.
A transcript was filed on August 10, 1987. The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
Monsanto has both a research and a manufacturing facility at Pensacola, Florida. Employees at the research facility, known as the Technical Center
(Tech Center), and employees at the plant are in separate seniority groups for purposes of layoff and recall.
There are two categories of personnel at the Technical Center: (1) technicians and clericals (non-exempt) and (2) managerial/professionals (exempt).
Petitioner was first employed by Monsanto in the main plant on January 7, 1963, and was transferred to the Technical Center as a Technician on February 3, 1964. He remained a Tech Center employee (minus two years of military service) until his termination on July 7, 1985, retroactive to June 30, 1985.
On May 31; 1985, the Tech Center informed 82 technician and clerical employees, including Petitioner, that, due to economic reasons, they would be laid off or terminated, at their election, effective June 30, 1985.
All but six of the employees to be retained at the Tech Center had more Tech Center seniority than the persons selected for reduction in force (RIF).
In accordance with Monsanto's RIF policy for clerical and technician employees, those six persons were removed from the RIF list because they possessed critical skills Monsanto needed to retain that would take Monsanto an unreasonable amount of time to train others to acquire. Two of these employees were technicians, four were secretaries.
The names of each of the secretaries exempted from the RIF, and the persons to whom they reported, were:
Secretary Boss Title
Frances Jernigan | Dr. Jerry Mullis | Manager of Nylon |
|
| Process Technology |
Laura Summers | Don Martin | Manager of Research |
Pamela Reeves | Bob Estess | Manager of Nylon |
|
| Apparel Development |
Clay Rowel | Earl Slayton | Superintendent of |
|
| Administrative |
|
| Services |
Each of these exempted individuals held either a Secretary I or Secretary II job classification. A Secretary II position is the same basic job as a Secretary I, but carries greater job responsibility than Secretary I.
While not all clerical positions at Monsanto require shorthand or speedwriting skills, the minimum stated qualifications for the Secretary job position, and its predecessor, the Clerk Steno job position, however, have always included dictation through shorthand/speedwriting and typing skills. These prerequisites have been announced in connection with posted job vacancies and the Company is aware of no exceptions that have ever been made to this prerequisite.
The four exempted Secretary positions, in particular, required that the incumbent possess oral dictation skills, and each of the incumbents, in fact, used shorthand in the course of her duties.
A dictation test utilizing any method of shorthand is and has been required for all candidates for Secretary I and II positions and the predecessor Clerk Steno job.
The Secretary job prerequisite of oral dictation skills does not require that any particular technique of shorthand be used to pass the test. Indeed, a number of the posted job vacancy notices for Secretary jobs expressly state that shorthand or speedwriting is acceptable and the test method used by Monsanto to ascertain whether a candidate possesses the oral dictation skills does not ascertain what method is used.
Each of the four secretaries exempted from the RIF had taken the typing and shorthand tests and met the shorthand skill requirement prior to being selected for the Secretary position.
All employees in the RIF group who had more company service than the six with critical skills were advised that they could displace one of the six by taking the test to demonstrate that they possessed the prerequisite skills required for the jobs.
In June, 1985, Petitioner requested to take the skills tests required for one of the four exempted Secretary positions. Petitioner was administered the typing test, which he passed. Beyond this point, the testimony is in conflict, which must be resolved.
Petitioner testified that he never knew that a shorthand or dictation test was required until John Green, the Superintendent of Personnel, told him so, after he had passed the typing test. Petitioner further testified that he knew, and told Green he knew, how to speedwrite, but that Green insisted he must know shorthand and take a shorthand test. Petitioner says that Green refused to allow him to take a dictation test using speedwriting.
Green testified that Martin knew about the dictation test and that Martin told him that he didn't take the dictation test because he wasn't qualified to do so. Martin then argued with Green about whether shorthand was a requirement for a Secretary position, because the secretaries really didn't use shorthand. Green testified that at no time prior to the formal hearing did Martin ever tell him that he could do speedwriting or take dictation and that he wished to take the dictation test using speedwriting.
Lois Wright, who was then the personnel clerk, administered the typing test to Martin. She testified that she did not give him the dictation test because he refused to take it. Martin told her that he could not take the test because he didn't know shorthand. He never mentioned speedwriting or a desire to take the dictation test using speedwriting.
At the formal hearing, for the first time, Martin claimed to know a self-taught form of speedwriting and he now "feels" he could have passed the test using his speedwriting. Martin thinks he can take dictation at 90 words per minute, but at hearing he declined to take the test, claiming he was too tired.
In resolving this conflict, a review of the documents filed by Martin in the course of the proceedings is enlightening. Martin did not claim the ability to take dictation and did not mention speedwriting in his Complaint and Affidavit filed with the Florida Commission on Human Relations. He did not mention either of these matters in his Petition for Relief. His only statements in this regard were that the Secretaries did not use shorthand and that one or two Secretaries did not know shorthand. Martin sought a determination that shorthand was not necessary for the positions in question. The first mention by
Martin that he thinks he could have passed a dictation test, but was refused the opportunity to take one, comes in the formal hearing in this case.
In determining credibility, conflicts in testimony are important. Here, Martin testified that he did not know that a dictation test was required until after he had taken the typing test, passed it, and had gone to Green's office for a meeting on June 28, 1985. However, Martin contradicts himself when he testifies about a June 12, 1985, meeting where the RIF and the ability to displace the critical skills positions was discussed by Green. Martin testified that Green did not mention a dictation test at the June 12, 1985, meeting. Yet, Martin also testified that "when John made that statement in the meeting, I began talking to some of the other secretaries, asking them if they did any shorthand."
It is found that Martin's testimony is inherently lacking in credibility. It conflicts with all of his previous written statements. It is internally contradictory. It is self- serving. The testimony of Green and Wright is consistent and conforms to written job descriptions used by Monsanto for these positions. For these reasons it is found that Martin refused to take a dictation test, never asked to take such a test using speedwriting, has never said he knew speedwriting prior to the hearing, and has not ever shown an ability to pass a dictation test.
All employees identified for RIF were offered the option of being placed on layoff (with recall rights) or terminating (with severance pay).
On June 28, 1985; Petitioner elected (while concurrently filing a written protest) termination with severance pay of $15,036. By agreement with Mr. Green, Petitioner's termination papers were not to be processed until a decision was made regarding his qualifications to claim a secretarial position occupied by a less senior employee.
After reconfirming that dictation skills were a necessary prerequisite, on July 7, 1985, Mr. Green advised Mr. Martin by telephone that, because he did not meet the dictation prerequisite, he was not qualified to replace any of the four secretaries and that, as a result, his termination papers were being processed.
Monsanto's corporate layoff policy for technicians and non-exempt clerical employees provides that "employees will be laid off based on length of Monsanto service starting with the last employee hired except where an employee with longer service is unable to perform in the remaining positions." The policy further provides that more senior employees will be placed in positions held by less senior employees, provided they are judged by the company to be qualified to perform these positions or to be "trainable within a reasonable period of time." This last quoted phrase has been interpreted by the Technical Center to mean that a more senior employee already possessing the minimum prerequisite requirements for a job will be put on the job and allowed a 90-day period within which to receive on-the-job training given by the Company and demonstrate that he or she can successfully perform the job.
The so-called 90-day period does not apply to the acquisition of prerequisite skills -- such as typing and shorthand -- which cannot be acquired in such short period of time and for which the company is not prepared or qualified to offer on-the-job training.
Petitioner was not offered a 90-day training period to acquire the prerequisite oral dictation skills because the policy did not apply to his situation. Moreover, he did not request that he be given the opportunity to demonstrate later that he had acquired the dictation skills, or at any time subsequent to July 7, 1985, inform Monsanto that he had learned the necessary dictation skills.
No secretary with less seniority than Petitioner was retained at the Tech Center who did not already possess prerequisite shorthand or speedwriting skills.
No person scheduled for RIF at the Tech Center was given a 90-day training period to acquire the prerequisite skills for one of the exempted jobs.
Monsanto required nothing of Petitioner that it has not required of every female who wanted to be a Secretary.
Monsanto employs at least one male clerk typist.
At the time of Petitioner's termination, Monsanto employed at least eleven female supervisors who had males reporting to them.
Linda Greer was an employee laid-off in the same RIF as Petitioner. She was originally hired as a Clerk Steno in the plant in 1964. At that time, she had to pass a shorthand test to get the job. In 1972, Greer transferred to accounting. In 1979 she transferred to the Tech Center as an accounting clerk. Ms. Greer stated that she did take some dictation as a stenographer, but did not take shorthand and that shorthand was not a critical skill. However, Ms. Greer's testimony has little probative value since she never worked as a Secretary I or II in the Tech Center.
Petitioner was not allowed to displace a less senior secretary exempted form the RIF solely because he did not satisfy the necessary prerequisites for a Secretary I or II position. These reasons are actual and not pretextual.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person with respect to terms or conditions of employment because of such individual's sex.
The ultimate burden of persuasion is on Petitioner to demonstrate by a preponderance of the evidence that Monsanto refused, because of his male sex, to allow him to displace an admittedly qualified, but less senior, incumbent in one of four Secretary positions that were exempted from the May, 1985, reduction in force.
Discrimination denotes disparate treatment; i.e., that the employer treated employees of one sex differently than it treated employees of the opposite sex. In a discrimination case the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate
some legitimate reason for the Petitioner's disparate treatment. Should Respondent carry this burden, Petitioner must then have an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not his true reasons, but were a pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct.
1089, 1093 (1981).
To present a prima facie case, the Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254. The prima facie case serves to eliminate the most common non-discriminatory reasons for the Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44, 97 S.Ct. 1843, 1866 (1977).
In order to establish a prima facie case Petitioner must show: (1) that he is in a classification covered by Section 760.10; (2) that he was qualified for the position in question; and (3) that despite his qualifications he was treated in a discriminatory manner. Cf. McDonnel Douglass Corp. v. Greene, 441 U.S. 792, 93 S.Ct. 1817 (1973).
Monsanto had a legitimated job-related requirement that a candidate for the exempted Secretary positions must possess the ability to take oral dictation at a rate of at least 80 words per minute and that a candidate must demonstrate the possession of this skill prerequisite by successfully passing a dictation test using any method of transcription desired.
Petitioner has not demonstrated that this standard was applied toward him in a fashion different from what applied to all female candidates for Secretary positions in general or the four exempted Secretary positions in particular.
Petitioner has not demonstrated with sufficient credible evidence that he, in fact, possessed the ability to transcribe oral dictation at 80 words per minute in May, 1985. Therefore, he has failed to establish the essential elements of a prima facie case, that he was qualified for the job and that he was treated differently from other similarly situated females.
In any event, even if Petitioner had produced evidence sufficient to establish a prima facie case of sex discrimination, Respondent has articulated and substantiated a legitimate, nondiscriminatory reason for refusing to allow him to displace one of the exempted secretaries. The evidence shows that Petitioner refused the opportunity to take, and thus failed to pass, the dictation test required of all candidates for a Secretary I or II position.
The Petitioner has presented no persuasive evidence that the reason articulated by Monsanto is a pretext for discrimination because of his sex. Monsanto's RIF policy was not applied to Petitioner in a fashion that was different than the way it was applied to females and there is no other credible evidence to suggest that the Company intentionally refused to allow him to displace one of the incumbents because of the fact that he is a male.
Petitioner has not established that his sex was in any way a factor in Respondent's decision not to allow him to displace a Secretary with critical skills needed by Monsanto. The evidence in this case simply fails to establish that the Respondent discriminated against Petitioner because of sex.
Accordingly, Petitioner has failed to satisfy his burden of proof that Monsanto engaged in an unfair employment practice.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final
for Relief.
DONE AND ORDERED this 25th day of September, 1987, in Tallahassee, Leon County, Florida.
DIANE K. KIESLING
Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1987.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-1489
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on the proposed findings of fact submitted by the parties in this case.
James H. Coil, III, Esquire 3100 Equitable Building
Donald A. Griffin Executive Director Florida Commission on
Sherry B. Rice, Clerk Florida Commission on
