STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN J. AUSTIN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5137

) FLORIDA POWER CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on February 14, 1991 in Crystal River, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Karen J. Austin, pro se

108 Mount Hope Drive

Albany, New York 12202-1010 1/

FOR RESPONDENT: J. Lewis Sapp, Esquire

and

Sharon P. Morgan, Esquire Elarbee, Thompson & Trapnell 800 Peachtree-Cain Tower

229 Peachtree Street, N.W. Atlanta, Georgia 30303

STATEMENT OF THE ISSUE

Whether or not Respondent employer has committed an unlawful employment practice in violation of the Human Rights Act of 1977, as amended, by termination of Petitioner's employment on the basis of her sex (female) or by retaliatory discharge for Petitioner's participation in another female employee's Equal Employment Opportunity Claim.

PRELIMINARY STATEMENT

At the commencement of formal hearing, Petitioner's Motion to Dismiss was treated as a motion to strike and was granted. (TR 8-9)

Respondent's Motion to Dismiss was treated as a motion in limine and was granted to exclude the presentation by Petitioner of any evidence of discrimination on the basis of pregnancy, race, marital status, or handicap, because Petitioner had raised none of these charges timely under the applicable statute and rules governing charge, petition, and amended petition before the Florida Commission on Human Relations. Consequently, the Respondent had no opportunity to investigate and defend against those new charges at the

Commission level and the Commission had no opportunity to investigate and review those new charges before referring this matter to the Division of Administrative Hearings. (TR 19-34) See, Section 760.10 F.S. and Rules 22T-8.009, 22T-8.017, 22T-9.001(2), (7)(c) F.A.C.

Petitioner made and withdrew an oral motion to recuse the undersigned. (TR

5-7)

The parties stipulated to a number of facts. (TR 9-11) The stipulated

facts which were relevant, appropriate, and necessary have been incorporated in this Recommended Order.

Petitioner presented the oral testimony of Edna Jones, John Price, J. D. Stephens, Lynne Graves-Donaldson, Dorothy Wertz, Ed Carnahan, and Talesa Lloyd.

Petitioner had admitted in evidence Exhibits P-1 and 3A. Petitioner's Exhibits P-2, 3 (other than A), 4, 5, 6, 7, and 8 were not admitted. (TR 141- 146, 288) Petitioner's Exhibit 3A was to be substituted for P-3. It was not substituted, but it is clear on the record (TR 58-59, 144) which portion of Exhibit P-3 could properly be considered, and the undersigned has considered that portion.

Respondent presented no oral testimony beyond its cross examination of Petitioner's witnesses. Respondent's Exhibits RX-1, 2, 3, 4A-T, 5, and 6 were

admitted. (TR 20, 188-190, 288)

Respondent provided a transcript, filed March 29, 1991. After several agreed and ratified extensions of time, Respondent filed its proposed recommended order on April 26, 1991, the proposed findings of fact of which have been ruled on in the appendix to this Recommended Order, pursuant to Section 120.59(2) F.S. Despite an order of instructions in how to do so, Petitioner filed no post-hearing proposals.

FINDINGS OF FACT

1. Respondent Florida Power Corporation (FPC) is an electrical utility engaged in the generation, transmission, and distribution of electricity. At all times material, it qualified as an "employer" under the relevant statutes.

   
   

2. Petitioner Karen Austin, a white female, was initially employed by FPC in May 1985 at its Crystal River, Florida, production site.

   
   

3. The Crystal River production site consists of five generating units-- one nuclear unit and four coal-fired units. The coal-fired units are Units 1 and 2 located on the south side and Units 4 and 5 located on the north side.

   
   

4. FPC maintains a five-shift rotation in coal handling with a shift supervisor responsible for each shift of employees. The five shift supervisors report directly to John Price, Site Operations Superintendent, who is responsible for all coal handling operations at the Crystal River site. Mr. Price reports to Ed Carnahan, Crystal River Coal Plant Site Support Manager, and Mr. Carnahan reports to R.C. Bonner, Site Director, Fossil Operations. Danny Douglas, Assistant Site Support Manager, is also a supervisor of Mr. Price.

5. From June 1987 until her termination from employment on October 13, 1988, Petitioner worked as an assistant fuel handler, which is the entry level position in the coal handling department. She was the only female in this job description on her shift.

   
   

6. Lynn Graves-Donaldson testified to overhearing some generalized adverse comments from unidentified male shift supervisors and coworkers about not wanting to train or work with a female when Petitioner was promoted in 1987 to assistant fuel handler.

   
   

7. While employed as an assistant fuel handler, Petitioner reported directly to J. D. Stephens, who reported directly to John Price.

   
   

8. Petitioner's employment relationship with FPC was regulated by the collective bargaining agreement between FPC and the International Brotherhood of Electrical Workers (IBEW).

   
   

9. In January 1988, John Price and other management personnel began receiving telephone calls from local businesses complaining that Petitioner had written and given them bad checks.

   
   

10. Writing bad checks is a violation of FPC policy. Section 7.3 of FPC's Human Resources Manual states, "Employees who do not handle their personal or financial affairs without reflecting discredit upon themselves and the company are not desirable employees, and are, therefore, subject to discharge." The codified policy does not facially discriminate, by sex or otherwise, against any employee or class of employee.

    
    

11. As one of the largest employers in Crystal River, a small community, FPC attempts to maintain good community relations with its "clients." Due to its self-cast good neighbor/good utility role, FPC pays greater attention to the private, off-job site activities of its employees than many other employers would. In so doing, its management personnel regularly rely on hearsay in the nature of complaints, gossip, and newspaper articles in the administration of its policy codified in the FPC Human Resources Manual.

    
    

12. FPC tries to follow a progressive discipline procedure, depending on the severity of the offense against its codified policy. With employee problems such as writing bad checks, the steps generally consist of an informal talk by the employee's immediate supervisor; a counselling session; an oral reprimand; a written reprimand; and suspension without pay and/or termination.

    
    

13. On one occasion, John Price counselled a male employee (race not in evidence) concerning bad checks, and that employee paid up with no further disciplinary action. FPC has also discharged male employees for violations of its policy. Richard Brown (Black male) and Richard Frankie (white male) were discharged by FPC on February 6, 1985 and May 5, 1986, respectively, for failing to handle their financial affairs without reflecting discredit upon themselves and the company. The precise job status of these male employees is not in evidence, but all employees, regardless of job description, are subject to the rules and policy contained in the FPC Human Resources Manual, and so these employees may be considered employees who are "substantially similar" to the Petitioner for purposes of this proceeding.

14. After receiving the initial complaints about Petitioner's financial affairs, John Price asked J. D. Stephens, Petitioner's immediate supervisor, to discuss the problem with Petitioner. Mr. Stephens subsequently reported back to Mr. Price that he had talked with Petitioner on February 23, 1988 and she agreed to take care of the debts occasioned by her bad checks. However, weighing the credible evidence as a whole, it is found unlikely that such a conversation ever occurred between Mr. Stephens and Petitioner or at least that it occurred on that date. In the course of his testimony, Mr. Stephens' candor and demeanor on this subject did not comport with that of a truthful person. Moreover, in the course of hearing, it became clear that Mr. Stephens had made false reports or had failed to transmit relevant employee information to Mr. Price on other occasions. Also, Petitioner was not regularly on the plant premises during this period of time due to her recuperation from a work-related hiatal hernia. Nonetheless, Mr. Price believed Mr. Stephens' representation at the time it was made in February or March of 1988.

    
    

15. In February 1988, FPC had received a complaint from The Jeanery that Petitioner had written that business a check on a closed account. The Jeanery made a second complaint to FPC by letter dated March 3, 1988, and since Petitioner had failed to correct the problem, Mr. Price personally conducted a counseling session with Petitioner on March 31, 1988 to discuss the complaint from The Jeanery and the other complaints that FPC had received from local businesses.

    
    

16. At their March 31, 1988 meeting, Mr. Price showed Petitioner Section

    7.3 of FPC's Human Resources Manual which states that employees who fail to handle their financial affairs without reflecting discredit upon themselves and the company will be subject to discharge. Petitioner acknowledged to Mr. Price that she understood FPC's policy and would take care of the debt to The Jeanery.

    
    

17. Following their March 31 meeting, Mr. Price received additional complaints from local businesses that Petitioner was continuing to write bad checks. On May 31, 1988, Mr. Price received a complaint from Jan's Uniforms that Petitioner had written that business a bad check. Mr. Price also received similar complaints from the Denim Patch, Cindy's Beauty Salon, Chest and Drawers, and Publix Supermarket.

    
    

18. On July 6, 1988, FPC received a complaint from Joan's Consignment Boutique that Petitioner had written that business a check on an FPC credit union account which had previously been closed.

    
    

19. Two days later, on July 8, 1988, Mr. Price received a bad check complaint from One Hour Photo.

    
    

20. After receiving the call from One Hour Photo, Mr. Price called Petitioner, informed her of the complaint, and told her to go pay the debt.

    
    

21. On July 9, 1988, Mr. Price received a complaint from Meineke Muffler that Petitioner had written that business a check on a closed account.

    
    

22. Due to the number of bad check complaints since the March 31 meeting, Mr. Price determined that further disciplinary action against Petitioner was warranted. He scheduled a meeting with Petitioner, J. D. Stephens, and Sid Miller, Petitioner's union representative, on July 11, 1988 at 10:45 a.m.

23. During this meeting, Mr. Price explained to Petitioner that FPC had received numerous complaints since their March 31 meeting, and he provided her copies of some of his notes detailing the complaints. Petitioner established that Mr. Price did not give Petitioner all of his notes, but that fact is not dispositive in this proceeding since it does not substantially affect the situation for which he ultimately held Petitioner responsible. (See, Findings of Fact 37-41, infra.) Mr. Price also issued Petitioner an oral reprimand and told her that her job was in jeopardy if she did not straighten out her bad check problem.

    
    

24. Petitioner told Mr. Price during their July 11 meeting that she was not writing the bad checks and that the checks were being written by her husband or his girlfriend.

    
    

25. Although Mr. Price told Petitioner that the checks were in her name and it was her responsibility to correct the problem, Mr. Price later the same day telephoned Claudia Keiser with One Hour Photo to verify whether Petitioner had written the bad check. Ms. Keiser described the Petitioner as the person who had written the check and also gave Mr. Price the driver's license number that had been given to her by the party who had written the check. Mr. Price confirmed to his satisfaction that the number given him by Claudia Keiser was Petitioner's driver's license number. Mr. Price also contacted Jan's Uniforms to verify that it was Petitioner who had actually written the bad check to that business and was satisfied after that telephone conversation that Petitioner had, indeed, given the foregoing businesses the bad checks they had complained about to FPC. Without making further inquiry, John Price also extended his disbelief of Petitioner's explanation concerning her husband and his girlfriend to all the other complaints against Petitioner of which he was aware, which disbelief contributed to his growing impression that Petitioner was not cooperating in resolving her bad check problem.

    
    

26. Despite the issuance of the July 11 oral reprimand to Petitioner, FPC received additional complaints from One Hour Photo on July 11, Meineke Muffler on July 29, and Jan's Uniforms on August 1 that Petitioner had still not satisfied her debts.

    
    

27. On August 4, 1988, Mr. Price prepared a written reprimand for Petitioner due to her failure to handle her financial affairs without reflecting discredit upon herself and the company. The written reprimand was presented to Petitioner on August 10, 1988.

    
    

28. The written reprimand specified that Petitioner had fourteen days, until August 24, in which to make restitution to the businesses that had registered complaints and to provide FPC proof of restitution. The letter also notified Petitioner that any further complaints or failure to comply with the letter would result in termination of her employment. As of August 10, 1988, Mr. Price understood "further complaints" to mean any complaints regarding checks that were written after August 4, the date of the written reprimand.

    
    

29. At some point, a misunderstanding occurred between Petitioner and Mr. Price as to whether he had required her to show him receipts for payment of her debts.

    
    

30. At some point, Petitioner explained to Mr. Price that she could not pay off all her debts immediately and in full.

31. On August 23, Petitioner again met with Mr. Price and provided proof that she had made payments to five of the 10 businesses to whom he had required she make restitution by August 24. One or more of the 10 businesses were closed or the accounts were closed out. Petitioner told Mr. Price that she was unable to contact the remaining businesses because her car was in the shop. At that point, Mr. Price orally altered the written reprimand and told Petitioner that he would accept a telephone call from the remaining businesses or other proof from her that she was attempting restitution to the remaining businesses rather than proof of full, immediate restitution to all the businesses.

    
    

32. Petitioner also questioned Mr. Price during the August 23 meeting as to what "any further complaints" meant. As of that date, Mr. Price explained to Petitioner that from that point on he understood the questioned term to mean a complaint regarding a new bad check that had been written after August 4 or a complaint that Petitioner was not making restitution pursuant to the payment schedule that she had arranged with each business concerning the old bad checks written prior to August 4. Mr. Price told Petitioner that he considered complaints from businesses on those grounds to constitute a "further complaint," for which Petitioner could be discharged.

    
    

33. Mr. Price initiated an August 24 meeting by asking to see Petitioner's receipts. Petitioner submitted proof on August 24 that she had arranged payment schedules with three businesses.

    
    

34. At their August 24 meeting, Petitioner also raised her safety concerns about male employees arriving at work intoxicated. Mr. Price regarded her accusations concerning safety hazards to be digression or distraction, refused to discuss the safety issues raised by Petitioner at that time, and concentrated the conversation on her bad checks. At that time, Mr. Price still doubted Petitioner's credibility and resented that Petitioner had not initiated an earlier meeting to show him her receipts. The discussion between Petitioner and Mr. Price became very heated on this occasion, and each screamed at the other. At some point in the conversation, Mr. Price said, "You are doing just fine for a single woman working full-time with two children to raise." Petitioner's perception of this comment was that it was derogatory or discriminatory of her as a working woman. Mr. Price's perception was that the comment was either conciliatory or innocuous.

    
    

35. At the August 24 meeting, Petitioner also presented extenuating circumstances why she had not finalized arrangements with the remaining two businesses. Within a few days, she submitted proof for the remaining two businesses. This late compliance by Petitioner substantially met the terms of Mr. Price's prior requirements, and he accepted Petitioner's slightly late compliance as fulfilling her obligations at that point. Although it was not specifically put into words by Mr. Price, it was intended by him that any failure on Petitioner's part to complete her restitution schedules would result in her termination. He did not specifically request her to bring receipts for each payment she made but he expected her to make a fair attempt at restitution and be able to prove it.

    
    

36. Mr. Price later asked Mr. Stephens to get further receipts from Petitioner. It is undisputed that Mr. Stephens asked Petitioner if she had her receipts. Apparently a further misunderstanding arose between Petitioner and Mr. Price as to whether Mr. Price was going to pick up the receipts from her in the coal yard or whether he was requiring Petitioner to bring them to him in his centralized office. This misunderstanding was occasioned by the principals relaying their positions through the conduit of Mr. Stephens. Whether Mr.

    Stephens intended to picture Petitioner in a bad light for Mr. Price or whether it was Petitioner's mere lack of initiative in voluntarily taking receipts to Mr. Price which fueled Mr. Price's perception that Petitioner was uncooperative and was avoiding him is not entirely clear from this record, but, in fact, Petitioner did not bring any receipts to Mr. Price when J. D. Stephens merely asked her if she had them. Mr. Price felt her behavior confirmed his belief that Petitioner was not credible and that she also was resisting his authority.

    
    

37. FPC received a telephone call from Don's Pharmacy on September 21 regarding Petitioner's failure to make her payment on September 14 pursuant to the agreed-upon payment schedule. Subsequent to August 24, Mr. Price also received complaints that Petitioner was not paying other businesses as she had agreed to do. Mr. Price then contacted other businesses with whom Petitioner had made payment arrangements and was told that she had not made any payments since the first one. Most businesses had been paid something on September 15. Mr. Price regarded these telephone conversations, whether initiated by the businesses or by himself, as "complaints" under the terms of his last understanding with Petitioner and as coming from businesses that were "more or less clients of FPC." (TR 153-156)

    
    

38. After receiving this hearsay information, Mr. Price formed the conclusion that Petitioner had shown him receipts or had had creditors telephone him to indicate their acquiescence in a repayment schedule but that thereafter she simply did not faithfully make the scheduled payments.

    
    

39. Prior to her termination, Petitioner never gave Mr. Price a repayment schedule for every business she owed, and he never knew for sure what those repayment schedules might be. No exhibit in evidence discloses what the payment schedules really were. No creditor testified to any due date for Petitioner's payments under their restitution schedule. In September and October 1988, Mr. Price and other managers simply relied on the hearsay statements of business people in the community whom they contacted or who contacted them. Some of their information could have been inaccurate or could have related to accounts that did not fit Mr. Price's final August 23-24 definition of "complaints." However, Petitioner did not testify and did not otherwise refute any of Mr. Price's expressed motivations for her termination, and the evidence is insufficient to establish that she had actually timely met all her payments to all of the businesses which had been contemplated by Mr. Price's final definition of "complaints." It is also clear that some of FPC's managers' time was still being taken up with some complaints from the community about Petitioner.

    
    

40. Mr. Price and Danny Douglas, Assistant Site Support Manager, determined to their satisfaction that Petitioner was not complying with her payment schedules and that further counselling sessions or ultimatums from FPC's management to Petitioner would be useless. Likewise, they concluded that assigning Petitioner a suspension without pay would not help her pay her creditors or resolve the problem of complaints to FPC management about her bad checks or relieve the impression she was creating in the business community.

    
    

41. Accordingly, with the concurrence of Ed Carnahan, Petitioner was terminated from her employment with FPC on October 13, 1988 for violating company policy, which requires all employees to handle their financial affairs in a manner which does not reflect discredit upon themselves and the company.

42. Sometime between September 20, 1988 and her discharge on October 13, 1988, Petitioner was interviewed by FPC Human Resources Representative Dotty Wertz. Ms. Wertz interviewed Petitioner and approximately eight or nine other female employees as part of an internal company equal employment opportunity (EEO) investigation into a sexual harassment complaint filed by a female employee, Talesa Lloyd, against her supervisor, Jimmy Hitson. Ms. Wertz interviewed Petitioner at the request of Talesa Lloyd. Petitioner was formerly a subordinate of Mr. Hitson, but did not work for him in September or October of 1988.

    
    

43. Four or five of the eight or nine female employees interviewed by Dotty Wertz made negative comments about Mr. Hitson. Petitioner was one of those who made such negative comments. FPC ultimately took disciplinary action against Mr. Hitson. The nature of FPC's internal discipline against Mr. Hitson is not in evidence, but apparently it was something short of termination. Talesa Lloyd had been a temporary worker at FPC when she lodged her sexual harassment claim, and she was invited back to work by FPC despite her claim.

    However, Mrs. Lloyd told FPC that she chose not to go back to work until she heard the outcome of her claim. That information was never reported to her, and she testified at formal hearing herein that she considered the outcome of her claim to be unfavorable to her and the internal complaint procedure in general to be unsatisfactory because no one had ever revealed the outcome of her claim to her, because Ms. Wertz refused to show her Ms. Wertz' report, and because Ms. Wertz told her that Ms. Wertz had been required by the company to rewrite her report.

    
    

44. After her interviews, Ms. Wertz disclosed the results of her investigation to management, but did not orally identify to John Price, Ed Carnahan, R. C. Bonner, or J. D. Stephens those female employees she had interviewed or what information each individual had provided to her. Ms. Wertz also did not discuss the contents of any of her interviews with John Price, Ed Carnahan, R. C. Bonner, or J. D. Stephens, but Mr. Price admitted that he knew before he fired Petitioner that Ms. Wertz had interviewed Petitioner. Mr. Price denied knowing what Petitioner had said to Ms. Wertz. Given the physical layout of the employer's plant and the way in which Ms. Wertz made contact with the Petitioner, it may be reasonably inferred that one or more of her other supervisors also knew that Petitioner had been interviewed by Ms. Wertz and for what reason and further knew that several interviewees had commented unfavorably on Mr. Hitson. Ms. Wertz testified that Mr. Hitson himself could have seen her report and figured out who said what about him, but since Ms. Wertz' report did not attribute comments by name of interviewee, probably only Mr. Hitson or Ms. Wertz could have been sure who said what from reading the report. Mr. Price denied reading the report. There is no evidence that any of Petitioner's other supervisors read the report. Therefore, it is pure speculation that any affected manager knew, prior to her termination, that the Petitioner's comments about Mr. Hitson had been unfavorable.

    
    

45. Todd Lemieux is employed by FPC as an assistant fuel handler (as was Petitioner) at its Crystal River site and has held that position approximately five years.

    
    

46. In June 1988, Mr. Lemieux came to Mr. Price and reported that he had been arrested for driving under the influence of alcohol (DUI) and would have to serve some time in jail. At that time, Mr. Lemieux' work performance was excellent; he had never missed a day from work or taken any time off, and he had never been the subject of any FPC disciplinary action. Since this was the first community offense made known to FPC, Lemieux was allowed to use all of his

    accrued vacation and holiday time and a two-week job suspension without pay to serve his jail sentence. Lemieux was not terminated because he had an excellent work record, because he took the initiative of approaching his supervisor to report the violation, and because it was his first disciplinary offense with the company. However, in Lemieux' case, FPC's progressive discipline system of talk, counselling, oral reprimand, and written reprimand was not used, and Lemieux was given a written reprimand letter informing him that any further incidents of that nature would result in termination.

    
    

47. Petitioner attempted to show that FPC had accommodated Mr. Lemieux despite a driver's license suspension which affected his work and two prior DUI convictions. Ed Carnahan testified that although he knew about Mr. Lemieux' two prior DUI charges as of the date of formal hearing, he did not know about them when Mr. Lemieux was disciplined in 1988. John Price was under the impression Mr. Lemieux received a permit to drive for employment purposes during his license suspension.

    
    

48. John Argernon was employed by FPC as a fuel handler at its Crystal River site. Mr. Argernon was counselled by Mr. Price about his off duty alcohol abuse because Mr. Argernon was frequently tardy arriving at work and because he often used sick leave due to his drinking problem. Mr. Argernon subsequently participated in the FPC Employee Help Program for alcoholism, which FPC offers only one time to all employees at company expense while that employee draws full pay. Mr. Argernon quit the FPC Help Program before graduation, and thereafter, when FPC discovered further evidence of Argernon's alcohol abuse, he was terminated.

    
    

49. Several managers, including John Price, had heard gossip that Petitioner was "at Charter" (a rehabilitation facility) during part of the spring of 1988 when the complaints concerning her bad checks reached crisis proportions, but they regarded that situation as confidential and did not probe behind the gossip. No evidence established that Petitioner specifically requested and was denied admission to the FPC Help Program for stress or bad check writing.

    
    

50. Mr. Carnahan counselled with Mr. Argernon regarding spouse abuse after reading in the newspaper that Argernon's wife had brought such charges against him but did not pursue the issue since Mr. Carnahan was later informed either by Mr. Argernon or by another supervisor that the spouse abuse charges against Mr. Argernon had been dropped. Mr. Carnahan admittedly did not personally follow up on the matter to verify Mr. Argernon's truth and veracity or lack thereof on the subject of spouse abuse. Mr. Price did not discipline Mr. Argernon for spouse abuse because at the time he did not have any evidence that Argernon was guilty of spouse abuse.

    
    

51. At the time Mr. Price recommended Petitioner's termination, he had been warned by Petitioner about intoxicated employees (see Finding of Fact 34) but he had no specific knowledge that Fred Fluchel, a white male fuel handler, had violated any company policy. Mr. Price first learned of a possible rule violation by Mr. Fluchel when Petitioner alleged in her initial charges, dated November 14, 1988, that on one occasion, Mr. Fluchel had come to work drunk and had driven his own pickup truck, containing two underage passengers, into a coal pile on the plant site. At that time, Mr. Price had questioned J. D. Stephens about Petitioner's allegation and Mr. Stephens had told Mr. Price that he was not aware that Mr. Fluchel had violated company policy as alleged. Mr. Price thereafter relied on Mr. Stephens' representation without further investigation. However, two days prior to the formal hearing herein, Mr. Price determined,

    contrary to Mr. Stephens' prior representations, that Mr. Fluchel had, indeed, violated company policy in such a drunken truck-driving incident on the job site, and Mr. Price testified at formal hearing that appropriate disciplinary action will now be taken against Mr. Fluchel. Such disciplinary action against Mr. Fluchel had not been taken by FPC as of the date of formal hearing herein.

    
    

52. Messrs. Lemieux, Argernon, and Fluchel constitute employees "substantially similar" to Petitioner.

    
    

53. Jim DeNicola, a white male, is employed as a Senior Maintenance Supervisor at FPC's Crystal River facility. He is not in a union bargaining unit like Petitioner. Also, his job description is supervisory and dissimilar in substance and authority to Petitioner's, but since FPC's Human Resource Manual applied to him as it did to all other FPC employees, including Petitioner, he may be considered an employee who is "substantially similar" to Petitioner for purposes of this proceeding.

    
    

54. In 1985, before Petitioner was promoted to assistant fuel handler, Mr. DeNicola borrowed some furniture from FPC for his personal use. In so doing, he required at least two female employees, Petitioner and Lynne Graves-Donaldson, to assist in moving the furniture from the FPC plant site to his home. Both Mrs. Graves-Donaldson, who testified, and Petitioner, who did not testify, perceived that Mr. DeNicola's actions were stealing at worst, and at best, were done without permission of appropriate supervisors. Mrs. Graves-Donaldson expressed no concerns that she was asked to do heavy labor or that moving the furniture amounted to FPC employees doing Mr. DeNicola's personal business on company time. Mr. DeNicola returned the furniture to the FPC site after he no longer needed it. Mr. DeNicola was not disciplined by FPC for borrowing the furniture. Although some of Mr. DeNicola's middle management peers and some superiors apparently "looked the other way" over the furniture borrowing episode because Mr. DeNicola was going through a divorce, and although others did not know that he was borrowing the furniture at all, the evidence as a whole also does not reveal that FPC has any specific policy on such a subject or that the incident got any publicity in the community or had any effect on community perception of FPC.

    
    

    CONCLUSIONS OF LAW

    
    

55. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

56. Petitioner filed a charge of discrimination with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission alleging discrimination based on her sex (female) and in retaliation for participating in an internal EEOC investigation.

57. The controlling organic law herein is: 760.10(1) Unlawful employment practices;

    remedies; construction.

    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 race, color, religion, sex, national origin, age, handicap, or marital status.

          * * *

          (7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization 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.

          
          

58. The Petitioner bears the ultimate burden of proving that sex was a determinative factor in the employer's decision to terminate her employment. See, Texas Department of Community Affairs v. Burdine, 450 U.S. at 253 (1981). Initially, a Petitioner must establish a prima facie case of sex discrimination. In a company policy violation-discharge case, the plaintiff must show 1) that she is a female; 2) that she and similarly situated male persons received dissimilar treatment; and 3) that sufficient evidence exists from which the court could find a causal connection between sex and the alleged acts of the employer. See, Cooper v. City of North Olmsted, 795 F.2d 1265, 1270 (6th Cir. 1986).

    
    

59. Petitioner herein has established that she, a female, was treated less favorably than certain male employees (but not all male employees) who violated the company policy/rule against mishandling of their personal and financial affairs in such a way as to discredit the employer in the community. However, even if male employees were treated differently, and the evidence does not show that they were treated significantly differently, that fact alone does not automatically establish a claim of sex discrimination. See, Smith v. Honeywell, Inc., 735 F.2d 1067 (8th Cir. 1984), cert. denied, 469 U.S. 1077.

    
    

60. Courts have consistently held that in order to establish differential application of disciplinary rules, the conduct that the Petitioner is attempting to compare must be nearly identical. See, Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir. 1984); Hawkins v. CECO Corp., 883 F.2d 977 (11th Cir. 1989); and Cunner v. Chevron, U.S.A., 684 F. Supp. 916 (E.D. Tx. 1988). Here, Petitioner simply has not met that standard of proof.

    
    

61. Petitioner was an assistant fuel handler, as was a white male, Todd Lemieux. Neither employee was terminated after his/her first known violation of Section 7.3 of the company policy manual, but Mr. Lemieux also did not reap the benefit of progressive discipline as did Petitioner. He got an immediate written reprimand, and although his suspension without pay helped his jail situation, it also was financially disadvantageous to him personally. John Argernon, male, and a fuel handler, also was not terminated upon discovery of his first disciplinary violation, whether one considers that to be the alleged spouse abuse or the initial alcoholic tardiness and absenteeism. The employer accepted the explanation that the spouse abuse charges had been dropped and did not check up on Mr. Argernon's truthfulness on that score as it had checked up on Petitioner's explanations, but Mr. Argernon also had no further spouse abuse problem in the community to re-trigger management's interest in Mr. Argernon's domestic situation. FPC worked with Mr. Argernon toward rehabilitation of his

    alcohol problem, but eventually terminated him because of it. It is impossible on the status of this record to accurately assess how many tardies/absences the employer lumped together to constitute Argernon's first alcoholic violation and weigh that against the number of bad checks/ complaints it lumped together to arrive at its perception of Petitioner's repetitive violations/counselling sessions/ reprimands. However, Petitioner appears to have been given substantially similar opportunities to correct her bad check situation, inasmuch as there has been no affirmative proof that Petitioner requested the employer to provide a professional rehabilitation program for bad check writing as it did for alcoholism. With regard to the absence of FPC discipline for Fred Fluchel's alleged violation, the employer's managers cannot be expected to discipline an employee before they have some specific knowledge of the employee's violation.

    The evidence herein fell short of establishing that management's knowledge of Mr. Fluchel's violation occurred in the correct time frame. One might argue that Mr. Price should have discovered Mr. Fluchel's violation or somehow extrapolated knowledge of it from Petitioner's generalized safety complaints, but the evidence shows that he consistently relied on J. D. Stephens' representations which worked to Mr. Fluchel's advantage and to Petitioner's disadvantage. No sexual discriminatory procedure or motivation attaches thereby to Mr. Price. There is likewise no affirmative proof of Mr. Stephens' disparate treatment of the two employees being the result of sex discrimination. Mr.

    DeNicola clearly seems to have "gotten away" with acts most employers would object to if they knew of them, but the totality of the circumstances of his borrowing FPC furniture does not come within the parameters of Section 3.7 of the FPC Human Resources Manual, and at all times material, the incident was unknown to the particular management echelon whose job it was to deal with such problems.

    
    

62. Respondent employer has articulated satisfactory, nondiscriminatory reasons for the minimal disparate treatment herein. Petitioner has failed to refute these reasons.

    
    

63. Even more persuasive that there was no sexual discrimination is the fact that there were three situations involving substantially similar male employees whose financial violations offended the pertinent section of the company manual and who were disciplined just as was Petitioner. Two of these male employees were also eventually fired.

    
    

64. Assuming, arguendo, that Petitioner established a prima facie case for termination upon discriminatory sexual grounds, FPC rebutted the prima facie case with evidence of legitimate nondiscriminatory reasons for Petitioner's discharge from employment. The Eleventh Circuit in Tipton, 872 F. 2d at 1494- 95, defined the employer's burden as follows:

    
    

    The employer's burden of rebuttal is 'exceedingly light.' [cite omitted] Since the rebuttal is one of production only, the employer 'need not persuade the Court that it was actually motivated by the proffered reasons . . . It is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the [employee].

    
    

65. Petitioner was given several opportunities to correct her behavior of writing bad checks and was discharged only when she continually failed to conform her actions to company policy.

66. Petitioner's position at formal hearing appeared to be that if her last payments had been made on September 15, the next payments (even to Don's Pharmacy) could not have been due until October 15, 1988 and that therefore her creditors complained to FPC too soon and FPC fired her before she had had a chance to meet the October 15 deadline established under her August 24 oral agreement with Mr. Price. 2/ Although Respondent FPC's management based all of its conclusions concerning Petitioner's failure to faithfully follow her repayment schedules after August 24, 1988 on hearsay statements derived from local businesses, and although FPC management may have partially misunderstood that Petitioner had actually done better on her repayment schedules than it seemed to them, their innocent misunderstanding was not a knowing distortion of the truth nor was it sexual discrimination, and Petitioner did not establish that she had, in fact, met all repayment schedules.

    
    

67. In Petitioner's case, it was the unremitting community reaction to her behavior which continued to invade the work place that caused FPC to invoke its rule/policy, and although it is possible that Petitioner experienced some individually unfair treatment, that treatment was not discriminatory on the basis of her sex.

    
    

68. In order to establish a prima facie case of retaliatory discharge, the Petitioner must prove 1) that she engaged in protected activity; 2) that an adverse employment action occurred; and 3) that there was a causal connection between her participation in the protected activity and the adverse employment decision. See, Tipton v. Canadian Imperial Bank, 872. F. 2d 1491 (11th Cir. 1989); Simmons v. Camden Cty. Bd. of Ed., 757 F. 2d 1187 (11th Cir. 1985); Swint

    v. Volusia County, 36 FEP 1412 (M.D. Fla. 1984).

    
    

69. The Petitioner did not carry her burden of establishing a prima facie case of retaliation. Petitioner herein produced no persuasive evidence showing a causal connection between her participation in the internal investigation conducted by Dotty Wertz and Petitioner's subsequent discharge from employment by Mr. Price. There is no evidence that John Price, the person primarily responsible for Petitioner's termination, or for that matter, any of his superiors, considered Petitioner's participation in Ms. Wertz' investigation when making the decision to terminate Petitioner. One may infer their knowledge of the investigation, but one may not speculate, contrary to substantial evidence otherwise, that their intent in terminating Petitioner was discriminatory.

    
    

70. Further, Petitioner was not the only female employee who talked to Ms. Wertz or the only one who made negative comments. Ms. Wertz interviewed approximately seven or eight female employees in addition to Petitioner, and there is no evidence any of them were terminated as a result of having participated in the investigation for rendering negative opinions about Mr. Hitson. There is evidence that the complainant, Talesa Lloyd, would have been hired back and that the supervisor she complained against was, in fact, disciplined. All of the foregoing, but particularly the ultimate discipline of Hitson by FPC without a federal EEOC mandate to do so, strongly militates against a finding of any employer discrimination against the interviewees. The simple fact that Petitioner participated in the investigation and was later discharged from her employment is not sufficient to establish the required causal link. See, Cooper v. City of North Olmsted, supra.

71. Assuming arguendo that Petitioner established a prima facie showing of termination for discriminatory reasons on the basis of sex, it has been overcome by Respondent's unrefuted nondiscriminatory reasons. Petitioner has not established a prima facie case of termination for discriminatory reasons on a retaliatory basis. Therefore, she cannot prevail.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enter a final order dismissing Petitioner's Petition for Relief and denying the relief sought thereby.

DONE and ENTERED this 20th day of June, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991.

ENDNOTES

1/ Petitioner has since changed her address to 1855 North Rockcress Path, Crystal River, FL 32629

2/ Petitioner's position is derived from her pleadings and oral examination of witnesses since she did not testify and did not submit post-hearing proposals.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

None submitted.

Respondent's PFOF:

Accepted: 1-7, 9-10, 12, 14-19, 24-25, 33.

Accepted as modified to accurately conform to the greater weight of the credible record evidence as a whole. See also the Preliminary Statement: 8, 11, 20-23, 26-32, 34-38, 39-47. That which is rejected is rejected for weight and credibility reasons as not proven .

Accepted except where subordinate or unnecessary: 13

COPIES FURNISHED:

Patricia A. Blizzard, Esq. 3201 34th Street, South

St. Petersburg, Florida 33711

J. Lewis Sapp, Esq. Sharon P. Morgan, Esq.

Elarbee, Thompson & Trapnell 800 Peachtree-Cain Tower

229 Peachtree Street, N.W. Atlanta, Georgia 30303

Ms. Karen Austin

1855 North Rockcress Path Crystal River, FL 32629

Ronald M. McElrath Executive Director

Florida Commission on Human Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

Dana Baird, General Counsel Florida Commission on Human

Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005137

Orders for Case No: 90-005137