STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SONIA V. FORTIN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6392

) SOUTHERN BELL TELEPHONE AND ) TELEGRAPH COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on July 7, 1992.

APPEARANCES

For Petitioner: Theodore Bowers, Esquire

101 West 4th Street

Panama City, Florida 32401

For Respondent: E. Barlow Keener, Esquire

4300 Southern Bell Center Atlanta, Georgia 30375

STATEMENT OF THE ISSUE

Whether Petitioner has been the subject of an unlawful employment practice based on her national origin.

PRELIMINARY STATEMENT

On February 5, 1990, the Petitioner Sonia V. Fortin filed a charge with the Florida Commission on Human Relations (FCHR) alleging that she had been discriminated against by the Respondent, Southern Bell Telephone and Telegraph Company because of her national origin in violation of the Florida Human Rights Act of 1977, Section 760, Florida Statutes. Specifically the Petitioner alleged that she was terminated because she was of Tunisian decent. Respondent employer, on the other hand, contended that the Petitioner had been terminated for not successfully completing the Directory Assistance operator initial training program.

On August 9, 1991, the FCHR's Executive Director issued a determination regarding the Petitioner's charge finding that there was no reasonable cause to believe that an unlawful employment practice had occurred. Subsequently, the Petitioner requested an evidentiary hearing.

At the hearing, the Petitioner testified in her own behalf and presented the testimony of three additional witnesses. Petitioner also offered four exhibits into evidence.

After the Petitioner presented her evidence and rested her case, the Respondent moved to dismiss the action. The Respondent argued that the Petitioner failed to prove that she had been treated differently than other Directory Assistance operators in initial training because of her national origin. In addition, the Respondent argued that the Petitioner had not met her burden of proof in that she failed to demonstrate, through her evidence, a prima facie case of unlawful discrimination. Respondent's contention was well taken and the Hearing Officer indicated a Recommended Order of Dismissal would be entered.

Neither party submitted Proposed Recommended Orders containing Findings of Fact.

FINDINGS OF FACT

1. Petitioner, Sonia V. Fortin, is a white female whose national origin is Tunisian. She has a heavy French or Tunisian accent and at the hearing was very difficult to understand.

   
   

2. Ms. Fortin was a Southern Bell employee who had taken an extended leave of absence in 1988 in order to move from Miami to Panama City to care for her ill father. In the Fall of 1989, Ms. Fortin's extended leave of absence ended and she sought employment with Southern Bell in Panama City. Because no positions were available in Panama City, Ms. Fortin applied for and was accepted into a trainee position at the Directory Assistance (DA) operator office in Lake City.

   
   

3. Ms. Fortin reported to work for initial training on Monday, October 23, 1989. Assistant manager Patsy Foss only needed one new person in the group of employees she was responsible for overseeing and training. Ms. Fortin was assigned to train with Ms. Foss in Ms. Foss' group. Other new trainees were assigned to other groups at various times depending on what each work group needed.

   
   

4. During the three-day training period, the trainee listens to the manager and other experienced operators answer calls, is instructed on the proper method of "keying" in names into the directory computer in order to find the proper telephone numbers, and is given a final evaluation by a manager. In order to become a permanent employee a DA operator was expected to successfully complete a minimum of 90-92% of the calls that the operator handles. Respondent's policy is totally neutral.

   
   

5. Ms. Foss met the Petitioner on the first day, introduced herself, and, in an effort to be friendly and out of curiousity, asked the Petitioner about herself, including where she was from. Ms. Foss used the standard Southern Bell training guide for DA operators and taught Ms. Fortin the keying method used for finding customers' numbers, observed Ms. Fortin taking actual requests from customers for directory information, and allowed Ms. Fortin to listen to other operators take calls.

   
   

6. However, unlike other new trainees, Ms. Fortin was not able to master the keying method of locating customers and had trouble spelling customers' names even after the customer had spelled the name. In addition, Ms. Fortin was

   evaluated by Southern Bell Assistant manager Carolyn Land on Thursday, October 26, 1989. Ms. Fortin had an error rate of 20%.

   
   

7. On Monday, October 31, 1989, Ms. Foss again guided Ms. Fortin through the training course a second time. Ms. Fortin continued to exhibit the same problems. On Wednesday, November 1, 1989, Manager Comer directed Assistant manager Land to conduct a second evaluation of Ms. Fortin. Ms. Fortin's evaluation resulted in an even higher error rate of 24.1%. Ms. Comer decided to continue the training and on Thursday, November 3, 1989, directed Ms. Foss to conduct a third evaluation. The third evaluation resulted in an error rate of 14%.

   
   

8. At no time, did Ms. Fortin meet Southern Bell's standards for continued employment as a DA operator.

   
   

9. Manager Comer, after receiving the results of the three evaluations, discussing Ms. Fortin's qualifications in detail with Ms. Land and Ms. Foss, and listening to Ms. Fortin herself, concluded that Ms. Fortin had not successfully completed the initial training for DA operator and instructed Ms. Foss to terminate Ms. Fortin. Ms. Foss informed Ms. Fortin of her termination on November 3, 1989.

   
   

10. Ms. Fortin offered no evidence that she was treated differently or that trainees with higher error rates were hired over her. The only evidence that Ms. Fortin pointed to as supporting her charge of discrimination was that Ms. Foss asked her where she was originally from, Ms. Foss gave her what Ms. Fortin perceived to be a dirty look after she responded, Ms. Foss was nasty to her during training and that, upon termination, either Ms. Foss or Ms. Comer made the statement that Ms. Fortin had a language barrier when she was terminated. The evidence clearly showed that Ms. Foss was nasty to everyone regardless of national origin and that Ms. Fortin's difficulties in performing her duties as a DA operator may very well have been related to her inability to communicate with persons not used to her accent and manner of speaking. Neither Ms. Foss' nastiness or the statement about a language barrier were discriminatory. Likewise, none of the evidence Ms. Fortin points to as supporting her charge of discrimination comes close to establishing a prima facie case of discrimination. Therefore, Ms. Fortin's charge of discrimination should be dismissed.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. In employment discrimination cases such as the case at bar the Petitioner bears the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). 1/

    
    

13. A prima facie case of discrimination may be made by presenting direct evidence of discriminatory intent, by using circumstantial evidence, or by demonstrating through statistical evidence a pattern of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Al-Hashimi v. Scott and Board of Trustees of Paine College, 56 F.Supp. 1567, 1578-1579 (S.D.Ga. 1991).

14. "Direct evidence" is "'evidence which, if believed, would prove the existence of a fact [in issue] without inference or presumption.'" (emphasis supplied) (quoting Carter v. City of Miami, 870 F.2d 58, 581-582 (11th Cir. 1989)) Al-Hashimi v. Scott, supra, at p. 1578. During the hearing, the Petitioner did not present any direct evidence of unlawful discrimination. Likewise, the Petitioner did not present statistical evidence of discrimination.

    
    

15. In order to present sufficient "circumstantial evidence" of discrimination, the Petitioner was required to present evidence which established that: 1) she is a member of a protected category; 2) she was qualified for the job from which she was discharged; 3) she was discharged despite her qualifications; and 4) the employer filled her position with someone outside of the protected class. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Al-Hashimi v. Scott, supra, at p. 1579. Additionally, because the Petitioner was attempting to prove that she was unlawfully discriminated against through disparate treatment by the Respondent, the Petitioner was required to prove that, because of her national origin, she was treated differently than other Directory Assistance operators similarly situated to her.

    
    

16. During the hearing, the Petitioner failed to present evidence proving that she was qualified for the Directory Assistance operator position by having successfully completed the Directory Assistance operator initial training. For example, although the Petitioner attempted to compare herself to other Directory Assistance operators who successfully completed the initial training, the Petitioner failed to show that the other Directory Assistance operators received evaluations with error rates equal to or greater than the Petitioner's error rates. Furthermore, the Petitioner's evidence did not establish the fourth part of the circumstantial evidence test because the Petitioner did not present evidence showing that the Respondent filled her position with someone with "comparable or lesser qualifications." Likewise, the Petitioner did not present evidence showing that she was treated differently than other Directory Assistance operators in initial training. Therefore, the Petitioner failed to carry her burden of proof and did not establish a prima facie case of unlawful discrimination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Southern Bell's Motion to Dismiss be GRANTED, and that

this action be DISMISSED with prejudice.

DONE and ENTERED this 10th day of August, 1992, at Tallahassee, Florida.

DIANE CLEAVINGER

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 10th day of August, 1992.

ENDNOTES

1/ The Florida Human Relations Act of 1977, Section 760, Florida Statutes, is construed in accordance with federal cases construing Title VII discrimination law. See School Board of Pinellas County v. Rateau, 449 So.2d 839, 841 (Fla. 1st DCA 1984); School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

COPIES FURNISHED:

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

Theodore Bowers, Esquire

101 West 4th Street

Panama City, Florida 32401

E. Barlow Keener, Esquire 4300 southern Bell Center Atlanta, Georgia 30375

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 contact 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: 91-006392

Orders for Case No: 91-006392