STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAHLA EVANS, )

)

Petitioner, )

)

v. ) CASE NOS. 91-6396

) 91-6879

GENERAL ELECTRIC COMPANY )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 27 and 28, 1992, in New Smyrna Beach, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Rick Kolodinsky

Attorney at Law

1055 N. Dixie Highway, Suite 1 New Smyrna Beach, Florida 32169

For Respondent: Francis M. McDonald, Jr.

Attorney at Law

Olympia Place, Suite 1800 800 North Magnolia Avenue Post Office Box 2513 Orlando, Florida 32802-2513

STATEMENT OF ISSUES

The issue is whether General Electric Company (GE) engaged in an unlawful employment practice by discriminating against Petitioner, Shahla Evans (Evans), on account of sex or by retaliating against her for filing a complaint of sex discrimination.

PRELIMINARY STATEMENT

At the beginning of the hearing, Evans' Motion for Leave to File Amended Answer was DENIED because the issues raised by the motion were preserved as issues of law in the first answer.

Evans presented her own testimony and that of Barry Fishman, Dr. Richard Economy, Dr. Kenneth Donovan, Wayne Norfleet, Bill Clark, Timothy Connolly and Keith Stump. The testimony of Robert Ferguson, Martin Dragomirecky, Don Rollins, Rick Brownfield, Janice Eisley and Patricia Ruelle was offered through depositions which were admitted into evidence as exhibits. Evans proffered the testimony of Nasima Ahmad by deposition because the testimony was rejected as irrelevant to the issues raised in the petitions for relief. Evans' Exhibits 1-

3, 3a, 3b, 4, 4a, 4b, 5, 5a, 6, 6a, 7-11, 11a, 13, 13b, 15, 15a, 15c-e, 16-19,

19a, 19b, 20, 21, 23-25, 34, 35, 37, 39, 39a, 40, 41, 43-48, and 50 were

admitted in evidence.

GE presented the testimony of Stanley Urbanek, Michael Johnson, Michael Nelson, and James Kotas. The deposition testimony of Randy Abidin was introduced as an exhibit. GE's Exhibits 1, 7, 11, 12, 13 in part, 15, 53, and

54 were admitted in evidence.

The transcript was filed on August 13, 1992. GE timely filed its proposed findings of fact and conclusions of law. Evans filed her proposed recommended order late on September 15, 1992, together with a Motion to Permit Filing of Petitioner's Recommended Order [sic]. It has been represented that GE neither consents nor objects to the late filing. Accordingly, the Motion is GRANTED and Evans' proposed findings of fact and conclusions of law are accepted. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Shahla Evans was employed at GE's Simulation & Control Systems department in Daytona Beach, Florida. The Simulation & Control Systems department (SCSD) is part of GE's aerospace business group. Employees at SCSD are primarily engaged in the design, development and assembly of computer generated visual simulation systems and training programs and of automated ship control systems. GE and SCSD are employers within the definition relevant to this case.

   
   

2. Evans received her master's degree in computer science from the University of Utah in 1974 and another master's degree in electrical engineering in Iran in 1970. After moving to Florida from California, Evans was hired by GE at a salary level 10 and began work at SCSD on August 16, 1982.

   
   

3. In her previous job she had excellent reviews and had in excess of ten years of experience in engineering and two years as an instructor and teaching assistant prior to coming on board at the GE's Daytona Beach facility. Evans' technical abilities and intellect rendered her an extremely talented engineer.

   
   

4. Although Evans was initially offered a position at SCSD as a senior engineering programmer analyst, she did not accept the job because she was afraid it was too regimental and required too much programming.

   
   

5. Prior to informing GE of her decision, however, she was contacted and interviewed by Dr. Richard Economy, SCSD's manager of advanced engineering. Unaware of the outstanding offer until their interview, Dr. Economy offered Evans a position in research & development, which she accepted. Dr. Economy extended the job offer based on Evans' resume and his belief that she was talented and could be a contributor to the company.

   
   

6. The Simulation & Control Systems department is divided into sections, subsections and units. During the relevant time frame, Dr. Economy was the manager of advanced engineering, a subsection of the engineering section. The advanced engineering subsection consisted of four units.

   
   

7. Until mid-1986, Evans received good to excellent evaluations, but notations consistently showed a need for improvement in the areas of

   negotiating, particularly in selling a product, taking a more diplomatic approach to leadership, and integrating her work with related projects. In 1985 she was promoted to level 11 and rated as progressing upwardly in her subsection.

   
   

8. Dr. Economy recommended Evans for a promotion to level 12 in early 1986, however that recommendation was never approved.

   
   

9. Until mid-1986, Evans' work involved Research and Development in Data Base Generations Systems (DBGS). At times the thrust of the DBGS Research and Development was to unify the Data Base Generation Systems.

   
   

10. At that point the Research and Development Project was called Unified Special Modeling Systems (USMS). The thrust of Evan's work always involved Research and Development on Data Base Systems. She was a leader of the Data Base Research and Development effort under Dr. Economy.

    
    

11. In May, 1986, Dr. Kenneth Donovan became Evans'unit manager. At the time, Evans and Barry Fishman, a white male, were co-managers of the database research & development project.

    
    

12. During the latter part of 1986, Dr. Donovan took over the project manager role for the database area and another project in the advanced engineering architectural area. Although Evans and Fishman were still considered the leaders of the database project, Dr. Donovan became the overall manager of the project and remained the functional manager of the unit to which Evans was assigned.

    
    

13. During the 1986-87 time frame, the business needs at SCSD changed from an internal focus on projects and research to applying research to the products SCSD was producing. These changes required significant communication between Evans and Fishman and other engineers outside the database project.

    
    

14. In June of 1987, Evans' performance was evaluated by Dr. Donovan. In this performance evaluation, Dr. Donovan addressed certain areas of Evans' performance that needed improvement in order for her and the database project to succeed. The areas noted by Dr. Donovan were Evans' ability to communicate and negotiate with people outside her project in order for them to understand the project's needs and requirements.

    
    

15. Sometime in the latter part of 1987, Dr. Donovan proposed that Evans assume the project manager role of the database area in 1988. This proposal was made in conjunction with a career planning discussion between Dr. Donovan and Evans.

    
    

16. In the fourth quarter of 1987, Dr. Donovan sought the assistance of Evans and Fishman in drafting the 1988 plan for the database research & development effort. As a result of meetings and discussions between Dr. Donovan, Evans and Fishman, it was apparent to Dr. Donovan that changes he had proposed for the project in 1988 were viewed by Evans and Fishman as unrealistic.

    
    

17. Based on Dr. Donovan's perception that Evans had not made sufficient progress in the development needs he identified in the 1987 performance evaluation in terms of communication skills, willingness to negotiate, and a willingness to determine the needs of other projects, and because of Evans'

    handling of the interchanges with other project leaders, he did not feel she was suited for the project manager role at that time.

    
    

18. Several memoranda were generated regarding the work necessary to finalize the 1988 plan. These memoranda, which are Petitioner's exhibits 7, 8 and 10, bear the names of Evans and Fishman and were distributed to Dr. Donovan, Dr. Economy and others. Although Fishman, and not Evans, drafted these memoranda, Evans agreed with their content and allowed them to be distributed with her name on them.

    
    

19. Dr. Donovan responded to those memos from Evans and Fishman on February 9, 1988.

    
    

20. On March 14, 1988, Dr. Donovan wrote Evans a memo entitled "Unsatisfactory Performance." Prior to this memo, Dr. Donovan had had several discussions with Evans regarding what Dr. Donovan felt were areas Evans needed to improve in order to build the support necessary to get the database project incorporated into GE's products. Dr. Donovan cited several events that concerned him, some of which were the three memoranda from Evans and Fishman.

    
    

21. The March 14, 1988, memo addressed certain actions by Evans which were not constructive to the database project and were even derogatory towards the professionalism and views of other engineers. The memo indicated that Evans' behavior must change and that Dr. Donovan desired to meet with her as soon as possible to discuss the situation. Dr. Economy concurred with this memorandum.

    
    

22. Dr. Donovan did not send a similar memo to Fishman because he was not Fishman's unit or functional manager.

    
    

23. During that time, Fishman was in a unit managed by Randy Abidin. As Fishman's unit manager, Abidin believed the best way to address the derogatory comments and negative tone of the memos was in a direct meeting with Fishman. Although Fishman does not have a clear recollection of the memos being addressed by Abidin, he recalled a meeting with Abidin during this time frame where Abidin referred to problems between Evans and Dr. Donovan.

    
    

24. Abidin told Fishman in a face to face meeting that the memos were unprofessional and to cease writing them.

    
    

25. Dr. Donovan never took any action with respect to the USMS project that affected Evans only. Any changes in the direction or breadth of the project affected Barry Fishman just as much as Evans.

    
    

26. On March 22, 1988, Evans sent a letter to the manager of SCSD's personnel department, Robert Tucker. In that letter, Evans complained about Dr. Donovan's March 14, 1988 memo. Nowhere in that letter did she complain that she believed she was a victim of gender discrimination.

    
    

27. Mr. Tucker referred Evans' March 22, 1988, letter to Wayne Norfleet for a reply. Mr. Norfleet has been in employee relations with GE for 25 years. Through Norfleet's assistance, a meeting between Evans and Dr. Donovan was arranged in order to allow both of them the opportunity to air their grievances, concerns and criticisms of each other in a face to face session.

    
    

28. Dr. Donovan documented the discussion process with a note and letter to Evans on May 16, 1988. Dr. Donovan was willing to continue the process; however, at Evans' request, she was transferred to a different unit in advanced

    engineering headed by Stanley Urbanek. This transfer took place in the summer of 1988.

    
    

29. In June of 1988, Dr. Donovan became a consultant with the company and no longer had any supervisory responsibilities over Evans.

    
    

30. After her transfer to Mr. Urbanek's unit in the summer of 1988, Evans continued to do the same work as before.

    
    

31. GE has a policy that allows exempt employees such as Evans to self- nominate for open positions in the department. During 1988 and the early part of 1989, Evans applied for several posted positions. Ms. Evans was not selected for any posted position for which she applied. The persons selected for the positions were all males. The only position for which she applied that was the subject of much evidence was the position of Advanced Course Supervisor. While Evans was equally qualified on paper, Don Rollins was hired for that position because of his outgoing personality, his history of thoroughness and technical achievement, his performance as a student in the advanced courses, and his communication skills. Evans did not have a good interview for the position. No evidence was presented to show any discriminatory motive in GE's personnel selections for these positions.

    
    

32. Evans remained in Urbanek's unit and continued to work on the USMS project until October, 1988.

    
    

33. After Dr. Donovan's transfer, Dr. Economy selected Bob Ferguson to be project manager in the database area. Ferguson was selected for the project manager role because the USMS activity Evans had been working on was perceived by management not to be broad enough to cover all of GE's image generator business activities. Because Ferguson had image generator experience, he was selected.

    
    

34. Because of Ferguson's concern about Evans' focus in research and development, he did not select her to work on the database project. Although Fishman was approached and asked to work part time on the project, he refused this offer.

    
    

35. Ms. Evans claims that she was advised on two occasions by her managers to leave GE, once by Dr. Economy and then again by Mr. Urbanek. The managers who are alleged to have told Evans this deny any such statement. They both testified that leaving the company was mentioned in passing with Evans as a career option that any employee could choose if they were dissatisfied with the circumstances of their employment. Evans was openly expressing such dissatisfaction.

    
    

36. After Dr. Donovan left the unit manager position in 1988, Dr. Economy acted as unit manager until March of 1989 when he selected Michael Nelson to fill the position.

    
    

37. On at least two occasions, Nelson attempted to assign tasks to Evans. On both occasions, Evans told Nelson that she did not want to do the tasks. She told Nelson she was more qualified for other kinds of jobs and that she should be doing managerial type of work. She believed the tasks to be programming and she did not want to do programming.

38. In April, 1989, Evans filed a complaint with the Florida Commission on Human Relations. In the complaint, Evans charged that projects were taken away from her and she was not being given any work, all because she was a female.

    
    

39. From January, 1988, through September of 1989, Evans claims that she spent most of her time doing technical and professional studies and received no assignments from any GE managers.

    
    

40. GE's aerospace business began a downturn in 1987, and by 1989, SCSD had more employees in advanced engineering than its business could accommodate. In the spring of 1989, GE identified several employees to be laid off. Other employees were transferred to different areas of the department.

    
    

41. Evans was considered for layoff in 1989, but considering its affirmative action responsibilities, GE chose not to place Evans on lack of work status.

    
    

42. In August, 1989, Dr. Economy told Evans that she should go see Tim Connolly because he had a job for her. Mr. Connolly was the manager of systems engineering, which is another subsection of the engineering section at SCSD.

    
    

43. Dr. Economy encouraged Evans to take this job. Because of reductions in his subsection, Dr. Economy did not have a position for her in advanced engineering.

    
    

44. Mr. Connolly's subsection was in charge of upgrading the software system from a microcomputer environment to a network environment in order to incorporate the database system into the product for delivery to customers by the end of the year.

    
    

45. From discussions with Dr. Economy, Connolly was aware that there had been a relationship problem between Dr. Donovan and Evans.

    
    

46. Connolly was not aware until told by Evans, however, that she had filed a discrimination complaint against the company.

    
    

47. Ms. Evans claims that she made it clear to Mr. Connolly prior to accepting a position in his subsection that she would not do programming work. Prior to officially accepting a position in Connolly's subsection, Evans spoke with Mr. Urbanek, who was to be her unit manager. Although Evans claims to have informed Urbanek that she would not do any programming, Urbanek recalls that Evans said she did not want to be a programmer. Mr. Urbanek and Evans discussed the fact that essentially all of the positions in his unit involved some aspect of software engineering or programming.

    
    

48. A programmer is an employee whose entire job consists of operating a keypunch machine. A programmer takes a design given to them by someone else and puts it into programming language.

    
    

49. On the other hand, a software engineer is someone who designs and selects requirements for other aspects of software engineering. Part of a software engineer's tasks includes programming.

    
    

50. Evans officially joined Connolly's subsection on September 11, 1989.

51. Prior to her joining Connolly's subsection, Urbanek was transferred. Accordingly, Evans reported directly to Connolly after she joined the advanced database engineering unit.

    
    

52. Upon joining the unit, Connolly gave Evans tasks to be accomplished. Ms. Evans' initial reactions was that she did not want to perform many of the tasks because they involved programming.

    
    

53. According to Connolly, the tasks were high level systems tasks that required implementation and testing of the computer systems in order to put the systems in the product for sale to the customer.

    
    

54. Ms. Evans felt that the tasks assigned to her constituted a demotion. She felt like she was not qualified to do the tasks and she did not understand the system.

    
    

55. While she was capable of doing tasks involving some programming, Evans simply believed that she should not have to do any programming. Ms. Evans told Mr. Connolly that she would not and could not do the tasks he assigned her.

    
    

56. Upon learning that Evans needed more time to understand how the system worked, Connolly agreed to give her more time, and in fact, gave her more time to understand tasks than any person that had come into his area from another area.

    
    

57. Because of Evans' continued refusal to do the work assigned and because in several of the conversations between her and Connolly she made outbursts about the assignments and GE in general, Connolly went to see Norfleet in employee relations.

    
    

58. Norfleet recommended that a work package be put together that involved tasks indisputably within Ms. Evans' expertise and skill level. It was decided that if Evans refused to accept the assignment, it would be explained to her that he actions left Connolly no choice but to recommend that she be terminated.

    
    

59. After Connolly's meeting with Norfleet, Connolly assigned Evans a detailed design, implementation, validation and documentation task involving DMA manuscript files. Ms. Evans refused to do this task. These tasks were within her expertise, training and experience.

    
    

60. Mr. Connolly told Evans that she should go home and consider the consequences of her refusal to perform the work assigned to her. When she returned the next day, she again refused to perform any task involving detailed design, implementation, validation or documentation, because she incorrectly classified the tasks as being programming.

    
    

61. After seeking and receiving the approval of his immediate manager, Connolly notified Evans that her employment was terminated on October 6, 1989.

    
    

    CONCLUSIONS OF LAW

    
    

62. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

63. Sections 760.10(1)(a) and (7), Florida Statutes, make it unlawful for an employer to discriminate against a person with respect to the terms or

    conditions of employment because of such individual's sex, or to retaliate against a person for filing a charge of discrimination.

    
    

64. Evans is a person within the meaning of Section 760.02(5) and an individual within the meaning of Section 760.10(1).

    
    

65. GE is an employer within the meaning of Section 760.02(6).

    
    

66. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. Sec. 2000E, et seq. See Hargis

    v. School Board of Leon County, 400 So.2d 103, 108 (Fla. 1st DCA 1981). As such, federal precedent construing the similar provisions of Title VII are to be accorded great deference. Pasco County School Board v. Public Employee's Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985).

    
    

67. The Supreme Court established, and later clarified, the burden of proof necessary in discrimination cases based on disparate treatment. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). This is the applicable standard in this case. In the context of employment discrimination, disparate treatment means that an employer treated employees of one sex differently than it treated employees of the opposite sex.

    
    

68. McDonnell Douglas places upon the petitioner the initial burden of proving a prima facie case of discrimination. If petitioner succeeds in establishing a prima facie case, the burden shifts to the respondent to articulate legitimate reasons for the petitioner's treatment. Should respondent meet this burden, the petitioner then must prove, by a preponderance of the evidence, that the reasons offered by the employer were not its true reasons, but were a pretext for discrimination. Burdine, 450 U.S. 248, 253.

    
    

69. 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. at 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 (1977).

    
    

70. Ms. Evans' complaints focus on three types of allegedly discriminatory treatment: (1) the events surrounding the unsatisfactory performance memo from Dr. Donovan; (2) the failure to promote or choose Ms. Evans for the positions she applied for; and (3) terminating her in October of 1989 after she had filed a charge of discrimination with the Florida Commission on Human Relations in April of 1989.

    
    

71. Assuming, but not deciding, that Ms. Evans established a prima facie case of discrimination with respect to the unsatisfactory performance memo, it is clear that GE articulated legitimate business reasons for Dr. Donovan's actions. The reason no decision is made on this aspect of Ms. Evans' complaint is because no evidence was presented to show that the memo affected the status of her employment, or impacted the decisions made on her applications for transfer and/or promotion to open positions. In addition, Ms. Evans did not file a complaint with the FCHR or EEOC within 180 days of this allegedly violative action. A complaint must be filed within 180 days of an alleged

    violation of Section 760.10 in order to be timely filed. St. Petersburg Motor Club v. Cook, 567 So.2d 448 (Fla. 2d DCA 1990).

    
    

72. As Ms. Evans' immediate manager, Dr. Donovan deemed it necessary to address conduct he felt was unbecoming of an employee whose success depended in large part on the ability to interact and get along with others. The thrust of Dr. Donovan's memo was to point out specific instances where Ms. Evans' conduct and responses to the views of other engineers was perceived as detrimental to the project and even degrading.

    
    

73. It was established that Ms. Evans' co-leader of the database project, Barry Fishman, received no such memos. However, as explained by Dr. Donovan,

    (1) Mr. Fishman was not in his unit or under his supervision, and (2) his memo to Ms. Evans addressed matters other than the three memos from Mr. Fishman and Ms. Evans. Fishman was verbally reprimanded by his own supervisor.

    
    

74. When Ms. Evans objected to the memo, a discussion process ensued that was designed to clear the air between Dr. Donovan and Evans. Dr. Donovan proposed to replace the memorandum with the discussion process if Evans would agree to acknowledge that her conduct was improper. Ms. Evans refused and, at her request, she was ultimately transferred.

    
    

75. The events that occurred after she transferred into a different unit were not shown to be related to any alleged attempt to discriminate against Evans. Accordingly, no basis exists for concluding that Evans adduced evidence sufficient for a finding of intentional discrimination on this aspect of her claim.

    
    

76. In a "failure to promote" case, a petitioner such as Ms. Evans must prove (1) that she belongs to a protected group; (2) that she was qualified for the job for which the employer was seeking applicants; (3) that she was rejected despite her qualifications; and (4) that after rejection, the position remained open and the employer continued to seek applicants with plaintiff's qualifications. McDonnell Douglas, at 802. The ultimate burden of persuasion is on Evans to demonstrate by a preponderance of the evidence that GE discriminated against her, on the basis of her sex, in its refusal to select her for the various positions for which she applied.

    
    

77. In the present case, Evans has met her burden of establishing a prima facie case with respect to the failure to promote claim. Ms. Evans established that she met the minimum qualifications for the positions she self nominated for, but that male employees were selected for the positions.

    
    

78. However, GE has articulated satisfactory, non-discriminatory reasons for the non-selection of Ms. Evans for the open positions. The persons selected for the particular positions were chosen because of their qualifications and the hiring manager's belief that they were the best candidates for the jobs. No evidence was produced that would establish Ms. Evans was not chosen for any of the positions because she had filed complaints within the company and with the Florida Commission on Human Relations. Moreover, the selection decisions in question were made by four different persons. There was no evidence presented that establishes that these four persons, or anyone else, conspired to ignore Ms. Evans' applications in favor of male applicants.

    
    

79. Although Evans contends that GE failed to follow the exempt self- nomination system policy with respect to the selection of Don Rollins for the position of supervisor of the advanced course in engineering, she failed to show

    that any such noncompliance with the policy was for discriminatory reasons. In order to find intentional discrimination in an employer's failure to follow a stated policy, a petitioner must establish that the employer disregarded the policy for discriminatory reasons, rather than simply failed to follow the policy. Clark v. Huntsville City Board of Education, 717 F.2d 525 (11th Cir.

    1983).

    
    

80. Because Evans did not establish that the reasons articulated by GE for her non-selection were pretextual in nature or unlawful, she has not met her burden on this aspect of her charge.

    
    

81. In order to establish a prima facie case of retaliatory discharge, the petitioner must prove (1) that she engaged in a protected activity; (2) that an adverse employment action occurred; and (3) that there was a casual connection between her participation and the protected activity and the adverse employment action. See Tipton v. Canadian Imperial Bank, 872 F.2d 1491 (11th Cir. 1989); Simmons v. Camden County Board of Education, 757 F.2d 1187 (11th Cir. 1985); Swint v. Volusia County, 36 FEP 1411 (M.D. Fla. 1984).

    
    

82. Ms. Evans did not carry her burden of establishing a prima facie case of retaliation in her discharge. Ms. Evans produced no persuasive evidence showing a connection between the filing of an internal complaint with GE or the charge of discrimination with the EEOC and FCHR, and her subsequent discharge from employment. There was no evidence presented that Tim Connolly, Evans' manager at the time of her termination, considered her complaints when making the decision to bring her into his subsection or when he terminated her.

    
    

83. Although Connolly learned of Evans' complaints after she was transferred into his unit, it would be pure speculation to conclude that the termination was in any way related to her complaints. To the contrary, Evans was assigned certain tasks within her capability, but she refused to do those tasks. Ms. Evans testified that she was multi-disciplined in computer technology and possessed as many skills as anyone in the department. She presented no evidence to show that any similarly situated male was allowed to maintain his employment after refusing to perform tasks assigned by his immediate manager that were within his abilities and skills level.

    
    

84. To conclude, as Evans suggests, that after the filing of the discrimination complaint, GE purposely placed her in a position where she would fail or be forced to resign, ignores the overwhelming evidence of GE's good faith dealings with her to the contrary. When GE's business required it to focus on the immediate needs of its products rather than longer term research and development, it was left with the difficult task of reassigning employees, and even more unfortunate task of laying off some employees. Because of the company's desire to retain an employee of Evans' qualifications and expertise, however, it found itself ultimately in the unenviable position of having a talented employee who refused to work at the only work available. When given the chance to consider the consequences of her refusal, even after she had been afforded more than adequate time to understand the tasks, she again refused. Her refusal to work was the basis for her discharge, not the complaint she had filed some six months earlier.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order determining that Shahla Evans has failed to establish that GE discriminated against her on the basis of her sex in the decisions affecting her employment.

DONE and ENTERED this 23rd day of October, 1992, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1992.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 91-6396 AND 91-6879

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.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Shahla Evans

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1); 4&5(2); 6&7(3); 8(4); 9(5); 11(5); 12(2); 19&20(7); 24(8); 30(9); 31(10); 107(42); and 127(50).

2. Proposed findings of fact 1, 2, 13-17, 21, 23, 25, 34-36, 40-

50, 52-54, 57-68, 72, 75-89, 95, 98-104, 106, 108, 113, 115-

118, 122-126, 128-131, 136, 137, 139, 140, 142-149, 152-155,

157-160, 164, and 165 are subordinate to the facts actually found in this Recommended Order.

3. Proposed findings of fact 10, 18, 22, 27, 28, 32, 33, 37-39,

51, 55, 56, 69-71, 73, 74, 90-94, 96-both 97s, 105, 111, 112,

114, 119-121, 132-135, 138, 141, 151, and 156 are unsupported by the credible competent and substantial evidence.

1. Proposed findings of fact 26, 29, 109, 110, 150, and 162 are irrelevant.

2. Proposed findings of fact 161, 163, and 166-168 are unnecessary.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, General Electric Company

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number

in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3-5(4-6); 6-10(11-14);

11-15(15-18); 16-25(19-27); 26-30(28-31); 31-34(32-34); 35-

49(35-47); and 50-63(48-61).

COPIES FURNISHED:

Rick Kolodinsky Attorney at Law

1055 N. Dixie Highway, Suite 1 New Smyrna Beach, Florida 32169

Francis M. McDonald, Jr. Attorney at Law

Olympia Place, Suite 1800 800 North Magnolia Avenue Post Office Box 2513 Orlando, Florida 32802-2513

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Margaret Jones, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

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.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

SHAHLA EVANS,

Petitioner, EEOC Case Nos. 15D890258,

FCHR Case Nos. 89-5640, 90-0392

v. DOAH Case Nos. 91-6396, 91-6879

FCHR Order No. 93-029, 93-030

GENERAL ELECTRIC COMPANY,

Respondent,

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE PRELIMINARY STATEMENT

Petitioner Shahla Evans filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended. Sections 760.01-760.10, Fla. Stat. (1991). Petitioner alleged Respondent General Electric Company unlawfully discriminated against her on the bases of sex (female) and retaliation for filing the complaint of sex discrimination.

The allegations of discrimination set forth in the complaints were investigated. The Executive Director found no reasonable cause to believe an unlawful employment practice occurred in each case.

Thereafter, Petitioner filed Petitions for Relief from an Unlawful Employment Practice in each case requesting that formal proceedings be conducted on the claims. The petitions were transferred to the Division of Administrative Hearings (DOAH) where they were consolidated for the evidentiary proceeding.

Fla. Admin. Code Rule 6OY-4.O16(1). On October 23, 1992, DOAH Hearing Officer Diane K. Kiesling entered a Recommended Order of dismissal.

Public deliberations were held on September 16, 1993, Orlando, Florida before this panel of commissioners.

Exceptions to the Recommended Order

Petitioner filed numerous exceptions to the hearing officer's Recommended Order, most of which are factual in nature. Petitioner argues that the hearing officer either failed to make certain findings, made erroneous findings, or failed to clarify and/or emphasize certain findings.

It is the hearing officer's function to consider all of the evidence presented and reach ultimate conclusions of fact based upon competent substantial evidence by resolving conflicts, judging the credibility of

witnesses and drawing permissible inferences therefrom. If the evidence supports two inconsistent findings, it is the hearing officer's roll to decide between them. Heifetz v. Department of Business Regulations, 475 So.2d 1277 (Fla. 1st DCA 1985); DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957).

Except as indicated below, the panel rejects Petitioner's exceptions to the hearing officer's findings of fact made in the Recommended Order as the record contains at least some competent substantial evidence supportive of these factual findings. In the presence of such evidence, the panel will not disturb the hearing officer's findings as to disputed facts. Brevard County Sheriff's Department v. FCHR, 429 So. 1235 (Fla. 5th DCA 1983); City of Umatilla v. PERC, 422 So.2d 905 (Fla. 5th DCA 1982).

Petitioner's exception regarding the hearing officer's finding of fact #31 wherein the hearing officer found that Petitioner ". . . was equally qualified on paper . . ." to the successful applicant for the Advanced Course Supervisor position. This exception is granted in that the evidence in the record does not support this finding. The evidence demonstrates that Petitioner was clearly better qualified "on paper" than Mr. Don Rollins, the applicant given the position. For this reason, the panel rejects the hearing officer's finding and grants Petitioner's exception in this regard.

Petitioner also excepted to the hearing officer's finding that she had been granted an interview for the position (see hearing officer's finding of fact #31). While there was record evidence to support this finding (see deposition testimony of Richard Brownfield pp. 7, 19-22), Respondent admitted at deliberation that such discussion between Respondent and Petitioner did not equal an interview for the position. As such, Petitioner's exception to this finding is granted.

Additionally, Petitioner made arguments regarding the hearing officer's conclusions of law. Herein, Petitioner argues that Respondent failed to articulate legitimate, nondiscriminatory reasons for the actions which were taken against Petitioner, or in the alternative, Respondent's reasons were shown to be pretextual. While it is clear that Petitioner was more qualified "on paper" than the successful candidate, the hearing officer accepted Respondent's articulation of why Mr. Rollins was selected over Petitioner. As the trier of fact, the hearing officer is permitted to do so and the panel is prohibited from rejecting that determination unless it can meet the requirements of section 12O.57(1)(b)1O. Based on the presence of some substantial competent evidence in the record to support the hearing officer's findings and conclusions, the panel denies Petitioner's exceptions to the hearing officer's Conclusions of Law and Findings of Fact, except as previously indicated.

FINDINGS OF FACT

We have considered the hearing officer's Findings of Fact and are mindful of the record in this cause. Except as previously discussed herein, the hearing officer's findings are supported by competent substantial evidence and are hereby adopted. Section 120.57(1)(b)10, Fla. Stat. (1991).

CONCLUSIONS OF LAW

We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. Accordingly, we adopt the hearing officer's conclusions of law.

DISMISSAL

The Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order.

The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 22nd day of November, 1993. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Whitfield Jenkins, Panel Chairperson;

Commissioner Gerald F. Richman; and Commissioner Stella Lewis.

FILED this 22nd day of November, 1993 in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

COPIES FURNISHED:

Shahla Evans, Petitioner (C.M. P360135094)

Francis M. McDonald, Jr., Attorney for Respondent (C.M.P360135095)) Diane K. Kiesling, DOAH Hearing Officer

Danica W. Parker, Legal Advisor for Commission Panel

Docket for Case No: 91-006396

Orders for Case No: 91-006396