JODY A. STRAIN, )
vs. ) CASE NO. 92-1682
Respondent. )
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on September 29, 1992, in Tampa, Florida.
For Petitioner: Jody A. Strain, pro se
For Respondent: John E. Phillips, Esquire
400 N. Ashley
Whether Petitioner was discriminated against in employment by reason of her sex (female/pregnancy) and retaliation (for filing complaint).
By Petition for Relief from a Unlawful Employment Practice dated January 11, 1990, Jody A. Strain, Petitioner, seeks relief from her dismissal from Reflectone, Inc. in November, 1989. As grounds therefor it is alleged her dismissal was substantially influenced by her sex (female/pregnancy) and her failure to be rehired was in retaliation for filing the initial charge of discrimination. The complaint was referred by the Florida Commission on Human Relations to the Division of Administrative Hearings and these proceedings follows.
At the hearing Petitioner called six witnesses, including herself, Respondent called three witnesses, two of whom had been called by Petitioner, and nine exhibits were admitted into evidence. Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is included in the Appendix attached hereto.
Jody A. Strain was recruited and hired in 1984 by Reflectone, Inc. as a computer systems engineer. At the time of her dismissal Petitioner was a Level
3 engineer.
During the 5 1/2 years Petitioner was employed by Respondent her evaluations were above average (Exhibit 2) and she received several letters recognizing her contributions to the projects to which she was assigned. Respondent has never contended that Petitioner was dismissed because of her work performance.
Reflectone, Inc. develops flight simulators which it sells primarily to the U.S. military and to commercial airlines. These contracts are generally awarded following a request for proposal submitted by the purchaser to several companies capable of accomplishing the proposed tasks; and these companies, including Reflectone, submit bid proposals which, when accepted, result in an
$8-$10 million contract.
Each contract will generally run from 24 months to 30 months before completion. Accordingly, the number of employees needed at any one time is largely reflected by the number and scope of on-going projects.
Because of this variation in workload Respondent's project managers prepare an evaluation of staffing needs for the future at two month intervals. These are coordinated and as new contracts are accepted they are staffed by people with the necessary qualifications who are working on expiring contracts.
On September 12, 1989, Petitioner was placed on emergency maternity leave with an expected duration of nine weeks (Exhibit 3).
On November 13, 1989 Petitioner was called by Janis Batt, Engineering Manager, Computer Systems at Reflectone and told that she was selected for lay- off.
At the time Petitioner commenced her maternity leave the project on which she was working had not been completed; however, that part of the project on which Petitioner was working had been completed. Finalizing the project, which had been delayed by non-receipt of data from the purchaser, was completed by John O'Reilly, the team leader on the acoustics portion of the project on which Petitioner had participated.
At the time Petitioner was laid off there was no new project starting up which required an engineer of her qualifications. The general policy at Reflectone is not to replace an engineer working on a particular project with another engineer except in cases of emergency. Since a large part of the work done by engineers such as Petitioner is writing computer programs for the project, continuity on the project is deemed by Reflectone to be the most important factor. As a result seniority among engineers is given considerably less weight in this business than in most other businesses where one engineer can generally replace another engineer with equivalent qualifications.
Petitioner had earlier been granted maternity leave and returned to work at Reflectone. No evidence was presented that other employees had been terminated at Reflectone involuntary while on maternity leave or as a result of their pregnancy.
At the time of Petitioner's dismissal there were some six to eight engineers in the computer systems division headed by Janis Batt. One was a Level 5, three were Level 4, two were Level 3 and one position was filled by a USF student working as a co-op one semester and going to school the next semester. This position was arranged by an agreement between Reflectone and USF.
The one other Level 3 engineer in the computer systems division was Chet Kwistowski who had been hired much later than Petitioner. However, in October 1989 Kwistowski was working on an on-going project.
Due to the lack of work in late 1989 staffing studies showed not enough work at Reflectone for all systems engineers. In July 1989 another group at Reflectone experienced lay-offs. In total some 50 people out of a work force of 500 were laid off in 1989.
By reduction in force recommendation dated November 9, 1989 Janis Batt recommended Petitioner be selected for lay-off by reason of lack of work for an engineer of her qualifications. This was approved by the vice-president of Human Resources for a separation date of November 15, 1989 (Exhibit 8).
By request for department transfer dated August 25, 1989, Janis Batt proposed that Petitioner be assigned to computer systems as her work on her then present assignment (SH2/SH3) had been completed.
Respondent's policy and procedure manual policy number 29 (Exhibit 7) provides that employees furloughed because of lack of work may have a one (1) year recall period afforded them at the concurrence of the employee's supervisor and the vice-president, Human Resources. Petitioner contends that she was not rehired pursuant to this policy as retaliation for having filed her initial complaint of discrimination.
During the Petitioner's recall period no new Level 3 engineers were employed in the computer systems division. However, one Level 4 engineer and two Level 1 engineers were hired. The Level 4 engineer hired, John Pfost, had voluntarily left Reflectone some two years earlier as an Engineer 2. Although Petitioner contends that Pfost was hired as a Level 4 to offuscate the failure to rehire her, Respondent presented credible and unrebutted evidence that Pfost had special skills necessary for the project for which he was hired. Another engineer had been denied promotion from Level 3 to Level 4 because she "did not have enough time in Level 3" yet she had more time as a Level 3 than the interval between Pfost leaving as Level 2 and his rehiring as Level 4. However, she did not have the supervisory experience Pfost had gained during the two years he worked for a competitor of Respondent.
Petitioner did not apply for the Level 1 positions that were filled during her one year recall period and she was not offered either of those positions because she was deemed to be overqualified for the position. Although Petitioner indicated at the hearing that she would have accepted a Level 1 position she did not specifically testify that she would have accepted that position if offered.
In this regard, from all of the evidence presented it is clear that Reflectone staffs various jobs with personnel holding the skills required for that job. Jobs requiring entrance level skills were staffed with Engineers 1 and jobs requiring Engineering Level 2 skills were staffed with Engineers 2, etc. No Engineer 2 or 3 personnel were assigned to jobs requiring Engineer 1 or
Engineer 4 skills. Accordingly, the failure of Respondent to offer Petitioner the position of Engineer 1 was due to this general policy and not because Petitioner had filed her discrimination claim.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person because of that person's sex. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq., ("Title VII"). Hargis v. School Board of Leon County, 400 So.2d 103, 108 n. 2 (Fla. 1st D.C.A. 1981). As such, federal precedent construing the similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985).
The Supreme Court established, and later clarified the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985).
McDonnell Douglas places upon the plaintiff the initial burden of proving a prima facie case of discrimination. In a failure to hire or promote case, the plaintiff 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 Corp. v. Green, at 802.
Where discriminatory discharge is claimed, a prima facie case is proved under the McDonnell Douglas approach by showing, 1) the plaintiff is qualified for the position; 2) she was discharged; and 3) she was replaced by a person outside the protected class. Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982); Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).
Proving a prima facie serves to eliminate the most non-discriminatory reasons for the plaintiff's disparate treatment. See, Teamsters v. U.S., 431
U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once the plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, non-discriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been
motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at 257. 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 plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light". Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir.
1983).
Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the plaintiff who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated non-discriminatory reasons or that the hired applicant was more qualified than the plaintiff. Texas Department of Community Affairs v. Burdine, at 257-8.
In Burdine the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Texas Department of Community Affairs v. Burdine, at 253. The Court recently confirmed this principle in Price Waterhouse v. Hopkins, 109 S.Ct. 1775, 104L Ed. 2d 268 (1989).
In Price Waterhouse v. Hopkins, the Court examined the parties' respective burdens of persuasion where the Plaintiff has proven with direct evidence that the employer's actions were motivated by discriminatory animus. A plurality of the Court held that in such a case, the employer must prove by a preponderance of the evidence that it would have made the same decision even if discriminatory animus had not been a motivating part of its decision.
The Court cautions, however, that the holding does not alter the Burdine burden of proof allocation. The employer only bears the burden of persuasion after the plaintiff has proven discriminatory motivation. In a concurring opinion, Justice O'Connor explained that the application of this rule is limited to mixed-motive cases, that is, where the employer has created substantial uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion.
In the instant case, Petitioner failed to show by direct evidence that sex (pregnancy) was a substantial factor in the Respondent's decision making. Petitioner's only direct sex-related evidence was the acknowledged fact that she left Respondent's employment on maternity leave with an anticipated return to work nine weeks after September 12, 1989. Any pattern of discrimination because of pregnancy is rebutted by Petitioner's earlier pregnancy where she left Respondent's employment on maternity leave and resumed work at the expiration of that leave. In this regard Petitioner failed to establish a prima facie case.
Even if Petitioner has established a prima facie case that she was terminated because of her pregnancy, the Respondent has articulated a legitimate, non-discriminatory reason for her termination, to wit: there were no new contracts starting up on which a person of Petitioner's qualifications was needed.
Although Petitioner intimated at the hearing that she should have been offered one of the engineering jobs that were filled during the one year recall period Respondent had established for laid-off employees, she did not testify that she would have accepted a two-step demotion to return to work and it is
most unlikely that she would have accepted such an offer. Respondent's personnel responsible for hiring someone to fill the Engineering 1 jobs that did open certainly believed that Petitioner would have been insulted by being offered a job for which she was over qualified and may have filed another claim of discrimination.
Petitioner's contention that she was discriminated against in employment because she filed the initial charge of discrimination because of her sex/pregnancy, has a little better foundation than her initial charge.
Section 760.10(7), Florida Statutes provides in pertinent part:
It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice . . . .
A prima facie case of retaliation is established by proving that (1) the employee engaged in a protected activity, (2) the employee was subject to an adverse employment decision, and (3) there is a causal connection between the protected activity and the adverse employment decision. Canino v. EEOC, 707 F. 2d 468, 471 (11th Cir. 1983); Lockhart v. Olin Co., 13 FALR 4147, 4151 (DOAH 1991).
Petitioner has proved two of the elements necessary to establish a prima facie, i.e. that she engaged in a protected activity by filing her initial discrimination charge and that she was subject to an adverse employment decision by not being recalled during her one year recall period. However, no causal connection was established between the filing of the initial complaint and the failure to be rehired. No Engineer 3 positions were filled by Respondent during this one year recall period and the failure of Respondent to offer Petitioner one of the two Engineer 1 positions or the Engineer 4 position that were filled is discussed above. Accordingly, Petitioner has failed to establish a prima facie case of discrimination in retaliation for her filing the initial charge of discrimination.
From the foregoing it is concluded that Jody A. Strain has failed to prove that she was discriminated against in employment by Reflectone, Inc.
It is recommended that Jody A. Strain's Petition for Relief from an unlawful employment practice be dismissed.
DONE and ENTERED this 5th day of November, 1992, at Tallahassee, Florida.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1992.
Petitioner's proposed findings are unnumbered. To attempt to rule on these proposed findings I have numbered them 1-23 attempting to keep one fact to each number. Treatment accorded these numbered findings is as follows:
14.-15. Rejected as argumentative.
Respondent's proposed findings are accepted except as noted below. Those proposed findings not included in the Hearing Officer's findings nor accepted below were deemed unnecessary to the conclusions reached:
2. Date of Petitioner's layoff on November 6, 1989 rejected as inconsistent with Exhibit 8.
Jody A. Strain 12404 Cardiff Drive
John E. Phillips, Esquire
400 N. Ashley
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.
