STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARSHA MERCER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1459

)

LDM, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on September 30, 1994, in Pensacola, Florida.

APPEARANCES

For Petitioner: Barry W. McCleary, Esquire

3 West Garden Street, Suite 380 Pensacola, Florida 32501

For Respondent: Donna Gardner, Esquire

213 South Alcaniz Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination within the meaning of the relevant provisions of Chapter 760, Florida Statutes, based upon alleged sexual harassment in the course of her employment and retaliation for her complaints concerning the alleged sexual harassment.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Petition for Relief by the above- named Petitioner, in which it is alleged that certain supervisory personnel of the Respondent subjected the Petitioner to sexual harassment by treating her differently from male employees in a similar employment status; by subjecting her to disciplinary measures, including reprimands and suspension without pay; and termination from employment, allegedly as a result of retaliation for her having complained concerning sexual harassment. The Petitioner filed a complaint with the Florida Commission on Human Relations (Commission), and a notice of determination of "no cause" was entered by that agency. Thereafter, the Petitioner timely filed the Petition for Relief, which resulted in the cause being transmitted to the Division of Administrative Hearings and the undersigned Hearing Officer for adjudication.

The cause came on for hearing as noticed. During the course of the hearing, the Petitioner presented seven (7) witnesses in its case-in-chief and two of them also as rebuttal witnesses. The Respondent presented one witness in its case-in-chief and otherwise relied upon its cross-examination. Upon conclusion of the hearing, the parties had the proceedings transcribed and thereafter requested an extended briefing schedule for submission of Proposed Recommended Orders. Those Proposed Recommended Orders have been timely submitted and have been addressed in this Recommended Order and in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner was an employee of the Respondent at times pertinent hereto. It is undisputed that that Respondent is an employer within the meaning of Chapter 760, Florida Statutes, and that timeliness and jurisdictional requirements have been met.

   
   

2. The Respondent obtained a contract with the United States Navy for a project to be performed at the Naval Air Station in Pensacola, Florida. It became the contractor for the project in approximately December of 1991. The contract, in pertinent part, provided that the Respondent would provide local cartage trucking services for the Navy on and in the environs of the Pensacola Naval Air Station. The project involved loading and transportation of aircraft parts and related supplies and equipment. The Petitioner was hired as a truck driver, delivering aircraft parts for the naval aviation depot (NADEP). During the course of that employment, there came a time when the Petitioner contended that she had been discriminated against because of her gender.

   
   

3. The Petitioner contends that in a meeting in December of 1991, she was told by Terry Meyers, an employee of the Respondent and the Petitioner's supervisor, that she "didn't look like a truck driver" and that she had three weeks to look for another job. The meeting in which the statements were allegedly made was a meeting called by the Petitioner's supervisor and the project manager, Mr. Danny Francis, to address certain deficiencies in the Petitioner's performance. Another employee, Mr. Braughton, was also counseled at the meeting concerning his performance as a truck driver. His was the same type of employment position as that occupied by the Petitioner. Mr. Braughton is a white male.

   
   

4. The Petitioner maintains that she informed a white male employee, Mike Morris, of the statements allegedly made at the meeting and that he immediately made a telephone call to Mr. Frank Moody, the president of the corporation, to put the president and the corporation on notice of sexual discrimination against the Petitioner. The Petitioner, however, was not present when Mr. Morris made that telephone call to Mr. Moody. Even had he made reference to alleged sexual discrimination in his telephone call to Mr. Moody, Mr. Morris only learned of the purported sexually-discriminatory statements from the Petitioner. The Petitioner maintained that Mr. Morris informed her that he had heard the statements made while standing at the door of the room in which the meeting occurred and that Mr. Morris initiated the telephone call on his own volition to Mr. Moody, based upon hearing those statements.

   
   

5. Mr. Morris, however, testified to the contrary, stating that the Petitioner approached him and claimed that she was on probation and was fearful of being laid off from employment and that the Petitioner told him of the alleged sexually-discriminatory statements and that he did not hear them himself. He further testified that the Petitioner instructed him to contact Mr.

   Moody concerning her fears about her job and the alleged discriminatory statements or she would contact "HRO and EEO and have the contract shut down". Mr. Morris, indeed, called Mr. Moody but never mentioned the statements alleged by the Petitioner to have been made to her by Mr. Meyers during the performance evaluation meeting. In fact, it has been demonstrated by Mr. Morris' testimony, which the Hearing Officer accepts as more credible, that the Petitioner never complained to Mr. Morris about a sexually-discriminatory statement or purported sexual discrimination. Mr. Morris, instead, spoke to Mr. Moody about problems he saw occurring in the operation in Pensacola which he attributed to the project manager, Mr. Danny Francis. He told Mr. Moody that Mr. Francis was allowing employees to leave work early without Mr.. Moody's knowledge and still crediting them with working a full day on such occasions which, in effect, cost the corporation additional salary monies which were unearned.

   
   

6. The meeting in which the Petitioner was allegedly confronted with the statement that she did not look like a truck driver and had three weeks to look for another job was called and conducted by Mr. Francis and Mr. Meyers was present. It is undisputed that Mr. Moody terminated Mr. Francis shortly after the telephone conversation with Mr. Morris. He replaced Mr. Francis with the current project manager, John Jacobs. Mr. Moody testified that in a telephone conversation with the Petitioner that she never mentioned to him the alleged sexually-discriminatory statements referenced above. Instead, he was told by both Mr. Morris and the Petitioner that she was concerned that she might lose her job because of the results of the meeting with Mr. Francis, in which he told her that she needed to improve her job performance.

   
   

7. In fact, the management of the Respondent perceived a genuine job performance problem involving the Petitioner's conduct of her job duties. This was disclosed in the testimony of both Mr. Jacobs and Mr. Morris, where it was revealed that the Petitioner had had a continuing problem performing her job correctly and that Mr. Morris and the management personnel had worked with her constantly during the course of her employment term with the Respondent, taking more time and personal attention with her than with other employees. This was done in order to repetitively explain her job duties and give her additional chances to improve her work performance, in comparison to the lesser degree of attention and remedial help that they accorded other employees.

   
   

8. Prior to February 3, 1993, the Petitioner had been employed with the Respondent for over a year. The testimony of Mr. Jacobs established, however, that even though her probationary period had long since elapsed, he still considered the Petitioner to be, in effect, an employee in training because she was deficient in correctly accomplishing all of the duties of her job. She was slow in performing her job duties, including preventive maintenance inspections of her vehicle and in making the "pickups and deliveries" of freight she was required to transport on her truck in the performance of her duties. The counseling session concerning her work performance occurring in December of 1991, referenced above, was during her probationary period. The white male employee, Mr. Rick Braughton, who was also counseled about deficient work performance on that occasion, was informed that he might not remain employed past his probationary period unless his performance improved.

   
   

9. The Respondent had a regular practice and procedure, as part of its truck safety and preventive maintenance program, that employees, who were drivers, were required to give a preventive maintenance and safety inspection of their vehicles each day prior to leaving the company facility or terminal to transport aviation parts or other freight. This was regarded as crucial to proper job performance by the employer because of the concern about safety of

the drivers and avoidance of damage, and liability for damage, to the expensive equipment and parts which the Respondent was required by its contract to transport, such as expensive military aircraft parts and related equipment.

Among these preventive maintenance inspection duties that driver/employees, such as the Petitioner, were required to perform daily was the requirement to check the air in the truck tires and "top off" the tires with the required air pressure, if necessary.

10 Mr. Jacobs established that there came a time when the Petitioner was noted to have failed on multiple occasions, in the same week, to check and air her tires. Finally, upon this deficiency coming to his attention again on February 3, 1993, Mr. Jacobs suspended the Petitioner for a day without pay, for failing to check and air her tires. The Petitioner claims that she was the only employee singled out for this treatment concerning failure to inspect and air her tires. The testimony of Mr. Jacobs is deemed more credible, having observed the candor and demeanor of all of the witnesses, and it is determined that the employer had a good-faith belief that the Petitioner was deficient in this regard and that the reprimand, consisting of the one-day suspension, was justified. It was not demonstrated that, even if the Petitioner's version of events is true and that other driver/employees were not disciplined for failure to air their tires, that such a circumstance occurred as a result of the employer's knowledge of other driver/employees failing to air their tires and arbitrarily choosing not to discipline them. In fact, it was not demonstrated by preponderant, non-self-serving evidence that other employees had not been disciplined for failure to air their tires. In fact, it was not shown, other than by the self-serving testimony of the Petitioner, that other employees had failed to air their tires when required.

1. The other drivers are mostly male, but one is a female. There was no showing that she was treated any differently than the male drivers. In summary, it has been established that the employer accorded the reprimand to the Petitioner because of a good-faith belief that her performance had been deficient, on repeated occasions, in this respect.

   
   

2. It is undisputed that prior to the date the Petitioner received the reprimand, consisting of one-day suspension without pay, that the Petitioner had a generally good attitude about her job insofar as management was able to observe. Even though management had had some concerns about her performance and the slow manner in which she was learning certain aspects of her job, with resulting deficient effects upon her performance, management forbore from using these concerns to reduce her performance rating. She received good evaluations of her performance, insofar as her personnel record is concerned, prior to the time she was suspended for one day on February 3, 1993. After the Petitioner received the suspension she developed a "bad attitude" insofar as her perception of management was concerned. She began to complain frequently about vehicle safety or purported concerns she had about the condition of her vehicle related to safety, particularly the truck brakes. Prior to her suspension, she had never complained in this regard. Management also perceived that she appeared to show down her work performance and management came to believe that it was an intentional delay of her work performance on an ongoing basis. Prior to receiving the reprimand, she was never known to complain to management concerning discrimination on account of her gender.

   
   

3. She had never informed the project manager or any other supervisory personnel concerning her purported belief that employee Meyers was "following her". Only after she received the reprimand on February 3, 1993 did she elect to file a sexual discrimination charge with the Commission. Mr. Meyers had some

   supervisory authority over the Petitioner. His job duties also required that he drive his truck around the Naval Air Station and the immediate vicinity in the normal performance of his duties. This circumstance resulted in his being in close proximity to the Petitioner during the course of their respective work days. He contends that he was not purposely following her for the purpose of harassing her. The overall evidence of record reveals, however, that he, indeed, did follow or stop in her vicinity on a number of occasions to observe her work performance. This was not shown to be out of the ordinary scope of his supervisory duties, especially because of management's concern that the Petitioner was not progressing in the learning and performance of her job duties as well as other employees, including the other female driver.

   
   

4. The project manager, Mr. Jacobs, felt that the Petitioner's attitude continued to decline after the February 3, 1993 reprimand. He felt that her attitude and performance reached its lowest level on the date she was observed to be loading "unauthorized equipment" (apparently a portion of a helicopter assembly weighing approximately 4,000 pounds) on the flatbed trailer of her assigned work truck. She was not authorized to load that equipment and apparently, according to her testimony, she did so in order to provide a substantial amount of weight on her trailer for the purpose of having her brakes inspected by the quality assurance official for the project. She went to an unauthorized area for approximately one hour to have this inspection performed without the approval of the Respondent's management. Further, it was not necessary, in order to evaluate the brakes on the vehicle for proper function and safety, to have the weight of the unauthorized load placed on the trailer. If, indeed, the brakes had been defective, it would have been entirely possible that the expensive aircraft parts she had placed on the trailer without authorization could have been substantially damaged, the truck or other property could have been damaged, and, indeed, the Petitioner or other persons could have been injured. Additionally, the Petitioner misrepresented the reason she was in the unauthorized area where she had her brakes inspected by Mr. Lett, the quality assurance officer.

   
   

5. In this connection, because she had begun to complain repeatedly about the condition of her brakes and her vehicle (after her reprimand), the project manager, Mr. Jacobs, had had certain other employees come in on several occasions at approximately 6:00 a.m., before normal working hours, and before the Petitioner arrived on the job site, to inspect the Petitioner's truck for safety and appropriate preventive maintenance purposes. These employees were not informed that it was the Petitioner's truck they were inspecting at the time they were told to do the inspections. The Respondent was attempting to ascertain the true condition of the Petitioner's truck and determine whether her reports concerning safety problems, particularly with her brakes, were accurate or not.

   
   

6. In fact, on the morning of the day when the unauthorized load was placed on the truck and the Petitioner had Mr. Lett perform the inspection of her brakes at the unauthorized area, one of the Petitioner's co-employees had inspected her brakes before she arrived to take custody of her truck that morning. He had determined that the brakes were operating properly. The Petitioner and Mr. Lett apparently felt that the brakes were deficient when they were inspected early in the afternoon of that day. The record does not reveal whether the brakes were deficient when Mr. Lett inspected them or that some change in the adjustment of the brakes or other problem had arisen since the employee inspected them early that morning and found them to be in proper operating order. Be that as it may, management was of the belief on that day and prior thereto that the Petitioner, although reporting brake deficiency

   problems, did not truly experience such brake deficiency problems with her truck. This belief was based upon management perceptions concerning the Petitioner's attitude after her reprimand and upon the independent, confidential inspections management had other employees do on the Petitioner's truck.

   
   

7. Accordingly, whether its belief was accurate or not, management was of the good-faith belief, on the date she was observed loading unauthorized, expensive equipment onto the flatbed truck, in an unnecessary fashion, for the purpose of having her brakes inspected, while being absent from her work assignment for one hour in an unauthorized area, that it had performance-related reasons to terminate her, which it did. This decision was made against the background of the increasingly poor attitude displayed by the Petitioner since her reprimand and because of the continuing problems management had experienced with the Petitioner's job performance since her initial employment one and one- half years previously.

   
   

8. Although the Petitioner testified that as early as December of 1991, the management of the Respondent had spoken with her regarding her work performance and she interpreted that meeting as an attack on her gender and not upon her poor work habits, this contention was not verified by any other testimony. Having observed the candor and demeanor of the Petitioner versus that of the other witnesses, it is determined that her testimony is less creditable because of its self-serving nature. Although the Petitioner testified that a comment was made that "she did not look like a truck driver" and that she had three weeks to find another job, this was not verified through testimony of any other witness. To the extent that any other witnesses testified concerning these statements being made in a belief that discrimination had been exhibited toward the Petitioner, the evidence reveals that this information only came to these people through self-serving reports by the Petitioner herself. Meyers directly contradicts that these statements were made to the Petitioner and he states that he never heard anyone tell her that she had three weeks to look for a job or that she "didn't look like a truck driver".

   The petitioner provided no testimony or evidence which could show how these alleged statements constituted "sexual discrimination" or how the statements related to her sexual discrimination claim. It was not shown that any member of management, with employment-decision authority, made or condoned such statements even if it had been established that they evidenced gender-based discrimination, which was not done.

   
   

9. The Petitioner did not complain of sexual discrimination per se until after she had received a reprimand from management. Likewise, she began to repetitively claim that her equipment was unsafe after the reprimand. The Petitioner may have been overly sensitive to management's concern for safety inspections of her truck because of being reprimanded for safety violations and was afraid she would "get into trouble" with management if she did not constantly report feared safety problems. The fact was established, however, that management had a genuine, good-faith belief that it was being harassed by these repetitive, unsafe equipment reports by the Petitioner, given the then- prevailing atmosphere surrounding the Petitioner's employment, characterized by her less than satisfactory attitude, as perceived by management, and the fact that management's confidential inspections of her equipment did not reveal any safety problems of the type reported by the Petitioner.

   
   

10. Finally, it is especially noteworthy that during this period of time when the Petitioner made the claim of sexual discrimination and retaliation based upon her claim, that the Respondent had in its employ, in an identical job position, a female truck driver who had had no unsatisfactory experience by

    management with her performance, was not subjected to investigative or disciplinary measures, and who is still satisfactorily employed with the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 760.10, Florida Statutes, as pertinent to this case, provides as follows:

    
    

    1. Unlawful Employment Practices; Remedies; Construction.

       1. It is an unlawful employment practice for an employer: 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 organi- zation 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.

    
    

13. The legal principles and precedent established in the Federal Anti- Discrimination Laws, specifically Title VII, of the Civil Rights Act of 1964, 42

    U.S.C. Section 2000, et seq., are to be accorded great deference when applying Chapter 760, Florida Statutes. See, School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981); and Pasco County School Board v. PERC, 253 So.2d

    108 (Fla. 1st DCA 1979).

    
    

14. The Supreme Court of the United States established, in McDonnell- Douglass Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII and which are persuasive in cases such as the one at bar, arising under Chapter 760, Florida Statutes. This analysis was recently reiterated and refined in St. Mary's Honor Center v. Hicks, 509 U.S. , 113 S.Ct. 2742 (1993). Pursuant to this analysis, the Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the action taken against the Petitioner. The Petitioner must then prove that the reasons offered by the Respondent are not the true reasons but are, rather, a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination, "The fact finder must believe the plaintiff's explanation of intentional discrimination". 113 S.Ct. at 2754. Put

    another way, although the burden of going forward to articulate a nondiscriminatory reason for the action taken against the employee shifts to the employer, once a prima facie case is established, the ultimate burden of persuasion or proof remains with the Petitioner making the claim. The Petitioner herein failed to meet her burden of proof, as required by the above analysis, concerning either whether discrimination in employment practices based upon her gender occurred or whether retaliation was employed against her because of making such claims.

    
    

15. In establishing a prima facie case, the Petitioner must prove that she was a member of a protected class; that she was discharged or otherwise disciplined in a manner disparate from employees who are not members of a protected class; that she was replaced by a person outside the protected class or that those outside the protected class were not subjected to the same degree of discipline for similar infractions; and that she was qualified to perform in the job in question. See, Lee v. Russell County School Board of Education, 684 F.2d 769 (11th Cir. 1982); and Maggio v. Martin-Marietta Aerospace, 9 F.A.L.R. 2168 (FCHR 1986).

    
    

16. The Petitioner demonstrated that she is a member of a protected class in that she is a female, and she demonstrated that she was subjected to discipline involving her reprimand and suspension without pay for one day and, ultimately, her discharge. There was no evidence at all presented during the hearing concerning whether the Petitioner was replaced by another employee of any race or gender. The Petitioner demonstrated that she was basically qualified to do her job up until the point of the reprimand of February 3, 1993, after which her abrupt change in attitude, along with other performance problems which had been on-going and which were exacerbated after the reprimand, resulted in her no longer being qualified to do her job at the time she was discharged. Further, although the Petitioner maintains that the employer did not discipline other drivers for failing to inspect their vehicles and particularly to "air their tires", she did not establish, by non-self-serving testimony, that other drivers had not been called to account by the employer, when the employer had knowledge that they had failed to properly inspect their vehicles and air their tires. Thus, the Petitioner did not demonstrate that she was disparately disciplined based upon her sex or based upon a retaliatory intent because of her claims concerning sex discrimination. She simply did not adduce any preponderant evidence which could demonstrate that other drivers had been derelict in these duties and had not been correspondingly disciplined by the employer, upon the employer learning of it. In fact she did not prove that the employer learned of such infractions by other employees, even if it had been shown that they occurred, which it was not.

    
    

17. Moreover, it is noteworthy that one of the other drivers, who has not been disciplined for such infractions, is a female driver, who was an employee in good standing at times pertinent hereto and remained so at the time of the hearing. Consequently, for these reasons, the Petitioner has not demonstrated a prima facie case of a sex-based discrimination nor of discriminatory conduct by the employer in retaliation for her claims made against the employer concerning sex-based discrimination.

    
    

18. Even had the Petitioner established a prima facie case of discrimination based upon her sex or based upon retaliation for her claims of sex-based discrimination, the weight of the evidence supports the conclusion that the Respondent had a nondiscriminatory, business-related rationale for reprimanding and discharging the Petitioner. The Petitioner's performance had been sub-standard in terms of being sufficient to fully and timely carry out her

    assigned duties ever since her initial employment, some one and one-half years before her termination. In fact, the employer demonstrated that, even though good formal evaluations were accorded her, so that the Petitioner could arguably be deemed qualified for the position, in reality, the employer was according extra attention and assistance to the Petitioner, versus that accorded all other driver/employees, in an effort to assist her in achieving an adequate level of performance. This was the case even after her probationary period expired, before which point the employer would have been justified in summarily terminating her for poor performance had it chosen to do so. The Petitioner simply failed to prove, even had she established a prima facie case of sex or retaliation-based discrimination, that the Respondent's reasons it brought forward for discharging her, concerning her inadequate performance in the particulars mentioned in the above Findings of Fact, were pretextual.

    
    

19. The Petitioner is required to prove by a preponderance of the evidence that the proffered reasons for discipline and discharge were not the true reasons and that sex-based discrimination and retaliation because of claims of such discrimination was a determining factor in the disciplinary decision. The evidence established, however, that the proffered reasons given by the employer for the reprimand and the discharge were valid ones and represented the true intent underlying those decisions.

    
    

20. The Petitioner has alleged that she was "followed" by another employee/supervisor, Mr. Meyers. The Respondent's witnesses, in turn, contrarily claimed that no such following occurred in the sense of an effort by the employer, or Mr. Meyers personally, to harass the Petitioner. Mr. Meyers and other witnesses established that, to some extent, his presence may have been noted by the Petitioner in the immediate area where she was making pickups and deliveries with her truck, because Mr. Meyers' own personal employment duties required him to be there and occasionally often in the relatively-confined area of the Navy base, their "paths could cross". Further, it has been established, that to some extent, Mr. Meyers doubtless was attempting to unobtrusively observe and monitor the Petitioner's job performance, especially after some duration of her employment revealed that her performance was not yet adequate, as discussed in the above Findings of Fact.

    
    

21. It has not been proven that the Respondent, through Mr. Meyers or any other member of management, engaged in any sex-based discrimination or retaliation-motivated discriminatory conduct in terms of "following" the Petitioner during the performance of her job duties. The Petitioner's witnesses' testimony concerning these incidents of Mr. Meyers following her, in effect, only establish that the Petitioner claimed such was occurring. These witnesses have no true personal knowledge of such a situation, independent of the claims they became aware of the Petitioner making herself. The Petitioner has failed to establish, in any event, how such following can be interpreted as sexual discrimination or an effort to retaliate for claims of sexual discrimination since it occurred before she ever made any claims of sexual discrimination of which anyone in the management of the Respondent was aware. Whether one might interpret it as a rude or offensive course of conduct by the employer's management personnel, it was not demonstrated to be related to any discriminatory motive. The other female driver was and remains an employee in good standing who performs well. The same considerations are equally true for the Petitioner's claim that she was told by an employee, purportedly Mr. Meyers, that she "did not look like a truck driver". Even if that statement had been uttered by a member of management, it was not shown to have been intended as sexually-discriminatory, had it been made, which was not proven.

22. An employer must be notified or otherwise aware or on reasonable notice of discrimination, and fail to take adequate steps to remedy the situation, in order to be determined to be liable for such. College-Town, Division of Interco, Inc. v. Massachusetts Commission Against Discrimination,

    508 N.E.2d 587, 593 (1987). In the case at hand, the employer was never actually or constructively notified that the employee contended that sexual discrimination occurred at any time prior to the reprimand instance of February 3, 1993. The notification that the employer received concerning the Petitioner's fears immediately after the performance evaluation meeting with Mr. Francis and Mr. Meyers, in December of 1991, concerned the Petitioner's fears about losing her job because of her work performance. Even without notice during that general period of time concerning any sexual discrimination allegation, the employer still took remedial steps available, regardless of the reasons, by terminating the project manager, who allegedly threatened the Petitioner's employment with the corporation (which threats have not been proven) and who had apparently mis-used money from the employer's salary account by paying employees for full days when they did not work full days. The Petitioner was not threatened with termination at any time until the date she was actually terminated due to her flagrant violations of company policy and misconduct, concerning the use of the vehicle, failure to be on duty when she was supposed to have been, perceived harassment of the company by filing unnecessary claims of safety deficiencies and overall inadequate performance, enunciated in the above Findings of Fact.

    
    

23. The Petitioner simply failed, as a matter of law, to establish that she was terminated because of gender discrimination. Whether she was female or not played no part in the Respondent's decision to reprimand her on February 3, 1993 and to terminate her. The preponderant, credible evidence established that she was reprimanded for what was established to be a repetitive pattern of failing to adequately do preventive maintenance inspections on her vehicle, particularly with regard to maintaining the tires. It was not shown that other drivers, male or female, had committed the same violations of company policy without being disciplined therefor aside from the Petitioner's own self-serving statements to that effect in her testimony, which are not deemed credible. The preponderant evidence established that the Respondent terminated her because of poor performance and because management determined that she was loading unauthorized equipment onto a flatbed trailer, delaying work for one hour by conducting the unauthorized vehicle braking test; was potentially endangering the safety of the equipment, herself, and other persons, as well as lying to management concerning the incident. While this may seem a harsh, abrupt employment disciplinary measure, it was shown to be within the normal scope of the company's employment disciplinary policies and procedures. Even if one might deplore the severity of an immediate termination for these reasons, the termination was not shown to have occurred because of discrimination on account of her gender nor on account of retaliation because of her claims of sex-based discrimination. The Respondent had a legitimate interest in protecting company property and employees from such actions committed by the Petitioner. The Petitioner did not establish that gender was the motivating factor in that employment decision. That such an employment decision proved to be such a drastic measure does not, absent more, demonstrate a violation of Chapter 760, Florida Statutes.

    
    

24. In summary, no discriminatory motive for the discipline and discharge decisions referenced above has been demonstrated. The reasons given for the reprimand and discharge were not shown to be pretextual during any phase of the supervisory decision-making process. Thus, the Petitioner did not meet her

    burden to show unlawful discrimination. See, Arnold v. Burger Queen System, Inc., 509 So.2d 959 (Fla. 2nd DCA 1987).

    
    

25. Therefore, the Petitioner's assertion that she was reprimanded and her employment terminated on account of her sex and that she was retaliated against for filing a complaint of discrimination because of her sex, is unsupported by a preponderance of the evidence.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the petition herein in its entirety.

DONE AND ENTERED this 7th day of March, 1995, in Tallahassee, Florida.

P. MICHAEL RUFF 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 7th day of March, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1459

Petitioner's Proposed Findings of Fact

The Petitioner has submitted proposed findings of fact which are not in separately-numbered, discrete paragraphs. The paragraphs contain some proposed findings of fact which the Hearing Officer accepts and some which are rejected as being not supported by preponderant evidence and subordinate to the Hearing Officer's findings of fact on the same subject matter. The proposed findings of fact submitted by the Petitioner are intertwined with argument and discussions of the weight of the evidence or testimony. Because the paragraphs in the proposed findings of fact contain both findings of fact which the Hearing Officer accepts and which the Hearing Officer rejects, discrete, specific rulings thereon are not practicable. It suffices to say that all of the proposed findings of fact submitted by the Petitioner are subordinate to, but have been considered and addressed in the findings of fact portion of this Recommended Order and have been in that fashion completely ruled upon.

Respondent's Proposed Findings of Fact

The same considerations are true of the Respondent's proposed findings of fact. Some portions of the findings of fact proposed by the Respondent consist of merely discussions and argument concerning the weight of the evidence and

some are acceptable to the Hearing Officer based upon the Hearing Officer's determination of the weight and credibility of the testimony and evidence. Some are rejected as being unnecessary or subordinate to the Hearing Officer's findings of fact made on the same subject matter. Here, again, this Recommended Order completely and adequately addresses the proposed findings of fact submitted by the Respondent, and the Respondent's proposed findings of fact are accepted to the extent they are not inconsistent with those made by the Hearing Officer and to the extent they are inconsistent therewith, they are rejected as being not supported by preponderant evidence or as being immaterial, unnecessary, or subordinate to the Hearing Officer's findings of fact.

COPIES FURNISHED:

Barry W. McCleary, Esquire

3 West Garden Street Suite 380

Pensacola, FL 32501

Donna Gardner, Esquire

213 South Alcaniz Street Pensacola, FL 32501

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esquire General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 94-001459

Orders for Case No: 94-001459