STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY A. HARRISON, )

)

Petitioner, )

)

vs. ) Case No. 98-0183

) JODAN, INC., d/b/a MANPOWER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on June 9, 1998, and August 21, 1998, in Orlando, Florida.

APPEARANCES

For Petitioner: Mary Harrison, pro se

2356 Carborn Street

Orlando, Florida 32839

For Respondent: Kelly T. Blystone, Esquire

Moran & Shams, P.A. Post Office Box 472

Orlando, Florida 32802-0472 STATEMENT OF THE ISSUES

Mary Harrison's charge of discrimination dated

August 4, 1995, alleges that Jodan, Inc., doing business as Manpower (Jodan), discriminated on the basis of her race and for retaliation by constructively discharging her, giving her verbal and written reprimands and a poor performance rating, by denying her training and by intimidating her. The issues for disposition

in this proceeding are whether the alleged discrimination occurred, and if so, what relief is appropriate.

PRELIMINARY STATEMENT

Ms. Harrison's complaint was sent to the Division of Administrative Hearings by the Florida Commission on Human Relations (FCHR) on January 6, 1998, after Ms. Harrison executed an FCHR form on January 23, 1997, evidencing her intent to withdraw her charge, file a petition, and proceed to an administrative hearing as provided in Section 760.11(11), Florida Statutes.

The hearing was set but was continued once for good cause at the request of counsel for Jodan. The hearing on June 9, 1998, was conducted by videoconference between Orlando, Florida, and Tallahassee, Florida. The hearing was adjourned after several hours when the video equipment malfunctioned. After another delay occasioned by the Administrative Law Judge's family circumstances, the hearing was completed on August 21, 1998.

At the hearing Ms. Harrison testified in her own behalf and presented the additional testimony of Margaret Jones. Ms.

Harrison's Exhibits no. C1, C2, C3, C4, C6, C8, C10, C11, C12, C13, C17, C18, C19, and C20 were received in evidence. Exhibits no. C7, C9 and C16 were marked for identification only and were rejected as irrelevant.

Jodan presented testimony of Kathy Stanford and Dan Gavin.

The following exhibits, marked Respondent's Exhibits, were

received in evidence: 3, 6, 7, 9, 12, 16, 18-21, 31, and 32. Respondent's Exhibit no. 30 was marked for identification only and was rejected.

The transcript was filed at the Division of Administrative Hearings on October 19, 1998; Jodan filed its proposed findings of fact and conclusions of law on October 9, 1998. There is no record that Ms. Harrison has filed any post-hearing proposal.

Jodan's proposed findings of fact are substantially adopted here as consistent with the weight of evidence.

FINDINGS OF FACT

1. Jodan, Inc., is a family owned franchise of Manpower Temporary Services. Jodan provides temporary staff to its clients. It has six offices in Central Florida: two in north Orlando; one in south Orlando; and one each in Deland, Daytona, and Melbourne. Dan Gavin, president, is responsible for the day to day operations; John Gavin, his brother, is a co-owner.

2. In March 1994, Margaret Jones was Jodan's district manager for the north Orlando (Maitland) and south Orlando (Sand Lake Road) offices. She recruited and hired Ms. Harrison to work as a service representative in the Maitland office. Shortly before that time John Gavin had asked her to recruit specifically for a minority employee as it would be helpful for the office to have a more diverse staff to serve its clients.

3. Ms. Harrison is an African-American woman. At the time that she was hired by Ms. Jones in March 1994, her substantial work experience was in real estate and property management.

4. Service representatives at Jodan perform the intake process with temporary employees (application, interview and testing); they take orders from clients and place temporary employees with those clients. Jodan provides a detailed training program for its employees, including its service representatives.

5. Upon the commencement of her employment with Jodan, Ms. Harrison began a training program known as Professional Service 1 (PS-1) under the supervision of Margaret Jones. PS-1 is a self study course where the employee learns the policies and procedures of a Manpower franchise through tapes and other training materials. It is the responsibility of the employee to keep track of and complete PS-1. Normally it takes between three and six months for an employee to complete PS-1; however, it can take longer, depending on the employee's office work load at the time.

6. Disgruntled and upset by what she perceived as criticism of her management and hiring decisions, Ms. Jones left the employ of Jodan on or about August 1, 1994. Prior to that time, Ms. Harrison had completed all but three or four minor details in the PS-1 training. Ms. Harrison was satisfied by her training under Ms. Jones and she admits that no one at Jodan attempted to prevent her from completing PS-1.

7. In September 1994, Ms. Harrison reported to Dan Gavin that her PS-1 materials were lost. He was surprised that one of his employees would lose her training materials and he assisted Ms. Harrison in looking for the materials by, among other things, looking in an off-site storage facility for them. Ms. Harrison's materials were never found and she includes the disappearance of her training materials as one of the basis for her charge of discrimination. There is no evidence that anyone took the materials but neither is there any explanation for their disappearance.

8. Normally, when an employee completes PS-1, a checklist is sent to Manpower headquarters in Milwaukee, Wisconsin, indicating the employee has completed the training. On the checklist, the employee is required to record the dates that she completed each aspect of PS-1. Mr. Gavin contacted Manpower headquarters and obtained a new checklist. He also set up a schedule to meet with Ms. Harrison to go over the items on the checklist and verify that all of PS-1 had been completed. At their first meeting, Ms. Harrison assured Mr. Gavin that she had completed all of PS-1. Based on their conversation, he called Manpower headquarters and verbally confirmed that Ms. Harrison had completed PS-1. Manpower records indicate that she officially completed PS-1 as of December 1, 1994. Ms. Harrison's testimony at hearing with regard to whether she actually had an opportunity to finish the training was confused and unclear as

   she seemed to contend that there were materials that she was supposed to send to the home office, but could not, due to the lapse of time and loss of her training package.

9. After an employee completes PS-1, the next step is to attend PS-2, which is a week-long training seminar at Manpower headquarters in Milwaukee. PS-2 reinforces what is learned in PS-1 and teaches additional marketing skills. Employees are given a list of dates during which PS-2 will be offered and, because the training requires them to be away from home for a week, they can schedule it at their convenience. Employees can schedule PS-2 before actually completing PS-1 but must have completed PS-1 before they actually attend PS-2. Ms. Harrison could have attended PS-2 any time after December 1, 1994.

10. In January 1995, Mr. Gavin directed the area manager, Kathy Stanford, to ensure that all eligible employees, including Ms. Harrison, sign up for and attend PS-2. The PS-2 classes fill up quickly and it was a priority for Mr. Gavin to have his employees enroll. On more than one occasion, Ms. Stanford gave Ms. Harrison a list of available classes and the opportunity to attend PS-2. However, Ms. Harrison failed to sign up for PS-2.

11. Jodan evaluates employees' performance and salaries on an annual basis. On January 30, 1995, Ms. Harrison was given her annual evaluation. Although the "Appraisal Period" on her evaluation is listed as March 21, 1994, to September 1994, the uncontradicted evidence was that this was a scrivener's error and

    the appraisal period was March 21, 1994, (Harrison's date of hire) through December 31, 1994. Her review was performed by Mr. Gavin, who was familiar with her performance, with input from Ms. Harrison's immediate supervisor, Gloria Michael. Ms. Stanford sat in on all evaluations done at that time, including Ms.

    Harrison's, because she was the new area manager and sitting in on the reviews was one way for her to become familiar with the staff and their performances.

12. Ms. Harrison's overall score on the evaluation was a

    
    

    2.66 on a scale of 1 to 5. A score of 2 means "Below Expectations" and a score of 3 means "Consistently Meets Expectations." A service representative learns all performance areas covered by the evaluation through PS-1. Although she claims that she was evaluated in areas in which she was not trained, Ms. Harrison did not raise this issue with Mr. Gavin and she did not write in any comments on the evaluation in the space provided for employee comments. Further, the uncontradicted testimony, including that of Margaret Jones, established that Ms. Harrison did receive training in all areas of her job in which she was evaluated.

13. Ms. Harrison did not suffer any job detriment as the result of this evaluation or the unusual circumstances surrounding her PS-1 training. She received a pay increase following the evaluation and was then the highest paid service representative.

14. On March 29, 1995, Ms. Harrison was presented with a memorandum by Ms. Michael that addressed concerns she had with Ms. Harrison's job performance. Specifically, the memorandum addressed the following areas:

    1. Failure to be responsive to customer needs;

       
       

    2. The high number of personal calls Ms. Harrison was receiving at the office;

       
       

    3. Failure to properly match an employee's skills with a client's needs;

       
       

    4. Failure to consistently enter and update employee information in the computer system each time she spoke with an employee;

       
       

    5. Failure to open the office on time in the morning;

       
       

    6. Failure to set up computer training for applicants when she opened the office in the morning.

       
       

15. Neither Mr. Gavin nor Ms. Stanford played any role in the preparation or presentation of this memorandum. Ms. Harrison did not suffer any adverse employment action as the result of the March 29, 1995, memorandum. Ms. Michael followed up the March 29, 1995, memorandum with a memorandum on May 3, 1995, detailing Ms. Harrison's improvement in all of the areas discussed in the March 29, 1995, memorandum.

16. On May 15-16, 1995, Ms. Harrison and Ms. Michael (who is white) failed to provide an important client with prompt and appropriate service. As a result, Ms. Stanford counseled both women and placed them both on 90 days probation. Ms. Harrison does not contend that this action was discriminatory.

17. On July 17, 1995, Ms. Harrison submitted a letter of resignation. In the letter she stated that she enjoyed her position as service representative. She also stated that she felt she had been subjected to discriminatory treatment.

    Ms. Harrison's resignation and the allegations of discriminatory treatment came as a surprise to Ms. Stanford and Mr. Gavin as Ms. Harrison had never before told them she was unhappy or felt discriminated against. In her letter of resignation,

    Ms. Harrison offered to meet with Mr. Gavin and Ms. Stanford to discuss her resignation, but during her exit interview she refused to discuss her allegations.

18. Although many of Jodan's temporary employees were minorities, Ms. Harrison was the only African-American service representative. There were, however, other minorities, including Hispanic-Americans.

19. Ms. Harrison presented her case in an articulate organized professional manner. It is clear that she felt the work environment was stressful and uncomfortable. However, she did not prove that she was discriminated against or was the object of hostile or adverse employment actions.

20. The temporary employment agency business is highly competitive. Jodan had several large corporate clients and it had to work hard to meet the needs of those clients, sometimes on short notice. This created pressure on Jordan's regular staff

    that was experienced by white or non-minority employees as well as Ms. Harrison.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

22. Florida law prohibits employers from discriminating against employees on the basis of race. Section 760.10(1)(a), Florida Statutes. It further prohibits employers from discriminating against employees for opposing any practice which is a violation of the Florida Civil Rights Act or because that person has made a charge of discrimination. Section 760.10(7), Florida Statutes. The Florida Civil Rights Act is modeled after Title VII of the Civil Rights Act of 1964 and therefore case law interpreting Title VII is also relevant to Florida Civil Rights Act cases. Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991)

23. A plaintiff in a race discrimination case has the ultimate burden of proving that she was discriminated against. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

    101 S. Ct. 1089, 67 L.Ed. 2d 207 (1981). She has the initial burden of proving a prima facia case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed 2d 668 (1973).

24. In order to prove a prima facie case of discrimination, a plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the defendant treated her differently than similarly situated employees who are not members of her protected class. McDonnell Douglas Corp., supra;. Holifield v. Reno, 115 F. 3d 1555 (11th Cir. 1997).

25. Ms. Harrison has failed to establish her prima facie case. She did not prove any adverse employment action while employed by Jodan. Nor did Jodan treat her any differently than similarly situated employees who were not members of her protected class. On the contrary, the evidence established that Ms. Harrison was the highest paid service representative and that she received the same training opportunities as her co-workers. Specifically, Ms. Harrison completed her PS-1 training, despite the lost materials, and was offered, on more than one occasion, the opportunity to attend PS-2 training. She was reprimanded, but so also were her co-workers for the same or similar conduct.

26. If Ms. Harrison had established a prima facie case of discrimination in this case, the burden would have shifted to Jodan to proffer a legitimate non-discriminatory reason for the actions about which she complains. Burdine, 450 U.S. 252-256. The burden is one of production, not persuasion, as it always remains the plaintiff's burden to persuade the fact finder that

    the proffered reason is a pretext and that she was intentionally discriminated against because of her race. Id. Even if

    Ms. Harrison had established a prima facie case of discrimination in this case, Jodan came forward with legitimate nondiscriminatory reasons for all of the employment actions about which she complains.

27. The evidence is uncontested that Ms. Harrison completed most of PS-1 under the supervision of Jones; Ms. Harrison told Mr. Gavin she had completed PS-1; Mr. Gavin contacted Manpower headquarters and ensured that Ms. Harrison's completion of PS-1 was properly recorded by Manpower; and she was offered the same opportunity as her co-workers to attend PS-2.

28. The evidence is uncontested that Ms. Harrison was trained in all areas covered by the 1995 evaluation. No evidence exists that her January 1995 evaluation was unfair or otherwise inaccurate. No evidence exists that the March 29, 1995, memorandum from Ms. Michael to Ms. Harrison was unwarranted or unfair. No evidence was presented that other similarly situated employees, outside Ms. Harrison's protected class, had the same performance issues as Ms. Harrison but did not receive a similar memorandum. The evidence is uncontested that both Ms. Harrison and Ms. Michael were counseled and placed on probation following the May 15-16, 1994, incident with an important Jodan client.

29. Once Jodan proffers its legitimate non-discriminatory reasons for the employment actions at issue, the McDonnell

    Douglas/Burdine burden-shifting analysis drops from the case. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,

    125 L.Ed. 2d 407 (1993); Burdine, 450 U.S. at 252-256; Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1210 (Fla. 1st DCA 1991). To prevail, Ms. Harrison must prove that Jodan's proffered non-discriminatory reasons are a pretext and that she was intentionally discriminated against by Jodan on the basis of her race. St. Mary's Honor Center, 125 L.Ed. 2d at 422. As set forth above, Ms. Harrison filed to meet her burden.

30. Ms. Harrison failed to present any evidence that the legitimate nondiscriminatory reasons proffered by Jodan for any of the actions about which she complains were pretextual. Further, she filed to present any evidence that Jodan intentionally discriminated against her because she is African- American.

31. Ms. Harrison claims that Jodan retaliated against her. A prima facie case of retaliation is established by proving: (1) that there was a statutorily protected participation; (2) that an adverse employment action occurred; and (3) that there was a causal link between the participation and the adverse employment action. Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956 (11th Cir. 1997); Assily v. Tampa General Hospital, 814 F.Supp 1069 (M.D. Fla. 1993). Ms. Harrison failed to present any evidence that she complained to Jodan about alleged racial discrimination or engaged in any other statutorily

    protected activity prior to her resignation. Further, and even if she had engaged in a statutorily protected activity, no evidence exists that Jodan knew about her involvement in any protected activity. The participation of the plaintiff in protected behavior must be known to the alleged retaliator in order for a claim of retaliation to exist. Assily, 814 F. Supp at 1071, citing Texas Dept. of Community Affairs v. Burdine, supra. Finally, no evidence exists that Ms. Harrison suffered any adverse employment action connected to any alleged protected activity. Thus, she has failed to establish a prima facie case of retaliation.

32. Ms. Harrison also alleges that she was subjected to a hostile work environment. To establish a prima facie case of hostile work environment, she must establish: (1) she was a member of a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on race, and (4) the harassment affected a term, condition or privilege or employment in that it was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L.Ed. 2d 49, 106 S. Ct. 2399 (1986); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987). Ms. Harrison failed to present evidence on any of the elements of a prima facie case of hostile work environment.

33. Ms. Harrison alleges she was constructively discharged from her employment with Jodan. Constructive discharge occurs when an employer makes an employee's working conditions so intolerable that the employee is forced to resign. Buckley v. Hospital Corporation of America, Inc., 758 F.2d 1525 (11th Cir. 1985). The employee must show that the intolerable work conditions were motivated by the employer's unlawful bias. Saltzman v. Fullerton Metals Co., 661 F.2d 647 (7th Cir. 1981). The employee must show that the employer's action would compel a reasonable person, in the employee's same situation, to resign. Garner v. Wal-Mart Stores, 807 F.2d 1536 (11th Cir. 1987). Ms. Harrison failed to present evidence that her working conditions were so intolerable that she was forced to resign. Ms. Harrison, like the employee in Garner, supra., did not forewarn her employer of her concerns and did not give the employer a reasonable opportunity to address those concerns before she resigned.

RECOMMENDATION

Based on the above, it is RECOMMENDED: that the Florida Commission on Human Relations dismiss Ms. Harrison's charge of discrimination.

DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998.

COPIES FURNISHED:

Mary A. Harrison 2356 Carborn Street

Orlando, Florida 32839

Kelly T. Blystone, Esquire Moran & Shams, P.A.

Post Office Box 472

Orlando, Florida 32802-0472

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

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-000183

Orders for Case No: 98-000183