STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAN HALL-SZUGYE, )

)

Petitioner, )

)

vs. ) Case No. 02-0422

) KNIGHT-RIDDER, MIAMI HERALD ) PUBLISHING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on May 6, 2002.

APPEARANCES

For Petitioner: Jan Hall-Szugye, pro se

3834 Panther Creek Road Clyde, North Carolina 28721

For Respondent: Ellen M. Leibovitch

Adorno & Yoss, P.A.

700 South Federal Highway, Suite 200 Boca Raton, Florida 33432

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an act of discrimination in employment based on age, in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By Charge of Discrimination dated January 30, 2001, Petitioner alleged that Respondent terminated her employment on December 27, 1999, after 23 years' employment. Petitioner alleged that a new manager, who was under 40 years of age, terminated Petitioner because she was over 40 years old and replaced her with an employee less than 40 years old. By Election of Rights dated January 1, 2002, Petitioner alleged that more than 180 days had passed since she had filed her Charge of Discrimination, and she now wished to withdraw the charge and file a Petition for Relief. Petitioner evidently stood by her Charge of Discrimination, rather than restate the allegations as a Petition for Relief.

During the hearing, Petitioner attempted to obtain relief under the federal Family and Medical Leave Act, but the Administrative Law Judge dismissed this claim for lack of jurisdiction.

At the hearing, Petitioner called four witnesses and offered into evidence five exhibits: Petitioner Exhibits 1-5. Respondent called three witnesses and offered into evidence 22 exhibits: Respondent Exhibits 1-22. All exhibits were admitted except Petitioner Exhibit 1, which was proffered.

The parties did not order a transcript. The parties filed proposed recommended orders by May 24, 2002.

FINDINGS OF FACT

1. Petitioner was born on December 11, 1951. She was employed by Respondent from 1977 until December 27, 1999, at which time Respondent terminated her.

2. During the entire term of her employment, Petitioner has served as an outside sales representative. As an outside sales representative, Petitioner was typically assigned a territory within which she was to serve existing advertisers and develop new advertisers. Petitioner often helped customers prepare their advertisements and plan and budget their advertising campaigns.

3. While employed with Respondent, Petitioner helped train Mr. Fine, who has been employed with Respondent for nearly 13 years. Mr. Fine is currently the National Advertising Director, but, during the time in question, served as the Broward Advertising Sales Manager, and, as such, he supervised Petitioner. He served as the Broward Advertising Sales Manager from September 1998 through February or March 2000.

4. While Broward Advertising Sales Manager, Mr. Fine supervised eight sales representatives. Mr. Fine found that Petitioner was strong in persuasiveness, but weak at times when she displayed a negative attitude and sense of entitlement to her job and her way of doing her job. She also treated customers inconsistently.

5. In February 1999, Mr. Fine disciplined Petitioner for her handling of an internal fax that the Broward office received from an employee of Respondent in another office. The fax was addressed to a member of management and contained salary information about five persons in the office. Petitioner happened to find the fax and revealed its contents to her coworkers before delivering it to the addressee. When Mr. Fine reprimanded Petitioner for her actions, she denied any wrongdoing.

6. Next, Mr. Fine began receiving complaints from various of Petitioner's customers, mostly over a relatively short period of time. A marketing person at the Swap Shop complained that Petitioner was brusque in dealing with her. Another customer representative mentioned that Petitioner had criticized one of her coworkers in suggesting that the customer place all of its business with Petitioner. A similar situation arose with another customer, to whom Petitioner claimed that its outside sales representative handled only smaller accounts. A representative of the Florida Philharmonic Orchestra requested that Mr. Fine assign it a new outside sales representative because Petitioner raised her voice and talked down to its young, inexperienced marketing person.

7. On June 29, 1999, Mr. Fine sent a memorandum to his supervisor, Donna Sasser, who was then Advertising Director.

   The memorandum describes Petitioner as "dynamite" and expresses concern as to when she "will blow and who she will hurt." At the time, Mr. Fine was concerned that Petitioner's actions might undermine morale among the other staff for whom he was responsible. Ms. Sasser advised Mr. Fine to communicate to Petitioner specific expectations in terms of job performance and customer interaction in particular.

8. Mr. Fine met with Petitioner and detailed his problems with her job performance and his expectations for improvement. By memorandum dated July 30, 1999, Mr. Fine memorialized the meeting, including specific customer complaints, and warned that Petitioner's job "will end, even within the next few weeks, if you are unable to achieve the following: no additional customer complaints, monthly goals [met] on a consistent basis; positive, collaborative attitude with co-workers, customers, and managers; [and] acceptance of responsibility for what goes well and what does not go well."

9. Petitioner resisted Mr. Fine's criticism. By memorandum dated August 22, 1999, she defended her actions by pointing to shortcomings elsewhere within Respondent. Significantly, the memorandum does not address the complaints about brusque, discourteous treatment of employees of customers. At this point, Mr. Fine, who was a young manager, was legitimately concerned about whether Petitioner's attitude would

   undermine his ability to do his job. Mr. Fine resolved to assess over the next three to six months whether Petitioner met the goals that he stated in the July 30 memorandum.

10. In late October 1999, a representative of the Cleveland Clinic complained about Petitioner's handling of its account. The complaints included Petitioner's "flip attitude" and "lack of professionalism."

11. Two months later, Mr. Fine received a more serious complaint because it involved a loss of revenue to Respondent and the advertiser. Due to some miscommunication, Respondent published the wrong advertisement for a customer. When the customer's representative telephoned Petitioner and complained, she blamed someone at the Fort Lauderdale Sun Sentinel, who had supplied her the wrong advertisement for publication. When she did not call him back on the day that she had promised, the customer representative called Respondent, complained about the poor handling of the account, noted the reduction in advertising from his company over the past year as compared to the prior year, and requested a different outside sales representative.

12. Mr. Fine consulted with Ms. Sasser and Janet Stone, the Human Relations specialist assigned to advertising. The three agreed that Respondent should terminate Petitioner. Their decision was submitted through four levels of management--up to

    the level of Publisher--and each level approved the decision before it was implemented.

13. On December 27, 1999--six days after the receipt of the last complaint--Mr. Fine and Ms. Stone met with Petitioner and told her that she had been terminated.

14. At the hearing, Petitioner presented evidence of a contemporaneous complaint about age discrimination that she had made to a Human Relations specialist who had since left the employment of Respondent. Respondent contested this assertion, but Petitioner's August 22 memorandum states that, as a "female over 40 I feel the harassment and stress that you have been putting on me is totally unnecessary." Although not a formal complaint concerning age discrimination, this memorandum is an early mention of Petitioner's age within the context of harassment. Based on the testimony of coworkers, Mr. Fine was a high-pressure manager, given to yelling, but he did not make age-related comments to Petitioner.

15. Even if Petitioner had timely made comprehensive complaints about age discrimination, the record in this case does not support her claim that her termination was due to age discrimination. Mr. Fine hired two outside sales representatives over 40 years old, and the only other outside sales representative whom he fired was under 40 years old. More importantly, he treated employees the same without regard to

    age. Most importantly, Petitioner's job performance provided Mr. Fine with ample reason to fire her.

16. Without regard to the quality of the support that Petitioner received, customer satisfaction is paramount in advertising. In a competitive environment, Mr. Fine justifiably sought satisfaction of all customers, not just favored customers. Mr. Fine could not reasonably allow Petitioner to continue to treat discourteously representatives of advertisers, regardless of the merits of her claims of inadequate support.

17. Past evaluations suggest that interpersonal relations was never Petitioner's strength. Despite an obvious talent at advertising sales and considerable experience, Petitioner's frustrations with the perceived incompetence of her coworkers and customers' employees weakened her interpersonal skills beyond a critical point, so that her other strengths no longer offset this important deficit.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

19. Section 760.10(1)(a) prohibits employment discrimination based on age. Petitioner bears the burden of proof.

20. Petitioner has failed to prove that Respondent terminated her due to age. To the contrary, the record establishes that Respondent terminated her due to poor job performance, especially as to discourteous treatment of customers' representatives.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination.

DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2002.

COPIES FURNISHED:

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jan Hall-Szugye

3834 Panther Creek Road Clyde, North Carolina 28721

Ellen M. Leibovitch Adorno & Yoss, P.A.

700 South Federal Highway, Suite 200 Boca Raton, Florida 33432

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: 02-000422

Orders for Case No: 02-000422