vs.
Respondent.
) Case No. 04-1651
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on July 16, 2004, in Tallahassee, Florida.
The issue presented is whether Respondent Affiliated Computer Services engaged in unfair employment practices by discriminating and retaliating against Petitioner
Pamela Lightbourne.
On February 26, 2003, Petitioner Pamela Lightbourne filed with the Florida Commission on Human Relations an Employment Charge of Discrimination against Respondent Affiliated Computer Services, alleging that she had been discriminated against based upon her race and that Respondent had retaliated against her.
On March 25, 2004, the Commission issued its Determination: No Cause and its Notice of Determination: No Cause, finding that there is no reasonable cause to believe that an unlawful employment practice has occurred. On April 29, 2004, Petitioner filed with the Commission her Petition for Relief, and this cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.
At the final hearing, Petitioner testified on her own behalf and presented the testimony of Bob Bradner, Zsa Zsa D. Ingram-Fitzpatrick, Ronald Fedd, Terri Wester-Johnson, Sherrell Chantelle Lee, Patricia Muth, and Mary Patricia Nicholson. Bob Bradner and Patricia Muth also testified on behalf of the Respondent. Additionally, Petitioner's Exhibits numbered 1, 8, 9, 14, 15, 17, and 18 and Respondent's Exhibits
numbered 1, 2, 5, and 10 were admitted in evidence.
Both parties have submitted Proposed Recommended Orders.
Those documents have been considered in the entry of this Recommended Order.
Petitioner Pamela Lightbourne is a black female who was employed by Respondent Affiliated Computer Services from sometime prior to 2002 until her voluntary resignation in approximately mid-2003.
Part of Respondent's business involves operating a federally-funded work force development program administered by the State of Florida. The three-county project provides job training and job referrals to the unemployed.
Bob Bradner became Respondent's project leader in January 2002 assuming the responsibility to oversee the project and manage the approximately 60 employees at the three job sites. At the time he was hired, Bradner had extensive experience in both work force development and project management.
When Bradner became project leader, he was advised that Respondent's performance was sub-standard compared to the other work force development programs in the State of Florida. Respondent was ranked 23rd out of 24 in one performance measure and 24th out of 24 in another. Bradner was instructed to implement the necessary systematic changes to improve Respondent's performance.
Bradner conducted a series of process reviews over a one-to-two month period. The identified needed changes would
affect almost all of Respondent's work force development employees. Bradner determined to implement the changes incrementally and sequentially, as it was best to improve or correct one area before moving on to the next area. He communicated his plans for changes at their weekly Thursday meetings so each of Respondent's employees would know what changes to expect in advance.
During 2002, Petitioner was one of Respondent's job development specialists, a title with generic duties applicable to many of the project's employees. Petitioner's job involved working with employers to identify vacant positions and with job seekers to place them in suitable positions. Petitioner was well aware of the ongoing re-organization and attendant ongoing changes being made in the employees' duties.
On September 4, 2002, Petitioner sent an e-mail to Bradner requesting that she be re-assigned to new duties. Bradner responded asking her what duties she would like to perform. Petitioner replied on September 5 complaining about her present duties and listing several job functions that she wanted to perform. Three of the four functions she listed involved working with job seekers, not employers. She concluded her e-mail describing the position she wanted as follows: "This position would be a resource for more than one program, therefore it could fall into a category with the resource room."
Bradner responded on September 11 advising that he needed Petitioner to stay in her current position until he had made sufficient other organizational changes before he could put her in a different position. However, Bradner made the decision at that time that he would re-assign Petitioner to the resource room when the time came because he thought she was requesting the resource room, she was qualified for the position, and the re-assignment met Respondent's needs.
On December 17 or 18, 2002, Petitioner was given a verbal reprimand for failing to submit required weekly reports and for failing to attend a mandatory ethics seminar. Petitioner admits that there were times when she failed to turn in the reports or turned them in late and that she did not attend the mandatory seminar. Petitioner nevertheless disputed the basis for the reprimand and submitted to her supervisor, to Bradner, and to the Human Resources Manager a three-page rebuttal with a four-page attachment. She requested that her rebuttal be placed in her personnel file. Her rebuttal did not allege that she was a victim of discriminatory conduct.
Petitioner's job responsibilities changed on January 9, 2003. Her job title, pay, and benefits were not affected. The change in her responsibilities was not a demotion. Her new duties involved screening job seekers when
they first arrived and determining whether to provide them with
a quick referral for a job application or determining the appropriate level of service the job seeker required before being given referrals and referring the job seeker to the correct team member.
As job seekers normally first went to the resource room to scan the computer for job referrals, Petitioner's office was moved to the resource room where she would perform the majority of her duties. Petitioner shared an 8-foot by 10-foot office located in the resource room with one other employee.
The office had its own ventilating duct that provided some airflow. When Petitioner complained that the room was hot, Respondent provided a fan to improve circulation. Petitioner and her co-worker had a table and a desk with drawers for storing personal items in that office. Her desk did not have a telephone since her new duties did not involve calling employers, but she had access to a telephone. Petitioner was not expected to spend much time in that office but rather was expected to be in the resource room itself most of the time assisting job seekers using the many computers in that room.
On January 29, 2003, Petitioner filed a "formal grievance" with Respondent, alleging that her transfer was in retaliation for her rebuttal to the December verbal reprimand. Her formal grievance did not allege that she had been discriminated against on any basis, including her race.
Respondent conducted an internal review of Petitioner's "formal grievance" but found it to be without merit.
On February 20 Petitioner requested permission to review her personnel file and a copy of her job description. On that same day Petitioner was advised in writing that her request to review her personnel file was being forwarded to Teaneck, New Jersey, where her file was located. Her questions concerning her job title and her job description were answered that same day. During the approximately one month that it took for a copy of her file to arrive from Teaneck, Petitioner sent two more requests to review her file.
Although no evidence was offered as to the date on which Petitioner terminated her employment with Respondent, the record indicates that Petitioner's voluntary resignation occurred sometime subsequent to Respondent providing her with a copy of her personnel file. At the time that Petitioner resigned, she completed an exit interview. Although the document called for comments by the departing employee, Petitioner did not allege any form of discrimination or retaliation. Rather, in response to the question asking whether she would be willing to work for Respondent again, Petitioner answered in the affirmative.
As part of Respondent's re-organization under Bradner during 2002 and early 2003, all of Respondent's employees, black
and white, experienced changes in their job duties. Further, some white employees were required to re-locate, not just to a different part of the building like Petitioner, but rather to a different county being served by Respondent. White employees were terminated due to a reduction in force during this period. Others were required to share offices.
As a result of the changes in Respondent's service delivery design and individual employee's duties implemented by Bradner, Respondent's performance drastically improved. Respondent's ranking in the State of Florida's performance measures improved from 24th to 2nd and from 23rd to 1st on two of those measures.
No employees, including Petitioner, had their duties changed or their work sites changed as a result of complaining about or disputing a reprimand or any other type of disciplinary decision.
Bradner and Petitioner's other supervisors did not mistreat Petitioner or treat her any differently than they treated Respondent's other employees.
Respondent has a written EEO policy prohibiting discrimination or harassment in the workplace.
Sixty percent of Respondent's work force is minority, and fifty percent of Respondent's leadership is minority.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.
Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race. Similarly, Section 760.10(7) provides that it is an unlawful employment practice for an employer to discriminate against any person because that person has opposed an unlawful employment practice or has charged an employer with such a practice.
Petitioner alleges discrimination and retaliation by virtue of having her duties changed and her desk re-located to a small, shared office without a dedicated telephone after she disputed the contents of a verbal warning (reduced to writing) issued to her for failure to perform her duties. Petitioner has failed to prove that Respondent discriminated against her and/or that Respondent retaliated against her.
Petitioner bears the burden of proof established by the Supreme Court of the United States in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and in Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248 (1981). Under this well- established case law, Petitioner bears the initial burden of
establishing a prima facie case of discrimination. If a prima facie case is established, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. The employee then has the burden of showing that the business reason is pretextual and that a discriminatory reason more likely than not motivated the decision.
In order to establish a prima facie case, Petitioner must prove 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) she was treated less favorable than similarly-situated employees who were not members of her protected class. Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997). Petitioner has failed to establish a prima facie case because she has failed to prove that she suffered an adverse employment action and that she was treated differently than similarly-situated employees.
For an employment action to be adverse, it must cause a serious and material change in the terms, condition, or privileges of employment. Davis v. Town of Lake Park, Fla.,
245 F.3d 1231 (llth Cir. 2001). Petitioner claims that she suffered an adverse action when her job duties were changed and she was required to share a small office. It is undisputed that
the changes did not result in a change to her official job title, pay, benefits, or other material terms of employment.
Petitioner complains that she was re-located to a small 8-foot by 10-foot office that was hot and lacked adequate ventilation. The evidence reveals that Petitioner was expected to spend the majority of her workday helping job seekers search for jobs in the resource room. She was assigned to the resource room because that is where job seekers first went to search for job openings. If a job seeker required additional evaluation or services before receiving a referral, Petitioner could interview that person in her office and then refer them to the appropriate team member. Her office had air conditioning and ventilation; however, after she complained that it was stuffy, she was provided a fan to improve air circulation. These conditions do not constitute an adverse change in the terms of employment.
Petitioner complains that sharing an office interfered with her work because she could not discuss confidential information with job seekers in private. The only confidential information she identified was asking a job seeker's social security number if she was unable to read the number on the form the job seeker provided. However, Petitioner described her former work space as an office cubicle. Thus, her questioning of job seekers in her former work space was no more private than
in the 8-foot by 10-foot office, as a cubicle does not guarantee privacy from being overheard.
Petitioner complains that her new work space lacked a secure place to store personal items. The evidence is clear, however, that she had desk drawers for storing personal items. Since Petitioner failed to present evidence as to how her new work space differed from her former work space, she has failed to show that her new work space constituted an adverse employment action.
Petitioner complains that she did not have a telephone in her new shared office. She did, however, have access to a telephone. When her duties were modified attendant to her assignment to assist job seekers in the resource room, she was no longer required to contact employers and, therefore, no longer had any job-related reasons for having a telephone at her desk. Since she had no need for a telephone at her desk but had access to a telephone for, presumably, personal telephone calls, the lack of a personal telephone did not constitute an adverse change in the conditions of her employment.
Similarly, there is no evidence that Petitioner was treated differently from similarly-situated employees. Other employees, within and without Petitioner's protected group, had their job duties changed, were required to re-locate
to new office space (some even to different counties), and, in some instances, were required to share offices.
Assuming arguendo that Petitioner had established a prima facie case, her claim still fails because Respondent has articulated legitimate, non-discriminatory reasons for its actions, and Petitioner has failed to meet her burden of showing that the reasons Respondent gave are a pretext for discrimination. Respondent's work force development program was performing at a sub-standard level when Bradner was hired, and he was directed to improve operations and implement effective procedures. In response to that instruction, Bradner incrementally and sequentially changed Respondent's service delivery system, re-locating employees, changing employees' job duties, and changing the flow pattern of job seekers coming to Petitioner's work site. Employees were kept apprised of future changes at weekly meetings.
Petitioner's job was re-aligned, and she was assigned to duties in the resource room based upon her request to be given different duties in relation to the resource room. Given Petitioner's specific request in her e-mails to Bradner, it was certainly appropriate for him to give her the duties she requested and assign her to the work space she suggested.
Respondent has provided a legitimate, non- discriminatory reason for changing Petitioner's duties and her
work space, and Petitioner has failed to demonstrate that Respondent's reason is a pretext for discrimination. Her greatest obstacle to establishing pretext is the fact that Petitioner specifically requested re-assignment to new duties and specifically identified the resource room in her request. Even if Petitioner's e-mail was not a request to be assigned to the resource room, as she now contends, Bradner's understanding of her request was reasonable. Further, her new duties closely correlated with the duties she requested in her e-mail.
Lastly, Respondent's business reasons for re-locating and re-assigning Petitioner cannot be found to be pretextual since all employees experienced a change in their duties and/or in their work space as part of the program's re-organization.
Petitioner raised allegations in her charge of discrimination that were not litigated at the final hearing or are simply not material to the determination of this matter. For example, she contends that documents in her personnel file were falsified. The only evidence offered to support that allegation concerns the date of the reprimand, i.e., whether the verbal reprimand was given on December 17 or 18, 2002, or whether the written document memorializing the verbal reprimand makes the reprimand a written one. Petitioner also disputes that she received a copy of it although her detailed and lengthy response to it strongly suggests she received a copy.
These discrepancies raised by Petitioner are neither material nor relevant. The reprimand resulted in no adverse employment action against Petitioner. Further, Petitioner admits that she did not perform those duties the reprimand alleges she did not perform.
In addition to claiming discrimination, Petitioner asserts that her move to the office in the resource room constituted unlawful retaliation. Retaliation claims are analyzed under the same burden-shifting approach as are discrimination claims. However, Petitioner's lack of evidence to support her allegations makes it difficult to analyze her claim of retaliation as a separate event from her claim of discrimination. There is simply no evidence that Petitioner engaged in a protected activity, that she suffered an adverse employment action, or that there was a causal link between the protected activity and the adverse action. Stavropoulos v. Firestone, 361 F.3d 610 (11th Cir. 2004).
RECOMMENDED that a final order be entered finding Respondent not guilty of engaging in unlawful employment practices as to Petitioner and dismissing the Petition for Relief filed in this cause.
DONE AND ENTERED this 3rd day of September, 2004, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2004.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
