vs.
Respondent.
) Case No. 04-2652
A formal hearing was conducted in this case on January 11, 2005, in Naples, Florida, before Lawrence P. Stevenson, a
duly-designated Administrative Law Judge with the Division of Administrative Hearings.
The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1/ by discriminating against Petitioner based on her national origin.
On March 24, 2004, Petitioner Nancy Diz ("Petitioner") filed an Employment Charge of Discrimination against Respondent, Arthrex Manufacturing, Inc. ("Arthrex" or "Respondent").
Petitioner alleged that Arthrex discriminated against her by terminating her employment based on her national origin (Hispanic), in that her primary language is Spanish, and she was fired for speaking Spanish on the job.
On June 23, 2004, the Florida Commission on Human Relations ("FCHR") issued a Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice occurred. On July 26, 2004, Petitioner filed a Petition for Relief with FCHR.
On July 27, 2004, FCHR referred the case to the Division of Administrative Hearings. The hearing was initially scheduled to be held on September 14, 2004. By Order dated September 10, 2004, the matter was continued due to an impending hurricane.
The matter was continued once more upon motion by Petitioner before being held on January 11, 2005.
At the hearing, Petitioner testified on her own behalf, with the assistance of her son, John Tobon. Ms. Diz's English was less than fluent and, without objection, Mr. Tobon helped his mother where translation of Spanish to English was necessary. Petitioner's Exhibits 1 through 3 were admitted into
evidence. Respondent presented the testimony of Margarita Alvarez, its human resources manager, and of Lea Custodio, Petitioner's immediate supervisor. Respondent's Exhibits E, F, G, G1, H, J, and N were admitted into evidence.
A Transcript of the hearing was filed on February 3, 2005.
Both parties timely filed Proposed Recommended Orders, which were considered in the preparation of this Recommended Order.
Arthrex is a company that designs and manufactures orthopedic surgical tools, implants and devices for surgeons, medical facilities, and hospitals. Arthrex is regulated by the United States Food and Drug Administration ("FDA") and maintains certification through the International Organization for Standardization ("ISO"). Arthrex is an employer as that term is defined in Section 760.02, Florida Statutes.
Petitioner is a Hispanic female, whose primary language is Spanish. Beginning in June 2001, Petitioner worked in the cleaning and packaging area of Arthrex's production facility. "Cleaning" in this context should not be confused with janitorial services. Petitioner's job was more technical and exacting and involved the maintenance of a sterile, disinfected work area and equipment in the manufacture of items that, in some cases, are surgically implanted in the human body. She
worked in the company of 10 to 12 co-workers within a relatively confined space.
Arthrex obtains staffing for its cleaning and packaging area through an independent contractor, Randstad, a large employment services company. On June 13, 2003, Petitioner accompanied a friend to the local Randstad office to assist the friend in applying for a job with Arthrex in the cleaning and packaging area.
Petitioner became angry with the Randstad representative who performed the screening and testing of Petitioner's friend. Petitioner believed that the Randstad employee decided at the outset not to hire her friend, and so tested the friend on difficult subjects having nothing to do with the Arthrex cleaning and packaging job, such as her ability to use a computer and her ability to "write, read and talk perfect English." Petitioner stated that other applicants were not subjected to the same scrutiny as was her friend and that both she and her friend felt humiliated by the "rude" Randstad employee.
Immediately after the job interview, the Randstad representative phoned Margarita Alvarez, the human relations manager for Arthrex, and told Ms. Alvarez that Petitioner had "made a scene" at the Randstad office. Ms. Alvarez asked the
Randstad representative to put her complaint in writing, and she would then address the matter with Petitioner.
Shortly after the phone call, Ms. Alvarez was conducting an employee relations meeting in her office when Petitioner walked into her office. Petitioner began complaining loudly about the "ridiculous" hiring process employed by Arthrex, waving her hands and stamping her foot in anger.
Ms. Alvarez told Petitioner that she would discuss the matter after her meeting was over. Petitioner walked out of
Ms. Alvarez's office saying, "Thank you for nothing."
Petitioner then proceeded to stamp her way down to her workplace, continuing to display her anger and disrupt the work of the other employees in her area by complaining loudly about Arthrex's hiring practices.
Ms. Alvarez testified that Petitioner's behavior violated Arthrex's written policies regarding hostile, disruptive behavior in the workplace. Ms. Alvarez prepared a written warning called "performance correction notice" dated June 17, 2003. The notice described the disruptive behavior Petitioner engaged in on June 13, 2003, and stated that Petitioner was expected to maintain a "friendly work environment" and to express her disagreements with company policy "respectfully[,] . . . in private with [her] immediate supervisor or with Human Resources." The notice further warned
Petitioner that any further "unprofessional conduct" (antagonism, disruptive behavior or hostility) could subject Petitioner to a "final warning."
On the afternoon of June 18, 2003, Petitioner met with Ms. Alvarez and Lea Custodio, Petitioner's immediate supervisor, who had taken the day off on June 13, 2003. Ms. Alvarez presented Petitioner with the performance correction notice. She explained that while she understood Petitioner's frustration, she could not allow such displays of temper in the workplace.
Ms. Alvarez testified that she believed Petitioner understood the situation, and she encouraged Petitioner to write down her thoughts, comments, or corrections before signing the notice. Ms. Alvarez told Petitioner that she could write her response in Spanish, if that would allow her better to express herself. Ms. Alvarez is fluent in Spanish.
On June 19, 2003, Petitioner submitted a handwritten note to Ms. Alvarez. Written in Spanish, the note expressed Petitioner's belief that the Randstad representative discriminated against her friend by imposing unreasonable requirements for the cleaning position in question. Petitioner was not disciplined in any way for either the form or content of this note, which was incorporated with the performance correction notice as part of Petitioner's employment file.
Petitioner testified that she could not recall having been disciplined for the June 13, 2003, incident. She denied causing a disturbance at the Randstad facility or at her own workplace. She admitted writing the note and submitting it on June 19, 2003, but testified that Ms. Alvarez asked her to document the incident because of other complaints she had received about the Randstad representative.
Petitioner's testimony is inconsistent with the documentary evidence, including the self-justifying language of her own handwritten note. Ms. Custodio's testimony corroborated that of Ms. Alvarez's concerning the disciplinary meeting held on June 18, 2003, at which Petitioner was given the performance correction notice and counseled by Ms. Alvarez as to the company's expectations regarding her behavior. Petitioner's testimony as to the June 13, 2003, incident and its aftermath is not credible.
On or about August 10, 2003, a personal conflict arose between Petitioner and a co-worker, Pierre Escanio. Petitioner loudly questioned the quality of Mr. Escanio's work. In the cleaning and packaging area, the workers' products were commingled into single lots and sent to Arthrex's quality control division for review. Petitioner claimed to be concerned that Mr. Escanio's poor work would cause quality control to
return the entire lot, meaning that everyone would have to redo their work.
Ms. Custodio, the supervisor, attempted to calm the situation by telling Petitioner that she would talk to
Mr. Escanio about his work. Ms. Custodio did so despite the fact that she had trained Mr. Escanio and knew him to be a competent employee. Ms. Custodio next told Petitioner that she would separate Petitioner's work from that of Mr. Escanio, marking the items so they would know whose work had been rejected by quality control.
Despite Ms. Custodio's effort, Petitioner continued to complain. Ms. Custodio finally told Petitioner to stop making these complaints in front of the other dozen or so people in the work area.
Ms. Custodio believed that Petitioner was questioning her authority in front of the other employees. She went to
Ms. Alvarez to discuss the situation and obtain the assistance of the Human Resources Department in addressing the problem of Petitioner's insubordination. Ms. Custodio told Ms. Alvarez that she could no longer handle the situation with Petitioner.
In keeping with the policies of Arthrex's Human Resources Department, Ms. Alvarez investigated the matter, conducting interviews with employees who witnessed Petitioner's behavior.
Ms. Alvarez testified that her investigation led her to conclude that "there was a serious problem in the department." After a final consultation with Arthrex's general counsel, Ms. Alvarez recommended that Petitioner's employment be terminated for insubordination. Ms. Custodio agreed with the recommendation.
By letter dated August 12, 2003, and signed by
Ms. Alvarez, Arthrex terminated Petitioner's employment. The letter stated the following express reasons for Petitioner's termination:
Previous written warning referring to disruptive behavior of 6/17/2003.
Numerous reports of negative comments about the company and management in front of other employees.
Antagonistic behavior with supervisor and coworkers.
Petitioner produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. Petitioner's chief claim is that she was terminated for refusing to obey instructions from her supervisors, including Ms. Custodio and Ms. Alvarez, to cease speaking Spanish in the workplace. Both Ms. Custodio and
Ms. Alvarez credibly denied giving any such instructions to any Arthrex employee.
Arthrex does have a "Language Policy" that requires employees to be proficient in English to ensure that FDA regulations and ISO certification standards are met, because the company "has determined that the English language is the most common and effective means of communications" in the United States. The policy requires employees to communicate
business-related information in English, but states that it "is not intended to prevent or discourage any employee from speaking their native language at Arthrex for certain business related matters, on their own time or with regard to non-business matters."
The evidence established that all but one or two people in Petitioner's work area were native Spanish speakers and that they were allowed freely to communicate in Spanish in their day-to-day work activities. Employees were encouraged to communicate with their supervisors in their native language, if doing so improved the quality of the information conveyed.
Ms. Custodio and Ms. Alvarez each testified that they knew of no Arthrex employee who had ever been disciplined for speaking a language other than English in the workplace.
At the hearing, Petitioner repeatedly made reference to the efforts of one lower-level supervisor, Renee Vanderberg, to force the employees in Petitioner's section to refrain from speaking Spanish and confine their work conversations to
English. However, the evidence established that once the Human Resources Department learned of Ms. Vanderberg's actions, she was admonished to cease directing the employees to speak English. When Ms. Vanderberg continued to press the issue, Arthrex terminated her employment.
The evidence produced at hearing demonstrated that the reasons for Petitioner's termination were limited to those set forth in the termination letter of August 12, 2003.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
The Florida Civil Rights Act of 1992 (the Florida Civil Rights Act or the Act), Chapter 760, Florida Statutes, prohibits discrimination in the workplace. The Act, among other things, forbids the discriminatory firing of an employee.
Subsection 760.10(1)(a), Florida Statutes, states the following:
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.
Respondent is an "employer" as defined in Subsection 760.02(7), Florida Statutes, which provides the following:
(7) "Employer" means any person employing
15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
Florida courts have determined that federal case law applies to claims arising under the Florida's Civil Rights Act, and as such, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), applies to claims arising under Section 760.10, Florida Statutes. See Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
Under the McDonnell analysis, in employment discrimination cases, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If the prima facie case is established, the burden shifts to Respondent, as the employer, to rebut this preliminary showing by producing evidence that the adverse action was taken for some legitimate, non-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that Respondent's offered reasons for its adverse employment decision
were pretextual. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
In order to prove a prima facie case of unlawful employment discrimination under Chapter 760, Florida Statutes, Petitioner must establish that: (1) she is a member of the protected group; (2) she was subject to adverse employment action; (3) she was qualified to do the job; and (4) her employer treated similarly-situated employees of other national origins more favorably. See, e.g., Williams v. Vitro Services Corporation, 144 F.3d 1438, 1441 (11th Cir. 1998); McKenzie v.
EAP Management Corp., 40 F. Supp. 2d 1369, 1374-75 (S.D. Fla. 1999).
Petitioner has failed to prove a prima facie case of unlawful employment discrimination.
Petitioner established that she is a member of a protected group, in that she is a Hispanic female whose primary language is Spanish. Petitioner also established that she was subject to adverse employment action in that she was terminated from her job. Petitioner's ability to perform the work expected of an employee in the cleaning and packaging area of Arthrex's production facility was not contested.
However, Petitioner presented no evidence that her language or national origin played any role in her termination.
Having failed to establish this element, Petitioner has not established a prima facie case of employment discrimination.
Even if Petitioner had met the burden, Respondent presented evidence of legitimate, non-discriminatory reasons for terminating Petitioner, thereby rebutting any presumption of language or national origin discrimination. The evidence presented by Respondent established that Petitioner was terminated for repeatedly disrupting the workplace, antagonizing co-workers, and insubordination toward her supervisor.
Petitioner failed to prove that Respondent's reasons for firing her are pretextual.
RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Arthrex Manufacturing did not commit any unlawful employment practices and dismissing the Petition for Relief.
DONE AND ENTERED this 17th day of May, 2005, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2005.
1/ Citations, hereinafter, shall be to Florida Statutes (2004), unless otherwise specified.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Cecil Howard, General Counsel 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.
