STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KELLY MCKEAN,

Petitioner,

vs.

ECONO AUTO PAINTING, INC.,

Respondent.

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) Case No. 04-3849

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RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing on December 3, 2004, in Bartow, Florida, before Fred L. Buckine, a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Gerard McKean, Qualified Representative

4334 Avenue H, Southeast

Winter Haven, Florida 33880-3771

For Respondent: Grant D. Petersen, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

600 North Westshore Boulevard, Suite 200

Tampa, Florida 33609-1117 STATEMENT OF THE ISSUE

The issue in this cause is whether Respondent engaged in unlawful employment practices of discrimination against Petitioner, for the reason of her being a female, by denying her management training during her employment tenure and by

subsequently terminating her employment, in violation of Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes (2003).1

PRELIMINARY STATEMENT

On July 10, 2003, Petitioner, Kelly McKean, filed her Charge of Discrimination with the Florida Commission on Human Relations (Commission) against her former employer, Respondent, Econo Auto Painting, Inc., alleging that she was consistently denied managerial training because of her gender while male employees were given the opportunity to become managers.

Additionally, Petitioner alleged that after seven years of employment with Respondent, she was terminated because of her gender.

On September 30, 2004, the Commission issued a Determination: No Cause notice finding that Respondent is an employer within the meaning of Florida Civil Rights Act of 1992 and that the timeliness and all jurisdictional requirements have been met.

Petitioner timely filed a Petition for Relief and requested an administrative hearing under the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes, within 35 days of the Commission's September 30, 2004, notice.

On October 26, 2004, the Commission referred this matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct all necessary proceedings

required under the law and to submit recommended findings to the Commission, and, on that date, the Initial Order was entered.

On November 4, 2004, the Notice of Hearing, scheduling the final hearing for December 3, 2004, in Bartow, Florida, and Order of Pre-hearing Instructions were entered.

At the hearing on December 3, 2004, and pursuant to the October 26, 2004, Order, the parties presented a document of stipulated facts and issues of law upon which they had agreed.2

Petitioner testified on her own behalf and called the following five witnesses who were either employees or in management for Respondent: Betty Branham, David Wagner, Ron Link, Marquez Green, and Daniel Posada, all of whom also testified for Respondent. Four exhibits offered by Petitioner were accepted into evidence. Five exhibits offered by Respondent were accepted into evidence.3

At the conclusion of this hearing, the parties were given ten days after receipt of the transcript to file proposed recommended orders.

On December 21, 2004, the Transcript was filed. On December 30, 2004, Respondent filed its Proposed Recommended Order, and, on January 4, 2004, Petitioner filed her Proposed Recommended Order. The Proposed Recommended Orders filed by the parties have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

Based upon observation of the demeanor and candor of each witness while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes; and stipulations of the parties, the following relevant and material facts, arrived at impartially based solely upon testimony and information presented at the final hearing, are objectively determined:

1. Petitioner, Kelly McKean, is a Caucasian female and, at all times pertinent to this proceeding, was an employee at one of Respondent's, Econo Auto Painting, Inc., business locations, located at 1822 West Memorial Boulevard, Lakeland, Florida, from February 12, 2001, until she was terminated on June 23, 2003. Petitioner had approximately six years of non-continuous employment at several of Respondent's business locations before beginning her employment at the above Lakeland business site. Petitioner was employed by Respondent as a "taper," the person who is responsible for taping cars after body repairs and before painting. The taping of cars consisted of aligning strips of tape to specific areas of each automobile to prevent the taped area from being painted by the painter. Petitioner was an "aggrieved person" as defined by Section 760.10, Florida Statutes.

2. The evidence of record establishes the fact that during all times pertinent, Respondent's Lakeland location employed nine employees comprised of: two females and seven males (five Caucasians/three Hispanics/one African American). Of the nine employees, one Caucasian female and one African American male were in managerial positions. Both were employed through contractual services of Selective HR Services (SHRS), an independent contractor and co-employer of Petitioner.

3. Respondent is an automobile body shop business specializing in automobile body repairs and painting the exterior of cars and, at all times pertinent to this proceeding, was an "employer" as defined by Subsection 760.02(7), Florida Statutes.

4. During all times pertinent to this proceeding, SHRS was responsible for providing human resources management services for Respondent's employees.4

5. At all time pertinent to this proceeding, Respondent hired the shop managers for its several auto body repair shops through SHRS. At no time pertinent to this proceeding did Respondent promote employees to management positions from within. At no time pertinent to this proceeding did Respondent permit, offer, or have in place a management training program for the training and promotions of employees from within the

   ranks of its shop employees to management positions within the company.

6. At all times pertinent to this proceeding, and, on Monday, June 23, 2003, Marquez Green was the shop manager and Ron Link was the assistant manager of Respondent's Lakeland branch body shop during Petitioner's last term of employment at that location.

   Basis for Petitioner's Termination

   
   

7. Several weeks preceding her termination, on June 23, 2003, the assistant shop manager, Mr. Link, noticed and personally discussed with Petitioner her repeated improper taping of some cars in the assembly line processes. Mr. Link spoke with Petitioner about this problem particularly stressing the fact that each car not properly taped required repainting which resulted in a slowdown of the repair, sanding, taping, and repainting process. It was made clear to Petitioner that repainting due to improper taping was causing the shop to lose profit. During the days following notice of the problem regarding incorrectly taped cars, Petitioner failed and/or refused to improve her work habits.

8. The lack of improvement by Petitioner of her work habit of taping cars apparently became of some concern with management, in view of Petitioner's experience and over seven years of service as a taper with Respondent's business.

9. Added to this disturbing trend, some time later, both the shop manager and assistant manager observed Petitioner in the manager's office reading business documents. Management confronted Petitioner with this violation of its policy that "none management" personnel were not allowed to read/review business documents. Petitioner gave an excuse for her conduct stating that the prior manager permitted her to review office documents when she was caught up with her work.

10. Other than her statement, Petitioner failed to provide the identity or the testimony of the prior manager who allegedly granted her permission to review office documents when she had completed her work assignments before the end of the day. Petitioner presented no corroborating evidence in support of her assertion of prior managerial permission for her to review office documents. Petitioner's allegation of "prior permissive authority" was thus not credible.

11. Mr. Green gave undisputed testimony that during a third occasion, he observed Petitioner and a non-employee male friend of Petitioner walking and talking in the work area restricted to employees only. Mr. Green approached the couple and immediately brought the rule infraction of no non-employees within the restricted work area to Petitioner's attention, ending by instructing Petitioner to tell her male friend to leave the restricted workshop area immediately. Under these

    circumstances, and in the presence of a non-employee, Petitioner said to her shop manager: "He'll leave when I want him to leave." Following Petitioner's refusal to obey the shop manager's direct order accompanied by her disrespectful comment, Mr. Green moved to call the local police, and only then did Petitioner's male friend leave the premises. Mr. Green subsequently discussed this matter, as well as the profit loss due to improper taping of cars, with Mr. Link, and they jointly decided not to take disciplinary action against Petitioner at that time.

    Notice of Termination

    
    

12. On Monday, June 23, 2003, Petitioner reported to work at approximately 7:35 a.m. and five hours later, at approximately 12:35 p.m., she had completely taped all nine cars in the shop for repair and painting that day. Petitioner sought out Mr. Link, inquiring what he would have her do next; assist other employees in the shop or go to lunch? Mr. Link instructed Petitioner to go home for the remainder of the day.

13. After her departure, Mr. Link and Mr. Green discussed Petitioner's continuing hurried work habits, her attitude toward management when given a direct order, and her unauthorized presence in the manager's office reviewing business documents. Management considered the following: (1) Petitioner's continued episodes of improper taping was causing an increase in cost and

    a decrease in profits, (2) Petitioner's negative attitude toward management, and (3) Petitioner's unauthorized presence in the manager's office looking at managerial business documents.

    Management determined that the above conduct was sufficient basis for her termination as an employee.

14. In the afternoon of June 23, 2003, Mr. Link, with authorization from Mr. Green, telephoned Petitioner and informed her that she was terminated because of her repeated and costly taping errors and her failure to correct those errors.

15. The telephonic notice of termination was followed by a written termination letter with check marks beside the boxes "refusal to perform job duties" and "unable to perform job."5 This document formed the factual basis for Petitioner's termination as an employee.

    Background and Employer's Policy

    
    

16. On February 12, 2001, before she began working at Respondent's Lakeland job site, but while she was working for Respondent at another job site, Petitioner executed an Employment Acknowledgement packet containing the policy(s) and procedures she agreed to follow in the event there occurred any employment disputes, including any type of discrimination. Petitioner also agreed to resolve employment disputes through use of SHRS' Alternative Dispute Resolution (ADR) procedure.

    Prior Complaints Made by Petitioner

    
    

17. While working at Respondent's Longwood, Florida, job site, but before working at the Lakeland job site, Petitioner made one verbal complaint of sexual harassment to Betty Branham, SHRS compliance supervisor, regarding sexual comments regarding her buttocks made by male co-workers. The record does not contain evidence whether this complaint was pursued or dismissed. Petitioner neither made complaints nor did she make any reports of sexual harassment or discrimination, gender or otherwise, at the Lakeland job site during her February 12, 2001, to June 23, 2003, employment tenure there. Petitioner did not file a report with SHRS claiming discrimination because of her gender and/or because she was denied management training opportunities and opportunities for promotion into management. Other Employees Terminated by Respondent

18. During the early hours of June 24, 2003, one day after Petitioner's termination, Mr. Link terminated a male employee, Edward Burgess. Mr. Burgess was a "sander," and he was terminated for "refusal to perform job duties" and "unable to perform job." According to Mr. Link, Mr. Burgess was "taking two-to-three times longer than what he should to sand cars."

19. During the evening hours of June 24, 2003, Mr. Green terminated another male employee, Mr. Link. Mr. Link was terminated, as he recalled, "because another male employee made

    accusations that while walking behind him Mr. Link bumped into his rear and made sexual gestures." Mr. Link admitted he could not recall, that is, he could not confirm, argue or deny, the other party's versions of what actually occurred and what was said at the time of his bumping into the other employee. The unnamed other employee did not testify.

20. Petitioner, through the testimony of witnesses, of record, and exhibits admitted into evidence, failed to produce a scintilla of substantial and competent evidence to establish:

    1. that she was subjected to an adverse job action when, in fact, she was terminated for poor job performance and disrespectful conduct toward management on June 23, 2003;

    2. that because of her gender, female, she was treated differently than similarly situated male employees, who were not terminated after violation of work place policy(s); and (3) that she was qualified for the job as managerial trainee but was denied an opportunity for employee managerial training which was provided by her employer to other employees.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 760.11(7), Florida Statutes.

22. Subsection 760.10(1)(a), Florida Statutes, provides that 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.

    
    

23. Petitioner alleged in the Charge of Discrimination that:

    1. During her employment I was consistently denied management training while male employees were given this [sic] opportunity. My responsibilities included running the front office, taping, detailing and sanding.

       
       

    2. On June 23, 2003 I was terminated from my position as a Taper because of my sex (female). I had been employed by Respondent for approximately seven years.

       
       

24. The Commission and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See

    Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

25. The United States Supreme Court established, in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct., 1817; 36 L. Ed. 2d 668 (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, which is persuasive in cases such as that at bar, reiterated and refined in the case of St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

26. This analysis illustrates that a petitioner has the burden of establishing, by a preponderance of evidence, a prima

    facie case of discrimination. If that prima facie case is established, the defending respondent must articulate a legitimate, non-discriminatory reason for the action taken against the petitioner. The burden then shifts back to the petitioner to go forward with evidence to demonstrate that respondent's offered reason is merely a pretext for unlawful discrimination. The Supreme Court stated in Hicks, before finding discrimination in that case, that "the fact finder must believe the plaintiff's explanation of intentional discrimination." 509 U.S. at 519.

27. In the Hicks case, the Court stressed that even if the fact finder does not believe the proffered reason given by the employer, the burden remains with the petitioner to demonstrate a discriminatory motive for the adverse employment action taken.

28. In order to establish a prima facie case, Petitioner must satisfy each prong of a four-prong test establishing that before or at the time of termination: (1) he/she was a member

    of a protected group or class, (2) he/she was qualified for the position in question, (3) he/she was discharged, and (4) he/she was actually subjected to an adverse employment decision.

    Failure to satisfy one prong of the aforementioned four-prong test is fatal to the claim of discrimination. See Williams v.

    Motorola, Inc., 303 F.3d 1284, 1293 (11th Cir. 2002); Canino v. U.S. E.E.O.C., 707 F.2d 468 (11th Cir. 1983); and Smith v.

    Georgia, 684 F.2d 729 (11th Cir. 1982). Petitioner's termination, though adverse, in and of itself, does not constitute disparate treatment because the employer presented a legitimate, nondiscriminatory rationale for its decision to dismiss a particular individual, the Petitioner. See LeBlanc v.

    Great American Insurance Co., 6 F.3d 836,848 (1st Cir. 1993)

    
    

29. It is clear that Petitioner, a Caucasian female, was not denied managerial training by Respondent because she was a female. Respondent did not have a policy, program, or in-house managerial training program for any of its employees. Respondent's policy and protocol, which were followed in this instant, were to hire all managerial employees from outside the ranks of those persons who were employees of Respondent.

30. It is equally clear that Petitioner was never, at any time pertinent, qualified by training, knowledge, and/or experience for shop managerial positions in Respondent's business of auto body repair and repainting. During all times

    pertinent to these proceeding, Respondent followed its policy and protocol, which were to hire all its managerial employees from outside the ranks of those persons who were employees of Respondent. In this case, Respondent hired a Caucasian female (same as Petitioner), Betty Branham, as its compliance manager.

31. Petitioner's termination, as were terminations of other employee(s), Mr. Burgess, the sander, for failure to adequately perform his "sanding cars" job, and Mr. Link, assistant manager, for inappropriate contact with another male employee, was based upon different, but legitimate, non- discriminatory, reasons.

32. Petitioner failed to present relevant, material, substantial, and competent evidence of record to establish a prima facie case of discrimination based upon her sexual gender, female, as alleged in her Petition for Relief. Accordingly, as a matter of law, the Petition for Relief filed in this cause must be dismissed.

    RECOMMENDATION

    
    

    Based upon the foregoing, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief and the Charge of Discrimination filed in this cause by Petitioner, Kelly McKean.

    DONE AND ENTERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida.

    FRED L. BUCKINE

    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 18th day of February, 2005.

    
    

    ENDNOTES

    
    

    1/ All references are to Florida Statutes (2003) unless otherwise indicated hereinafter.

    
    

    2/ The following facts were stipulated to by the parties:

    
    

    1. Econo Auto Painting, Inc.("Econo"), is a body shop which repairs the exterior frames of its clients' cars. More specifically, Econo does bonding, sanding, minor auto repair, and painting of its clients' cars.

       
       

    2. Kelly McKean was employed by Econo as a taper. Tapers tape cars as part of the car repair process so that the cars can be subsequently painted.

       
       

    3. At the time of Ms. McKean's termination, she worked in Econo's Lakeland body shop as a taper.

       
       

    4. At the time of Ms. McKean's termination, Marquez Green was the Manager

       of Econo's Lakeland body shop, and Ron Link was the Assistant Manager of such body shop.

       
       

    5. Kelly McKean has alleged sex discrimination as the reason for her not being given management training and being terminated.

       
       

    6. To put forth a prima facie case of sex discrimination, Ms. McKean must show that 1) she is a member of a protected class, 2) she suffered an adverse employment action, 3) the employer treated similarly situated employees outside of Ms. McKean's protected class more favorably, 4)she was qualified for her [sic] job.

       
       

    7. Once Ms. McKean has put forth a prima facie case of sex discrimination, Econo has the burden to put forth any legitimate non- discriminatory reasons for its actions.

       
       

    8. Once Econo has put forth any legitimate non-discriminatory reason for its actions, Ms. McKean must prove that Econo's reasons for its actions are pretext.

3/ At the hearing, Respondent objected to Petitioner's Exhibit C (unsigned copy of letter to Petitioner from Daniel Posada, HR, SHRS, Selective Consultant, regarding a proposed settlement resolution agreement offering Petitioner $1,500.00; letter of neutral reference, non-contested unemployment in exchange of execution of a confidentiality agreement, that

Petitioner rejected). Mr. Posada testified, rendering moot the objection raised by Respondent. Respondent's Exhibits are identified by numbers, R-1 and R-2, etc.

4/ Selective HR services provided "Contractual services" to Respondent. Contractual services mean services rendered by a contractor of its time and its effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors, and such services may include, but are not limited to, evaluations; consultations; maintenance; accounting; security; management systems; management consulting; educational training programs; research and development studies or reports

on the findings of consultants engaged there under; and professional, technical, and social services.

5/ Petitioner's Exhibit C, a notarized letter from Todd Arrington, President of J's Custom Collision, dated November 15, 2004, extolling Petitioner's work ethic and knowledge of paint, though accepted into evidence subject to later consideration, has no relevance to issues raised in this proceeding.

Petitioner's Exhibit D, a notarized letter dated November 12, 2004, from Steven Gerry, former Econo shop manager and Petitioner's immediate supervisor, extolling with praise Petitioner's extensive training and knowledge in auto body repair process, though accepted into evidence subject to later consideration, has no relevance to issues raised in this proceeding.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Gerard McKean

4334 Avenue H, Southeast

Winter Haven, Florida 33880-3771

Grant D. Petersen, Esquire Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

600 North Westshore Boulevard, Suite 200

Tampa, Florida 33609-1117

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-003849

Orders for Case No: 04-003849