vs.
Respondent.
) Case No. 05-0085
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,
Jeff B. Clark, held a final administrative hearing in this case on October 6, 2005, in Orlando, Florida.
For Respondent: Daniel C. Johnson, Esquire
Carlton Fields, P.A. Post Office Box 1171 Orlando, Florida 32802
Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
On February 6, 2004, Petitioner filed with the Florida Commission on Human Relations, a Charge of Discrimination, alleging discrimination based upon race and color and retaliation. Petitioner contended that she was treated differently than Caucasian employees and, after complaining of discrimination, was retaliated against.
On December 29, 2004, a Determination of No Cause was entered by the Commission. On January 6, 2005, Petitioner filed her Petition for Relief, alleging she had been discriminated against on the basis of her color and race and that she had been retaliated against. The case was forwarded to the Division of Administrative Hearings by Florida Commission on Human Relations on January 7, 2005, and received on January 11, 2005. An Initial Order was sent to both parties on January 14, 2005. The case was scheduled for hearing on March 31, 2005.
On February 25, 2005, Respondent moved to have the case continued. The motion was granted, and the case rescheduled for April 25, 2005. In response to a request by Petitioner on March 11, 2005, the final hearing scheduled for April 25, 2005,
was rescheduled to June 30, 2005.
On the agreement of the parties, based on Petitioner's June 3, 2005, letter citing a personal emergency, the case was
Florida. Once again, based on Petitioner's request contained in an August 3, 2005, letter, the final hearing was cancelled and rescheduled for October 6, 2005.
The final hearing took place as rescheduled on October 6, 2005. Petitioner testified on her own behalf. Petitioner entered Exhibit P-1 into evidence.
Respondent presented the testimony of five witnesses: Melody Garcia-Muniz, Nirmala Sookram, Beverly Swanson, Timothy Fenu and Louisa Hewitt. Respondent entered into evidence Exhibits R1 through R19. Exhibit R9 was Petitioner’s answers to interrogatories, and Petitioner's answers to interrogatories 1 and 2 were published. No other interrogatory answers were published or otherwise entered into evidence. Exhibit R18 is a composite of two documents.
The two-volume Transcript of the final hearing was filed with the Division of Administrative Hearings on November 8, 2005. The parties were given 30 days from the filing of the Transcript to submit proposed recommended orders. Respondent filed a Proposed Recommended Order on December 7, 2005.
Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made:
Respondent, whose correct name is AIG Marketing, Inc. is a subsidiary of American International Group, Inc. ("AIG").
Respondent supplies marketing services for AIG. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003).
Petitioner is an African-American female. She began working for Respondent as an "insurance consultant" on April 22, 2003. Petitioner resigned her employment by letter dated February 17, 2004. Petitioner's last day at work for Respondent was March 2, 2004.
Petitioner worked at Respondent's facility in Seminole County, Florida. An insurance consultant's primary job responsibility is to answer incoming telephone calls from prospective customers seeking information concerning automobile insurance.
Respondent has an anti-discrimination and anti- retaliation policy. Respondent has a published policy specifically prohibiting discrimination and retaliation. The policy states that discrimination, including that based upon race and color "is strictly prohibited." The policy states that any employee found to have engaged in any form of discriminatory harassment will be subject to appropriate disciplinary action, up to and including termination. The policy states that Respondent will not tolerate any retaliation against any employee for making a complaint, bringing inappropriate conduct to the Respondent's attention, or for participating in an
investigation of an alleged act of harassment. Respondent's management employees support and enforce its policies against discrimination and retaliation.
After she was hired in April 2003, Petitioner received training for a period of approximately 10 weeks. Thereafter, on approximately July 1, 2003, she was placed on a "team" with other insurance consultants. The Petitioner's immediate supervisor was Melody Garcia-Muniz. While on Ms. Garcia-Muniz' team, Petitioner also received instruction, also called "coaching," from Nirmala Sookram. Ms. Garcia-Muniz is an Asian female. Ms. Sookram is an Indian female.
Approximately one month after she was placed on
Ms. Garcia-Muniz' team, on or about August 2, 2003, Petitioner had a confrontation with Ms. Sookram. Thereafter, by correspondence dated August 2, 2003, Petitioner wrote Respondent's Human Resources Office and Ms. Garcia-Muniz complaining of "the work condition, I have been experiencing with team leader Nirmala Sookram."
As a result of Petitioner's August 2, 2003, letter, Respondent replaced Ms. Sookram as the team coach with another coach.
Respondent also immediately investigated the allegations contained in Petitioner’s August 2, 2003, correspondence. This investigation was conducted by
Ms. Garcia-Muniz and another management employee Dawn Bronwnlie. No evidence of discrimination was revealed.
In approximately September or October 2003, Petitioner was transferred from Ms. Garcia-Muniz' team to a team supervised by Beverly Swanson. Ms. Swanson is a Caucasian female. This transfer was done pursuant to a reorganization of Respondent's shifts.
Respondent had two business practices which are relevant to this matter and which are acknowledged by Petitioner. First, Respondent requires that its insurance consultants respond to in-bound calls from customers as soon as possible. Respondent has a policy prohibiting insurance consultants from making out-bound calls if there are in-bound calls waiting. Out-bound calls would typically be follow-up calls between an insurance consultant and a prospective customer.
Second, Respondent has a policy prohibiting one insurance consultant from accessing an insurance quote being worked on by another insurance consultant. This policy is intended to prevent one insurance consultant from "stealing" a customer from another insurance consultant.
Petitioner consistently violated Respondent's policy against making out-bound calls when in-bound calls were waiting. She was counseled with respect to this policy on August 5, 2003.
Petitioner continued to violate this policy and received a verbal warning on September 19, 2003. The verbal warning confirmed Petitioner had been counseled in August with respect to this policy. The verbal warning confirms that for a 14-day period Petitioner made 649 out-bound calls while only receiving
444 in-bound calls. The verbal warning stated that at no time should Petitioner's out-bound calls exceed her in-bound calls.
With respect to Respondent's policy prohibiting one insurance consultant from accessing a quote for a customer of another insurance consultant, Petitioner was advised on November 7, 2003, about the proper procedures to handle such situations. Though Petitioner claimed that she did not know accessing a quote for another insurance consultant's customer was inappropriate until November 7, 2003, she admits that on that date she was so advised and from that date forward knew that it was a violation of Respondent's policies.
Nonetheless, on December 10, 2003, Petitioner's then supervisor Ms. Swanson was advised that Petitioner had accessed a quote for another insurance consultant's customer in violation of Respondent's policies. This occurred on December 9, 2003.
Two days later on December 12, 2003, another insurance consultant, Steve Mintz advised Ms. Swanson that Petitioner had also accessed one of his insurance quotes.
Ms. Swanson investigated and determined that Petitioner had, in fact, violated Respondent's policies by accessing the quote of another insurance consultant's customers. As part of that investigation, Ms. Swanson interviewed Petitioner and reviewed reports. Petitioner's statements were inconsistent with the reports, and Ms. Swanson ultimately determined that Petitioner had been untruthful with her during the investigation.
As a result of Petitioner's violation of the policy, on December 16, 2003, Ms. Swanson issued Petitioner a written warning for inappropriate sales conduct. The written warning noted that Ms. Swanson had thoroughly investigated "several" complaints about Petitioner's sales conduct and confirmed that Petitioner had processed sales incorrectly despite several discussions with other supervisors as well as Ms. Swanson. The written warning also confirmed that Petitioner had been untruthful with Ms. Swanson during Ms. Swanson's investigation into this matter. As a result, Ms. Swanson placed Petitioner on a written warning which advised her that should her practices continue, her employment would be terminated. In accordance with Respondent's policies, Petitioner was ineligible to post for a position, switch shifts, or work overtime.
Immediately after the December 16, 2003, meeting during which Ms. Swanson issued the written warning, Petitioner
contacted Respondent's Human Resources department. As a result, Louisa Hewitt, Respondent's Human Resources professional, undertook an independent investigation to determine the accuracy or inaccuracy of Ms. Swanson's findings which formed the basis for the written warning. Ms. Hewitt is a Hispanic female.
Ms. Hewitt's independent investigation determined that Petitioner had, in fact, improperly processed sales and inappropriately accessed quotes. Accordingly, Ms. Hewitt met with Petitioner on December 31, 2003. In attendance was another of Respondent's managers Patricia Brosious. During this meeting, Ms. Hewitt advised Petitioner that the written warning was appropriate.
Despite the fact that the December 16, 2003, written warning prohibited Petitioner from switching shifts, Respondent allowed Petitioner to switch shifts in order to allow her to care for an ill relative. This request was received on or about December 21, 2003, and granted on December 22, 2003. Dawn Bronwnlie (one of the Respondent's assistant managers who investigated Petitioner's August 2003 complaint) requested the accommodation on Petitioner's behalf by e-mail dated
December 21, 2003, sent to, among others, Petitioner's immediate supervisor Ms. Swanson. Petitioner and Respondent management employee Patricia Brosious were copied on the e-mail.
Approximately one month later, Petitioner again requested a shift change. By e-mail dated January 26, 2004, Respondent's management employee Patricia Brosious informed Petitioner of all of the shifts that were open at that time to which a transfer was possible. Ms. Brosious copied Ms. Hewitt and Timothy Fenu on this e-mail. Mr. Fenu is the manager of Respondent's facility in Lake Mary, Florida, and the highest- ranking employee of Respondent at that facility.
On January 27, 2004, Petitioner responded to
Ms. Brosious' e-mail, which had advised Petitioner of the shifts that were available. In response, Mr. Fenu sent an e-mail to Petitioner advising her that the shifts offered to her were based on business need and current unit sizes. Mr. Fenu advised Petitioner that her response was inappropriate and requested her to advise Respondent if she desired to change shifts. After initially scheduling a meeting with Mr. Fenu, Petitioner canceled the meeting by e-mail dated February 10, 2004.
Petitioner resigned her employment February 17, 2004.
Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this
proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat.
(2003).
Petitioner has the burden of proving by the preponderance of the evidence that Respondent committed an unlawful employment practice. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
It is an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race or color.
§ 760.10(1)(a), Fla. Stat. (2003).
It is also an unlawful employment practice to discriminate against any person because the person opposes an unlawful employment practice or has filed a charge of an unlawful employment practice. § 760.10(7), Fla. Stat. (2003).
The provisions of Chapter 760, Florida Statutes (2003), are analogous to those of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq. Cases interpreting Title VII are, therefore, applicable to Chapter 760, Florida Statutes (2003). School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).
To prove a prima facie case of retaliation, Petitioner must show the following: (a) she engaged in statutorily
protected expression; (b) she suffered an adverse employment action such as demotion and/or assignment to a position with less responsibility; and (c) the adverse employment action was causally related to the protected activity. See Harper v.
Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir.
1998).
A prima facie case of discrimination based upon race or color may be established in one of three ways: first, through direct evidence of discriminatory intent by the employer; second, through statistical proof that a neutral policy has an adverse impact on a protected group; or third, by meeting the familiar disparate treatment test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989).
As Petitioner presented no direct evidence of discrimination or any statistical evidence of discrimination, she was required to establish a prima facie case under the McDonnell Douglas framework. Under McDonnell Douglas, a prima
facie case of race or color discrimination may be established by showing the following: (1) Petitioner belongs to a racial minority or is a person of color; (2) Petitioner was subjected to adverse job action; (3) Petitioner's employer treated similarly situated employees outside Petitioner's classification more favorably; and (4) Petitioner was qualified to do the job.
See 411 U.S. at 802; Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The "prima facie case under McDonnell Douglas
must be established and not merely incanted." Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir. 1997).
Under the McDonnell Douglas model of proof, the Petitioner bears the initial burden of establishing a prima
facie case of discrimination. Proof of a prima facie case under McDonnell Douglas raises a presumption that the employer's decision was motivated by discrimination. Saint Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993).
Once this presumption is raised, the Respondent is able to rebut it by introducing admissible evidence of a reason, which if believed by the trier of fact, supports a finding that discrimination or retaliation was not the cause of the challenged employment action. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir. 1987); and Equal Opportunities Employment Commission v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The employer is required only to "produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . [i]t is sufficient if
the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983).
Once the employer produces evidence of a legitimate, nondiscriminatory reason for the challenged action, any presumption of discrimination or retaliation arising out of the prima facie case "drops from the case." See Krieg v. Paul Revere Life Ins. Co., 718 F.2d 998, 1001 (11th Cir. 1983), cert. denied 466 U.S. 929 (1984); Navy Federal Credit Union, 424 F.3d at 405. The ultimate burden remains upon the complainant to prove that the employer intentionally discriminated or retaliated. See Burdine, 450 U.S. at 256. Stated another way, "the ultimate question in a desperate treatment case is not whether the plaintiff establish a prima facie case or demonstrate a pretext, but 'whether the defendant intentionally discriminated against the plaintiff.'" Pashoian v. GTE
Directories, 208 F. Supp. 2d 1293 (M.D. Fla. 2002).
The burden shifting analysis of McDonnell Douglas applies both to claims for discrimination and retaliation. Navy Federal Credit Union, 424 F.3d at 405. Thus, once Petitioner establishes a prima facie case of retaliation or discrimination,
a presumption is raised that the employer's actions were caused by discriminatory or retaliatory animus.
Petitioner established that she is a member of a protected class by virtue of her race and color. Further, Petitioner was the subject of adverse job action as a result of the written warning she received. However, Petitioner has failed to establish the remaining prima facie case of discrimination based upon either race or color.
Petitioner failed to introduce any plausible evidence to create an inference of discrimination.
Petitioner failed to prove a prima facie case of retaliation because she failed to establish that she had engaged in a statutorily protected expression and was thereafter the subject of an adverse employment action.
As a matter of law, Petitioner's August 2, 2003, letter does not constitute statutorily protected expression inasmuch as Petitioner subsequently admitted that she was not complaining of actionable discrimination or retaliation.
The only other instance in which Petitioner arguably engaged in statutorily protected expression was when she contacted Respondent's Human Resources Department after receiving her written warning in December 2003. Yet, after that contact, the only action Petitioner claims to be retaliatory was Respondent's failure to accommodate her request for a shift
change. As a matter of fact and law, this cannot be an adverse employment action. To the contrary, the undisputed evidence shows that Petitioner was offered all available shifts.
Even if Petitioner had presented a prima facie case of either discrimination or retaliation, which she did not, Respondent has presented legitimate nondiscriminatory reasons for the actions which Petitioner complains. The burden to articulate a legitimate business reason for the action is one of production, not of persuasion. The court need not weigh the credibility of the nondiscriminatory reason at this stage of the burden shifting analysis. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 509. Respondent presented ample evidence to support the warnings Petitioner received.
Petitioner presented no evidence that contradicted Respondent's witnesses. Indeed, she admitted that she knew her actions involving out-bound calls and accessing other insurance consultant's customer of quotes violated Respondent's policies. When Petitioner failed to follow its policies, Respondent had a legitimate, nondiscriminatory basis for counseling her and issuing the written warning. Davidson v. Time, Inc., 972 F. Supp. 148 (E.D.N.Y. 1997)
RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief.
DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida.
JEFF B. CLARK
Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2006.
Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Daniel C. Johnson, Esquire Carlton Fields, P.A.
Cecil Howard, General Counsel 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.
