BONITA Y. MATTINGLY,
vs.
Respondent.
) Case No. 07-2654
On August 24, 2007, a hearing was held in Orange Park, Florida, pursuant to the authority set forth in Sections 120.569 and 120.57(1), Florida Statutes. The case was considered by Lisa Shearer Nelson, Administrative Law Judge.
For Respondent: Grant D. Peterson, Esquire
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
On August 20, 2006, Petitioner filed a complaint with the Florida Human Relations Commission (the Commission), alleging discrimination based upon her age, sex and gender. On May 22, 2007, the Commission issued a Notice of Determination of No Cause, and on June 7, 2007, Petitioner filed a Petition for Relief. On June 11, 2007, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge.
The case was noticed for hearing August 24, 2007, and proceeded as noticed. At hearing, Petitioner presented the testimony of one witness and testified on her own behalf.
Petitioner's Exhibits numbered 1 through 9 were admitted into evidence. Respondent presented one witness and Respondent's Exhibits numbered 1 through 27 were admitted.
At the time Petitioner filed her complaint with the Commission on Human Relations, her name was Bonita Sneiderman. During the pendency of these proceedings, Petitioner remarried and requested that the style of the case be changed to reflect her current surname, i.e., Mattingly. The style has been changed in accordance with Petitioner's request.
At the time of her request to change the style of the case, Petitioner also provided additional documentation that she requested be considered as evidence in this proceeding. That request is denied. As is reflected in the transcript of the
hearing, Petitioner was advised at hearing that only evidence presented during the course of the hearing could be considered.
The transcript was filed with the Division on September 10, 2007, and the parties were given until September 20, 2007, to file proposed recommended orders. Both submissions were timely filed and have been carefully considered in the preparation of this Recommended Order.
Bonita Sneiderman, a/k/a Bonita Mattingly
(Ms. Mattingly), is a Caucasian female born March 17, 1953. At the time of the events complained about in this proceeding,
Ms. Mattingly was 53 years old. Ms. Mattingly was then known as Ms. Sneiderman and was single. Ms. Mattingly married and changed her name shortly before the hearing in this case.
Dillards, Inc., is a corporation that operates a chain of department stores, referred to as Dillards. In many of the Dillards stores, there are styling salons. The Dillards department store at the Orange Park Mall in Orange Park, Florida is referred to as Store #232.
During the time period relevant to this case, Susan Konstantatos was the Salon Manager of the salon at Store #232. On July 26, 2005, Ms. Konstantatos attended a manager's meeting, in which she received and discussed new policies for the salons. One such policy dealt with the schedules for salon employees and
stated that all new hires would work five-day, full-time schedules.
This policy, however, did not necessarily apply to employees already employed at the salons. For example, employees that worked in the Iveys salon before Dillards took over what used to be the Iveys store were considered to be "grandfathered in." Dillards honored whatever scheduling terms the employees had negotiated when taking their positions with Iveys. George Craywick, Cynthia Anderson and Marie Cox were three such salon employees.
In September 2005, Ms. Mattingly applied for and received a position as a hair stylist in Dillards Store #232.
Her application for employment with the store indicates that she applied for a full-time position. The application also indicates that she was hired for a full-time position.
On September 21, 2005, Petitioner attended a new employee orientation session and signed the new employee orientation sheet, acknowledging that she had received orientation on Respondent's Associate Work Rules and Attendance Policy. Petitioner also signed an Associate Acknowledgment Form indicating that she received and understood Respondent's Associate Work Rules and General Policies.
The Associate Work Rules and General Policies for Dillards reiterated the importance of attendance and provided
notice that a "no show" would not be tolerated and would result in termination of employment.
Among the stylists' job duties was an activity called "instant eventing." Instant eventing was an activity designed to generate interest in using the salon's services. Stylists could choose the type of instant eventing they would perform, such as handing out business cards, setting up a paraffin wax table and offering demonstrations, or setting up a color table with hair color swatches.
Petitioner's chosen method of instant eventing involved setting up the paraffin wax demonstration.
Instant eventing not only created interest in the salon, but hopefully helped new stylists to establish a following for their services. Stylists were expected to participate in instant eventing when they had no appointments. As a consequence, the more customers a stylist had, the less time he or she had to devote to instant eventing and the less stylists were expected to participate in the activity.
Petitioner complains that George Craywick was not required to instant event and claims that she never saw him participate in any instant eventing activity. Mr. Craywick had more customers than any other stylist working at the Dillards salon. As a result of the number of repeat customers he served, he did not have the need for or the opportunity to engage in the same amount of instant eventing that Petitioner had.
There is evidence that Mr. Craywick participated in a color table as an instant event, but it is unclear whether his participation in this activity was during the time that Petitioner was employed. Petitioner admitted that while she never saw Mr. Craywick participate in instant eventing, she had no knowledge as to whether he participated at times when she was not working with him.
During May 2006, all of the salon's stylists at Store #232 were scheduled to work five days per week and one Sunday per month.
When an employee worked on Sunday, Ms. Konstantatos attempted to schedule another day off for the employee during that week. Often the day off would be Monday, but the coverage needs of the salon would control. Mr. Craywick often worked on his scheduled days off at Ms. Konstantatos' request to ensure overage for the salon. Others sometimes did the same.
Petitioner was scheduled to work Sunday, May 7, 2006. On or about May 1, 2006, Ms. Konstantatos checked the posted schedule and saw that Petitioner's name had been crossed off the schedule for Monday, May 8, 2006. Ms. Konstantatos had not removed Petitioner from the schedule and assumed that Petitioner had crossed her name off because she was working Sunday.
Ms. Konstantatos needed Petitioner to work Monday, May 8, 2006, in order to ensure that the salon was adequately staffed.
Petitioner had not worked the previous Monday.
Ms. Konstantatos left Petitioner a note stating that Petitioner needed to work on Monday, May 8, 2006.
After receiving the note, Petitioner called
Ms. Konstantatos on Wednesday, May 3, 2006, and told her she could not work on Monday because she had made arrangements to go out of town that day. Petitioner's regular day off is Tuesday. Ms. Konstantatos advised that she needed Petitioner to work Monday to make sure that there was proper coverage for the salon, but that she could give Petitioner Wednesday off so that her days off would be consecutive.
Petitioner insisted that she could not work on Monday, May 8, 2006. Ms. Konstantatos informed her that if she did not work on Monday, she would be considered to have abandoned her job and her employment would be terminated.
Whether or not she worked on Monday, May 8, 2006, remained Petitioner's choice. Petitioner worked Thursday through Saturday, May 4-6, 2006. On Saturday evening, Petitioner packed up her belongings and left a note indicating that she had arranged for someone else to cover her shift on Sunday and would not be at work on Monday. She never returned to work because she considered herself to have been fired.
On May 11, 2007, Respondent terminated Respondent for job abandonment.
Between September 2005 and May 2006, Respondent terminated several other salon employees for job abandonment or
excessive absenteeism. Those employees were both male and female, married and single. Their ages ranged from 21 to 35.
After Petitioner's termination, Ms. Konstantatos hired Debra Doss as a stylist. At the time she was hired, Ms. Doss was a 49-year-old single female.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has the burden of proving by a preponderance of the evidence that the Respondent committed an unlawful employment practice. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Petitioner's complaint is based on perceived violations of Section 760.10(1)(a), Florida Statutes, which makes it an unlawful employment practice for an employer to "discharge or 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 the individual's race, color, religion, sex, national origin, age, handicap, or marital status."
Section 760.11(1), Florida Statutes, provides the procedural requirements for filing a complaint alleging violations of Chapter 760. It states in pertinent part:
Any person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the commission within 365 days of the alleged violation, naming the employer . . . and describing the violation. . . . The complaint shall contain a short and plain statement of the facts describing the violation and the relief sought.
Respondent is an employer as that term is defined in Section 760.02(6), Florida Statutes.
The Florida Civil Rights Act (FCRA) is patterned after Title VII, and federal case law dealing with Title VII is applicable. Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
To establish that she has suffered a prima facie case of discrimination by disparate treatment, Petitioner must demonstrate that 1) she was a member of a protected class; 2) she was qualified for the position; 3) she suffered an adverse employment action; and 4) she was replaced by a person outside her protected class or was treated less favorably than a similarly-situated individual outside her protected class. Dickinson v. Springhill Hospitals, Inc., 187 Fed. Appx. 937, 939 (11th Cir. 2006); Stephens v. Georgia Department of Transportation, 134 Fed. Appx. 320, 325 (11th Cir. 2005); Cooper v. Southern Co., 390 F.3d 695, 724 (11th Cir. 2004); Clayton v. Meijer, Inc., 281 F. 3d 605, 610 (6th Cir. 2002); Van Hoorhis v. Hillsborough Board of County Commissioners, 2007 U.S. Dist. LEXIS 33996 (M.D. Fla. May 9, 2007).
Once the Petitioner establishes a prima facie case, the burden shifts to the employer to produce evidence that Respondent's actions were taken for a legitimate, non- discriminatory reason. Once the employer meets this burden of production, a Petitioner has the ultimate burden of showing that the articulated reason for the employer's decision is pre- textual. A Petitioner may meet this burden by pointing to weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the proffered explanation. Brooks v. County Commission of Jefferson County, 446 F.3d 1160, 1162 (11th Cir. 2006); EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272-1273 (11th Cir. 2002). However, a reason is not pretext for discrimination "unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Brooks, 446 F.3d at 1163.
Petitioner claims that she was discriminated against in three respects: 1) that she was required to work full-time, including nights and weekends, when other, younger staff members were not required to do so; 2) that she was required to engage in "instant eventing" when a male stylist was not required to participate; and 3) that she was terminated when others were not.
There is no dispute that Petitioner has established that she is over 40 years of age and was qualified for her job as
a stylist. She has established the first two prongs of a prima facie case.
With respect to her claim that she was discriminated against in terms of scheduling, Petitioner has failed to demonstrate a prima facie case. While she has demonstrated that she is in the protected class and qualified for her job, she has not shown that scheduling her for full-time work, including nights and weekends, is an adverse job action. She applied for and was hired for a full-time position. The type of schedule described is consistent with the type of full-time position needed for the Salon. With one exception, all stylists were required to work the type of schedule about which Petitioner complains.
Further, she must demonstrate that she was similar to non-protected employees in all respects who were treated differently than she was. Holifield v. Reno, 115 F.3d 1555, 1563 11th Cir. 1997); Afkhami v. Carnival Cruise Lines, 305 F. Supp. 2d 1308, 1322 (S.D. Fla. 2004). Cynthia Anderson was a younger, married female (born 12/20/07). However, she was one of three stylists who were hired when Dillards bought out another department store and the terms of their employment agreements with the prior store were "grandfathered in" by Dillards. By contrast, Petitioner was hired at a time when a full-time schedule was mandatory.
The evidence also showed that other stylists in the salon worked as many nights and weekends, if not more, than Petitioner did, regardless of their age, gender or marital status.
Petitioner complains that she was treated differently than a male employee, George Craywick, because she was required to engage in instant eventing and he was not. The evidence did not show that instant eventing was in any fashion an adverse employment action. Moreover, Petitioner did not prove that
Mr. Craywick did not participate in instant eventing. She had no evidence of Mr. Craywick's activities beyond the shifts that they shared. As with her claim regarding scheduling, Mr. Craywick was not a similarly situated employee who was treated differently.
Petitioner was a fairly new employee who did not have a significant client following. Instant eventing was designed to help build a client base. By contrast, Mr. Craywick had a significant, established client base, with little or no need to build a following.
Finally Petitioner claims that she was discriminated against with respect to her termination. As to this claim, Petitioner has established the first three elements of a prima facie case in that she is within the protected class; she was qualified for the position she held; and she suffered an adverse employment action by virtue of her termination. However, she has not demonstrated that she was replaced by a person outside her
protected class or that she was treated less favorably than a similarly situated individual outside her protected class.
Petitioner was replaced by a single female only three years her junior. Her replacement was also a woman in a protected class. Moreover, the evidence demonstrated that other younger individuals, both male and female, single and married, were terminated for excessive absenteeism. Therefore, Petitioner has failed to demonstrate a prima facie case with regard to her termination.
Even assuming that Petitioner had established a prima facie case, Petitioner has not demonstrated that the reason given by Respondent for terminating her employment is pre-textual. It is undisputed that Petitioner was notified that she was expected to work on Monday, May 8, 2006, and Petitioner chose not to work that day. There is no basis on which to find that her unwillingness to work the days assigned to her was not the legitimate reason for her termination.
That a final order be entered dismissing Petitioner's complaint of discrimination.
DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2007.
Bonita Y. Mattingly
Grant D. Petersen, Esquire Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
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.
