This cause came on for final hearing before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on November 17, 2009, in Pensacola,
Florida.
For Petitioner: Steven L. Terry, Esquire
Steven Terry, P.A.
For Respondent: James R. Glenister, Esquire
The issue for determination in this matter is whether Respondent discriminated against Petitioner because of her race.
On or about January 13, 2009, Petitioner filed a Charge of Discrimination against Respondent. The Florida Commission on Human Relations (FCHR) conducted an investigation, determined that there was no cause, and gave Petitioner notice of its determination and of her right to a hearing. Petitioner asked for a final hearing and the case was forwarded to the Division of Administrative Hearings. The case ultimately was noticed for hearing on November 17, 2009, by a notice dated September 22, 2009. The case was heard as noticed. Petitioner testified on her own behalf and also called under subpoena Jill Ferguson, Crystal Young, Ronald Nelson, and Aaron Glancy. Petitioner's Exhibits 1, 2, and 4-39 were admitted in evidence. The witnesses for Respondent were Terrie Crawford, Paula Neff, and Rhonda Burkes. Respondent's Exhibits 1-5 were admitted in evidence. A Transcript of the final hearing was filed on November 25, 2009. Thereafter, Petitioner and Respondent filed their Proposed Findings of Fact and Conclusions of Law on December 11, 2009.
References to statutes are to Florida Statutes (2008) unless otherwise noted.
On or about January 13, 2009, Petitioner filed a Charge of Discrimination with FCHR. Petitioner alleged that she was discriminated against because of her race.
FCHR conducted an investigation, and on July 1, 2009, issued a Determination: No Cause. FCHR found that "no reasonable cause exists to believe that an unlawful employment practice occurred."
On the same date, FCHR advised Petitioner of her right to request an administrative hearing by filing a Petition for Relief within 35 days of the Notice. Petitioner filed her Petition for Relief on August 3, 2009.
In her Petition for Relief, Petitioner claimed that she was removed from an Acting Sales Coach position based on her race.
Petitioner is an African-American female. She is a sales associate for Respondent, a telecommunications company.
Sales associates take incoming calls from customers, assist customers with questions, and offer Respondent's products and services. It is a non-management title governed by a collective bargaining agreement between Respondent and Petitioner's union, Communications Workers of America ("CWA").
In early 2008, Petitioner's call center sales manager was Ronald Nelson. In approximately May 2008, Nelson advertised
an Acting Sales Coach position. As reflected in the portion of the collective bargaining agreement submitted by Petitioner, the acting title is provided to an employee selected "to perform temporarily the supervisory duties of a first line or higher supervisor and that designation is expected to run for a period of longer than 5 weeks." The Acting Sales Coach position, while still governed by the Union contract, is a salaried position.
Petitioner applied for the acting position and was selected by Nelson based on her qualifications.
That selection was subject to approval by Nelson's superior, Terrie Crawford, General Manager. Accordingly, Nelson contacted Crawford and recommended Petitioner for the position. Nelson submitted the request in May, 2008. The acting title was to be filled effective June 1, 2008.
Employees in an acting title may hope to one day become a permanent/regular manager, but the position is temporary, and there is no guarantee that an acting manager will be promoted to a permanent/regular manager.
Respondent also has a designation of relieving assistant manager ("RAM"), which is generally for shorter durations. RAMs receive additional hourly pay, 10 percent over their basic hourly rate of pay.
It was clear from substantial testimony that while Nelson's decision required the approval of his superior, he
fully expected that approval, and did not anticipate any reason why approval would not ultimately be given. Accordingly, Nelson and other managers began taking "necessary steps to get her ready in anticipation that the requisition would be approved."
It is undisputed that Petitioner was issued a corporate credit card. Emails were exchanged regarding her new salary level.
As explained by several witnesses, including Area Manager Rhonda Burkes, in order to have Petitioner listed as an acting sales coach on various reports, Respondent's databases needed to be updated almost two weeks prior to the month in which the report would run. The systems "close" around the
18th – 21st of each month, and all changes must be input by that date. The systems cannot be changed after that date. For example, for reports to show Petitioner as a coach effective June 1, the system would have to be updated by approximately
May 18-21. Accordingly, in addition to issuing a credit card and discussing her anticipated salary, Respondent began listing Petitioner as a sales coach in various databases, and therefore in reports generated from them.
In anticipation of final approval, Nelson sent an email to the office notifying employees of Petitioner's selection. Employees congratulated Petitioner.
On June 1, 2008, Petitioner began performing the functions of an acting coach. She was listed on numerous reports as such.
General Manager Crawford, Nelson's superior, received Nelson's request to approve the acting title for Petitioner, and fully supported Petitioner's receiving the position. Crawford testified that given her knowledge of Petitioner, other than the declaration of a surplus, there was no reason why she would not approve the position.
Crawford was not surprised that actions were taken in anticipation of Petitioner's receiving the temporary position, including the discussion of salary, issuing a corporate credit card, and placing the position in databases which generated the reports.
While Petitioner's paperwork was being processed, Crawford was notified that the Company had issued a "hiring freeze" in anticipation of a surplus announcement. In the latter half of June, Crawford notified Nelson that there was a hiring freeze, and that therefore the process of moving Petitioner to the Acting Sales Coach position had to be stopped. The hiring freeze was in effect throughout the entire Consumer Department, and was not Crawford's decision.
At that time, the "hiring freeze" did not necessarily mean that Petitioner would not ultimately receive the position.
During the latter part of June, Nelson and Burke came to her and advised that there was a hiring freeze, and that the Acting Sales Coach position "didn't actually go through."
However, the corporate downsizing in fact affected the Pensacola office. A sales reports manager, Aaron Glancy, a white male, was informed that his job was being eliminated.
Burke notified Petitioner that because of the hiring freeze and elimination of Glancy's position, she needed to be coded as a RAM, paid a differential, and paid overtime hours back to June 1. Since this occurred in the latter half of June, reports for July had already been updated in the system. Accordingly, July reports continued to state that Petitioner was a sales coach.
Petitioner believed that Nelson had selected her for the position, was fair to her, and she could think of no reason why he would lie. As the person who recommended her, Nelson is not accused of discrimination.
Petitioner acknowledged that Nelson had told her that Crawford had to approve the position, and that he subsequently told her about the hiring freeze and the fact that his recommended selection did not go through.
Glancy was a permanent, not an acting, manager. He was a Level 1, Pay Grade 57 manager, which is the same level as a coach. He had previously held the coach title. Since his job
was a management position, it was not covered by the collective bargaining agreement.
In a corporate downsizing, otherwise known as a "surplus," Respondent's staffing processes control. One of those policies dictates that surplus managers are given priority consideration for jobs. Glancy had previously performed the coaching role and was, therefore, qualified in the eyes of management.
According to those policies, permanent managers, who are subject to termination of employment due to a surplus, are given priority consideration for positions, including positions to be filled by or actually held by acting managers.
Priority consideration is given to surplus managers before other candidates because the surplus manager's job has been eliminated, and unless they obtain another position, their employment will be terminated.
While Crawford was bound by the policy, she in fact agreed with the policy, and believes it is fair to give priority to an existing manager whose job is subject to elimination over someone serving in the position in an acting role. While unfortunate, both individuals would have jobs - - avoiding a firing.
Accordingly, due to the surplus condition, Glancy was advised to apply for, and was selected by Crawford to fill, the
coach position for which Petitioner had been serving as acting sales coach. Since Glancy was already a Level 1, Pay Grade 57 manager, it was a lateral move for him, rather than a promotion.
Petitioner acknowledged that she knew that Glancy's position was eliminated and that he was about to be unemployed. She acknowledged that Neff told her that the decision was due to the hiring freeze.
Petitioner clearly handled the transition professionally. She met with her team, told them that she had to return to the phone duty due to the hiring freeze, and that they were in good hands with Glancy.
Nelson had transferred within the Company to another position and was no longer working in Pensacola. Therefore, Crawford asked the manager of the other center in Pensacola, Paula Neff, to communicate the decision to Petitioner.
In late July, Neff met with Petitioner, and told her that she unfortunately would not be getting the position due to the surplus, and that Glancy would be placed as the permanent manager over the team. Neff told Petitioner that she had heard that she had been doing a great job, and to keep the faith.
Other employees who testified on Petitioner's behalf confirm that they had learned that she "went back to the desk" (as a Sales Associate) because of the hiring freeze. Such other employees also knew that Glancy's job had been eliminated.
Respondent's managers consistently stated that race was not a factor and that, based on Company policy, the same decision would have been reached regardless of race.
Crawford confirmed the decision was based solely on the surplus, and that it did not reflect any lack of value of Petitioner's skills.
Petitioner acknowledged no one told her that the decision was because of her race.
Because his position had been eliminated, in June and July, Glancy temporarily acted as an "incubation coach," and coached new employees right out of training. That work was temporary because such employees would leave incubation after 60 days and spread out to individual teams. Accordingly, Glancy was listed as a coach during this time frame.
Over the past year, Petitioner's supervisor, Zachary Fleming, has approached her several times regarding opportunities to relieve for him. She has declined all such invitations. She also has received emails advertising new Acting Sales Coach positions. Petitioner has declined to apply for any of those positions. She testified: "Why would I apply for a job that I already received?"
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat.
Petitioner is an "aggrieved person," and Respondent an "employer" within the meaning of Subsections 760.02(10) and (7), Florida Statutes, respectively. Section 760.10, Florida Statutes, makes it unlawful for Respondent to discharge or otherwise discriminate against Petitioner based upon an employee's race or sex.
The Florida Civil Rights Act of 1992 (the "Act") makes certain acts "unlawful employment practices" and gives FCHR the authority, following an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes, to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay," if it finds that such an "unlawful employment practice" has occurred. §§ 760.10 and 760.11(6), Fla. Stat.
Pursuant to Subsection 760.10(1), Florida Statutes, it is unlawful for an employer to discharge, refuse to hire, or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment, based on the employee's race, gender, or national origin.
Federal discrimination law may properly be used for guidance in evaluating the merits of claims arising under Section 760.10, Florida Statutes. See Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Fla. Dept. of
Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), the Supreme Court articulated a burden of proof scheme for cases involving allegations of discrimination under Title VII, where the plaintiff relies upon circumstantial evidence. The McDonnell Douglas decision is persuasive in this case, as is St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993), in which the Court reiterated and refined the McDonnell Douglas analysis.
Pursuant to this analysis, the plaintiff (Petitioner herein) has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n. 6 (Fla. 1st DCA 1996), aff'd, 679 So. 2d 1183 (1996) (citing Arnold v. Burger Queen Systems, 509 So. 2d 958 (Fla. 2d DCA 1987)).
If, however, the plaintiff succeeds in making a prima facie case, then the burden shifts to the defendant (Respondent
herein) to articulate some legitimate, nondiscriminatory reason for its complained-of conduct. If the defendant carries this burden of rebutting the plaintiff's prima facie case, then the plaintiff must demonstrate that the proffered reason was not the true reason, but merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-03; Hicks, 509 U.S. at 506-07.
In Hicks, the Court stressed that even if the trier- of-fact were to reject as incredible the reason put forward by the defendant in justification of its actions, the burden nevertheless would remain with the plaintiff to prove the ultimate question of whether the defendant intentionally had discriminated against him. Hicks, 509 U.S. at 511. "It is not enough, in other words, to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." Id. at 519.
In order to prove intentional discrimination, Petitioner must prove that Respondent intentionally discriminated against her. It is not the role of this tribunal (or any court, for that matter) to second-guess Respondent's business judgment. As stated by the court in Chapman v. AI
Transport, 229 F.3d 1012, 1031 (11th Cir. 2000), "courts do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how mistaken the firm's managers, the [Civil Rights Act] does not interfere. Rather, our inquiry
is limited to whether the employer gave an honest explanation of its behavior (citations omitted). An employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason."
At the administrative hearing held in this case, Petitioner had the burden of proving that she was the victim of a discriminatorily motivated action. See Dep't of Banking and Fin., Div. of Sec. and Investor Prot. v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996) ("The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."); Fla. Dep't of Health
and Rehabilitative Servs. v. Career Serv. Comm'n, 289 So. 2d 412, 414 (Fla. 4th DCA 1974) ("The burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal.'").
Similar to the above analysis of a general case for discrimination, Petitioner's discrimination claims with respect to Respondent's failure to promote her to a managerial position (sales coach) must fail. To make a prima facie case for failure to promote, Petitioner must show: 1) that she belongs to the protected class; 2) that she was qualified and applied for the promotion; 3) that despite her qualifications she was rejected; and 4) that the employer either filled the position with someone
of a different race and sex or sought to promote less qualified employees who are not members of the protected class. If the Petitioner establishes a prima facie case of discrimination, the burden then shifts to the employer to articulate some legitimate, non-discriminatory reason for the employee's rejection. If the employer meets this burden of persuasion, the Petitioner must then establish that the employer's proffered reasons for the employee's rejection were pretextual. Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir. 1999).
Petitioner bears the burden of proof that her race was a motivating factor in removing her from her acting supervisory role. Petitioner failed to meet her burden of proof.
Petitioner was replaced by a white employee, but she was unable to present any similarly situated white employee who was treated differently in her situation. She identified no white employee who retained an acting job when a qualified manager was surplussed. Glancy was a surplussed permanent (not acting) manager, and therefore laterally transferred into the position. He was not similarly-situated. Petitioner therefore cannot establish a prima facie case. Moreover, Respondent articulated a legitimate, nondiscriminatory reason, namely that due to a surplus/corporate downsizing, a surplussed permanent manager had priority consideration for positions slated to be filled by or held by non-management employees in acting roles.
Moreover, the evidence fails to support Petitioner's claim that the hiring decisions were merely a pretext for discrimination. In the context of a promotion, it is not sufficient for Petitioner to argue (which she scarcely has) that she is better qualified for a position than another. Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344, 1349 (11th Cir. 2007). Petitioner "must show that the disparities between the successful applicant's and his own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff." Id. Petitioner must show not merely that Respondent's employment decisions were mistaken, but that they were in fact motivated by race. Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th Cir. 2000); Brooks v. County Comm'n, 446 F.3d 1160 (11th Cir. 2006). In this case, Petitioner did not meet her burden to show that the disparities, if any, between her qualifications and those of Glancy were of such weight and significance that no reasonable person could have chosen him over her. The evidence shows that Glancy was selected on the basis of already being in a managerial position and, according to Respondent's policy, subject to placement in the position in order to save him from being surplussed.
In this case, Petitioner did not show that the reason for the decision to make Glancy the manager was a pretext for race discrimination. Petitioner was the victim of unfortunate timing and circumstances unrelated to her race.
As noted in the Findings of Fact, there is no real dispute of fact regarding what occurred. Although the parties have characterized it differently, it is clear what occurred. Manager Ron Nelson selected Petitioner as an acting sales coach. As was made clear by the union contract excerpt submitted by Petitioner herself, the acting role is intended to be temporary. If the employee retains the acting role and demonstrates leadership skills after a sufficient period of time (less than a year), she will be considered for a permanent/regular Sales Coach position.
Crawford, Nelson's superior, was fully supportive of Petitioner's receiving the acting position and having the opportunity to demonstrate her leadership skills. On the assumption that the acting role was formally going through, Respondent's manager Nelson told Petitioner that she had the job, he announced it to the organization, and she began performing the duties of an acting sales coach. Respondent's managers moved forward with plans to have her work in the role, including issuing a corporate credit card, discussing her new salary, and updating databases to reflect that job title.
Unfortunately, during this time period, without prior notice to the Pensacola offices, Respondent instituted a hiring freeze in anticipation of corporate downsizing. Pensacola permanent manager Glancy in fact lost his position. As multiple company managers testified, under such circumstances, staffing processes required Crawford to give priority consideration to Glancy (already a permanent manager) for coaching positions. Crawford testified that this meant that positions held by employees in acting roles were subject to such priority consideration. In other words, Crawford was required to offer Glancy the sales coach position in which Petitioner had begun working temporarily as an acting sales coach. Respondent followed this policy, and there is no evidence that either Glancy's or Petitioner's race played any role.
Much of the hearing testimony was devoted to determining whether Petitioner had solely been recommended for, or had in fact received, the Acting Sales Coach position. Petitioner made a strong argument that she believed she was going to become the sales coach. Many facts pointed to her good faith belief that, barring any unforeseen circumstances, she would be promoted. The late-Friday-afternoon hiring freeze and downsizing event was such an unforeseen circumstance. As Crawford testified, whether Petitioner was seeking the position, or in fact already had been fully approved for the acting title
position, the outcome would have been the same. Her acting title would have been removed, and Glancy would have received the position due to his priority consideration under Company policies. As Crawford testified, it would not have made a difference whether she was in the acting role -- because Glancy had priority consideration.
Petitioner clearly believes that this decision was unfair, that she was more deserving than Glancy, and that Glancy should have been demoted from management to non-management. However, she admitted that she had no evidence her race played any role.
Even if the decision was unfair, Petitioner has not demonstrated that race discrimination occurred. Unfairness and disappointment, no matter how strongly felt, do not establish liability under discrimination laws. See Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir. 1997) ("discrimination laws do not protect against unfair business decisions – only against decisions motivated by unlawful animus"), overruled on other grounds by Texas Dep't of Comm'y Affairs v. Burdine, 450 U.S. 248 (1981). Petitioner must establish that the real reason for the employment action was discrimination. See Jones v. Gerwens, 677 F. Supp. 1151, 1153 (S.D. Fla. 1988). It is not the role of this court or FCHR to impose their own business judgment. This court is not "a super-
personnel department that reexamines an entity's business decisions." Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991). It is not enough for Petitioner to show that Respondent made a bad decision or even a decision based upon erroneous facts, but rather Petitioner must show that her race was a factor. Nevertheless, even if it were relevant that the decision was unfair, under the circumstances, the undersigned would not be in a position to disagree with Respondent's policies. Crawford testified that in the unfortunate circumstance of a downsizing, it is essentially the lesser of two evils to remove an acting manager from a position to ensure that no one is fired. While unfortunate for Petitioner, Respondent was able to prevent the firing of Glancy, a permanent manager. The undersigned is not in a position to say that this policy was "unfair."
Moreover, Petitioner has retained her position with the Company, and in fact has had several opportunities to return to the acting title, all of which she has declined.
In summary, while the Petitioner is understandably disappointed that she returned to her role as a non-management sales associate, the decision to place Glancy in the position is consistent with Respondent's staffing processes. Crawford did not consider Petitioner's race when making the decision.
Petitioner was not removed from the acting title because of her race.
The evidence produced at hearing failed to prove, by a preponderance of the evidence, that Petitioner suffered discrimination in her employment on the basis of her race. Respondent articulated legitimate, non-discriminatory reasons for its actions and decisions regarding Petitioner. The greater weight of the evidence clearly supports that Respondent did not commit an unlawful employment practice.
Based upon the evidence and testimony offered at hearing, Respondent is not found to have committed an unlawful employment practice as alleged by Petitioner in her Petition for Relief. Therefore, her Petition should be dismissed.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 4th day of February, 2010, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2010.
James R. Glenister, Esquire AT&T Southeast
Steven L. Terry, Esquire Steven Terry, P.A.
Larry Kranert, 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.
