STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARRIE S. JOHNSON, )

)

Petitioner, )

)

vs. ) CASE NO. 80-974

)

KELLY FORD, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, held a public hearing on the above matter in Melbourne, Florida, on March 12, 1981.

APPEARANCES

For Petitioner: Andrew A. Graham, Esquire

Post Office Drawer 639 Melbourne, Florida 32901

For Respondent: Harvey C. Poe, Jr., Esquire and

M. Brice Corder, Esquire Post Office Box EG 1037 Melbourne, Florida 32935

On January 15, 1979, Petitioner, Carrie Suzette Johnson, filed a complaint with the Florida Commission on Human Relations pursuant to Section 13.261(10), Florida Statutes (1977) 1/ alleging that her employer, respondent, Kelly Ford, Inc., violated the Florida Human Rights Act by discriminatorily discharging her from her job with respondent by reason of her sex. Specifically, it is alleged that on December 29, 1978, respondent discharged petitioner from her job as service writer and assistant service manager solely on the basis of her sex after she refused to accept a lower-paying position of warranty clerk.

After an internal investigation was conducted by the Commission's Office of Field Services, and there being no settlement of the complaint, a Notice of Determination of Reasonable Cause was made on March 13, 1980, by the Commission's Executive Secretary pursuant to Rule 9D-9.04, Florida Administrative Code. The Notice held there was reasonable cause to believe an unlawful employment practice had occurred. Under the provisions of Rule 9D- 9.05, Florida Administrative Code, the parties were thereafter encouraged to reach a voluntary conciliation of the complaint. This being unsuccessful, petitioner requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1979). On May 27, 1980, the Commission forwarded her request to the Division of Administrative Hearings and asked that a Hearing Officer be assigned to conduct such a hearing.

The final hearing was scheduled for September 9, 1980, in Melbourne, Florida. By agreement of the parties, it was rescheduled to March 12, 1981, at the same location.

At the final hearing, petitioner called Carrie S. Johnson and Paul West as its witnesses and offered petitioner's Exhibits 1-3, which were received into evidence. Exhibit 3 is the deposition of Harry Scabarozi, Jr., which was made a part of the record by agreement of the parties. Respondent called Ross Hardy, Robert C. Utsler, Billy Lewis, Janet Moseley, and Paul West as its witnesses and offered respondent's Exhibit 1; a ruling as to the admissibility of Exhibit 1 was reserved.

The transcript of hearing was filed on April 9, 1981. Proposed findings of fact and conclusions of law were submitted by the Respondent on April 15, 1981, and have been considered by the undersigned Hearing Officer in the preparation of this Recommended Order. Findings of fact not included in this Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.

At issue herein is whether respondent violated Section 13.261, Florida Statutes (1977), by unlawfully discharging petitioner from her employment with respondent solely on the basis of petitioner's sex.

Based upon the evidence, the following facts are determined:

FINDINGS OF FACT

1. Petitioner, Carrie Suzette Johnson, is a 30-year old female residing in West Melbourne, Florida. Respondent, Kelly Ford, Inc., is a franchised Ford dealer located at 776 Magnolia Avenue, Melbourne, Florida.

   
   

2. Petitioner was employed by respondent from October 11, 1977, to December 29, 1978. For the first 30 days of her employment, she occupied a training position to learn the job responsibilities of a service writer. Having satisfactorily completed the training phase, she was then employed in a permanent capacity as a service writer. In October, 1978, her position was reclassified to service writer and assistant service manager, although her duties remained essentially the same.

   
   

3. Petitioner's responsibilities as a service writer were to greet customers, receive a verbal description from the customers of mechanical problems being experienced, and to record that information on a service ticket. She then transmitted this written information to a mechanic who diagnosed the problem and repaired the vehicle. After the mechanical work was completed, she was required to compute certain charges on cash tickets (as opposed to warranty tickets) and furnish that information to the Credit Department. In the event any questions were raised by a customer concerning his bill, petitioner was required to meet the customer and, if necessary, adjust the charges on the bill.

   
   

4. The position of service writer does not require a high degree of mechanical skill. However, it is a position of high visibility in terms of meeting the public, and one which requires the proper temperment to deal with belligerent and often angry customers who are experiencing mechanical problems with their automobiles. The service writer can be described as an ambassador for the dealership, since he or she is in constant contact with customers on a daily basis.

5. Petitioner is a highly active and energetic person. She is also impatient and aggressive. These traits carried over to her relationship with customers, and resulted in a number of complaints being lodged against her. In fact, more complaints were lodged against her than all other service writers combined. Additionally, there were instances when she had "loud" arguments with customers who questioned the charges on their bills, had dealings with customers in an abrupt manner, showed impatience with elderly customers, gave the appearance of being interrupted when called to discuss a problem with a customer, and recalculated charges on disputed bills in an aggressive and somewhat hostile manner. Being aware of these problems, management had discussions on several occasions with both her and her immediate supervisor, Mr. Harry Scabarozi, Jr., concerning her attitude and work performance.

   
   

6. Despite these discussions, there was no discernible change in her relationship with customers.

   
   

7. On or about December 28, 1978, petitioner was asked by Mr. Robert C. Utsler, Kelly Ford's service manager, to take a position as warranty clerk at a salary of $135 per week, which was approximately $65 per week less than her most recent earnings as assistant service manager. She expressed willingness to assume the responsibilities of the new job, if such was required, but refused to take a pay cut. After being told to go home and think about it overnight, petitioner returned the next day and advised Utsler she did not wish to be reclassified to a different, lower-paying position. Utsler then told her that if she did not take the warranty clerk position, she would be discharged. At that time he also advised her that the dealership wished to try an arrangement whereby all service writers would be men. Thereafter, petitioner met separately with Mr. Ross Hardy, parts and service coordinator, and Mr. Paul West, part- owner and general manager. Each told her that she was a dedicated and hard- working employee, but that she was more suited for the position of warranty clerk than service writer. During these meetings, neither Hardy or West mentioned or inferred that such reclassification was due to the fact she was a female; rather she was told that the change was in the best interest of the business. The specific reason for dismissal was her inability to maintain satisfactory relations with the customers. Because she refused to accept the new position, her employment was officially terminated on December 29, 1978.

   
   

8. She was replaced by Jim Lutz, who had previously worked as a mechanic at Kelly Ford. Lutz was low-key and easygoing in temperament, possessed a high aptitude in mechanics, and was well qualified for the position.

   
   

9. Petitioner was not employed on a full-time basis again until September 18, 1979, when she began working as a service writer at Jim Rathman Chevrolet- Cadillac in Melbourne. During the intervening period, she received unemployment compensation for 20 weeks, and worked at Montgomery Ward for approximately a month. She also filed a number of unsucessful applications for employment, including that of service writer at other Melbourne area car dealerships. Although Kelly Ford advertised for a service writer position in August, 1979, and petitioner applied for same, respondent would not hire her. Instead, it offered to hire her in the warranty clerk position at a salary of $155 per week, which she refused.

   
   

10. Petitioner was originally hired by Harry Scabarozi, Jr., who supervised her from October, 1977, until September, 1978, when he left the dealership. He described her as "a worthy employee" and agreed she "very definitely" performed her job in a "competent fashion". (Petitioner's Exhibit 3). Petitioner asked for and received a letter of recommendation from Kelly

    Ford on January 2, 1979. The letter was signed by Utsler, Hardy and West, and described her as "a loyal, dependable employee in the position of Service Writer", and stated that "she was well qualified in the handling of Customer Relations and Service Selling". (Petitioner's Exhibit 1)

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the cause and the parties thereto pursuant to Section 120.57(1), Florida Statutes (1979).

    
    

12. Section 13.261(1)(a), Florida Statutes (1977) provides that:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail to refuse to hire any individual, or otherwise to

          discriminate against any individual with respect to compensation, terms, con- ditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

          This statute is essentially identical to the federal law on the same subject contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C., Section 2000e-2 (a)(1). Like the federal standard, it is unlawful for an employer to discharge an employee solely because of the employee's sex. Here it is alleged that, because petitioner was female, she was forced to take a lower-paying position or suffer termination of employment, which is violative of the law.

          
          

13. Because the state law generally duplicates the existing federal equal opportunity law (Title VII of the Civil Rights Act of 1964), reference to federal cases on the subject is helpful in interpreting its provisions. In Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089 (1981), the United States Supreme Court articulated the basic allocation of burdens and order of presentation of proof in a Title VII sex discrimination case as follows:

    
    

    First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimi- nation. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate

    some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden,

    the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by

    the defendant were not its true reasons, but were a pretext for discrimination.

    Id. at 1093

    
    

14. The Court went on to add that "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."

15. The above standards are not inconsistent or disharmonious with Florida law, and should be followed. See, e.g., Florida Department of Transportation v.

    J.W.C. Company, Inc. et al, So.2d, No. 00-501 (Fla. 1st DCA op. filed 3/27/81). Accordingly, the Petitioner herein must prove by a preponderance of the evidence that she was discharged under circumstances which give rise to an inference of unlawful discrimination. Having established a prima facie case, the burden then shifts to the respondent to rebut the presumption of discrimination by producing evidence that petitioner was discharged, or someone else was preferred, for a legitimate nondiscriminatory reason. Once this burden of production is met by respondent, the prima facie case is rebutted, and the petitioner must then demonstrate that the proffered reason was not the true reason for the employment decision. Of course, the ultimate burden of persuading the fact-finder that she was a victim of intentional discrimination rests with the petitioner.

    
    

16. After applying the above standards to the evidence of record, it must be concluded that petitioner has failed to demonstrate that she was unlawfully discharged from employment by respondent because of her sex. To the contrary, respondent has shown a legitimate, nondiscriminatory reason for terminating her employment, namely, a failure by petitioner to communicate and relate with customers in a manner required of her position. Petitioner has also failed to establish that the legitimate reasons given by respondent were not its true reasons, but were instead a pretext for discrimination.

    
    

17. The record discloses that Johnson was not well suited to hold the position of service writer by reason of her temperament and personality. The service writer is required to deal on a daily basis with angry and agitated customers who expect their feelings to be soothed, and their cars repaired. Johnson, being a highly active and aggressive person, and one who was not low- key and even-tempered, had a number of unpleasant encounters with customers that ranged from impatience with the elderly to loud arguments with customers concerning the charges on their bills. Although this problem was brought to her attention on several occasions, her relationship with customers did not improve. Other than a statement by Utsler (a lower echelon employee) on December 28, 1978, which apparently led petitioner to believe that her discharge was discriminatorily motivated, there is no evidence to support a finding that sex discrimination played any part of management's decision to reclassify her to a warranty clerk position. Rather, the preponderance of evidence shows that the attempted reclassification of her to another position, and her subsequent discharge, was based solely upon management's desire to fill the service writer position with a person who had the proper temperament and personality for the job and who could represent the dealership in a more customer oriented fashion. Although management considered her to be a loyal and dedicated employee, as evidenced by her exit interviews and letter of recommendation, it justifiably attempted to transfer her to a position that required minimal contact with the public, albeit at a lower salary. Its reasons for termination of employment were legitimate and nondiscriminatory, and have not been shown to be a pretext for discrimination. Her replacement, who happened to be a male, was well qualified for the position and had the personality and temperament that a service writer should possess. Therefore, it must be concluded that petitioner's discharge from employment with respondent was lawful, that petitioner was not discriminated against by reason of her sex, and that no violation of Section 13.261(10), Florida Statutes (1977), has occurred.

    
    

18. Having concluded that respondent should prevail the issue of determining whether petitioner is entitled to back pay and attorney fees becomes moot. Subsection 13.261(13), Florida Statutes (1977). By the same token,

    respondent is not entitled to claim attorney fees for two reasons. First, as a general rule litigants must pay their own attorney fees in the absence of legislation providing otherwise. Subsection 13.261(13), supra, does not expressly or impliedly authorize the award of attorney fees to a successful employer. Second, even if an award of such fees was discretionary on the part of this tribunal, there has been no showing that the petitioner's action was frivolous, unreasonable, without foundation, brought in subjective bad faith or continued in bad faith. Village of Palm Springs v. Retirement Builders, Inc.

    So.2d, No. 80-941 (Fla. 4th DCA op. filed 2/4/81).

    
    

19. Respondent's Exhibit 1 is hereby received into evidence. The exhibit contains a personality profile examination given by respondent to all prospective employees except mechanics to determine whether a person is suited, temperament wise, for the position that he or she is to hold. The exhibit includes the results of petitioner's examination, and two others, and was offered to show that her profile did not match the position she held. The basis for selecting the questions used in the examination and the methodology for interpreting its results were not shown. Neither was the witness who sponsored the exhibit shown to be an expert in administering or interpreting personality profile examinations. As such, little weight can be accorded this data. However, the conclusion reached above concerning the charge of discrimination is supported by other competent and independent evidence of record, and the use of Respondent's Exhibit 1 was not essential in reaching that result.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Carrie Suzette Johnson for sanctions

against Kelly Ford, Inc. under Section 13.261, Florida Statutes (1977) be

denied.

DONE and ENTERED this 28th day of April, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1981.

ENDNOTE

1/ Section 13.261(1), has been renumbered by the 1979 Legislature as Section 23.107(10), Florida Statutes (1979).

COPIES FURNISHED:

Andrew A. Graham, Esquire

P.O. Drawer 639 Melbourne, Florida 32901

Harvey C. Poe, Jr., Esquire

P.O. Box EG 1037 Melbourne, Florida 32935

Marva Davis, Esquire Montgomery Building Suite 100

2562 Executive Center Circle West Tallahassee, Florida 32301

Docket for Case No: 80-000974

Orders for Case No: 80-000974