STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERA GRAY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1733

) ALLSTATE INSURANCE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Vera Gray, pro se

St. Petersburg, Florida

For Respondent: Richard Sutter, Esquire

Northbrook, Illinois

Final hearing on the Petition For Relief in this case was held in St.

Petersburg on July 10, 1987. The Petition For Relief alleges that Respondent, Allstate Insurance Company (Allstate), discriminated against Petitioner, Vera Gray (Gray), in employment practices in violation of Section 760.10, Florida Statutes (1985). Specifically, the petition alleges that Allstate unlawfully discharged Gray on the basis of race (black). In support of her allegation, Gray points out: (1) that she was the only black Associate Claims Representative in her "unit"; (2) that Allstate subjected her work to closer scrutiny than the work of other employees; and (3) that two other employees, who were white, were put into other positions instead of discharged when they did not pass their state insurance claim adjuster tests. Allstate denies the charge of unlawful discrimination, maintaining that its employment practices with respect to Gray and its other employees were based solely on legitimate factors other than race.

After the hearing, the parties asked for and received ten days from the filing of the transcript (August 7, 1987) in which to file proposed recommended orders. Rulings on proposed findings of fact can be found in the attached Appendix To Recommended Order, Case No. 87-1733.

FINDINGS OF FACT

1. Petitioner, Vera Gray (Gray), became employed in the St. Petersburg District Claims Office of Respondent, Allstate Insurance Company (Allstate), in December 1973. She started as a clerk and in June 1977, was promoted to a Claims Service Representative (CSR).

   
   

2. A CSR's job was to answer incoming telephone claims, handle minor uncomplicated claims and refer more complicated claims to the claim adjuster with special expertise in the line of insurance for which coverage is claimed.

3. In 1980, Allstate underwent reorganization which changed Allstate's system for handling claims. The CSR position would be phased out and replaced by a new position titled Associate Claim Representative (ACR). The ACR would be more qualified and expected to handle more responsibility. Specifically, the ACR would be expected, among other things, to receive and handle all incoming claims regardless what line of insurance might be involved. The ACR would operate as part of a self-sufficient unit, supervised by a unit manager, which would include personnel with special expertise in certain lines of insurance who would assist the ACR in handling difficult coverage questions. But the responsibility for getting the questions resolved and all claims handled remained the ACR's.

   
   

4. Before the reorganization went into effect, Allstate gave CSRs the option of either a demotion to a non-exempt, hourly wage clerical position or a promotion to the new ACR position, an exempt full-time position. The ACR position carried with it a 40 percent pay increase over CSR pay. But opting for the ACR promotion also carried with it a risk: an ACR did not have the right to transfer back to a clerical position, and no clerical position would be created for an ACR who wanted, or needed, to transfer. Allstate explained the benefits and risks to the CSRs.

   
   

5. Although she had most recently received only an "adequate" or "performance does not fully meet position standards" performance rating as a CSR in her Progress/Development Summary (PDS) for the period from February to August, 1980, Gray opted for the promotion to ACR. She passed all State of Florida insurance claim adjuster licensure requirements and Allstate training requirements and started work as an ACR under unit manager Clark Gibson in August, 1980. In January, 1981, Gray's PDS for the period August, 1980, to February, 1981, rated her performance "adequate" or performance does not fully meet position standards." Gibson explained to Gray that she should not be concerned because an "adequate" rating was not unexpected for the first six months of work as a new ACR. Gibson told Gray that improvement to "competent" or "performance meets position standards" would be expected for the next rating period in another six months. Before Gray's next evaluation, Gibson was transferred and suggested that Gray transfer into the unit supervised by Linda Galeener. Although Gray had some misgivings about Galeener based on things she had heard, she agreed to transfer to Galeener's unit in late May, 1981.

   
   

6. During the next month Gray actually worked under Galeener for only two weeks due to vacation and sick time. Galeener collaborated with Gibson to prepare a PDS--basically a performance evaluation. The PDS, rating Gray's overall performance as an ACR "unacceptable" and "far below position standards," was signed by Clark and Galeener on July 8, 1981.

   
   

7. Meanwhile, as the PDS was being prepared, Gray changed her mind about working under Galeener and asked for a transfer to another unit on July, 1981. When the PDS was released, Gray also processed a grievance complaining that Galeener was discriminating against her on the basis of race (black).

   
   

8. In accordance with Allstate policy, Galeener followed up the PDS as indicated in the PDS, including monitoring Gray's acceptance of responsibility, file evaluation for severity control, frequent file review for pending control and calendar spot checks for timeliness control. The purpose of this follow- up was both to help Gray improve and to monitor her performance for future evaluation.

9. Regardless of Galeener's intentions, she and Gray did not work well together. Their work relationship probably was doomed to failure from the start. Gray viewed Galeener's supervision as harassment for which she had been singled out. Meanwhile, Galeener also took steps to make sure her unit's work was not overly disrupted trying to help Gray. Gray, in turn, interpreted this as refusing to help or allow the other employees to help her. At some point, Galeener decided that further help would be futile. On occasion, Galeener refused Gray extra help she was giving others.

   
   

10. In accordance with Allstate policy, when Galeener did not think Gray had improved, she compared Gray's work to others by use of a Peer Comparison Chart to document that she was being fair to Gray and prepared a Personal Review for the period ending October 23, 1981. The Personal Review notified Gray that her job was in jeopardy and delineated what Gray had to do in the next 90 days to save her job.

    
    

11. It is unusual for an employee to obtain a transfer from a supervisor who has put the employee on Progress Review. But, after consideration of Gray's grievance and consultation with the personnel managers in the St. Petersburg District as well as with the Florida Region and Southern Zone personnel managers, it was decided to grant Gray's transfer request in the interest of fairness.

    
    

12. In November, 1981, Gray was transferred to Michelle McMahon's unit. There is no claim or proof that McMahon discriminated against Gray. The evidence is that McMahon made every reasonable effort to help Gray improve from "unacceptable" to "adequate" performance. (Immediate improvement to "competent" or "superior" performance was not expected or required of Gray to keep her job.) She reduced Gray's workload in terms of quantity and complexity. She delayed Gray's training for new irresponsibilities to enable Gray to concentrate to improve on her current responsibilities and did not downgrade Gray for not assuming new responsibilities. She reviewed all of Gray's work on a weekly basis to help her improve (as well as to monitor any improvements.) Yet by December 29, 1981, neither McMahon nor her supervisor, Thomas Spencer, the St. Petersburg Office Manager, could see any improvement. On February 12, 1982, after obtaining the various approvals necessary under Allstate's personnel procedures, Gray was discharged.

    
    

13. The evidence did prove that Gray was the only black in Galeener's unit. Gray did not, however, prove the percentage of blacks or other minorities employed in other units or in larger organizational units of Allstate. (Nor did Allstate provide those percentages in its presentation.) There was, however, proof that McMahon Supervised black ACRs whom she rated competent and rated at least one white ACR unacceptable.

    
    

14. The evidence was that Allstate had legitimate reasons, unrelated to race, for scrutinizing Gray's work closer than other employees. Her work was unsatisfactory and had to be monitored for several reasons: (1) to help her improve; (2) to be able to evaluate whether her performance improved to "adequate"; (3) to maintain customer satisfaction; (4) to avoid lawsuits for improperly adjusted claims; and (5) to meet the legal requirements of the State of Florida for adjustment of insurance claims. Race was not the reason for scrutiny of Gray's files.

    
    

15. Two white employees who did not pass their State of Florida examinations for licensure as claim's representatives were transferred to other jobs (one as a dispatcher.) But they were CSRs, not ACRs. Their transfers

    occurred before the 1980 reorganization of Allstate's claims offices, and there was no policy that CSRs did not have a right to transfer to a lower position.

    To the contrary, Allstate had made it clear to Gray that, if she opted for a promotion to ACR, she would not have the right to a transfer to a clerical position and that no position would be created for her if she was unable to function as an ACR.

    
    

16. There was evidence that the white ACR whom McMahon also rated unacceptable was not offered another position either. To the contrary, she also was notified that she would be discharged, but she resigned before the discharge took effect.

    
    

17. There was no evidence that Gray ever asked for a transfer. She spoke of a transfer to the subrogation section, and testified that she was qualified. But she did not know if there were any openings and did not testify that she asked for a transfer to subrogation. McMahon, her supervisor from November, 1981, until her discharge, did not know of any request for a transfer, and no request is reflected anywhere in Gray's personnel file.

    
    

18. Despite the paucity of Allstate evidence concerning Galeener (she did not testify) and the absence of any Allstate evidence on Galeener's record for supporting Allstate's affirmative action plan and policies (one aspect of her PDS as a unit manager rated her performance in that regard), the evidence overall did not prove that Galeener or anyone else at Allstate discriminated against Gray on the basis of race. Allstate's employment practices with respect to Gray, including her discharge, were based solely on legitimate factors unrelated to race.

    
    

    CONCLUSIONS OF LAW

    
    

19. Section 760.10(1), Florida Statutes (1985), provides:

    
    

    It is an unlawful employment practice for an employer:

    1. To discharge or to fail 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.

    2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities

       or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

       
       

20. Chapter 760, Florida Statutes (1985), is analogous to Title VII of the Civil Rights Acts of 1964, 42 U.S.C. Section 2000e et. seq. Accordingly, the legal principles applicable to Title VII cases are also applicable to cases arising under Section 760.10. Cf. School Board of Leon County v. Hargis, 400 So.2d 103, 108 (Fla. 1st DCA 1981).

21. This is a case of alleged intentional discrimination in employment practices (There was no evidence of a pattern of discrimination or of the possibility of an unintentional effect of discrimination as a result of employment policies or practices.) The Petitioner bears the initial burden of proving a prima facie case of discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 892 (1973). To prove a prima facie case, Petitioner must introduce evidence that raises the inference that (1) she was a member of a protected class; (2) she was discharged from a job for which she was qualified; and (3) she was treated differently from similarly situated employees outside

    the protected class. Jackson v. U.S. Steel Corp., 624 F.2d 436, 440-41 (3d Cir. 1980).

    
    

22. In the event Petitioner makes out a prima facie case, the burden then shifts to the Respondent to articulate some legitimate nondiscriminatory reason for the termination of Petitioner. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

    
    

23. Once the Respondent has met this "burden of articulation," the Petitioner in order to prevail must then prove by a preponderance of the evidence that the legitimate reasons offered by Respondent were but a pretext for intentional discrimination, i.e., that the Respondent's proffered reasons were not the true reasons for the employment action taken against Petitioner. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

    
    

24. The Petitioner bears the burden of proof throughout the case and must prove that the Respondent intentionally discriminated against her, i.e., she must prove discriminatory motive. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 804-04 (1973).

    
    

25. Gray, through her testimony, established a prima facie case. But the Respondent, Allstate, articulated and proved a legitimate nondiscriminatory reason for discharging Gray, i.e., that she did not adequately perform the job of ACR. Gray did not prove that Allstate's reasons for terminating her were a pretext for intentional discrimination, i.e., that the reasons were not true and were intended to cover up a discriminatory motive on the part of Allstate.

    
    

26. Very simply, as reflected in the Findings Of Fact, the evidence in this case was that Allstate did not unlawfully discriminate against Gray on the basis of race and did not violate Section 760.10(1).

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition For Relief in this case.

RECOMMENDED this 2nd day of September, 1987 in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1733

To comply with Section 120.59(2), Florida Statutes (1985), the following rulings on proposed findings of fact are made:

1. Petitioner's Proposed Findings Of Fact.

   
   

   1.a.-1.d. Accepted and incorporate

   1. Rejected. The "buddy system" was an optional means of addressing difficult coverage questions within the unit. Whether to use it or other options was in the discretion of the unit manager.

   2. Rejected. Not proven.

   3. Accepted and corporate

   4. In part, rejected as contrary to facts found. The PDS was based on six months work and was the result of input by both unit managers who Supervised Gray during this time. The last sentence also is contrary to facts found. Otherwise, accepted and corporated.

   
   

2. Respondent's Proposed Findings Of Fact.

1.-9. Accepted and incorporated.

10. Unnecessary.

11.-16. Accepted and corporate

17. Rejected as not supported by the evidence. 18.-20. Accepted and incorporate

COPIES FURNISHED:

Donald A. Griffin Executive Director

Commission on Human Relations

25 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations

25 John Knox Road Suite 240, Building F

Tallahassee, Florida 32399-1925

Regina McGriff, Clerk

Florida Commission on Human Relations

25 John Knox Road Suite 240, Building F

Tallahassee, Florida 32399-1925

Ms. Vera Gray

2020 - 18th Avenue South, #22 St. Petersburg, Florida 33711

Richard Sutter, Esquire Allstate Insurance Company Allstate Plaza

Northbrook, Illinois 60062

Docket for Case No: 87-001733

Orders for Case No: 87-001733