Judges: K. N. AYERS
Agency: Commissions
Latest Update: May 24, 1989
Summary: Petitioner failed to show her sex was a substantail factor in her dismissal
89-0874.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JACQUELINE A. IRBY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0874
) ALLSTATE INSURANCE COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 13, 1989, at Tampa, Florida.
APPEARANCES
For Petitioner: Joe Episcopo, Esquire
2803 West Busch Boulevard Suite 201
Tampa, Florida 33618
For Respondent: Francis M. McDonald, Jr., Esquire
Post Office Box 1873 Orlando, Florida 32802
By Petition for Relief from an unlawful employment practice dated February 8, 1989, Jacqueline A. Irby, Petitioner, by and through her attorney, challenges the termination of her employment with Allstate Insurance Company, Respondent.
As grounds therefor, it is alleged that she was unlawfully terminated because of her sex.
At the hearing, Petitioner testified in her own behalf, Respondent called one witness and eleven exhibits were admitted into evidence.
A Proposed Recommended Order has been submitted by Respondent. All of those proposed findings are substantially included in the findings below.
FINDINGS OF FACT
Jacqueline A. Irby was employed as an Allstate Insurance Agent from April 25, 1983 until her dismissal July 17, 1987.
Respondent has a company policy prohibiting employees from bringing firearms into company offices or carrying them while on company business. Violation of this policy can result in termination. (Exhibit 6).
Petitioner was aware of this policy when employed in 1983 (Exhibit 1). She was unsure the policy applied to her office which she rented in the building not otherwise used by Respondent.
On April 14, 1987, Petitioner wrote a memo to her supervising sales manager, Randy Rouse, stating that she had witnessed Judith Gill walk into her office with a handgun and point it directly at Petitioner's client. Both Gill and Petitioner were Allstate Agents sharing office spaces if not actually partners.
During the subsequent investigation of this incident, Petitioner acknowledged to Rouse that she kept a .357 Magnum in her office for her protection when she worked late at night.
Both Gill and Petitioner were fired by Respondent as Allstate Agents on or about July 17, 1987.
Petitioner presented Exhibits 2 through 5 representing disciplinary action taken by Respondent against male Allstate Agents. Although the maximum penalty authorized by Respondent's Policy Statements Manual (Exhibit 6) for their offenses was dismissal, each of these Agents received a lesser punishment. None of the offenses noted in Exhibits 2 through 5 involved a firearm violation.
No evidence was presented regarding the Agent hired to replace Petitioner, if any, or the sex of such replacement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 760.10(1)(a), Florida Statutes (1987), provides it is an unlawful employment practice for an employer to discharge or otherwise discriminate against any employee because of such individual's sex. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec 2000E, et seq., Hargis v. School Board of Leon County, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). As such, federal precedent construing the similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st D.C.A. 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985).
The Supreme Court established, and later clarified the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985).
McDonnell Douglas places upon the plaintiff the initial burden of proving a prima facie case of discrimination. In a failure to hire or promote case, the plaintiff must prove 1) that he belongs to a protected group; 2) that he was qualified for the job for which the employer was seeking applicants; 3) that he was rejected despite his qualifications; and 4) that after rejection, the position remained open and the employer continued to seek applicants with plaintiff's qualifications. McDonnell Douglas Corp. v. Green, at 802.
Where discriminatory discharge is claimed, a prima facie case is proved under the McDonnell Douglas approach by showing, 1) the plaintiff is
qualified for the position; 2) he was discharged; and 3) he was replaced by a person outside the protected class. Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982); Maggio v. Martin Marietta Aerospace, 9 FALR 2168
(FCHR 1986).
Proving a prima facie case serves to eliminate the most common non- discriminatory reasons for the plaintiff's disparate treatment. See, Teamsters
v. U.S., 431 U.S. 324, 358 and N. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once the plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, non-discriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, supra at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman vs. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).
Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the plaintiff who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated non-discriminatory reasons or that the hired applicant was more qualified than the plaintiff. Texas Department of Community Affairs v. Burdine, supra at 257-8.
In Burdine the Supreme Court emphasized 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. Texas Department of Community Affairs v. Burdine, supra at 253. The Court recently confirmed this principle in Price Waterhouse vs. Hopkins, U.S. , No. 87-1167 (filed May 1, 1989).
In Price Waterhouse v. Hopkins, the Court examined the parties' respective burdens of persuasion where the Plaintiff has proven with direct evidence that the employer's actions were motivated by discriminatory animus. A plurality of the court held that in such a case, the employer must prove by a preponderance of the evidence that it would have made the same decision even if discriminatory animus had not been a motivating part of its decision.
The Court cautions, however, that the holding does not alter the Burdine burden of proof allocation. The employer only bears the burden of persuasion after the plaintiff has proven discriminatory motivation. In a concurring opinion, Justice O'Connor explained that the application of this rule is limited to mixed-motive cases, that is, where the employer has created
substantial uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion.
In the instant case, Petitioner has failed to show by direct evidence that her sex was a substantial factor in the Respondent's decision to fire her. The evidence that male agents were not fired after committing offenses for which termination was authorized by Respondent's Policy Statements Manual is not relevant here since none of those cases involved a similar infraction to that committed by Petitioner.
Even had Petitioner established a prima facie case of sexual discrimination, Respondent has clearly shown that Petitioner's violation of company policy and not her sex was the direct cause of her dismissal as an agent. No disparate treatment of Petitioner was shown as no evidence was produced that male agents who violated Respondent's firearms policy were not terminated.
From the foregoing it is concluded that Jacqueline A. Irby has failed to establish a prima facie case of discrimination in employment by reason of her sex. It is
RECOMMENDED that the Petition for Relief from an unlawful employment practice filed on behalf of Jacqueline A. Irby be DISMISSED.
ENTERED this 24th day of May 1989, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1989.
COPIES FURNISHED:
Joe Episcopo, Esquire 2803 West Busch Boulevard Suite 201
Tampa, FL 33618
Francis M. McDonald, Jr., Esquire
P. O. Box 1273 Orlando, FL 32802
Honorable Tom Gallagher Department of Insurance and
Treasurer
The Capitol, Plaza Level Tallahassee, FL 32399-0300
Don Dowdell General Counsel
Department of Insurance and Treasurer
The Capitol, Plaza Level Tallahassee, FL 32399-0300
Margaret Agerton Clerk
Commission on Human Relations
325 John Knox Road Suite 240, Building F
Tallahassee, FL 32399-1570
Dana Baird General Counsel
Commission on Human Relations
325 John Knox Road Suite 240, Building F
Tallahassee, FL 32399-1570
Docket for Case No: 89-000874
Orders for Case No: 89-000874
