vs. ) CASE NO. 89-1556
Respondent. )
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer, in Gainesville, Florida, on September 14, 1989. The appearances were as follows:
For Petitioner: Rodney W. Smith, Esquire
For Respondent: William G. Pappas, Esquire
The issue to be resolved in this cause concerns whether the Petitioner was a victim of discrimination on account of her sex, due to the circumstances of her employment and loss of employment with the Respondent.
This cause concerns the request by the Petitioner, Barbara Jerrel, for a formal proceeding related to her claim that she was sexually harassed and discriminated against because of her sex, by her employer, the above-named Respondent. The Petitioner maintains that she was subjected to sexual harassment, both physical and verbal and that she was the victim of disparate treatment as compared to other employees in her office, who had similar duties and responsibilities and were otherwise similarly situated. She contends that she was fired due to sexually discriminatory reasons and that the Respondent's claim that she was fired due to low production and inadequate performance is a pretext. She maintains that in reality she was discharged because she filed a sexual harassment claim against her employer.
The cause came on for hearing as noticed, at which the Petitioner presented her own testimony, as well as that of Jerry Cummings, her office manager, as an adverse witness. The Petitioner presented five exhibits which were admitted
into evidence. The Respondent presented the testimony of Gary N. Wine, a manager in the company's Ocala branch office, at times pertinent hereto, and now in its Leesburg office. Additionally, the Respondent presented the testimony of Lucille Mathis, a coworker with Petitioner, and Jerry Cummings, the office manager of the company and the Petitioner's supervisor, as well as James Higgins, the company's regional manager. The Respondent presented 14 exhibits which were admitted into evidence.
The Petitioner Barbara Jerrel, became employed by Metropolitan Life Insurance Company, the Respondent, in May, 1987. She worked as a sales trainee in the field of life and health insurance sales and servicing. She was interviewed and hired by Doreen Blake in the "Gator Branch" office located in Gainesville, Florida. The manager of that office was Jerry Cummings, who was the Petitioner's supervisor. Mr. Cummings initially worked with the Petitioner in training her to solicit life and health insurance business and in making and closing sales of insurance policies both over the telephone and in person. When she initially became employed he accompanied her and supervised her in making sales solicitation calls on potential clients.
On one occasion, soon after she was initially hired, the Petitioner maintains that she was working at her computer station in the office when Mr. Cummings sat beside her and began rubbing her arm. She states that she remonstrated with him about this conduct and told him to stop, whereupon he became angry and thenceforth instructed her to call him "Mr. Cummings."
Soon after this alleged incident she was sent to a training school for approximately a month to learn the skills and requirements necessary to be a sales representative of Metropolitan Life Insurance Company. She received above average scores on graded work during her school period of instruction and received favorable reports on her leadership and sales ability from her instructors.
After her school training was completed, she returned to the Gainesville office to work. On approximately June 23, 1988, she testified that she and Mr. Cummings were riding in her car to an appointment with a client. He was traveling with her in order to assist with her training in meeting and discussing insurance matters with clients and in closing sales. She maintains he began talking about things other than insurance and said "I hope you don't tell your husband what we talk about . . . because it's really making me hot." She also contends that he made a statement to the effect that he "wondered how long it would take before she got him to a motel room."
The Petitioner testified that she went home that day and tried to decide whether to quit her job or not. She decided to seek a transfer to the Ocala office, where Mr. Wine was the manager. She conferred with Mr. Wine by phone and he allegedly told her that she could come to his office as a new applicant. In reality, as revealed by Mr. Wine in his own testimony, he did not want her to come to work in his office and did not encourage her to do so.
In the meantime, Ms. Jerrel was appointed as a Sales Representative of Metropolitan at the "Gator" branch office in Gainesville, effective June 8, 1987, following her "pre-appointment training." That pre-appointment training provides job applicants with an opportunity to get acquainted with the company's business, to obtain necessary licenses, and enables the management to determine the aptitude of the applicant for the sale of the company's product. She was
provided the same training accorded all such individuals after initial hiring. Following her appointment as a Sales Representative in the Gainesville office she continued to receive training and assistance as was provided all those newly appointed.
Ms. Jerrel met the initial production requirement so that she could be appointed Sales Representative. However, her performance began to deteriorate in July, 1987. She had written 11 applications for insurance (with Mr. Cummings' assistance) by the time of her appointment as a Sales Representative and wrote five by July 10, 1987. Thereafter, she wrote no business at all for two of the next four weeks. She wrote one application for insurance in the week of August 3, 1987 and none for the next three consecutive weeks. She wrote one application in the week of August 31, and had none thereafter during her employment with the company.
The Petitioner alleges that on or about August 28, 1987, Mr. Cummings made a suggestion that the Petitioner and Cummings and another couple "play golf, smoke pot, and go to the beach and make love." Petitioner apparently took offense at that, as it was one of the bases for the subject action. Upon her commenting about it to another female employee however, that employee, who knew Cummings for a longer period of time than the Petitioner, advised her to disregard it because it was her belief that he was "just joking." The Petitioner also alleged that several days after this incident on or about August 31, 1987, that Cummings was engaged in a conversation with her while kneeling beside her chair where she was working at her computer terminal. She alleges that he put his arm around her shoulder while conversing with her, let his hand rest on her breast and massaged her breast whereupon she states that she stabbed him with her "ink pen."
These allegations are of somewhat dubious credibility. The Petitioner herself testified that after the August 31 date, at which the last of the above incidents allegedly occurred, Mr. Cummings still praised her as an employee and predicted that she would get the "Eagle Award." It is also established, by Petitioner's own testimony, that during this period of time in August, 1987, she was undergoing treatment for depression. There is some indication that she was having marital discord with her husband and, indeed, an incident occurred shortly after, on September 10, 1987, which indicates that her relationship with her husband might have interfered somewhat with her job performance. On that date she met agent Michael Ray from the company's Jacksonville office, whom she had known in insurance school. They went to a local establishment where, according to her own testimony, they had a "couple of drinks" whereupon she got sick and went home. Her husband apparently became upset by this episode and shortly thereafter went to the company's Jacksonville office in an attempt to confront agent Ray about apparently interfering with his relationship with his wife, the Petitioner. Later that day, the Petitioner called her own office in Gainesville to warn them that her husband might be coming there armed with a gun. While this is commendable on the Petitioner's part, it does indicate that there was some marital discord which may have interfered with her job performance and together with the fact of her depression and treatment for it, may have influenced her thinking and her perception of what was actually occurring in her encounters with Mr. Cummings.
He was described by another employee as a "touchy person" who frequently touched people in an innocent manner while engaged in a conversation with them. These factors, considered together, coupled with Cummings' denial that the incidents occurred, in the case of his allegedly touching the Petitioner's breast, and his testimony that if he touched someone, it was
without any wrongful intent, lead the Hearing Officer to find that the incidents either did not occur, that they did not happen in the manner perceived by the Petitioner, or that the motive behind them was misconstrued by the Petitioner.
On September 16, 1987, Mr. Cummings offered to try to obtain a transfer for Ms. Jerrel to another office if she would like and offered to give her two weeks in which to decide whether she wanted a transfer and to "tie up loose ends." The Petitioner later refused his offer of a transfer to another office. The offer of transfer, according to the Petitioner, was because of her husband's influence on her performance in her work place, as evidenced, in part, by the incident referenced above.
On September 20, a Sunday evening, Ms. Jerrel called manager Cummings at his home. She asked him to meet her at the office. Manager Cummings declined to go to the office, suggesting that they discuss whatever her problem was over the telephone. Ms. Jerrel refused to do that so then Cummings suggested that she come to his home (where his wife would be present) to discuss the matter with him and she declined. Ms. Jerrel then hung up but called back a few minutes later and said that if Manager Cummings refused to meet her at the office then she would file a sexual harassment charge against him. He was taken aback by this statement but then advised her to do what she chose but he was still not going to meet her at the office that evening.
Mr. Cummings met with Ms. Jerrel in the branch office the next morning and telephoned his Regional Manager, in Ms. Jerrel's presence, to relay to him the information regarding her claim of sexual harassment. Arrangements were then made, in accordance with established company procedures, in evidence, for Agency Vice President, James Higgins, to meet with Ms. Jerrel on September 24, regarding her claim of sexual harassment. When Mr. Higgins met with her and heard her allegations, he advised her of the company's policy against sexual harassment, and assured her that if the incidents had occurred as alleged, he would correct the situation and there would be no recurrence. He also took that opportunity to discuss with Ms. Jerrel her performance as a sales representative. He advised her that upon review of her performance, he had noted that she had been "blank"; that is, without any sales or production for several weeks. He informed her that that was not a satisfactory performance level. He told her that she would have to produce a satisfactory record of sales accomplishments or her employment would be terminated. As a result of this discussion she agreed to submit an "action plan", delineating in detail what steps she proposed to take to correct her unsatisfactory production level. That action plan included her assurance that she would participate in "telephone prospecting classes" with her supervisor.
Mr. Higgins also interviewed Manager Cummings with respect to Ms. Jerrel's allegations of sexual harassment. Mr. Cummings denied them. Mr. Higgins then warned Manager Cummings that if he were found to have engaged in such conduct, his employment would be terminated.
Respondent's exhibit 14 is a letter from Mr. Higgins to Manager Cummings delineating the problems with the Petitioner's lack of sales performance. The exhibit contains a detailed discussion of her action plan goals designed to try to correct her lack of production of insurance sales. The letter admonishes Manager Cummings to monitor her performance, particularly her telephone prospecting time and methods, as well as her other prospecting and sales efforts and methods. The letter emphasizes, on the second page, the monitoring and establishment of a schedule of in-office telephone prospecting time, to be monitored by Mr. Cummings. In that letter is a handwritten
memorandum of a telephone conversation which Mr. Higgins later had with Mr. Cummings, on the same day the letter went out to Mr. Cummings. Mr. Cummings informed Mr. Higgins that Ms. Jerrel had already missed two scheduled telephone prospecting classes which she had agreed to attend in her "action plan", designed to correct poor sales performance. Since she did not report to the scheduled telephone prospecting class sessions on September 25th and September 28th, Mr. Higgins ordered Manager Cummings to terminate her effective October 1, 1988.
The reason for her termination was established to be her low- performance record and her failure to comply with the action plan which she, herself, prepared and submitted, designed to correct her poor sales performance. The termination did not result from the altercation that the Petitioner was involved in with her husband and agent Michael Ray of the Jacksonville branch office. In fact, the Branch Manager, Mr. Cummings' superior, had a discussion of that issue with Mr. Cummings and informed him that the New York home office had indicated that the Petitioner's husband's interference with her job or office operations was not a sufficient reason to terminate her. The company's policies and procedures regarding sexual harassment claims, equal employment opportunity, affirmative action and prevention of unlawful discrimination are in evidence. The record does not reflect that those policies were departed from in the situation at bar.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case, in accordance with Section 120.57(1), Florida Statutes.
The Respondent is an employer within the meaning of subsection 760.02(6), Florida Statutes (1987). The Petitioner is a "person", "individual" and "employee" for purposes of the various pertinent provisions of Chapter 760, Florida Statutes.
The Petitioner maintains that she is the victim of sexual discrimination in that she maintains that verbal and physical sexual harassment was perpetrated against her on the above-mentioned occasions and that she was terminated in retaliation for her complaints concerning this. Section 760.10, Florida Statutes (1987), prohibits discrimination against an individual on account of that individual's sex.
The Petitioner in this case, as the party seeking to change the status quo and moving party in the filing of the action, has the burden to establish a prima facie case of sexual discrimination. The Supreme Court of the United States in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), treated the issue of burden of proof and the shifting burden of going forward with evidence in an employment discrimination case. That opinion holds that the burden is first on the plaintiff (Petitioner) to establish a prima facie case of discrimination. If the Petitioner thus establishes a prima facie case, the burden to go forward with countervailing evidence then shifts to the Respondent to articulate a legitimate, non-discriminatory reason for its action. The Petitioner then must show that this reason is merely a pretext for what actually amounts to discrimination. This method of proof has been held to be equally applicable to discrimination claims brought before the Florida Commission on Human Relations and the Division of Administrative Hearings in numerous decisions.
Thus, in this case, the Petitioner had to establish a prima facie case. In order to make such a showing, she was required to prove that she was a member of a protected class under the act, that she was qualified for and performing her job, and that she was terminated based upon sexual discrimination; that is, that she was terminated out of retaliation for her complaints concerning, or failure to cooperate with, the allegedly sexually harassing physical and verbal acts of her supervisor. See Bowen v. Valley Camp of Utah, Inc., 639 F. Supp. 1199, 1202 (D. Utah 1986).
The Petitioner has not proven all the elements of a prima facie case. She has established that she was a member of a group protected by the Florida Human Rights Act (Chapter 760) because she is a member of the protected female class. The above Findings of Fact on the subject reveal that she has not established that sexual harassment was perpetrated on her. If, in fact, some of the incidents which Mr. Cummings could not recall having done did involve touching, it was not established that they were done for a sexual motivation, suggestion or advance. In fact, Mr. Cummings was unable to recall that any of them had occurred and flatly denied that the incident involving touching her breasts or her knee occurred. Mr. Cummings, and the other employee testifying, acknowledged that he frequently touches people as he engages in conversation with them, but that no sexual-favor-garnering type of motivation is involved at all. There was no proof that the Petitioner was terminated due to pique or anger on the part of Mr. Cummings or his superiors at the company because of the filing of the sexual discrimination claim or her complaints directly to Mr. Cummings, which she maintains she made. Mr. Cummings, in fact, could not recall that she had ever complained to him personally about any acts, touching or any comments he made directed to her. Even if it could be deemed that her prima facie showing of a discriminatory motivation underlying her termination had been established simply because of the contemporaneous nature of her sexual harassment-discrimination complaint and her termination, the company showed a legitimate reason for the termination, not fraught with any discriminatory motivation and not related to any other claim regarding sexual discrimination.
In fact, evidence introduced by the Respondent established, unequivocally, that her production of sales had deteriorated sharply and was showing no signs of improvement. She failed to comply with the action plan which she, herself, had prepared and submitted to Mr. Cummings and Mr. Higgins. There is no question, given the evidence of record and the above Findings of Fact, that she was terminated due to poor performance and not due to any retributory motive occasioned by her filing of the sexual discrimination claim nor her complaints regarding her conception of Mr. Cummings' verbal and physical acts toward her, which she mistakenly perceived to be sexually motivated. The fact that her termination was close in point of time to the instance of the filing of her discrimination claim is not, in itself, competent, substantial evidence of a discriminatory motivation.
The Respondent articulated a legitimate, business-related, non- discriminatory reason for her termination. The Respondent's evidence regarding the Petitioner's poor performance was not rebutted by competent, substantial evidence. Indeed, the evidence reflects that the Respondent gave the Petitioner more than ample opportunity to achieve success in sales before terminating her. She was accorded more assistance and training in obtaining sales prospects, closing sales and other aspects of her duties, than were other similarly situated employees hired in approximately the same time period. Accordingly, it is concluded, based upon the totality of the evidence presented and in consideration of the above Findings of Fact, that preponderant evidence of discrimination has not been established. No prima facie case Of discrimination
on account of the Petitioner's sex has been demonstrated; and a legitimate, non- discriminatory reason for her termination has been established by the Respondent.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore
That the petition of Barbara Jerrel be dismissed.
DONE AND ENTERED this 27th day of March, 1990, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990.
Dana Baird, Esq.
Rodney W. Smith, Esq.
P.O. Box 628 Alachua, FL 32615
Wi1liam G. Pappas, Esq. Metropolitan Life Insurance Company One Madison Avenue
