STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WANDA FAYE OLIVER, )

)

Petitioner, )

)

v. ) CASE NO. 89-2015

) COUNTRYWIDE FUNDING CORPORATION, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on July 14, 1989, in Orlando, Florida.

APPEARANCES

For Petitioner: N. James Turner, Esquire

Suite 104

17 South Lake Avenue Orlando, Florida 32801

For Respondent: Thomas R. Peppler, Esquire

P. O. Box 2807

250 North Orange Avenue Orlando, Florida 32802

M'Liss Jones Kane, Esquire

P. O. Box 7137

Pasadena, California 91109-7137 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent committed an unlawful employment practice, as provided in Section 760.10, Florida Statutes, by demoting and terminating Petitioner on account of her sex. If so, it is also necessary to determine appropriate relief.

PRELIMINARY STATEMENT

Petitioner's charge of discrimination is dated October 4, 1987. The Florida Commission on Human Relations (FCHR) filed its "Corrected Determination: Cause" on March 13, 1989.

Thereafter, Petitioner filed her Petition for Relief, and Respondent answered. The case was referred to the Division of Administrative Hearings for a formal hearing and recommendation on April 17, 1989.

At the hearing, Petitioner presented her own testimony; that of three former co-workers, Rita Stoddard, Kim Foreman, and Kenneth J. Brant; and Rick Cossano, the representative of her former employer. Her Exhibits #1 - #19 were received in evidence without objection, with the exception of Exhibit #16, an affidavit, which was received over Respondent's objection based on hearsay. The affidavit was offered for the limited purpose of corroborating other testimony. It provides that corroboration and has not been relied on as the sole basis for any finding of fact. See Section 120.58(1), Florida Statutes.

Respondent presented a single witness, Rick Cossano, and four Exhibits, #1, #3, #4 and #5, received into evidence without objection.

After the hearing, a transcript was filed and the parties presented proposed recommended orders. The proposed findings of fact are addressed in an appendix attached to this order.

FINDINGS OF FACT

1. Countrywide Funding Corporation (Countrywide) is a mortgage company, with a home office in Pasadena, California, and branch offices throughout the country. It employs substantially more than fifteen persons, full-time.

   
   

2. Wanda Faye Oliver (Faye Oliver) was hired by Countrywide as Branch Manager for its Winter Park, Florida branch on April 28, 1986. Her duties were to market loans for the company, supervise the underwriting and generally supervise the office.

   
   

   At the time of hire, she had a Florida mortgage broker's license and experience as an office manager and branch manager with another company, as well as experience processing loans. Ms. Oliver's starting salary was $32,000 a year.

   
   

3. The office under Ms. Oliver performed well, and in April, 1987, she received a special base salary increase to $36,000 annually. The letter awarding the increase congratulates her for hard work and acknowledges her as the leader in the Florida operation. The salary increase was for her increase in production. (Petitioner's Exhibit #1).

   
   

4. Several events occurred around April, 1987, to impact the Winter Garden office. Dave Erbst, the individual who hired Oliver and her immediate supervisor in California, was replaced by George Shipman.

   
   

   The local office began having trouble communicating with its home office.

   Telephone calls were returned a day or two later, and in one instance George Shipman approved a loan that had been denied by the Winter Garden female underwriter without discussing it or informing her in advance. Later, when a male underwriter was hired, George Shipman would talk with him, but not Ms.

   Oliver.

   
   

   Ms. Oliver complained about the communication problems and about not receiving timely logistical support, such as broker loan kits needed for the approval of additional brokers.

   
   

5. In April, 1987, the company opened an office in Atlanta and form letters were sent to approved brokers, including those with whom the Winter Park Office had worked, inviting them to work with the Atlanta office. The new office began closing loans that the Winter Park office had "locked in".

6. In May or June, 1987, Faye Oliver received a satisfactory (average) performance evaluation. She called Shipman and asked to discuss it, as she wanted to explain what she was doing, but he never contacted her about it.

   
   

7. In the early summer of 1987, interest rates rose and the market in general decreased. Production at the Winter Park office decreased below its goal of at least $3 million. Production in other wholesale offices of Countrywide substantially decreased as well.

   
   

8. In the middle of August, 1987, Rick Cossano was hired by Countrywide as Vice-President in charge of production. He worked out of the Pasadena office and reported to George Shipman. His responsibility was to work with the branch managers to increase production.

   
   

9. On August 30, 1987, Countrywide ran a blind advertisement in the Orlando Sentinel newspaper seeking a Director of Broker Operations to "take over the reins of our local broker operations." (Petitioner's Exhibit #11).

   
   

   Faye Oliver read the ad, recognized her job and called Rick Cossano, to find out what was going on. She had never been disciplined by the company and had never been warned or reprimanded. Although there had been discussions about closings that needed to be done to meet goals, there were no complaints about production.

   
   

   Rick Cossano had not heard anything about the advertisement and told Oliver he did not know what was going on. Later, he found out why the company was running the advertisement and he called Faye Oliver to tell her she was being replaced. He also told her the company did not want her to leave because she was a valuable asset and was needed to help run the Winter Park Office.

   
   

10. Joe Brick was hired as Branch Manager of the Winter Park Office on September 23, 1987, at a salary of $42,000. At the time, he did not have a Florida mortgage broker's license, but had completed the requirements. He had been self employed as a mortgage consultant and had experience as a mortgage broker manager in Wisconsin.

    
    

11. Faye Oliver was demoted without a reduction in pay. Her new title was Branch Operations Manager. She was told by Rick Cossano that she was to train Joe Brick in Countrywide's procedures and to help him with technical matters. She was also supposed to supervise staff, she thought, because Rick Cossano had told her that nothing would change with the demotion.

    
    

12. On September 25, 1987, Faye Oliver sent a memo to Rick Cossano requesting a job description. She had only verbally been told of her status and she wanted to know what the demotion meant, since she was still on the same salary and was supposedly given the same duties. She never received a response or any explanation.

    
    

    She had to move to a different office because the new manager needed the office with a telephone. Her new office was physically removed from the rest of the staff and away from the telephones.

    
    

13. The staff, at that time, was comprised of three persons, in addition to Ms. Oliver and Joe Brick. Those staff were aware of an attitude change in Faye Oliver but they had no difficulty working with her and they did not feel

    she was insubordinate or that their work was affected. They were sympathetic to her and felt she was more competent than her replacement.

    
    

14. On October 2, 1987, a Friday, Faye Oliver was packing her books, for the fourth time, to move to an office where a telephone had been installed. It was the end of the day and the staff were standing around chatting. After the others left, Joe Brick closed the door and informed her to just keep packing and keep going, that she was being terminated by Rick Cossano's instructions.

    
    

    She was shocked, because, again, she had not been warned and she had relied on Rick Cossano's statements that she was to stay. She asked for a letter explaining the reason.

    
    

    The letter which Joe Brick typed while she packed, states: October 2, 1987

    Ms. Faye Oliver

    C/O Countrywide Funding 2250 Lee Roda [Sic] Winter Park, Florida

    
    

    Dear Faye:

    
    

    Please let this letter serve as notice of termination of your employment by Countrywide. The termination is effective as of the close of business today.

    
    

    The decision to terminate is based upon business conditions and is not to be looked upon as a lay-off. The company does not intend that this be viewed as anything other than a termination.

    
    

    We wish you well in your future persuits [sic] and thank you for your efforts on behalf of Countrywide.

    
    

    Sincerely, Joseph K. Brick JKB/st

    cc: Rick Cossano

    
    

15. Joe Brick was demoted some time later for failure to get along with people in the branch office. He eventually left the company voluntarily.

    
    

    George Shipman was terminated in December 1987.

16. Rick Cossano was the only witness presented at hearing on behalf of the company. He claims that he and George Shipman made the decision to terminate Faye Oliver based on the recommendation of Joe Brick. On October 5, 1987, he sent a handwritten memo to the company personnel office, stating:

    
    

    Date: 10/5/87 To: Hedi

    Fm: Rick Cossano V.P.

    
    

    Re: Faye Oliver Termination Hedi -

    This memo is to clarify the termination of Faye Oliver. Faye was previously the Orlando Branch Manger. Due to lack of production, Faye was demoted to operations manager on 9/23/87. Faye's replacement (Joe Brick) was installed on 9/23/87. The new manager observed Faye's attitude deteriorate to the point of affecting other branch employees.

    Several verbal warnings were issued to Faye by the new manager. Faye was terminated on 10/2/87 due to her negative attitude.

    
    

    R. Cossano D.V.P.

    Rick Cossano did not personally observe Oliver's performance or attitude after the demotion. He relied on reports from the new manager, Joe Brick. His personal experience with Faye Oliver was limited, as he had only recently been hired. He stated that she complained about not getting support from the company, but he admitted that he never attempted to determine whether her complaints were justified.

    
    

    Rick Cossano claims that the decision to demote Faye Oliver was based on failure to increase production, and that the decision would have been made as much as four weeks prior to the action.

    
    

17. The position to which Faye Oliver was demoted had not existed before, nor was it filled upon her termination.

    
    

18. In 1987, the company replaced three women branch managers with men and one male manager with a female; in 1988, two male managers were replaced with females. No evidence was presented regarding the basis for the replacements or who at the company was responsible, although Cossano stated that he had terminated people for low production.

    
    

19. Evidence regarding the company's basis for the series of personnel actions related to Wanda Faye Oliver is conflicting and confused.

    On the personnel form reflecting the April 1987 pay raise, the notation "restructure of division" appears under the heading, "Explanation". (Respondent's Exhibit #1) Yet the letter describing the raise relates it to Oliver's performance. Rick Cossano's explanation included different rates of increase for different employees.

    
    

    In August, 1987, shortly after his arrival at the company, Rick Cossano knew nothing about the proposed demotion when called by Ms. Oliver, but at the hearing, he based the demotion decision on her production. No written evidence of the reason for demotion was produced -- no personnel action form, nor notice to Ms. Oliver.

    
    

    The company did not explain the distinction between a "lay-off" and "termination" as those terms are used in Joe Brick's letter to Faye Oliver. Clearly, that letter conflicts with Rick Cossano's account of why she was terminated, allegedly also based on Joe Brick's recommendation.

    
    

20. After her termination, Faye Oliver sought employment and was employed as follows:

    
    

    December 1, 1987 - Mortgage America - $30,000 April 30, 1988 annually

    
    

    April 1988 - Unemployed February 1989

    
    

    February 1989 - Cataret Mortgate, commissions Only April 15, 1989 - approximately $2,500 - $3,500

    
    

    April 18, 1989 - Disney World approximately present $13,900 annually

    
    

    When she left Countrywide, she had been making $36,000 a year.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

22. Respondent is an "employer" as defined in subsection 760.02(6), Florida Statutes, as "... any person employing 15 or more employees for each working day in each of 20 or more calendar weeks ..."

    
    

23. Subsection 760.10(1)(b), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

24. Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) resort to federal court interpretations of that act is appropriate. School Board of Leon County

    v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

25. In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U.S. Supreme Court established the basic allocation of burden of proof in discrimination cases.

    Petitioner retains the burden of proof throughout the proceeding; although once a prima facie case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove that the reasons offered are not true, but rather a pretext for discrimination.

    
    

    The prima facie case "... `raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.' ..." Furnco Construction Co. v. Waters, 438 U.S. 567 (1978), cited in Burdine, supra.

    
    

26. Petitioner established her prima facie case:

    
    

    1. Her sex places her in a protected class;

    2. Although Rick Cossano testified that he would not have hired Oliver as Branch Manger, she was qualified for the position and performed it well enough to be recognized with a salary increase and later, a satisfactory performance evaluation.

    3. She was demoted and replaced by a male, then summarily discharged. Her replacement was not clearly more qualified.

       
       

27. Respondent need not prove a legitimate basis for its employment action, but need only articulate that non-discriminatory basis. Quarles v. General Motors, 758 F.2d 839 (2nd Cir. 1985).

    
    

    Countrywide facially satisfied this burden with its suggestion that the demotion was the result of poor production and the termination was based on bad attitude.

    
    

28. Petitioner then has the burden of persuasion that the proferred reason is a pretext for general discrimination.

    
    

    Petitioner has a choice:

    
    

    "Burdine made it plain that in addition to directly proving a discriminatory motive for firing, a plaintiff may prevail upon a showing that the employer's given legitimate reason is unworthy of credence, that is, that the reason supplied was not the true reason for the unfavorable employment decision."

    
    

    Dister v. the Continental Group, 859 F.2d. 1108, 1113 (2nd Cir. 1988), citing Burdine, Supra, 450 U.S. at 256.

    
    

    See also, Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291 (11th Cir.

    1988).

    
    

    Just casting doubt on the employer's reasons may not be enough. White v.

    Vathally, 732 F.2d 1037 (1st Cir. 1984). However, evidence credited by a finder of fact is sufficient to meet the burden of proving pretext under Burdine, where that evidence effectively undermines the factual support for the employer's

    stated reasons. Chipollini v. Spencer Gifts, Inc. 814 F.2d 893, 900 (3rd Cir. 1986), cert. dismissed, U.S. 108 S.Ct. 26, 97 L.Ed 2d 815 (1987).

    
    

29. Countrywide presented a single witness, an individual who was new with the company at the time of the actions. By his own admission, he was not involved in the decision to demote Oliver. He knew nothing of the decision until she inquired, and he relied on what others had told him with regard to the reason for the demotion.

    
    

    Nevertheless, production in the Winter Park Office was down.

    
    

    Whatever the true reason was for termination, it unequivocally was not poor production.

    
    

    Here, the evidence by the employer is discredited. Those individuals most likely to present first-hand, competent testimony regarding Ms. Oliver's performance and the basis for her termination were not at the hearing, but themselves had departed from the company.

    
    

    Testimony from co-workers, the letter from Joe Brick, and Faye Oliver's account of her termination thoroughly rebut "negative attitude" as the basis for the action. Rick Cossano, as the company representative, denies that the termination was for poor production or poor performance, which, to him, was the same thing (transcript p. 125).

    
    

30. Petitioner did not directly prove a discriminatory motive for her termination, but effectively showed that the reason given by Respondent is unworthy of credence. It is unnecessary to speculate as to other valid reasons which could have supported the termination. The company stated its reason, and that reason was proven a pretext.

    
    

31. Petitioner presented evidence of her earnings since termination, which have been substantially less than her salary at Countrywide. She is seeking back pay and attorney's fees.

Section 760.10(13), Florida Statutes provides:

(13) In the event that the commission, in the case of a complaint under subsection (10), or the court, in the case of a civil action under subsection (12), finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees. Upon such notice as the commission or the court, as appropriate, may require, such order, or any subsequent order upon the same complaint or action, may provide relief for all individuals aggrieved by any such unlawful employment practice. No liability for back pay shall accrue from a date more than 2 years prior to the filing of a complaint with the commission.

In his proposed recommended order, counsel for Petitioner misconstrues the above provision to limit back pay awards to two years. See Maggio v. Martin Marietta Aerospace, 9 FALR 2168, 2171-2 (Final Order dated 12/29/86):

"Absent compelling circumstances, back pay should be computed from the date of the discriminatory act until the date of final judgment."

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered, finding Respondent guilty of an unlawful employment practice in its termination of Petitioner on account of her sex, and awarding back pay and reasonable attorney's fees in accordance with Section 760.10(13), Florida Statutes.

DONE and ENTERED this 1st day of September, 1989, at Tallahassee, Florida.

MARY CLARK

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 1st day of September, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2015

The following constitute specific rulings on the findings of fact proposed by the parties.

Petitioner's Proposed Findings of Fact 1.-4. Adopted in paragraph 2.

5. Adopted in paragraph 3.

6.-8. Adopted in paragraph 7.

9.-10. Adopted in paragraph 4.

11.-12. Adopted in paragraph 9.

13. Adopted in paragraph 8.

14.-17. Adopted in paragraph 9.

1. Adopted in paragraph 10.

2. Rejected as unnecessary.

20.-21. Adopted in paragraph 16.

1. Adopted in paragraph 13.

2. Adopted in paragraph 14.

3. Rejected as unnecessary.

4. Adopted in paragraph 17.

5. Adopted in paragraph 14.

6. Adopted in paragraph 13.

29.-30. Adopted in paragraph 10.

31.-32. Adopted in paragraph 14.

33. Adopted in paragraph 15.

34.-35. Adopted in paragraph 20.

36. Rejected as irrelevant.

Respondent's Proposed Findings of Fact

1. Adopted in paragraphs 2 and 14.

2. Adopted in substance in paragraphs 5 and 6.

3. Adopted in substance in paragraphs 4 and 6.

4. Adopted in paragraph 9.

5. Adopted in paragraphs 9 and 11.

6. Rejected as unsupported by competent evidence. The claims by Rick Cossano are contradictory.

7. The first sentence is adopted in paragraph 13. The remainder is rejected as immaterial.

8. Rejected as immaterial.

9. Adopted in part in paragraph 18; otherwise rejected as unsupported by evidence.

10. Rejected as contrary to the weight of evidence.

COPIES FURNISHED:

N. James Turner, Esquire Suite 104

17 South Lake Avenue Orlando, FL 32801

Thomas R. Peppler, Esquire

P.O. Box 2807

250 North Orange Avenue Orlando, FL 32802

M'Liss Jones Kane, Esquire

P.O. Box 7137

Pasadena, CA 91109-7137

Donald A. Griffin Executive Director

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32399-1925

Dana Baird, General Counsel

325 John Knox Road Bldg. F, Suite 240

Tallahassee, FL 32399-1925

Margaret Jones, Clerk

Florida Commission on Human Relations Bldg. F, Suite 240

Tallahassee, FL 32399-1925

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

FLORIDA COMMISSION ON HUMAN RELATIONS

WANDA FAYE OLIVER, EEOC Case No. 105 88-00069

Petitioner, FCHR Case No. 88-0715

v. DOAH Case No. 89-2015

COUNTRYWIDE FUNDING CORPORATION,

Respondent.

/

NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE

Petitioner, WANDA FAYE OLIVER, by and through her undersigned counsel, hereby gives notice of the voluntary dismissal, with prejudice, of any and all claims that the Petitioner may have against the Respondent in the above- captioned matter. Petitioner further requests that the above-captioned matter be dismissed, with prejudice.

DATED this 10th day of October, 1989.

N. JAMES TURNER, ESQUIRE Attorney for Petitioner

17 South Lake Avenue Suite 104

Orlando, Florida 52801

(407) 422-6464

Florida Bar No.: 203041

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 10th day of October, 1989 to: M'Liss Jones Kane, Esquire, Post Office Box 7157, Pasadena, California 91109-7137 and Thomas R. Peppler, Esquire, Bogin, Munns & Munns, NCNB Building, Suite 1001, 250 North Orange Avenue, Post Office Box 2807, Orlando, Florida 32802.

Docket for Case No: 89-002015

Orders for Case No: 89-002015