STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NIMALI SONDEL, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6615

) BARNETT BANK OF TALLAHASSEE ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer, on March 28, 1990, in Tallahassee, Florida.

The appearances were as follows:

APPEARANCES

For Petitioner: Paul Sondel, Qualified Representative

P.O. Box 210, CJC Marianna, Florida 32446

For Respondent: Rebecca S. Conlan, Esquire

Washington Square Building

227 South Calhoun Street

P.O. Box 391

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

The issues in this cause concern whether the Respondent intentionally discriminated against the Petitioner on the basis of her national origin or race and whether the Respondent's teller training and the testing procedures, at the conclusion of that training, adversely impacted her as a Sri Lankan national or Asian.

PRELIMINARY STATEMENT

On November 29, 1989, the Petitioner filed a Petition For Relief from an alleged unlawful employment practice in accordance with Chapter 760, Florida Statutes, and Chapter 22T-9, Florida Administrative Code. The Petition was transmitted and filed with the Division of Administrative Hearings in due course. In essence, it raised the issues in dispute delineated above.

The cause came on for formal hearing as noticed. Paul Sondel was accepted without objection as a qualified representative on behalf of his wife, the Petitioner, Nimali Sondel. The Petitioner testified on her own behalf. Paul Sondel, her husband and qualified representative, also testified on behalf of the Petitioner. The Petitioner introduced two exhibits into evidence.

The Respondent called Anita Tefft, Vice-President of Human Resources; Diane Carbonnell, Human Resources Administrator; Leona Massey and Deanna Bowers, former co-workers of the Petitioner; as well as Rodney Trotman, former supervisor of the Petitioner at her employment with the Department of Highway Safety and Motor Vehicles; as well as Barbara Pounders, a training specialist at Barnett Bank of Tallahassee, Inc. The Respondent also had eighteen exhibits admitted into evidence.

The parties elected to order a transcript of the proceedings at the conclusion of the hearing and to file Proposed Findings of Fact and Conclusions of Law in the form of Proposed Recommended Orders. Ultimately, the Respondent filed proposed findings of fact, but the Petitioner elected to file a Memorandum of Law or brief instead. The proposed findings of fact submitted have been ruled upon in this Recommended Order and specifically in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, Nimali Sondel, is of Asian origin and is a Sri Lankan national. She was employed as a teller trainee from January 3, 1989 until January 13, 1989 at the Respondent's main office in Tallahassee, Florida. The Respondent is a commercial bank duly chartered by the State of Florida. It is a subsidiary of a larger banking corporation or holding company owning a number of banks in Florida and other states. The Petitioner applied for employment with the Respondent in late November of 1988, and after a series of interviews, was hired on approximately December 26, 1988 as a teller trainee. The Petitioner entered the bank's formal training program for tellers on January 3, 1989, along with four other individuals who participated in that program with her. Two of these individuals were white females, one was a black female and one was a white male. All participated in the same formal training program of instruction designed to train bank tellers.

   
   

2. Respondent has a two-week training program to train new tellers in teller transactions and other proper banking procedures. This formal training was developed in response to experience in the past with large overages and shortages by tellers as a result of mistakenly-conducted transactions, as experienced by the bank. Thus, the teller-training program was initiated to provide education in areas that a teller would need to know on a day-to-day basis in handling typical bank teller- customer transactions. The course includes video presentations, lectures, hands-on classroom instruction, homework, quizzes and a final examination.

   
   

3. Throughout the two-week training program the Respondent's training specialist, Barbara Pounders, repeatedly reminded the trainees, including the Petitioner, that they must pass the transaction examination or test at the end of the training program in order to continue their employment with the bank.

   
   

4. On the second day of the Petitioner's employment, however, Ms. Pounders noticed that she was having a difficult time understanding and using the automated teller equipment. Ms. Pounders became concerned with her inability to grasp some of the simpler transactions and consulted Ms. Tefft, the Vice- President of Human Resources at the bank, about how to help her. Ms. Tefft suggested that Ms. Pounders give her extra assistance to enhance the Petitioner's training level. Accordingly, Ms. Pounders asked the Petitioner to come in one hour before normal class time each morning for additional training on the teller equipment and transactions.

5. Throughout the two-week training program, the Petitioner continued to have difficulty, which was noticed by her co-employees in the training program. She had difficulty performing the teller transactions required and in understanding the teller equipment and its use. Other teller trainees offered their assistance to her on occasion.

   
   

6. At the end of the training program, the teller trainee must pass a skills assessment test ("transaction test") in order to continue employment as a teller. The transaction test evaluates the teller's ability to perform sixteen basic teller transactions, such as check cashing, depositing savings deposits and withdrawals, transfers, split deposits and the like.

   
   

7. The teller trainees in the Petitioner's class, including the Petitioner, were given the transaction test on January 11, 1989. All of the teller trainees passed the test, except the Petitioner. On January 13, 1989, the Petitioner was terminated because of her inability to pass the transaction test and, therefore, qualify as a bank teller, which is the employment position she sought and was employed in by the Respondent. The Petitioner was the only teller trainee to ever fail that transaction test. At least two other ethnic Asian persons have passed the transaction test since the Petitioner's termination.

   
   

8. The Petitioner offered no direct testimony or evidence to show any discrimination, intentional or otherwise on account of her race, national origin or sex (Asian, Sri Lankan, female). The Petitioner also offered no statistical evidence regarding the racial composition of the Respondent's work force or the qualified applicant pool for the teller positions in question. The Petitioner offered no evidence which would lead to an inference that the teller-training program conducted by the Respondent or the transaction test administered at the end of the training program, passage of which was necessary for continued employment as a teller, had any adverse impact on Asians or Sri Lankans.

   
   

9. The Respondent is subject to Federal Executive Order Number 11246 and at all material times in the conduct of its operations, has not underutilized minorities in its work force. In fact, in 1989, the Respondent received national recognition from the United States Department of Labor for its efforts in the area of voluntary affirmative action in its employment and personnel activities. The Petitioner offered no evidence to support any claim for "class relief" and no evidence regarding damages alleged to have been suffered.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. See Section 120.57(1), Florida Statutes (1989).

    
    

11. The Respondent, is an employer within the definition of the Florida Human Rights Act of 1977 (the Act), found at Section 760.02(6), Florida Statutes (1989). The Petitioner is a member of a protected minority, being of Asian and Sri Lankan origin and a female.

    
    

12. Because of the similarities between the Florida Human Rights Act and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, at 42 USC Subsection 2000E, et. seq., the burden of proof in Title VII applies to the cases brought under the Florida Human Rights Act, according to the opinions in

    School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990); and School Board of Leon County v. Hargis, 400 So.2d 103, 108, n.2 (Fla. 1st DCA 1981).

    
    

13. The Petitioner seeks relief based upon the theory of "disparate treatment" adversely affecting her, as well as "adverse disparate impact". In proving a case of disparate treatment, the Petitioner must prove that she was treated differently because of a protected characteristic she had, such as her race, color, or national origin. Disparate treatment cases require a petitioner to prove that the defendant actually had a discriminatory intent or motive. In a disparate impact case, on the other hand, the petitioner must prove that a specific employment practice adversely and disproportionately impacted the petitioner as a member of a protected class of persons. A disparate impact case does not require an actual showing of subjective intent to discriminate. Watson

    v. Fort Worth Bank and Trust, 487 US 977, 108 S. Ct. 2777, 101 L. Ed. 2d 827 (1988)

    
    

14. In establishing a disparate treatment case, the Petitioner must prove her claim by direct evidence of discriminatory motive or by circumstantial evidence that can give rise to an inference that a discriminatory motive was operative in the situation at bar. See Maggio v. Martin Marrietta Aerospace, 9 FALR 2168, 2173 (1986). Direct evidence is seldom available in such a case; however, and disparate treatment cases are typically proven by circumstantial evidence. In that situation, where no direct evidence is presented in a disparate treatment case, the United States Supreme Court in McDonell- Douglas v. Green, 411 US 792, 93 S. Ct. 1817, 36 Th. Ed. 2d 668 (1973) set forth the allocation of proof for such disparate treatment cases. This allocation of proof has been applied since then in Texas Department of Community Affairs v. Burdine, 450 US 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); Patterson v. McLean, 491 US 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989).

    
    

15. The McDonell-Douglas case was a "refusal to hire" case. The allocation of proof principles set forth in that case have been uniformly utilized in discharge cases as well. In a discharge case, the Petitioner must set forth a prima facie case by establishing: (1) that she is a member of a protected group; (2) that she is qualified to perform the job and her performance satisfied the employers expectations; (3) in spite of her qualifications and performance she was discharged; and (4) that the position remained open and the employer continued to seek applicants from persons of the complainant's qualifications. See Gariola v. Commonwealth of Virginia Department of General Services, 753 F.2d 1281 (4th Cir. 1985); Beard v. Sysco Corp., 12 FALR 456, 462 (1989). If a petitioner proves these four elements, a presumption arises in his favor that the employment decision was based on a discriminatory motive. Under the McDonell-Douglas test, however, the defendant may have come forward and produce evidence of a legitimate, nondiscriminatory reason for its actions. If an employer is able to show a nondiscriminatory reason, then the burden shifts to the petitioner to go forward with evidence to show that the proffered reason was really a pretext to mask an illegal motive. The burden of persuasion at all times, however, remains with the petitioner or plaintiff. See Burdine, supra. at 252, 253.

    
    

16. The Petitioner herein has failed to establish a prima facie case of disparate treatment. No evidence of a direct nature was offered to show unequal treatment of her and, in fact, the clear weight of the evidence shows that the Respondent gave her every benefit and assistance over and above that rendered her co-employees and teller trainees. The Respondent's evidence clearly shows that the Respondent wanted the Petitioner to succeed in passing the test and

    becoming employed as a teller. The Petitioner did not establish disparate treatment through circumstantial evidence either. The Petitioner's inability to pass the transaction examination and perform the various functions of a bank teller disqualified her for a teller position. These tests and other functions in which she was trained, and examined on, were the same functions that the black female, the two white females, and the white male were taught and tested on. Under the McDonell-Douglas test, however, her own unsatisfactory performance on the teller-training functions and the transaction test precluded her from even establishing that she was qualified for the employment position and, thus, prevented her from establishing a prima facie case of disparate treatment. See Beard, 12 FALR at 462.

    
    

17. Employment discrimination can also be established by showing that an employment practice disproportionately impacts on minorities as a class. Under this basis for liability, known as the "disparate impact theory", a facially neutral employment practice may be an unlawful one without evidence of actual subjective1 intent to discriminate by the employer. See Wards Cove Packing Company, Inc. v. Antonio, 490 US ?, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989).

    
    

18. In a disparate impact case, the petitioner's burden in establishing a prima facie case goes beyond showing that there are statistical disparities in the work force. First, the petitioner must identify the specific employment practice that is challenged. Then the petitioner must show a causal connection with the demonstrated adverse impact. See Wards Cove Packing Company, Inc., 104

    L. Ed. 2d at 751. Once a specific employment practice is shown to adversely and disproportionately impact one situated as the Petitioner, the issue then becomes whether the challenged practice actually serves legitimate employment goals or business purposes of the employer. 104 L. Ed. 2d at 572.

    
    

19. In the case at hand, the Petitioner alleges that the training procedures and transaction tests utilized by the Respondent have a disparate impact on Asians and Sri Lankans. The Petitioner, however, offered no evidence regarding the racial composition of the Respondent's work force or the racial composition of the qualified applicant pool for the teller- training jobs in question. Upon cross-examination, the Petitioner admitted that she had no knowledge of whether any Asians or Sri Lankans had ever applied for or had ever been hired for positions of any kind at the bank. Contrarily, the undisputed testimony of the Vice-President of Human Resources for Barnett Bank of Tallahassee, Inc., as well as documentary evidence, establishes that the Respondent's hiring, testing and training procedures do not adversely impact on any minority. The Petitioner failed to demonstrate that the Respondent's training and testing procedures have a disparate impact on Sri Lankans as a national group or on Asians as a whole. The Petitioner has asserted that the Respondents transaction test has not been "validated"; however, validation is irrelevant where a plaintiff (or petitioner) fails to establish a prima facie case. See Clady v. County of Los Angeles, 770 Fed. 2d 1421, 1427 (9th Circuit, 1985), cert. den., 475 US 1109 (1986). The Petitioner attempts to raise a legal duty on the part of the Respondent to accommodate her inabilities to pass the transaction test. The Petitioner apparently suggests that the Respondent's training program should be modified to accommodate the language and communication disabilities of persons situated such as the Petitioner, who are inarticulate in English. Although the Respondent has done much to help minorities in the employment area and in the community at large, according to unrefuted evidence of record, nothing in the federal or state laws concerning discriminatory practices, cited above, require such an employer to "adopt a life of economic altruism and thereby immunize protected class members from discharge or demotion." See Gariolla, 753 F. 2d at 1287. Indeed, discriminatory

preference for any group, minority or majority, is precisely the conduct and activity which Title VII proscribes. See Griggs v. Duke Power Company, 401 US 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971)

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and the arguments of the parties it is, therefore,

RECOMMENDED:

That a Final Order be entered by the Florida Human Relations Commission denying and dismissing the Petition for Relief filed herein.

DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990

APPENDIX

Respondent's Proposed Findings of Fact

1 through 16 are accepted.

(The Petitioner filed no proposed findings of fact)

COPIES FURNISHED:

Rebecca S. Conlan, Esquire

P.O. Box 391 Tallahassee, FL 32302

Mrs. Nimali Sondel Box 210, CJC

Marianna, FL 32446

Mrs. Nimali Sondel 2302 Merrigan Place

Tallahassee, FL 32308

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Docket for Case No: 89-006615

Orders for Case No: 89-006615