STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMMANUEL B. EBEH, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1500

)

CONSUMER CREDIT COUNSELING ) SERVICE OF THE TAMPA BAY AREA, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on May 13, 1993, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Emmanuel B. Ebeh, pro se

4002 East Pocahontas, #110

Tampa, Florida 33610

For the Respondent: James R. Freeman, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 E. Kennedy Boulevard Suite 1000 Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issues for consideration in this hearing are whether the Respondent discriminated against the Petitioner in employment because of his national origin, and whether Respondent unlawfully retaliated against Petitioner by discharging him from employment.

PRELIMINARY MATTERS

On April 17, 1992, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations, Commission), and the Equal Employment Opportunities Commission, alleging that the Respondent, Consumer Credit Counseling Service, (CCCS), had unlawfully discriminated against him by discharging him from employment because of his race and national origin.

Thereafter, on February 9, 1993, the Commission entered its order of determination - no cause, and Petitioner then, on March 10, 1993, filed his Petition for Relief with the Commission in which he reiterated his complaint of discrimination based on race and national origin. This Petition was forwarded to the Division of Administrative Hearings and this hearing followed. By letter dated May 6, 1993, Petitioner sought to amend his original complaint to include

retaliation for complaining of a hostile work environment. The undersigned, at the hearing, after affording counsel for Respondent an opportunity to object, permitted the amendment.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Matthew A. Mancini and Wanda E. Mosley, and introduced Petitioner's Exhibits 1 through 22. Respondent presented the testimony of Diane L. Trithart, President and CEO of CCCS; Mary Jo Warhul, an operations support person with Respondent; Wanza Mosley, under Petitioner's supervision; and Gloria A. Jackson, Director of Financial Operations for CCCS. Respondent also introduced Respondent's Exhibits 1 through 11.

No transcript was provided and only Respondent's counsel submitted Proposed Findings of Fact which have been accepted and are incorporated into this Order. Petitioner submitted post-hearing materials entitled "Additional Evidence Which Disputes Respondent's Credibility". This material was also furnished to counsel for Respondent who failed to object thereto. Therefore, these matters have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, CCCS, was a nonprofit charitable corporation engaged in providing personal financial and credit counseling in Tampa, affiliated with the United Way. It is an employer within the meaning of the Human Rights Act of 1977 and Title 7 of the Civil Rights Act of 1964, as amended.

   
   

2. CCCS has adopted, and had in effect at all times pertinent herein, a written policy of equal employment opportunity and affirmative action. This policy is outlined in a personnel policy manual prepared by CCCS which is provided to all employees and which was provided to Petitioner.

   
   

3. In August, 1991, CCCS management decided to hire an individual to fill the vacant accounts manager position. Initial screening of applicants was conducted by Gloria Jackson who interviewed several candidates, including Petitioner, and recommended three of these to the President, Diane Trithart. Petitioner, Emmanuel Ebeh, was one of the three recommended and was the successful candidate selected by Ms. Trithart.

   
   

4. At the time, Petitioner, who is black and a native of Nigeria, was residing, with his family, at Metropolitan Ministries because he was unable to provide housing and sustenance for his family without employment. He had no experience in either personal financial management or employee supervision. Up until that time, he had worked as a cook, a kitchen helper, a mail room clerk, and a pipe-fitter's helper. However, even with his lack of supervisory experience and an absence of supervisory training, Ms. Trithart felt he should be afforded this opportunity.

   
   

5. Petitioner's immediate supervisor was Ms. Jackson. She assisted Petitioner and his family in their move into government assisted housing, even to the extent of having her husband rent a truck to help move Petitioner's personal belongings and the furniture donated by Metropolitan Ministries to their new home.

6. Once installed in the job, Petitioner was provided with a six weeks training program, including a syllabus, to assist him in making the transition into his new position. Nonetheless, it appears that during his training period, Petitioner had difficulties accomplishing his job tasks. Within six weeks, Ms. Jackson met with him to discuss errors made in client deposit entries and at that time, provided him with written procedures to follow. She gave him a two week warning confirmed in a written memorandum dated September 17, 1991, the date of the counseling. On September 26, 1991, Ms. Jackson followed up the two week warning period with another memorandum which noted the continuation of existing problems in Petitioner's department and which extended the warning period to October 4, 1991.

   
   

7. Mr. Ebeh continued to experience job difficulties. At first, one of his employees, Ms. Warhul, tried to cover for him, but was unable to continue to do both her own job and his. As a result, she contacted Ms. Jackson and described the situation as she saw it. Ms. Jackson then tried to discuss the matter with Mr. Ebeh. However, whenever she did, he would insist on speaking with Ms. Trithart about the issues, claiming he felt it necessary to resist Ms. Jackson's directions. Ms. Trithart promptly and explicitly explained to Mr. Ebeh that his unjustified resistance of Ms. Jackson's direction constituted insubordination and would not be tolerated. Nonetheless, he continued to resist any guidance from Ms. Jackson, whether in the form of direction or constructive correction, becoming defensive and contending that his intentions were good and he was being misunderstood. He claims that Ms. Jackson was always on his back.

   
   

8. Petitioner's performance problems were not isolated however, nor were they restricted to incidents with Ms. Warhul. He frequently had problems with misplaced files, posting entries to wrong accounts and other errors of a similar nature which were observed by other CCCS employees. On one occasions, Ms. Jackson asked Petitioner to prepare a letter to creditors who had worked with CCCS in the past but who were not currently participating in their program. She specifically requested that Petitioner let her review a draft of the letter before it was dispatched. Notwithstanding that direction, Petitioner prepared a letter, dated March 4, 1992, which contained a number of grammatical errors and misstatements of procedure and policy, and dispatched it to approximately 2,500 creditors without allowing Ms. Jackson or anyone else in authority to review or approve it. He thereafter left a note on the desk of Mary Jennus, CCCS' education coordinator, advising her that Ms. Jackson and Ms. Trithart wanted her to make changes in the letter and enclosures. This was not so.

   
   

9. On March 19, 1992, Ms. Trithart called a meeting with Petitioner, Ms. Jackson and Ms. Jennus to discuss this letter, and at which she orally reprimanded Petitioner both for sending it out without authority and for the inappropriate use of her name in giving false instructions to Ms. Jennus. This meeting was subsequently memorialized by memorandum. Though management contended Petitioner's letter adversely impacted on the agency's image, he asserts it had good results in that some income was realized.

   
   

10. On March 30, 1992, Ms. Jackson prepared a written evaluation covering Petitioner's performance for the prior six months. This report indicated Petitioner had continuing problems in the performance of his duties and in his supervision skills. It also called for a further review in 90 days to assess his progress in meeting the requirements of his job. Petitioner refused to sign this evaluation and requested a meeting with Ms. Trithart. Though a note by Ms. Jackson on the evaluation indicates she would arrange that meeting, it cannot be determined if, in fact, such a meeting took place.

11. However, on April 13, 1992, Petitioner prepared a memorandum to operations personnel in which he alludes to "miserable and harsh treatment from management and especially our boss." He also noted the possibility his employees might not be satisfied with his treatment of them and solicited their comments and complaints to him or to the assistant director. This memo discomfited at least one of his employees, Ms. Warhul, who took exception to it in writing. Ms. Mosley also disagreed with his conclusions regarding a harsh working environment and thought it inappropriate for him to send out such a memo without consulting the other employees in the department. He was the department head, however, and his memo, though it might be considered ill advised and somewhat inflammatory, was from him to the people in his department. He did not claim his conclusions were theirs nor did his comments accuse them of misconduct.

    
    

12. A meeting of all operations personnel was called by Ms. Trithart for April 13, 1992, the date of that memo. All employees were given the opportunity to express their concerns and it became apparent that not all operations personnel agreed with Petitioner in his characterization of their work environment. The memorandum of that meeting indicates his subordinates see Petitioner as an individual who broods over situations and lets things build up to a point where he writes a memo rather than discussing the problem. An example of this is Petitioner's note on a memo dated April 13, 1992 encouraging all employees to take their lunch break and reminding them that only time before and after normal duty hours may be considered for compensatory time off. Petitioner describes this memo as "inconsiderate treatment" and concludes it was directed at him because he was not taking lunch breaks because he "was sad and depressed because of how [he] was constantly humiliated."

    
    

13. After the meeting on April 13, 1992, Ms. Trithart again reviewed Petitioner's file and determined that in light of his most recent infractions, including the unauthorized creditors letter and the false instructions to Ms. Jennus, and his continuing performance mistakes, it would be best to terminate his employment. Her rationale was that he could not be an effective supervisor if he felt, as he clearly did, that he did not have the support of either his employees or his supervisors, and this was compounded by his insubordination which, she believed, undermined the morale in his department and Ms. Jackson's authority as his supervisor. He was, therefore, discharged on April 13, 1992.

    
    

14. None of the employees who testified indicated, nor was there any other independent evidence to establish, that Petitioner had been treated any differently while employed by CCCS than any other employee. By the same token, save the personal impressions testified to by Petitioner, there was no indication that either race or national origin played any part in the decision to terminate his employment and it is found they did not. To the contrary, the evidence is clear that the decision to terminate Petitioner's employment with CCCS was based on his failure to meet required standards in the performance of his duties and nothing more.

    
    

15. The same is true regarding his claim that his discharge was in retaliation to his complaint in his April 13, 1992 memo regarding what he perceived as the harsh working environment both he and his subordinates had to endure. In that regard, it is found that the memo in question is, in itself, insubordination and evidence of the improper work climate created by the Petitioner rather than his employers. Had he truly felt the treatment given him was harsh, miserable and unfair, the grievance procedures outlined in the personnel manual he had been given would have provided an appropriate avenue for adjustment as opposed to the inflammatory and insubordinate action he took.

16. Petitioner claims his supervisors did not uniformly apply company standards. He asserts he has been treated differently from white employees who were treated with kindness and politeness and when found to have committed errors in their performance, were given time to improve. For example, he cites the case of a Ms. Sweeny who refused to sign an acknowledgment of error and who was merely demoted instead of discharged. In his case, he notes, he met with hostility. He claims no concern was given to the legal issues involved in his situation and he was discharged right away.

    
    

17. This is, however, not the case. The evidence is quite clear that Petitioner was counselled on several occasions and evaluated formally during his period of employment with no discipline taken against him. Only when he published the insubordinate memo of April 13, 1993 was action taken. On the basis of that memo and the record of his substandard prior performance, Ms. Trithart decided to discharge him.

    
    

18. Petitioner also claims that Ms. Warhul and others who testified against him were engaged in a conspiracy to hide the unhealthy atmosphere which existed. He asserts he was told by Ms. Warhul she would not support him when he wrote his memo because she was afraid of losing her job. It is his contention that she and he were previously close. In actuality, though she was under his supervision, she gave him much of the training he received. He believes that she and many other employees do not like Ms. Jackson but are afraid to say so. Petitioner offered no independent proof of this contention, however, and it is found to be unsupported.

    
    

19. Petitioner also takes exception to the claim by CCCS's management that his English was hard to understand. He claims that during the entire 8 months he worked there, his English was never criticized until such time as the decision was made to discharge him. At that time, he contends, he was told that he did not project the proper image the company desired.

    
    

20. Mr. Ebeh also notes that he was constantly confronted with a situation where his immediate supervisor would approve something he did and then deny it. Ms. Jackson would approve in advance something his department proposed and then, when it was not well received, deny approving it.

    
    

21. Petitioner claims that because of the actions of CCCS's management, he has undergone great stress. When he applied for the position with the firm he and his family were homeless and he admits he was helped considerably by the job and the company personnel. However, he claims he did not get all the help for free and asserts he has paid back for what he received during those first few weeks. He also claims that he has been maligned by company personnel who reported to his job service counsellor that he was soliciting money from coworkers and that he had a bad body odor. These comments humiliated him and he notes that they did not come about until after he complained to Ms. Trithart.

    
    

22. Petitioner has no job now and no income and claims to be suffering from health problems. As of April, 1993, a Department of Health and Rehabilitative Services physician noted that he is suffering from raised cholesterol which interferes with his employment "for the present." His total monthly income for himself, his wife and his four sons is $600.00, out of which he must pay approximately $300.00 in rent and $113.00 for utilities.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

24. Section 760.10(1) and (7), Florida Statutes, make it an unlawful employment practice to:

    
    

    1. ... discharge or ... otherwise to discriminate against any individual with respect to compensation, terms, condition, or privilege of employment, because of such individual's race, color, ... national origin,

....

and

(7) ... discriminate against any person because that person has ... made a charge ... under this section.

1. Petitioner claims that Respondent discriminated against him when it discharged him from employment because of his race and his national origin, and in retaliation for his complaint against the way he was treated.

   
   

2. Petitioner has the initial burden of proving a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Florida Commission on Human Relations has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for disparate treatment, but it is not the equivalent of a factual finding of discrimination.

   
   

3. Once the Petitioner has proven all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the employment decision and the test of that task is to establish some evidence to allow the trier of fact to conclude the employer's action had not been motivated by a discriminatory mind set. This employer evidence must only raise a genuine issue of fact as to whether it discriminated against the employee.

   
   

4. Here Petitioner claimed that his discharge because of one infraction, when other, white, employees had been treated less strictly for their infractions, demonstrates disparate treatment on the base of the fact he is black and from Nigeria, and that his ultimate discharge was retaliation for his having complained about the treatment he received in his relationship with his supervisor, Ms. Jackson.

   
   

5. The evidence shows that Petitioner was hired from among the ranks of the homeless and was treated quite well by his supervisors and coworkers who aided him in the setting up of the home he established for his family. This treatment is not dispositive of the issue, however, and establishes only that his employers seems to have approached his employment with an open mind and a sincere desire to see him succeed.

6. The evidence also indicates, however, that Petitioner's training period was not completely successful. He was given substantial encouragement and provided with the same training information and assistance given to other new employees. In fact, when it appeared he had not taken hold as expected, he was given an additional period of training in an effort to bring his performance up to standards. Admittedly, much of his training was provided by Ms. Warhul, one of his subordinates, and this may have been less than an optimum situation, but even Petitioner felt they were working well together and saw no fault with their relationship until she failed to support him in his complaint about the treatment he had received from his supervisor.

   
   

7. Nonetheless, the evidence of record shows that though Petitioner received several indications of approval on specific items, he was still committing repeated errors in his handling of his duties. He frequently misfiled matters, failed to completely follow procedures, and in general, left his superiors feeling somewhat uneasy with his performance. He was, however, kept on the job and given additional training even though there were some complaints about his language skills and some personal habits. The culmination of his difficulties came, however, when he wrote an inappropriate letter to many of the company's clients, soliciting contributions. Though not, per se, inappropriate, the letter was worded in such a way as to cast an adverse reflection upon the company, and, more important, it was dispatched by the Petitioner without having been reviewed or approved by his supervisor or anyone else in authority. This indiscretion was then compounded by Petitioner's apparent attempt to obfuscate the situation and claim the letter had been written or approved by someone else, a matter which was not true. He then wrote a memo to his employees which complained of the treatment he and they were receiving from management. It was this action which was properly considered by management to be insubordination, and when taken together with the Petitioner's less than totally satisfactory prior performance, and his other indiscretions, motivated management to conclude his services were no longer desired.

30. This is a totally acceptable conclusion to draw from the facts as shown, and absent any showing of an unlawful alternative basis for termination, clearly reflects the action of discharge was not the result of unlawful discrimination or retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be entered dismissing Emmanuel Ebeh's Petition for Relief from the alleged unlawful employment practices of discrimination based on race or national origin, and of retaliation filed against the Respondent CCCS.

RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 25th day of June, 1993.

COPIES FURNISHED:

Emmanuel B. Ebeh

4002 East Pocahontas, #110

Tampa, Florida 33610

James R. Freeman, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 E. Kennedy Blvd., Suite 1000 Tampa, Florida 33602

Sharon Moultry, Clerk

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-001500

Orders for Case No: 93-001500