DAWN D. SCHUSTER, )
vs. ) CASE NO. 93-4399
Respondent. )
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on April 28, 1994, in Jacksonville, Florida.
For Respondent: Kalvin M. Grove, Esquire
360 Central Avenue, 11th Floor St. Petersburg, Florida 33701
The issues to be resolved in this proceeding concern whether the Petitioner was subjected to a discriminatory employment action on account of her race (black) and her disability ("severe asthmatic"). See, Section 760.10, Florida Statutes.
This cause arose upon the filing of a complaint of discrimination by the above-named Petitioner with the Florida Commission on Human Relations (Commission) on July 29, 1992 alleging that the Petitioner was discriminated against by the Respondent, in violation of Chapter 760, Florida Statutes, involving her allegations that she was harassed, denied a promotional position, and terminated, effective May 31, 1992, on account of her race (black) and her disability ("severe asthmatic"). The Commission, on June 2, 1993, determined that there was no reasonable cause to believe that an unlawful employment practice had occurred. Thereafter, on July 2, 1993, a Petition for Relief was filed by the Petitioner, which was ultimately transmitted to the undersigned Hearing Officer for conduct of a hearing before the Division of Administrative Hearings.
The cause came on for hearing as noticed. The Petitioner presented one witness, the Petitioner herself on her own behalf, in Petitioner's direct case and on rebuttal. The Petitioner's Exhibits 1, 2, 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, and 19 were admitted into evidence. The Respondent presented six witnesses, and Respondent's Exhibits A and B were admitted into evidence.
Upon conclusion of the hearing, a transcript thereof was ordered, and the parties requested an extended briefing schedule in which to submit Proposed Recommended Orders, stipulating to a 30-day time period therefor. Subsequently thereto, the Respondent timely filed a Proposed Recommended Order, and the Petitioner moved for an extension of time to file its Proposed Recommended Order and Memorandum. That motion was denied because the motion was not timely advanced. The motion was filed substantially after the time period originally set for submission of Proposed Recommended Orders had elapsed and because good cause for an extension of time was not alleged in the motion. Consequently, the Petitioner's Proposed Recommended Order is not considered or addressed herein.
The Respondent, GAB Business Services, Inc. (GAB), is an insurance adjusting firm engaged in the business of adjusting insurance claims on a nationwide basis. At times pertinent hereto, it maintained a number of offices in Florida, also called "branches", one of which was located in Jacksonville, Florida, at which the Petitioner was employed at times pertinent hereto. The Petitioner was hired in March of 1985 and worked until May 31, 1992, when she was terminated because of a reduction in force enacted on a company-wide basis.
Brian Sigman was appointed Branch Manager of the Jacksonville office, where the Petitioner was employed, on November 15, 1989 and served there in that capacity until May 1, 1991. After arriving as Branch Manager, he tried to assign the Petitioner property claim files and she told him that she did not want to do property insurance claims but never gave as a reason that she had an illness or disability which precluded her from handling such claims. Rather, she informed Mr. Sigman that she had a hard time visualizing hidden, structural elements of a building, such as what was behind a building wall, and, therefore, had a difficult time adjusting property insurance claims. Because at the time, in 1989, Mr. Sigman had six adjusters working in the office, he was able to give property insurance claim files to other adjusters to handle and let the Petitioner handle only casualty claims as she desired.
She never informed him that she was unable to handle property claims because of asthma or other medical problems and never applied during that time for an accommodation for a disability. Mr. Sigman became aware at some point during his tenure that the Petitioner was being treated for allergies, but she never informed him of the effect of her allergies, as it related to the question of her handling property claims. There had been approximately six or more adjusters in the office since the Petitioner became employed there in 1985. Consequently, because of her aversion to handling property insurance claims, the Petitioner had been typically permitted to adjust only casualty claims, even before Mr. Sigman's tenure, since there were sufficient other adjusters in the office to handle the property claims.
Property insurance claims generally deal with losses to a building while casualty claims most frequently involve third-party losses. Thus, the vast majority of the Petitioner's experience in working for the Respondent involved the handling of only casualty claims, with very little experience handling property insurance claims.
In March 1991, Mr. Almus Shivley became the Branch Manager of GAB in Tampa, Florida. The Tampa branch included under its authority offices in Ft. Myers, Sarasota, Lakeland, Gainesville, and Jacksonville. All of the offices outside of Tampa are satellite offices, and each has a Supervising Adjuster supervising that office. A Supervising Adjuster reports directly to Mr. Shivley. Mr. Sigman was a Supervising Adjuster when Mr. Shivley became the Branch Manager in Tampa.
When Mr. Shivley took over as Branch Manager working out of the Tampa branch office in 1991, he learned that the Petitioner was only handling casualty claims. He learned of this when she was asked to work property insurance claims and she declined to do so. She explained that she had asthma, and that various materials and smoke usually attendant to fire damage claims and locations, would, she feared, aggravate her asthmatic condition. Mr. Shivley accepted her representations to this effect and allowed her, for the time being, to work only casualty claims. The testimony of Sheila King establishes that as recently as February 1990, when she and the Branch Manager met with the Petitioner to ask her to handle property claims, she had made no mention of the asthma condition.
Mr. George Walsh is in charge of the national operations of GAB, as they concern equal opportunity, affirmative action, salary administration and other personnel-type functions involving human resources. Mr. Walsh was involved with the hiring of the Petitioner and established that the Petitioner made no mention of the fact that she had any disability during the pre-hiring interview. The application form which the Petitioner executed and filed at the time of her hiring in 1985 contained a question concerning whether she had any disability which would restrict her ability to perform the job. She specifically answered "no" to that question.
Mr. Walsh thereafter had no contact with the Petitioner until October 31, 1991, when she filed a "disability survey" form with him. A disability survey is a request by an employee for a disability accommodation, which can only be granted by the home office of the Respondent corporation. Mr. Walsh established that this was the first time he had any knowledge that the Petitioner had any sort of handicap of disability. He stated in his testimony that her job was thereupon analyzed in great detail because her request "went directly to the heart of our business". That is, the Petitioner was requesting the accommodation of not having to perform property insurance claims adjusting, which is a major portion of GAB's business since GAB is in the sole business of adjusting property and casualty insurance claims.
In any event, Mr. Walsh reviewed her request under the appropriate company policies and determined that the number of casualty assignments and the work that the company was receiving was on a severely-declining trend in the Jacksonville office and, indeed, nationwide. He determined, however, to grant the accommodation to the Petitioner but informed her that "we could not guarantee that there would be enough casualty work in the future to allow her to perform only casualty work and still be a productive member of the office."
In May of 1992, Mr. Shivley, the Branch Manager, made a recommendation to his superiors with the Respondent that the working force in Jacksonville be reduced because of a severe decline in business in that office. Prior to May of 1992, when the reduction in force took effect, there were already only three employees working in Jacksonville. After the reduction in force, only Mike Robinson, the Supervising Adjuster, who managed that office, remained. Almost two years after the reduction in force, at the time of the hearing, Mr. Robinson
is still the only GAB employee in the Jacksonville office. The Petitioner, a black female, and Mr. Clark, a white male, were terminated as part of the reduction in force. Numerous offices of GAB, other than the one in Jacksonville, had suffered substantial reductions in force. A few years previously, the company had employed approximately 5,000 adjusters nationwide; and at the time of the hearing in this proceeding, it employed fewer than 2,000 adjusters nationwide.
The Petitioner, upon being advised of her termination due to the reduction in force, was not offered a transfer nor requested to relocate by the Respondent. She was, however, offered an employment position in the company's Atlanta, Georgia, branch office. Under regular and customary company policy, when employees are transferred, the company pays relocation expenses, where appropriate. Since the Petitioner herein was terminated, the Respondent was under no obligation to pay relocation expenses if she took the offered position in the Atlanta office. Nevertheless, the Atlanta branch office offered her
$3,000.00 in relocation expenses. Further, the job offered was one which accommodated her stated disability, being an "inside liability adjuster" position, handling only casualty claims. That was the type of work which she was performing in Jacksonville at her own request. The Petitioner took the position that the relocation expenses were insufficient for her to afford to move and refused the offer of employment. It was eventually accepted by a white female, who accepted the same amount of relocation financial assistance that had been offered to the Petitioner.
Further, when Mike Robinson, the Supervising Adjuster in the Jacksonville office, was transferred to that office from Dallas, Texas, a much more distant location than Atlanta, he was only offered and paid $1,000.00 in relocation expenses. Mr. Robinson is a white male. In addition to Mr. Robinson, the testimony of Ms. Sheila King, the Human Resource Officer (Personnel Manager) for the Florida offices of GAB, establishes that two other employees were given only $1,000.00 for moving expenses, a black male and a white male.
In conjunction with the reduction in force, the Petitioner and the white male, Mr. Clark, were terminated from the Jacksonville office because the volume of business did not justify any employees, other than the Supervising Adjuster. At the time of the hearing, some two years after the reduction in force, no employees have been hired to replace them. In fact, no employees have been hired at all, because the business volume only justifies the presence of the Supervising Adjuster and clerical staff in that office.
GAB's offices in Florida, other than Tampa, are satellite offices and each has a Supervising Adjuster supervising the business and the employees of that office. Each Supervising Adjuster reports to Mr. Shivley, the Branch Manager in the Tampa office. In the summer of 1991, Brian Sigman left his position as Supervising Adjuster in the Jacksonville office, leaving an opening. The Petitioner applied for that position, among other employees who sought the promotion.
Mr. Shivley recommended to his superiors that Adjuster Nan Hendricks become the Supervising Adjuster to replace Mr. Sigman. He found that Ms. Hendricks was an extremely good adjuster, being a multi-line adjuster handling a large volume of both property and casualty claims. She was a good performer at the functions of marketing, public relations, and generating new business.
A multi-line adjuster is one who can handle any type of claim assigned to the Respondent's offices. The two most numerous types of claims handled by GAB are property and casualty claims, as described above. In considering who to hire for that position and ultimately deciding on Ms. Hendricks, the Respondent and Mr. Shivley determined that the Petitioner had little experience as a multi- line adjuster, even though she was so licensed, because she had handled almost entirely casualty claims, because of her own request that she not be given property damage claims.
The Supervising Adjuster has to supervise the quality of the work performed by all adjusters and employees at the office. If an adjuster cannot work a property insurance claim, then the adjuster can gain no relevant experience performing such claims adjustment. A Supervising Adjuster needs to have had experience in performing such claims adjustment and performing adjustments of all types of claims. Mr. Shivley testified to this effect, saying "the Supervising Adjuster has to supervise the quality of the work that's going out of the office. If she can't work a property file, and if she can't handle a property file, then she can't supervise one". There is a regular and normally-followed company policy that, in considering who to place in supervising adjusting positions, such a person has to have had substantial experience handling all types of claims handled by GAB. The Petitioner did not have that type of experience and thus although she was considered for the position, she was found not to be qualified for it.
Further, the Petitioner's performance, and evaluations of her performance, showed deficiencies over the period of time she was employed in the Jacksonville office. She was deficient in the areas of marketing, public relations, and generating new business, which, when coupled with the fact that she had no real, substantial, property claim adjustment experience, showed that she was not qualified for the promotion.
Nan Hendricks left the employ of GAB after a short time as Supervising Adjuster in the Jacksonville office. When she left in 1991, she left because she was dissatisfied with the work of the office in terms of the rapidly- declining volume of business and the fact that both the Petitioner and Mr. Clark were performing their work in a sub-standard fashion. When she left the employ of GAB, Mr. Shivley recommended to his superiors that the position be awarded to Mike Robinson, who was then working in the Dallas, Texas, office of GAB. Mr. Shivley had experience with Mr. Robinson's capacity and abilities to work in a multi-line adjustment position and with the quantity and quality of his knowledge and experience at the job. He found him well-qualified for the position of Supervising Adjuster, due partially to his extensive experience in multi-line adjusting. The Petitioner was considered for the position but was not deemed to be qualified because she did not have significant experience as a multi-line adjuster and did not meet the qualifications, as explained more particularly in the above Findings of Fact, concerning the decision to promote Nan Hendricks as Supervising Adjuster.
There has been no showing that the decision to terminate the Petitioner or the decision concerning the manner and amount of offered payment of her re-location expenses, had she taken the Atlanta job, was motivated by any discriminatory intent on account of her race or disability. In fact, the Respondent amply demonstrated that the termination was due to a legitimate reduction in force caused by loss of business in the Jacksonville office. The Petitioner's position was not later filled by another employee. Nevertheless, the company, without being required to do so, voluntarily offered the Petitioner a position in its Atlanta office at no reduction in salary. This position would
even accommodate her disability by allowing her to only process casualty claims, even though the Respondent had a legitimate basis for terminating the Petitioner without any recourse, due to the reasons justifying the reduction in force.
Further, the two promotions, one accorded to Nan Hendricks, a white female, and one to Mike Robinson, a white male, of which the Petitioner complains, were given to those two employees based upon their superior job performance and superior experience in being able to handle all types of insurance claim adjusting work. The Petitioner was shown to clearly not be so qualified. The Respondent's lack of discriminatory intent in terms of the Petitioner's race or disability was further demonstrated by the fact that a white female, a white male, and a black male were only offered and paid
$1,000.00 in re-location expenses, when they moved their place of employment to distant offices in the company, especially Mike Robinson, who transferred to Jacksonville, Florida, all the way from Dallas, Texas. The Petitioner, however, was offered $3,000.00 to relocate from Jacksonville, Florida, to Atlanta, Georgia, when the company was not even obligated to offer any relocation expense, since the Petitioner's job offer in Atlanta did not involve a company- required transfer. Rather, it was a job merely offered to accommodate the Petitioner and to assist her in obtaining employment when she had to be terminated from the Jacksonville office.
It has simply not been demonstrated that any of the employment actions of which the Petitioner complains and which are delineated in the above Findings of Fact were motivated by any discriminatory motive directed at the Petitioner's race or disability.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or to fail or refuse to hire an individual or otherwise to discriminate against the individual with respect to compensation, terms, conditions or privileges of employment on account of that person's race, color, religion, sex, national origin, age, handicap, or marital status. Further, the Americans with Disabilities Act, 42 U.S.C. Section 12101 (ADA), forbids discrimination against a qualified individual with a disability. Although the Petitioner offered no medical testimony that she was, in fact, disabled, and which would definitively establish the nature of any disability or its existence, nevertheless, the Respondent has agreed that she has a disability by granting her an accommodation on the assumption that she was handicapped, due to asthma.
The provisions of Chapter 760, Florida Statutes, related to discrimination on the basis of race are patterned essentially after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq.; Hargis v. School Board of Leon County, 400 So.2d 103, 108, n.2 (Fla. 1st DCA 1981).
Thus, federal decisions construing similar provisions of Title VII should be accorded great weight in construing similarly-cast Florida statutory provisions. See, Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (Fla. 1985).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 F.E.P. Cases 965 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 258, 25
F.E.P. Cases 113 (1981), the U.S. Supreme Court established the basic allocation of burdens and order of presentation of proof in discrimination cases, where, as in this case, there is no direct evidence of discrimination. The burden of proof was allocated by the U.S. Supreme Court in Burdine, as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant, to articulate some legitimate nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons by the defendant were not its true reasons, but were a pretext for discrimination.
The federal burden and allocation of proof standards have been adopted in Florida by the Commission and Florida court as being applicable to cases arising under Chapter 760, Florida Statutes. See, School Board of Leon County v.
Hargis, supra.; Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5477 (1985); Jo
Nees v. Delchamps, Inc., 8 FALR 4389 (1986).
Whether a petitioner has demonstrated a prima facie case of discrimination is a factual question that must be resolved by asking whether an ordinary person could reasonably infer discrimination from the facts shown, if they are unrebutted. See, Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1443, reh'g denied, 765 F.2d 154 (11th Cir.), cert. denied, 474 U.S. 1005 (1985).
If the trier of fact accepts the sufficiency of the Petitioner's evidence to establish a prima facie case, the Respondent must then rebut the presumption of discrimination thus created by articulating a legitimate, non- discriminatory reason for the employment decision involved. See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The Respondent can satisfy this burden merely by presenting evidence sufficient to raise a genuine issue of fact concerning whether it has discriminated.
Once the Respondent has articulated a non-discriminatory reason, the burden then shifts to the Petitioner to prove, by a preponderance of the evidence, that the Respondent's articulated reason is pretextual for what really amounts to illegal discrimination. See, Burdine, 450 U.S. at 233; and McDonnell Douglas, 411 U.S. at 804. This evidence may consist of properly-drawn statistics, racist comments by the persons responsible for the employment decision, comparative evidence, or by proof that the asserted reason is unworthy of belief. See, Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir. 1987), where this test was applied in an age discrimination case contest.
It is important to note, however, that in the Burdine decision, supra., the ultimate burden of persuasion remains with the charging party, the petitioner, at all times to show intentional discrimination by the respondent. That burden of persuasion never shifts, rather, merely, the burden of going forward with evidence in the manner asserted in the above test shifts between
the parties. In a disparate treatment case, the petitioner's ultimate burden is to show that he was treated differently because of his race. Morrison v. Booth, 763 F.2d 1366, reh'g denied, 770 F.2d 1084 (11th Cir. 1985). Thus, the issue to be resolved does not concern whether the Respondent made an appropriate and fair employment decision or whether its employment and disciplinary policies are insensitive or unfair; but, rather, the issue is whether the Respondent, in making its employment decision, treated the Petitioner differently from other employees. See, Gilchrist v. Bolger, 733 F.2d 1551, 1553-54 (11th Cir.
1984)(quoting from Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084, 1092 (5th Cir. 1975).
Concerning discrimination on the basis of race, the United States Supreme Court, has stated, in St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993), "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." Once the Respondent herein offered a legitimate, nondiscriminatory reason for the employment decisions involved in this proceeding, the presumption of unlawful discrimination posed by the Petitioner's prima facie case of discrimination, if a prima facie had been proven, would disappear. The Petitioner offered no evidence which could rebut the Respondent's nondiscriminatory reason for not promoting her to Supervising Adjuster, for including her in its May 1992 reduction in force and as regards the type and amount of relocation expenses offered her, as described and explained in the above Findings of Fact. See, Davis v. Chevron, U.S.A., 14 F.3rd 1082, (C.A.5, 1994); Durham v. Xerox Corp., 18 F.R.D. 836 (C.A. 10, 1994). The Petitioner offered no proof of race discrimination, either direct, circumstantial or statistical in nature. The Petitioner also offered no evidence concerning the Respondent's method of paying its employees or the Respondent's method of allocating expenses, when an employee is offered a position in another office, which would show that the method of payment or allocating expenses is discriminatory in any way concerning either race or disability, both in terms of demonstrating disparate treatment or that the Respondent's "articulated reasons" were pretextual.
Further, in compliance with the ADA, the Petitioner, upon request, was accommodated in her request not to be assigned to property insurance claim losses. The ADA forbids discrimination against a qualified individual with a disability. An accommodation is required unless it would pose an undue hardship on the operation of the employer's business. The Respondent's legitimate reasons for not promoting the Petitioner to Supervising Adjuster and eventually terminating her in a reduction in force, caused by severely declining business volume, show that because of the size of the Jacksonville office, a Supervising Adjuster must be able to handle all types of claims and that when the office force was reduced to one, that person would have to be able to handle all types of claims. The Petitioner offered no substantial evidence, other than speculatory testimony, that she was retaliated against by the Respondent because of the fact of seeking and being granted an accommodation for a disability.
The Respondent, as shown by the above Findings of Fact, based upon the preponderant evidence of record, has articulated legitimate business reasons for each action complained of by the Petitioner. Thus, had the Petitioner established a prima facie case of race or disability discrimination, which she did not, that presumption has been rebutted successfully by the Respondent in its proof. The Petitioner has not shown that any of the Respondent's explanations of its legitimate business reasons for the employment actions taken are a pretext to mask discriminatory motives. Rather, the preponderant proof actually shows that there were legitimate business reasons for the termination,
the failure to promote and the manner and method in which she was offered relocation expenses, which, under the circumstances, the Respondent was not even required to offer and which tends to show that its articulated reasons were not pretextual.
Further, no prima facie case of discrimination has been established. The Petitioner has established that she is a member of a protected class by the fact that she is a black female. She has not, however, established that she was qualified for the promotional positions to which her complaint relates, nor that she was actually qualified to remain in the Jacksonville office as an adjuster since, due to declining business volumes, the office could only support one adjuster who had to be qualified and able to adjust all types of claims, which the Petitioner could not. Thus, the fact of her termination under these circumstances also did not constitute discrimination against her because of her disability.
Although she is a member of a protected class, she was not shown to be qualified to retain her single-line adjusting position, nor qualified for the promotions in question, therefore, she has not established a prima facie case of either disability or racial discrimination. She has further not established a prima facie case for the additional reason that she was not replaced in her position when she was terminated by an employee from without her protected class. In fact, no employees were hired to replace her or Mr. Clark when they were terminated due to the reduction in force. The Jacksonville office still has only one employee, the Supervising Adjuster. Accordingly, it cannot be concluded that any violation of Chapter 760, Florida Statutes, has been established by the Petitioner.
Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is
RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety.
DONE AND ENTERED this 11th day of October, 1994, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4399
1-17. Accepted, except to the extent that they differ or are subordinate to the Hearing Officer's findings of fact on the same subject matter.
The Petitioner's proposed findings of fact are stricken and rejected on the basis that they were not timely submitted and the motion requesting extension of time for their submission was substantially late.
Kalvin M. Grove, Esquire FOX AND GROVE
360 Central Avenue, 11th Floor St. Petersburg, Florida 33701
All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
