STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCE C. HALLOWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2039

) FCHR NO. 94-8359

SEARS, ROEBUCK AND CO., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on September 20, 1995, in Melbourne, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Joyce C. Hallowell (pro se)

1498 Beche Street, Southeast Palm Bay, Florida 32909

For Respondent: Carlos J. Burruezo, Esquire

390 North Orange Avenue, Suite 1285 Post Office Box 3389

Orlando, Florida 32802-3389 STATEMENT OF THE ISSUES

Whether Petitioner, a member of a protected class, was denied promotion to the position of sales associate with the Respondent in the appliance department of Brand Central section of the store on or about June 27, 1993, on the basis of her age, in violation of Section 760.10(1)(a), Florida Statutes (1993).

PRELIMINARY STATEMENT

The Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) and the Federal Equal Employment Opportunity Commission (EEOC) alleging that Respondent had discriminated against her on the basis of her age. Subsequently, on or about March 3, 1995, a determination was issued by the FCHR. In a letter dated April 26, 1995, the Petitioner filed a Petition for Relief with the FCHR and requested a formal hearing. Respondent filed its Answer and Affirmative Defenses on May 17, 1995.

This matter was referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on May 17, 1995. Following discovery, a formal hearing was held on September 20, 1995.

At the hearing, Petitioner appeared pro se. Petitioner presented the testimony of one witness, Sharon Berger, and Petitioner testified in her own behalf. Four exhibits were received in evidence. The Respondent presented the testimony of three witnesses, William Henley, Herman Payne and Frances Pagan Cusick, and five exhibits were received in evidence. A transcript was prepared and was filed on October 23, 1995. The parties requested twenty days from the hearing in which to file proposed findings of fact and conclusions of law.

Petitioner had not filed proposed findings of as of the date of this order. Respondent filed proposed findings on November 15, 1995. My specific ruling on the proposals is contained in the Appendix.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent is an employer under the Florida Civil Rights Act of 1992.

   
   

2. Petitioner, Joyce C. Hallowell, was employed by Respondent as a part- time commission sales associate in the electronics department of Brand Central during the relevant period of time including June 1993. Petitioner worked for Respondent on-and-off for a period of 20 years in various sales positions and both in a full and part-time capacity.

   
   

3. Petitioner is an American woman, born: October 14, 1948, who was 44 years of age during the relevant time and a member of a protected class.

   
   

4. William Henley became the Store General Manager of the Melbourne, Florida Sears store in May 1993. Accordingly, Henley was, during the relevant time period, the Store General Manager of the Melbourne, Florida Sears store. As Store General Manager, William Henley has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions.

   
   

5. Herman Payne became the Brand Central Manager of the Melbourne, Florida Sears store in 1993. Accordingly, Payne was, during the relevant time period, the Brand Central Manager of the Melbourne, Florida Sears store. As Brand Central Manager, Payne supervised all four departments in Brand Central. He has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions for personnel in his department. Payne was 41 years old during the relevant time period.

   
   

6. Frances Pagan Cusick is the Human Resources Manager for the Sears Melbourne, Florida store. As Human Resources Manager Cusick has responsibility for, inter alia, administering the hiring, equal-employment, and compensation policies of Sears. Cusick was 43 years old during the relevant time period.

   
   

7. Brand Central consists of four departments: computers, electronics, small appliances and home appliances. Sales associates work in each of the four Branch Central Departments. Both full-time and part-time sales associates work in Brand Central. Each of the sales associates in Brand Central are paid on the basis of commissions earned from sales. As a consequence, each sales associate's earnings are dependent on the number of sales made.

   
   

8. At the time of Henley's and Payne's arrival at the Melbourne, Florida Sears store in May, 1993 and June, 1993, respectively, the store, including

   Brand Central, was in need of numerous changes and improvements, including improvements in appearance and presentation.

   
   

9. In June, 1993, Henley and Payne initiated a cleanup "campaign" throughout the store, including Brand Central, in an effort to make the store more presentable to the public. As part of the clean-up "campaign" in Brand Central, Payne recruited the assistance of all Brand Central employees.

   
   

10. Petitioner was uncooperative and refused or was reluctant to assist in various efforts to improve the appearance of Brand Central. She also complained to management about others in her department and their lack of diligence in the clean-up campaign.

    
    

11. Hallowell's attitude problems were a serious concern to the management of the Melbourne, Florida Sears store. The management of the Melbourne, Florida Sears store counselled her and documented Petitioner's attitude problems.

    
    

12. In June, 1993, a need arose for additional part-time help within the appliance department of Brand Central.

    
    

13. A transfer from one section of Brand Central to another is not considered a promotion; rather, it is simply a transfer from one department to another.

    
    

14. Henley and Payne ultimately decided who would be transferred to the appliance department of Brand Central.

    
    

15. The criteria utilized by Respondent in determining who would be transferred to the appliance department included: (i) satisfactory job performance; (ii) satisfactory customer service; and (iii) a positive attitude.

    
    

16. Given the nature of Respondent's business, it is important for Respondent's employees to maintain satisfactory job performance, customer service, and to exhibit a positive attitude.

    
    

17. The criteria utilized by Respondent in determining who would be transferred to the appliance department were essential to building a highly motivated team of sales associates.

    
    

18. Seniority was not a factor utilized by Respondent in determining who would be transferred to the appliance department.

    
    

19. Age was not a factor utilized by Respondent in determining who would be transferred to the appliance department.

    
    

20. In June 1993, Petitioner expressed to Herman Payne a desire to transfer from the electronics department to the appliance department of Brand Central.

    
    

21. Three individuals were considered for the available, part-time position in the appliance department of Brand Central, to wit: Barbara Gehrlein, Terry Giordano and Petitioner.

    
    

22. The transfer which Petitioner sought to the appliance department of Brand Central was not a promotion. However, Petitioner felt that she could earn a higher commission in that department over time.

23. Barbara Gehrlein, who was over fifty at the time, elected not to be considered for the transfer to the appliance department of Brand Central because she was not interested in a part-time position. Gehrlein's preference was to remain in a full-time position.

    
    

24. Terry Giordana, who was under forty years of age at the time, was selected for the transfer to the appliance department of Brand Central. Henley and Payne decided that she exhibited a positive attitude and satisfied the other qualification criteria utilized by Respondent.

    
    

25. Petitioner was not chosen for the part-time position in the appliance department of Brand Central because of the poor attitude she exhibited during the clean-up campaign.

    
    

26. After the selection of Terry Giordano for the part-time position in the appliance department of Brand Central, Petitioner continued to exhibit a poor attitude.

    
    

27. Prior to the selection by Respondent of the individual to be transferred to the appliance department of Brand Central, Petitioner admitted to her supervisor, that she had been uncooperative and that she had a "chip on her shoulder."

    
    

28. Respondent maintains an Affirmative Action Policy. Sears' Affirmative Action Policy provides, inter alia, that:

    
    

    Sears is proud to reaffirm its commitment of the principles of equal employment opportunity and affirmative action. It is our policy to provide equal employment opportunity in all areas of our employment practices and to assure

    that there will be no discrimination against any associate or applicant on the grounds of race, color, religion, sex, age, national origin, ancestry/ethnicity, citizenship, sexual orien- tation, disability, veteran status, marital status, or any other reason prohibited by law. This policy extends to all of the Sears employment practices including recruitment and hiring, job assignments, education and development, promotions, compensation and benefits, use of company facilities, and all other privileges, terms, conditions of employment. It is further the goal of Sears to provide an atmosphere where all our associates can grow and optimize their performance in an environment free of intimidation and harassment of any form.

    
    

29. No direct evidence exists supporting Petitioner's contention that she was denied a "promotion" because of her age.

    
    

30. Respondent did not fail to "promote" Petitioner.

    
    

31. Respondent did not fail to "promote" Petitioner because of her age and Respondent did not discriminate against Petitioner on the basis of her age.

    
    

32. With respect to targeted earnings, studies showed that an employee in the appliance department would earn less than an employee in the electronics

    department, given certain assumptions. Assuming a total store sales volume of

    $3 million, it is expected that an employee in the appliance department would earn $10.38 per hour, while an employee in the electronics department would receive $10.43 per hour.

    
    

33. With respect to targeted earnings, studies showed that an employee in the appliance department would earn slightly more than an employee in the electronics department, given certain other assumptions. Assuming a total store sales volume of $3-6 million, it is expected that an employee in the electronic's department would earn $11.50 per hour, while an employee in the appliance department would receive $11.67 per hour.

    
    

34. During the relevant time period, of the 13 individuals who worked in the appliance department of Brand Central, eight of them (or 61.5 percent) were at least 40 years old.

    
    

35. During the relevant time period, of the 23 individuals who worked in all of Brand Central, 13 of them (or 56.5 percent) were at least 40 years old.

    
    

36. During the relevant time period, of the 20 sales associates who were promoted at the Melbourne, Florida Sears store, five of them (or 25 percent) were at least 40 years old.

    
    

37. During the relevant time period, of the 213 sales associates who were working at the Melbourne, Florida Sears store, 85 of them (or 39.9 percent) were at least 40 years old.

    
    

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes and Rule 60Y-4.016(1), Florida Administrative Code.

    
    

39. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended. 42 USC Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race. (Sec. 760.10(1)(a), F.S.) The Florida Commission on Human Relations and the Florida courts interpreting the provisions of the Florida Civil Rights Act of 1992 have determined that federal discrimination law should be used as guidance when construing provisions of the Act. See Brand v. Florida Power Corp. 633 So.2d 504,509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional Medical Center, 16 FALR 567, 574 (FCHR 1993).

    
    

40. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and again in the recent case of St. Mary's Honor Center v. Hicks, 509

    U.S. , 113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468,5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie

    case of racial discrimination. See also Laroche v. Department of Labor and Employment Security, 13 FALR 4121 (FCHR 1991); Davis v. Humana of Florida, Inc., 15 FALR 231 (FCHR 1992).

    
    

41. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:

    
    

    1. The Petitioner is a member of a protected class;

    2. The employee is otherwise qualified for the position sought; and

    3. The employee was subject to an adverse employment decision (Petitioner did not receive a promotion to a position for which she was otherwise qualified);

    4. The position was filled by someone outside the protected class.

    5. There must be shown by the evidence that there is a causal connection between a and c. Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729,

       29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769,

       29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

       
       

42. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See, Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

    
    

43. Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision.

    The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

44. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated

    by the articulated nondiscriminatory reasons or that the replacement was more qualified than the Petitioner. Texas Department of Community Affairs v.

    Burdine, at 257-8.

    
    

45. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, 509 U.S. , 113 S.Ct. 2742 (1993).

    
    

46. In the case sub judice, the Petitioner has established that she is over the age of 40 (a member of a protected class) and was qualified for the position. The Petitioner has also established that she was subjected to an adverse employment decision when she failed to receive a perceived "promotion" for which she was otherwise qualified, and that the position was filled by a person under forty years of age. Therefore, the Plaintiff came forward with sufficient evidence to meet her initial burden of proof on the issue of age discrimination.

    
    

47. The sequence of presentation of evidence then required the Respondent to come forward and "articulate" valid, nondiscriminatory reasons for the resulting promotion decision. The Respondent has done so.

    
    

48. Although Petitioner has established a prima facie case of discrimination, Sears has met its burden of production by proffering a legitimate, non-discriminatory reason for failing to "promote" Petitioner.

    
    

49. Respondent came forward with evidence to establish that the part-time position which Petitioner sought in the appliance department was not a "promotion," but rather, a lateral transfer. Moreover, even if the position sought by Petitioner were considered a "promotion" there is no evidence that Petitioner was denied the "promotion" due to her age. Credible evidence established that Petitioner was not chosen for the part-time, appliance- department position because of her poor attitude, a non-discriminatory reason. Petitioner Hallowell has failed to prove that Respondent's articulated reason for failing to "promote" her to the part-time, appliance-department position in Brand Central was a pretext for intentional discrimination, in violation of the Florida Civil Rights Act of 1992.

    
    

50. Petitioner's uncooperative, impatient, and outspoken personality created conflicts within the department and was disruptive to its function. Respondent could properly consider this when making employment decisions. See: Hale v. Cuyahoga County Welfare Dept., F.2d , 51 FEP 1264 (6th Cir. 1989).

    
    

51. Petitioner has failed to produce any evidence to demonstrate that the Respondent's articulated reasons for its actions in June, 1993, were "pretextual".

    
    

52. From the testimony and the exhibits, the Petitioner has failed to carry the burden required by law to establish discriminatory conduct. There was insufficient testimony by the witnesses presented by the Petitioner that she did not receive the promotion because of her age.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order which DENIES the Petition for Relief.

DONE AND ENTERED this 22nd day of November, 1995, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 22nd day of November, 1995.

APPENDIX

The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent:

Accepted in substance: paragraphs 1, 2, 3 (in part), 4, 5, 6 (in part), 7,

8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,

26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49,

50, 51, 52, and 53.

Rejected as irrelevant, immaterial or subsumed: paragraphs 3 (in part), 6 (in part), 9 (in part), 31, 32, and 41.

COPIES FURNISHED:

Joyce C. Hallowell

1498 Beche Street, S.E. Palm Bay, Florida 32909

Carlos J. Burruezo, Esquire

390 North Orange Avenue, Suite 1285 Post Office Box 3389

Orlando, Florida 32802-3389

Dana Baird, General Counsel Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 that will issue the Final Order in this case concerning their 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.

Docket for Case No: 95-002039

Orders for Case No: 95-002039