STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMMY M. YOUNG, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5378

)

SWIFT-ECKRICH, INC. d/b/a )

ARMOUR SWIFT-ECKRICH )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a hearing was held on Respondent's Motion to Dismiss before Carolyn Holifield, Hearing Officer, Division of Administrative Hearings, on May 8, 1996, in Tampa, Florida and continued by telephone conference on May 22, 1996.

APPEARANCES

For Petitioner: Mary Li Creasy, Esquire

Creasy and Sass, P.A.

100 South Ashley Drive, Suite 1180 Tampa, Florida 33602

For Respondent: Catherine Rodriguez, Esquire

Jackson, Lewis, Schnitzler, and Krupman, P.A.

390 North Orange Avenue, Suite 1285 Post Office Box 3389

Orlando, Florida 32802-3389 STATEMENT OF THE ISSUES

The issues for determination raised by the Respondent's Motion to Dismiss and to Relinquish Jurisdiction are whether Petitioner's complaint filed with the Florida Human Relations Commission is timely, whether under the doctrine of equitable tolling the Commission and, derivatively, the Division of Administrative Hearings, has jurisdiction to review the complaint, and whether this case should proceed to formal hearing on the merits of the complaint.

PRELIMINARY STATEMENT

Petitioner, Tammy M. Young, filed a complaint with the Florida Commission On Human Relations (FCHR) on or about May 31, 1994, alleging unlawful gender- based discrimination on the part of her former employer Respondent, Armour Swift-Eckrich. Specifically, Petitioner alleges that her resignation of June 26, 1992, constitutes a constructive discharge from her employment with Respondent.

On January 5, 1995, Petitioner's complaint was docketed with the FCHR, filed with the Equal Employment Opportunity Commission (EEOC), and served on Respondent. The FCHR investigated the complaint and determined that Petitioner was a person within the meaning of Section 760.02(5), Florida Statutes, (1991) that Petitioner was an individual within the meaning of Section 760.10(1)(a), Florida Statutes, (1991) and that Respondent was an employer within the meaning of Section 760.02(6), Florida Statutes, (1991). The FCHR determined that with respect to jurisdiction, the complaint was not timely filed, and on September 8, 1995, the FCHR issued a letter of determination declining subject matter jurisdiction.

On October 2, 1995, Petitioner sent the FCHR a Petition for Relief requesting a formal hearing on the determination of lack of jurisdiction, and on the allegations of the complaint. On November 8, 1995, the FCHR forwarded the Petition for Relief to the Division of Administrative Hearings. The matter was assigned to Hearing Officer Richard Hixson who scheduled the final hearing in this case for March 13, 1996. Respondent filed a Request for Ruling on the Pending Motion to Dismiss and Relinquish Jurisdiction on February 8, 1996. A hearing on the motion was set for May 8, 1996. Prior to the date of the hearing on the motion, the case was transferred to the undersigned.

At hearing, Petitioner called one witness and testified on her own behalf.

Petitioner offered and had admitted into evidence three exhibits. Respondent called two witnesses and had twenty-one exhibits admitted into evidence. The transcripts of the May 8, 1996, hearing and the May 22, 1996, continuation

thereof, were filed on May 28, 1996, and June 28, 1996, respectively. The parties requested and were permitted thirty days from the date they received the transcript to file proposed recommended orders. Both parties timely filed proposed findings of fact and conclusions of law under the extended time frame.

FINDINGS OF FACT

1. For purposes of Respondent's Motion to Dismiss and Relinquish Jurisdiction the relevant factual allegations set forth in Petitioner's complaint and the Petition for Relief are accepted as true.

   
   

2. On June 26, 1992, at the time Petitioner left employment with Respondent, Petitioner had been employed by Respondent for approximately ten years. Petitioner's last position with Respondent was Division Manager within the sales organization. Petitioner was the highest ranking female employee in the sales organization. Petitioner's employment record with Respondent was excellent and included six promotions, substantial pay increases, and positive performance evaluations.

   
   

3. From December 1991 until June 26, 1992, Alan Casey was Petitioner's direct supervisor. Petitioner's office was located in Tampa, Florida. Casey's office was located in Kennesaw, Georgia. The only other employee located in Casey's office was his secretary, Lynda Cunningham.

   
   

4. While being supervised by Casey, Petitioner, was aware that of the five Division Managers reporting to Casey, she was the only female. The Division Managers worked independently within separate assigned territories and did not have day to day contact with each other. However, despite this geographic separation, Petitioner met with Casey and the other District Managers at two quarterly regional meetings and spoke with them during weekly staff meetings conducted by telephone conference. In addition to these meetings, Petitioner occasionally spoke to her male peers to share ideas concerning work.

5. While Casey was her direct supervisor, Petitioner knew that her sales results were higher than the other male Division Managers reporting to Casey. Between March 3, 1992, and May 12, 1992, notwithstanding Petitioner's performance in sales, Casey placed ten memoranda critical of Petitioner's performance in her personnel file. At the time Petitioner received these memoranda, she believed that they were unjustified, harsh and abusive. Petitioner further believed that the memoranda were factually inaccurate and criticized her for things out of her control.

   
   

6. At one regional meeting, Petitioner heard her peers express their dissatisfaction with Casey as a supervisor. However, Petitioner did not participate in this conversation and never discussed with the other Division Managers about how Casey was treating her and the excessive number of negative memoranda he had written to her.

   
   

7. Prior to her resignation, Petitioner believed that Casey treated her unfairly by (1) failing to offer assistance to Petitioner as he offered to male Division Managers and (2) conducting unannounced visits to Petitioner's sales marketing area which he did not do with male Division Managers. Moreover, before resigning from her position with Respondent, Petitioner believed that Casey "undermined [her] efforts in [her] area of responsibility."

   
   

8. Petitioner was aware that Respondent had a policy for resolving disputes which required employees to address issues of concern with their direct supervisor. If these initial efforts to resolve disputes failed, an employee could appeal to a higher official in the company. With respect to complaints involving discrimination based on race or sex, the Respondent's policy required that employees refer such matters to the company's Human Resources Office.

   
   

9. Petitioner met with Casey to discuss her concerns regarding what she perceived to be his unfair treatment of her. However, her efforts to resolve the situation at this level were unsuccessful. Petitioner chose to resign from her position with Respondent, rather than utilize the company's dispute resolution procedure. Petitioner's resignation, which became effective June 26, 1992, was because of the criticism and lack of support from Casey.

   
   

10. On May 13, 1994, almost two years after Petitioner's resignation, Petitioner received a telephone call from Lynda Cunningham, Casey's secretary during the time he supervised Petitioner. Cunningham informed Petitioner that she had overheard a telephone conversation between Casey and Rick Elsperman, Director of Human Resources for Respondent, in which Casey requested instruction and assistance in documenting a female manager's personnel file to force her resignation or to support her termination.

    
    

11. During the May 13, 1994, telephone conversation, Cunningham further informed Petitioner that subsequent to Casey and Elsperman's conversation, Casey directed Cunningham to forward all of Petitioner's personnel memoranda to Elsperman for approval before sending them to Petitioner. According to Cunningham, this procedure was not followed for male managers. Petitioner had no knowledge of the information provided by Cunningham prior to May 13, 1994.

    
    

12. While Petitioner was employed by Respondent, she had concerns related to the company's treatment of and attitude toward women. First, Petitioner perceived that the Respondent's management did not make efforts to train and support the advancement of females and minorities. Second, Petitioner became

    aware that several females in the retail merchandising company of the organization had been given additional job responsibilities without comparable salary increases.

    
    

13. In addition to her perceptions about Respondent's treatment of females, in 1987, Petitioner became aware that her salary as a district manager for Respondent was lower than that of male subordinates holding lower sales positions, with less experience, tenure, and responsibility. As a supervisor, Petitioner had access to the personnel files of the employees who reported to her which documented that a male subordinate's salary was higher than Petitioner's salary. Petitioner initiated an internal inquiry and the company chose to raise her salary to a level comparable with men in the same position with the same tenure and responsibility.

    
    

14. Prior to her resignation, on one occasion, Petitioner overheard a conversation in which a district manager with Respondent stated that management's objective was to hire young, white, male degreed persons for starting level positions.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

16. The Human Rights Act of 1977 (HRA) provides claimants a 180 day time period within which to file charges of discrimination. Section 760.10(10), Florida Statutes (1991).1 That section provides in relevant part the following:

    
    

    1. ny person aggrieved by a violation of this section may file a complaint with the Commission within 180 days of the alleged violations...

       
       

17. There is no dispute that Petitioner did not file her charge of discrimination within 180 days of resigning her position. Rather, Petitioner contends that the doctrine of equitable tolling should operate to extend her period for filing a charge due to the fact that she only discovered evidence of the alleged discrimination on May 13, 1994, when she was contacted by Cunningham.

    
    

18. The doctrine of equitable tolling permits under certain circumstances the filing of an action that would otherwise be barred by a limitations period. "The doctrine is used in the interests of justice to accommodate both a defendant's right not to be called to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing." Machules v. Department of Administration, 523 So. 2d 1132, 1134 (Fla. 1988). The doctrine focuses on the plaintiff with a reasonably prudent regard for his rights, and generally has been applied "...when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum." Id. at 1134.

    
    

19. In this case none of the Machules factors are present. Accepting the well-pleaded factual allegations, there is no indication that Petitioner was misled into inaction, that extraordinary circumstances prevented the filing of a complaint, or that a complaint was filed in the wrong forum.

20. In Chakonas v. City of Chicago, 42 F. 3d 1132 (7th Cir. 1994),2 an age discrimination case, the federal Seventh Circuit Court of Appeals, further explained the application of the doctrine of equitable tolling:

    
    

    Equitable tolling is appropriate when the plaintiff, despite all due diligence, is unable to obtain vital information bearing on the existence of his claim. Cada, 920

    F.2d at 451. To determine whether a plaintiff in fact lacked vital information, a court should ask whether a reasonable person in plaintiff's position would have been aware that he had been fired in possible violation of the ADEA. Id. [If a reasonable person would have been aware, but plaintiff was not, resort to equitable tolling is inappropriate]. [Emphasis supplied.]

    
    

    Id. at 1135. See also, Dring v. McDonnell Douglas Corp., 58 F.3d 1323 (8th Cir. 1995); Hottinger v. Centel of Arkansas, Inc., 65 F. 3d 172 (8th Cir. 1995).

    
    

21. In this case it is clear from the allegations of the complaint and Petition for Relief that at the time of her resignation on June 26, 1992, Petitioner was aware of the following vital information bearing on the existence of her claim: 1) that Petitioner was the only female Division Manager; 2) that Petitioner was the highest-ranking female employee in the sales organization; 3) that Petitioner's sales results were higher than other male Division Managers;

    1. that male Division Managers were offered support not offered to Petitioner;

    2. that Petitioner's supervisor made unannounced visits to her marketing area;

    3. that despite her high sales record and excellent employment history, Petitioner was subjected to constant criticism and verbal abuse by her supervisor.

    
    

22. Furthermore, prior to resigning her position with Respondent, Petitioner was aware of several situations which were or could be perceived of as discriminatory practices by Respondent. First, during Petitioner's employment with Respondent, she discovered a disparity in her pay and that of male employees. Petitioner complained of the disparity; and as a result of an internal investigation by Respondent, Petitioner's salary was increased. Second, Petitioner admitted having personal knowledge that several female workers employed by Respondent were given additional job responsibilities without receiving comparable increases in salary. Third, a year or two before resigning, Petitioner over heard a manager employed by Respondent state that management's objective was to hire young, white men in entry level positions.

    
    

23. Under these circumstances, a reasonable person in Petitioner's position on June 26, 1992, would have been aware that her resignation was sought in possible violation of Chapter 760, Florida Statutes (1991). While the information provided to Petitioner by Lynda Cunningham nearly two years later lent support to the establishment of a violation of the statute, the information was not vital to the Petitioner's reasonable awareness of a possible statutory violation.

24. The doctrine of equitable tolling "...focuses on the employee with a reasonably prudent regard for his rights." Machules v. Department of Administration, 523 So. 2d at 1134. Petitioner has not demonstrated a basis for invoking the doctrine of equitable tolling.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

1. ORDERED that the Motion to Relinquish Jurisdiction is GRANTED.

   
   

2. ORDERED that the Division of Administrative Hearings file be CLOSED.

   
   

3. RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the petition of Tammy M. Young.

DONE and ORDERED this 3rd day of September, 1996, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

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 3rd day of September, 1996.

ENDNOTES

1/ Chapter 92-177, Laws of Florida, amended this Act and renamed it the Florida Civil Rights Act of 1992. Pursuant to the amendment, eligible claimants have

365 days within which to file charges of discrimination. It is undisputed that the 1992 Act does not apply in this case, nor would it benefit Petitioner.

2/ Because the Human Rights Act of 1977 is patterned after Title VII, federal case law dealing with Title VII is applicable.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5378

Petitioner's Proposed Findings of Fact

1. Accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Accepted and incorporated except last sentence rejected as not supported by record.

4-5. Accepted and incorporated to the extent not subordinate or unnecessary.

6. Accepted except last phrase rejected as not supported by record. 7-12. Accepted and incorporated to the extent not subordinated or

unnecessary.

13. Second and third sentence accepted. First and fourth sentence rejected.

14-16. Accepted and incorporated to the extent not subordinate or unnecessary.

17. First sentence rejected as argument. Remainder accepted and incorporated.

Respondent's Proposed Findings of Fact

1-40. Accepted and incorporated to the extent not subordinate or unnecessary.

41-43. Accepted but subordinate to result reached.

COPIES FURNISHED:

Mary Li Creasy, Esquire Creasy and Sass, P.A.

100 South Ashley Drive, Suite 1180 Tampa, Florida 33602

Catherine Rodriguez, Esquire Jackson, Lewis, Schnitzler,

and Krupman, P.A.

390 North Orange Avenue, Suite 1285 Post Office Box 3389

Orlando, Florida 32802-3389

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

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 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 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.

Docket for Case No: 95-005378

Orders for Case No: 95-005378