JEROME L. CARTER, )
vs. ) Case No. 98-2125
Respondent. )
A formal hearing was held before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on August 27, 1998, in Orlando, Florida. The following appearances were entered:
For Respondent: Daniel F. Piar, Esquire
Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for reporting an unlawful employment practice that occurred in June 1995.
Employment Practice with the Orlando Human Relations Department and the Florida Commission on Human Relations on August 23, 1995. The matter was referred to the Division of Administrative Hearings for a hearing de novo and the submission of a recommended order to the Florida Commission on Human Relations on May 8, 1998. Respondent's Motion to Relinquish Jurisdiction was denied by Order, dated June 24, 1998. Upon proper notice being timely given on June 24, 1998, a formal hearing was scheduled to be heard in Orlando, Florida, on August 27, 1998. Daniel F. Piar of the law firm of Kilpatrick Stockton LLP, a member of the Georgia Bar, was authorized to appear on behalf of Respondent in this proceeding. The deposition testimony of Petitioner was taken on July 31, 1998, by the Respondent. At the hearing, diligent search and inquiry was made to determine the whereabouts of Petitioner, but he could not be located. After a reasonable period of time, the hearing was convened. No evidence was offered on behalf of Petitioner. Respondent moved for dismissal for failure to prosecute, but also proceeded to introduce testimony and exhibits in evidence. Respondent offered the testimony of three witnesses, and also offered three exhibits in evidence which included the deposition testimony of Petitioner.
Upon conclusion of the hearing on August 27, 1998, the record of proceedings was closed and the parties were provided an opportunity to submit arguments, proposed findings of fact, and conclusions of law in support of their respective positions
within twenty days of the filing of the transcript. Respondent filed its proposed findings of fact and conclusions of law on November 9, 1998. Petitioner has not filed proposed findings as
of the date of this Order. The transcript was filed October 19, 1998.
From the record of the proceedings as a whole, including the transcript of the hearing held on August 27, 1998, Also including the exhibits admitted into evidence, and specifically weighing the testimony of the witnesses and their credibility, the following findings of fact are determined:
Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes.
Petitioner was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately two years.
Aaron Rents, Inc., is a national furniture rental and sales company which does business in some locations, including locations in Florida, as Aaron's Rental Purchase.
Petitioner, Jerome Carter, was employed by the company at an Aaron's Rental Purchase store in Kissimmee, Florida, from approximately August 2, 1993, until August 19, 1995.
Petitioner was initially hired as a delivery driver and progressed to Assistant Credit Manager, Credit Manager, and finally Sales Manager of the Kissimmee store.
In August 1995, Petitioner's immediate supervisor was Store Manager Steven Liberti. Liberti reported to District Manager Leonard Alonzo, who was supervised by Florida Regional
Manager Joseph Fedorchak.
As the Sales Manager, one of Petitioner's most important job duties was greeting and interacting with customers. He typically had the first contact with each customer as they walked into the store, and his demeanor, as he greeted them, influenced whether they felt comfortable and were likely to make a purchase.
Petitioner, however, was not appropriately welcoming and friendly. Petitioner's attitude was withdrawn and not very cordial.
Petitioner himself admitted that he "never look[s] happy."
Petitioner's sullen demeanor was the topic of numerous discussions with his supervisors.
In an effort to address the Petitioner's concerns and improve his work performance, the District Manager initiated a conversation to elicit any complaints the Petitioner might have. Petitioner expressed dissatisfaction with his position as a Credit Manager and the length of time since his last raise. As a result, Alonzo transferred the Petitioner to the Sales Manager position and gave him a pay increase.
After the transfer, however, Petitioner's demeanor did not brighten. Concerned, the District Manager again inquired about the cause of the Petitioner's apparent unhappiness. Petitioner merely acknowledged that his attitude needed improvement and promised that he would "straighten up" and "be more outgoing." Each time they had that discussion, however,
Petitioner's behavior would improve for only a short time, then return to his previous melancholy.
The Store Manager also talked to Petitioner at least twice about his attitude toward his job, telling him that he needed to smile more often. Although the Petitioner's behavior would temporarily change after these discussions, Liberti observed that the improvement lasted only about 24 hours.
In August 1995, sales at the Kissimmee store were at an all-time low. Petitioner's supervisors attributed the location's failure to meet its sales goals at least in part to the Petitioner's inability to interact with customers and make sales.
After their repeated discussions with him did not result in lasting improvement, the Managers felt they had no choice but to terminate Petitioners employment.
Fedorchak concurred that, because the Petitioner could not seem to display an appropriate attitude and demeanor for a Sales Manager, his services were no longer needed.
Petitioner admits that when he was discharged, the reason that he was given was that he "did not look happy."
Approximately two months before Petitioner left the Kissimmee store, one incident with racial overtones was brought to the Store Manager's attention. In June 1995, store employees Mark Mars and/or Jesus Rivera reported to Liberti that another store employee, Michael Flowers (who is white), had used the term "nigger" during a discussion with store employee Kenny Tatum (who
is black). Liberti informed Alonzo about the complaint and an investigation was conducted.
When the Managers spoke with Tatum, he explained that Flowers had used the expression "nigger, please," which was slang for "you've got to be kidding," during a conversation between the two men. He assured them that he had not been offended. Nevertheless, because Alonzo and Liberti felt it was highly inappropriate for Flowers to use such language in the store, they gave him a reprimand and warning.
In his deposition testimony, Petitioner recalled learning about the occurrence from several other employees. Petitioner did not personally witness it or hear Flowers use the offensive term, but merely claimed to have reported to Liberti what he had been told. According to Petitioner, Liberti responded to this information by affirming that such behavior would not be tolerated.
Petitioner admits that he was never told, and had no reason to believe, that Aaron's authorized, encouraged, or instructed Flowers to use racially derogatory language in the store or that he had done so on Aaron's behalf. When Petitioner allegedly reported the occurrence to Liberti, he only believed that a co-employee had made an inappropriate comment at work.
The incident involving Flowers and Tatum was unrelated to Petitioner's discharge. None of the three individuals involved in the decision to discharge Petitioner associated him
with the incident or any opposition to it. Liberti does not recall discussing the incident with Petitioner, and neither Alonzo nor Fedorchak knew that Petitioner even claimed to have had some involvement in reporting it until after he was discharged. Moreover, none of the conversations among the three about their decision to terminate Petitioner included any reference to Flowers' comment or the subsequent events. No one who opposed the incident suffered any adverse consequences.
Rivera and/or Mars reported the comment, and neither of them experienced any unfavorable employment actions as a result.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The State of Florida, under the legislative scheme contained in Florida Statutes Chapter 760, 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 retaliation is found in Section 760.10(7), Florida Statutes, which essentially narrows the "opposition clause" of the retaliation prohibition found in Section 704(a) of Title VII.
Judicial authorities have utilized a three-pronged
burden of proof for establishing a prima facie case of retaliation:
The employee engaged in a statutorily protected activity by opposing an employment practice made unlawful;
The employee was subject to an adverse employment decision; and
The adverse action was causally related to the employee's protected activities. 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); Coutu v. Martin County Board of County Commissioners, 47 F.3d 1068, 1074 (11th Cir. 1995).
The standard of proof in these cases depends on the nature of the evidence. If the plaintiff has direct evidence that he was subjected to retaliation due to his participation in activities sanctioned by law or due to his opposition to prohibited practices, he must prove by a preponderance of that evidence that his activities were a significant factor in the termination decision by the company. However, if the Petitioner does not have direct evidence, he may establish a prima facie case for retaliation under the shifting burden analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981).
The McDonnell Douglas-Burdine test is designed for litigation based upon circumstantial evidence and places upon the
Respondent company only the obligation to articulate a valid, non-discriminatory reason for its decision to terminate the Petitioner. Under the McDonnell Douglas-Burdine analysis, the
burden of proof would then shift back to the Petitioner, not only to show that the articulated non-discriminatory reason is "pretextual" but also to sustain his ultimate burden of persuasion of retaliatory intent by the Respondent company.
In the case sub judice, for the sake of argument, it will be assumed that the Petitioner has satisfied the first element of establishing that he engaged in a protected activity by reporting an unlawful employment practice to his employer. The Petitioner has also established that he was subjected to an adverse employment decision by his subsequent termination from employment. However, the Petitioner has completely failed in establishing or proving by credible, persuasive evidence that there is a causal connection between his protected activity and his ultimate discharge from employment. The Petitioner did not provide at the formal hearing through testimony or exhibits any direct evidence sufficient in itself to sustain his burden of
proof. The mere sequence of events whereby termination follows a report of unlawful discrimination does not in and of itself prove retaliatory intent; nor absent more circumstantial evidence, do such circumstances establish an irrefutable presumption of retaliatory design or discriminatory purpose.
At best the sequence of events required the Respondent
to come forward and "articulate" a valid, non-discriminatory reason for the resulting termination of employment. The Company has done so.
Even accepting as true the Petitioner's testimony that he reported a co-worker's one-time use of a perjorative term to his immediate supervisor, that report does not enjoy the protection of Title VII because it does not rise to the level of opposing a practice made unlawful by that statute. In a case substantially similar to this one, the Eleventh Circuit emphasized:
[N]ot every act by an employee in opposition to racial discrimination is protected. The opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual.
Little v. United Technologies, 103 F.3d 956, 959 (11th Cir. 1997) (quoting Silver v. KCA, Inc. 586 F.2d 138 (9th Cir. 1978). In Little, a plaintiff who had reported a co-worker's single racially derogatory statement was held not to have engaged in statutorily protected activity because the co-worker's isolated remark could not be attributed to the employer. Little, 103 F.3d at 959, 960; see also Splunge v. Shoney's, Inc., 97 F.3d 488 (11th Cir. 1996). Accordingly, the court held, the plaintiff neither believed nor could have believed that in reporting the remark he was opposing any employment practice made unlawful by Title VII. The court therefore dismissed the case. Little, 103 F.3d at 959-960.
The same result is required here. Flowers' isolated comment cannot be attributed directly to Aaron's, and the Petitioner admits that he never believed that the remark was authorized or endorsed by the Company. According to him, it was simply an isolated, inappropriate statement made by a co-worker in the workplace. Complaining about Flowers' comment, the Petitioner merely opposed the action of a private individual, not an employment practice made unlawful by Title VII. Under Little, his reporting a single remark was not protected activity, and the Petitioner cannot state a claim for Title VII retaliation.
Even if Petitioner's alleged report was protected, there is no evidence whatsoever that the Petitioner's discharge was in any way related to it. Respondent's explanation for Petitioner's discharge is uncontested. Petitioner did not have an appropriately welcoming demeanor and attitude, particularly for his position as the Sales Manager. It is perfectly logical for a business experiencing a slump in sales to terminate a Sales Manager with poor interpersonal skills and a bad attitude about his job. Both Liberti and Alonzo made numerous attempts to correct the Petitioner's performance deficiencies before ending his employment with the Company. Nothing in the record disputes Aaron's explanation that the Petitioner's attitude and demeanor were unacceptable in his position as a Sales Manager.
Ultimately, that deficiency resulted in his termination. There is no evidence that the Company had any desire to retaliate
against the Petitioner. In fact, at least one of two other employees, both of whom witnessed the occurrence firsthand, reported it to Liberti and suffered no adverse employment action. Aaron's clearly was not interested in retaliating against employees for making such reports. Thus, because the Petitioner cannot meet his burden of proving that his discharge was causally related to his alleged report concerning the incident between Flowers and Tatum, his Charge of Discrimination should be dismissed on the merits.
Finally, the Petitioner makes several miscellaneous complaints about Flowers in his Charge of Discrimination and deposition testimony. Specifically, he states that he complained about Flowers' work performance to both Liberti and Alonzo but that no action was taken. He admits that these complaints had nothing to do with race. He does not explain how those complaints comprise activities protected by Title VII; Title VII does not provide a general means for attacking management styles or a co-worker's poor performance. Accordingly, the Petitioner cannot maintain claims premised on those allegations.
Petitioner's Charge of Discrimination should be dismissed pursuant to Rule 28-106.211 of the Florida Administrative Code. He was given full and fair notice that this matter would be heard on August 27, 1998. He did not attempt to make arrangements for a more convenient time, did not request a postponement, and did not appear as scheduled. Nor has he made
any effort since the hearing to explain and to justify his absence. Respondent, however, incurred considerable expense in preparing for and attending the hearing. Respondent should not be required to expend any additional resources on a matter that Petitioner refuses to prosecute.
Furthermore, the Charge should be dismissed because it completely lacks merit. As a matter of law, Petitioner did not engage in protected activity and has not established a prima facie case of retaliation. Moreover, the record demonstrates no causal connection between Petitioner's discharge and any report about the comment made by Flowers.
Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is
That the Florida Commission on Human Relations issue a Final Order which dismisses the Charge of Discrimination.
DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1998.
Jerome L. Carter, Sr. 2188 McClaren Circle
Daniel F. Piar, Esquire Kilpatrick Stockton LLP
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
