CHIARA T. SPRADLIN, )
vs. ) Case No. 00-1126
Respondent. )
Pursuant to notice, a formal hearing was held in this case on February 1, 2001, by video teleconference with connecting sites in West Palm Beach and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Chiara T. Spradlin, pro se
For Respondent: Sharon A. Lisitzky, Esquire
Mark R. Cheskin, Esquire Morgan, Lewis & Bockius, LLP
The issue for determination is whether Respondent discriminated against Petitioner on the basis of her national
amended.
On June 20, 1996, Chiara T. Spradlin (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) against the Great Western Bank, alleging that Great Western Bank discriminated against her on the basis of her national origin. On January 31, 2000, the FCHR issued a Determination of No Cause (Determination) and a Notice of Determination of No Cause (Notice). At the time of the Determination and Notice, Great Western Bank was then known as Washington Mutual Bank. On February 16, 2000, Petitioner filed a Petition for Relief from an Unlawful Employment Practice with the FCHR against Washington Mutual Bank, f/k/a Great Western (Respondent). On March 13, 2000, the FCHR referred this matter to the Division of Administrative Hearings.
At hearing, Petitioner testified in her own behalf and entered no exhibits into evidence. Respondent presented the testimony of two witnesses and entered three exhibits (Respondent's Exhibits numbered 1-3) into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on February 20,
2001. The parties timely filed post-hearing submissions, which were considered in the preparation of this Recommended Order.1
Petitioner's national origin is Spanish.
At all times material hereto, Petitioner was employed by Respondent as a Customer Service Representative (CSR) at its West Palm Beach-Okeechobee branch (Branch Office) and was the only CSR at the Branch Office whose national origin was Spanish. A CSR is commonly known as a teller.
At all times material hereto, Petitioner was a single parent.
At all times material hereto, Respondent was an employer as defined by the Florida Civil Rights Act of 1992, as amended.
In December 1994, Fran Bessent became the branch manager at the Branch Office. At that time and before she became branch manager, the Branch Office was extremely busy on Saturdays, and on a per-hour basis, Saturday was the busiest time of the week. Five to seven CSRs were employed at the Branch Office.
In January 1995, Ms. Bessent met with the entire staff of the Branch Office. The meeting was mandatory. At the meeting, she informed the CSRs that, among other things, they would be required to work each and every Saturday and that, in
return for working on Saturdays, the CSRs would be given a day off during the week. Petitioner was present during this meeting.
At the mandatory meeting, Ms. Bessent also informed the CSRs that, if any one of them had a problem with working on Saturdays, he or she could seek a vacant position at and transfer to another branch office that was not as busy. She further informed the CSRs that, if any of them wanted a transfer, they had the responsibility of applying for the position and requesting the transfer.
As branch manager, Ms. Bessent was responsible for preparing the work schedule for all employees. She prepared the work schedule between the tenth and the 15th of each month. Before making the change in the work schedule, reflecting CSRs working all Saturdays, she waited 30 to 45 days before implementing the change.
Petitioner had a problem with coming to work each Saturday. She had a child and had problems getting a babysitter each and every Saturday.
At all times material hereto, Petitioner had two supervisors, Namrata Gupta and Richard Danca,2 who were assistant branch managers at the Branch Office. The undersigned finds Petitioner's testimony credible that, after the mandatory meeting, she informed a supervisor as to her problem with
reporting to work on Saturdays. Petitioner did not inform
Ms. Gupta as to the problem with reporting to work on Saturdays. However, an inference is made that she informed Mr. Danca. Even though Petitioner had a problem with coming to work on Saturdays, the responsibility was still upon Petitioner to apply for a position at a branch not as busy and to seek a transfer.
At no time did Petitioner apply for a position at another branch or seek a transfer.
One CSR, Wendy Morgan, expressed difficulty with working on Saturdays and actively sought a position at another branch office. She was eventually transferred. Prior to her transfer, Ms. Morgan had no unexcused absences.
Ms. Bessent made the work schedule available one month in advance. This advance notice provided employees an opportunity to make appropriate arrangements to accommodate the work schedule. Any employee who was not able to work on a particular Saturday in a month was required to notify
Ms. Bessent in writing no later than the tenth day of the prior month.
Shortly after the new Saturday schedule was implemented, Petitioner failed to report to work on three Saturdays, for which she was scheduled to work, in less than one month. Those Saturdays were March 31, 1995 and April 15 and 29, 1995. She was unable to obtain the services of a babysitter on
those Saturdays. Petitioner did not notify Ms. Bessent in advance of her inability to work on those Saturdays.
If an employee, including a CSR, at the Branch Office was going to be absent from work, the employee was required to contact his/her supervisor.
Petitioner maintains that she contacted her supervisor or “somebody” on the day of the absences in March and April 1995 and informed the person that she was not reporting to work.
Even though Petitioner called the Branch Office on the day of her absences, she was unsure as to whether she spoke with one of her supervisors, which was the required procedure. The undersigned finds Petitioner’s testimony credible, and the testimony of Ms. Gupta credible that Petitioner did not contact her regarding the absences. An inference is made that Petitioner spoke with "somebody" who was not one of her supervisors.
Petitioner's absence on the aforementioned Saturdays placed a hardship on the Branch Office. The assistant branch managers and the remaining CSRs were forced to cover Petitioner’s position and their own positions and to accommodate the customers.
Branch managers had the authority to discipline employees for excessive absences. In making such a determination, the branch managers looked for a pattern of
absences, focusing on how the absences impacted a branch office and customer service. The decision was made that Petitioner’s absences were excessive and to verbally counsel Petitioner regarding her absences.
On May 11, 1995, the assistant branch managers verbally counseled Petitioner about her excessive absences. The branch managers questioned Petitioner at the counseling session as to whether she had an explanation for her absences. Petitioner failed to provide an explanation.
After only two days following the verbal counseling, Petitioner again failed to report to work on Saturday, May 13, 1995. Petitioner called the Branch Office on the same day and indicated that she was not reporting to work. The undersigned again finds Petitioner's testimony credible that, when she called, she spoke with her supervisor or somebody. However, Petitioner did not speak to Ms. Gupta.
The absence on May 13, 1995, was Petitioner's fourth absence. The decision was made by Petitioner's supervisors to give her a written warning and place her on a 90-day probation.
On May 26, 1995, in a document entitled "Formal Performance Documentation" (FPD), Petitioner's supervisors gave her the written warning and placed her on the probation. In the FPD, the supervisors stated, among other things, that "Improvement is expected immediately" and that "any further
incidents involving absences may result in further disciplinary action up to and including termination".
Petitioner's supervisors discussed the FPD with her.
Petitioner was informed that she could make any comments that she desired to make. The FPD contained a section for Petitioner to make comments, but she did not make any comments on it.
Petitioner also refused to sign the FPD.
After having been counseled, given a written warning, and placed on probation, Petitioner again failed to report to work. Petitioner was absent on June 16 and 17, 1995. Petitioner admits that she was absent on June 17th but does not recall being absent on June 16th. The undersigned again finds Petitioner's testimony credible that she called the Branch Office on the day of the absence acknowledged by her, and spoke with her supervisor or "somebody." Petitioner did not speak to Ms. Gupta, and an inference is made that Petitioner spoke with "somebody" who was not one of her supervisors.
Petitioner violated the terms of her probation. Even if Petitioner was absent only on June 17th, she violated her probation.
After the June absences, Petitioner's supervisors discussed the absences with Ms. Bessent. They decided that Petitioner exhibited a pattern of absences in March through June
1995, which constituted excessive absences. They further decided that Petitioner should be terminated.
On June 21, 1995, Petitioner's supervisors terminated her employment with Respondent for excessive absences. The termination was memorialized in a document entitled "Termination of Employment and Exit Interview" (TEEI). In addition to the TEEI, Petitioner was verbally informed of the reason for her termination. The TEEI contained a section for Petitioner to make comments, but she did not write any comments. Further, Petitioner refused to sign the TEEI.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Section 120.569, Florida Statutes, and Subsection 120.57(1), Florida Statutes.
Section 760.10, Florida Statutes, provides in pertinent part:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
A three-step burden and order of presentation of proof have been established for unlawful employment practices. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 688 (1973); Aramburu v. The Boeing Company,
112 F.3d 1398, 1403 (10th Cir. 1999). The initial burden is upon Petitioner to establish a prima facie case of discrimination. McDonnell Douglas, at 802; Aramburu, at 1403. Once Petitioner establishes a prima facie case, a presumption of
unlawful discrimination is created. McDonnell Douglas, at 802; Aramburu, at 1403. The burden shifts then to Respondent to show a legitimate, nondiscriminatory reason for its action. McDonnell Douglas, at 802; Aramburu, at 1403. If Respondent carries this
burden, Petitioner must then prove by a preponderance of the evidence that the reason offered by Respondent is not its true reason, but only a pretext for discrimination. McDonnell Douglas, at 804; Aramburu, at 1403.
However, at all times, the ultimate burden of persuasion that Respondent intentionally discriminated against Petitioner remains with Petitioner. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L. Ed. 2d 207 (1981).
Petitioner establishes a prima facie case of discrimination by showing: (1) that she belongs to a protected group; (2) that she was subjected to an adverse employment action; and (3) that her employer treated similarly situated employees outside the protected group differently or more favorably. McDonnell Douglas, supra; Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997); Aramburu, supra.
Applying the prima facie standards, Petitioner has failed to establish a prima facie case of discrimination based on national origin. Although Petitioner satisfied the first two prongs of the test, she failed to present any evidence that Respondent treated similarly situated employees outside the protected group differently or more favorably, which is the third prong of the test.
All CSRs were required to work on Saturdays. All CSRs were informed that, if a CSR could not work on Saturdays, the responsibility was the CSR’s to seek a position at a branch office that was not as busy on Saturdays and to seek a transfer. Petitioner could not work on every Saturday, as required, but failed to seek a position at another branch office and to seek a transfer. One other CSR, Wendy Morgan, could not work on Saturdays. Ms. Morgan sought a position at another branch
office and sought a transfer. Ms. Morgan obtained a position at another branch office and a transfer.
Assuming that Petitioner had established a prima facie case, Respondent has demonstrated a legitimate, nondiscriminatory reason for its employment action of terminating Petitioner. Petitioner called-in on the day that she was going to be absent and talked with "somebody”; she failed to talk with and inform one of her supervisors when she called-in that she was not reporting to work. Respondent gave Petitioner repeated warnings and placed her on probation, informing her that continued absence would lead to further disciplinary action including termination; however, Petitioner continued to be absent. Petitioner’s absences disrupted Respondent’s business. Respondent terminated Petitioner for excessive absenteeism. Excessive absenteeism is a legitimate, nondiscriminatory reason for terminating employees. Aramburu, at 1403.
Further, Petitioner has failed to demonstrate that Respondent's reason for terminating her was not the true reason, but a pretext for discrimination.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Chiara T. Spradlin against Washington Mutual Bank, f/k/a Great Western.
DONE AND ENTERED this 22nd day of March, 2001, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2001.
1/ Petitioner filed a document, purporting to be a work schedule, with her post-hearing submission. She neither sought permission nor was permitted to late-file an exhibit. As a result, the work schedule was not considered in the preparation of this Recommended Order.
2/ Mr. Danca did not testify at the hearing. Only the testimony of Ms. Gupta was presented.
Chiara T. Spradlin 5802 Mango Road
Sharon A. Lisitzky, Esquire Mark R. Cheskin, Esquire Morgan, Lewis & Bockius, LLP
Azizi M. Coleman, Clerk
Dana A. Baird, General Counsel Florida Commission on Human Relations
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.
