MARY L. HAKAMI,
vs.
Respondent.
) Case No. 00-3424
A formal hearing was held before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on February 26, 2001, in Orlando, Florida.
For Petitioner: Scott E. Siverson, Esquire
For Respondent: Donald C. Works, III, Esquire
Anthony J. Hall, Esquire
Whether Petitioner was wrongfully demoted from her position as a Service Technical Coordinator with Respondent because of her gender and/or perceived handicap, in violation of Subsection 760.10(1)(a), Florida Statutes.
Whether Petitioner was sexually harassed or subjected to a hostile work environment condoned by Respondent, due to her gender or perceived handicap, in violation of
Subsection 760.10(1)(a), Florida Statutes.
On or about January 8, 1998, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (hereinafter "FCHR") and the Equal Employment Opportunity Commission (hereinafter "EEOC"), alleging that Respondent discriminated against her on the basis of her sex and disability or handicap when: (1) she was denied a reasonable accommodation while in her position as a Service Technical Coordinator; (2) she was denied a staggered schedule due to the effects of her medication; (3) she was told by her manager, Douglas Gill, not to return to work until she was mentally fit; (4) she was forced to accept a demotion to mechanic and transfer to another store in an effort to alleviate harassing working conditions; (5) she was called a "dumb ass bitch" by a male mechanic; (6) she was openly reprimanded by manager Bill Kleinschmidt regarding her recommendations to accommodate a customer; and (7)She was reprimanded for tardiness by her manager, Jim Shelton, while a male, Daniel Aponte, was not reprimanded. On June 21, 2000, after investigation, the FCHR issued a determination. On
July 24, 2000, Petitioner thereafter filed a Petition for Relief with the Division of Administrative Hearings. In her Petition for Relief, Petitioner again alleges that Respondent discriminated against her on the basis of her sex and disability or handicap. This matter was referred to the Division of Administrative Hearings on August 14, 2000, and was set for hearing. Following continuances granted at the request of Petitioner, a formal hearing was held on February 26, 2001.
At the hearing, Petitioner testified in her own behalf and offered two Exhibits in evidence. Douglas Gill, Bob Parsons, and Bill Kleinschmidt testified for Respondent and two Exhibits were admitted in evidence.
A Transcript of the hearing was filed on March 19, 2001. Each party filed post-hearing submittals on April 3, 2001, and they have been given careful consideration in the preparation of this Recommended Order.
Petitioner, Mary L. Hakami (hereinafter "Petitioner"), is a resident of the State of Florida.
Respondent, Sears Roebuck and Company (hereinafter "Respondent"), is a corporation licensed to do business in Florida and is an employer under the Florida Civil Rights Act of 1992.
Petitioner was hired by Respondent in October 1989, at its Altamonte Springs auto center in the position of tire installer and worked at the Altamonte Springs location for a total of seven years. During that period she was promoted two times. Petitioner was first promoted to the position of Auto Technician and later to the position of Service Tech Coordinator.
During the relevant time period Petitioner was the only woman employed as an auto mechanic at Respondent's Altamonte Springs or at the East Colonial locations. The auto repair service industry is one that is dominated by male employees.
Douglas Gill (hereinafter "Gill") has been the Auto Center Manager for Respondent's Altamonte Springs location for six years. As such, Gill was, during the relevant time period, the Auto Center Manager for the Altamonte Springs Sears location and had responsibility for, inter alia, running the auto center, including the personnel and profitability. Gill came to know Petitioner after he started working at the Altamonte Springs location, where she was already working in the position of Auto Technician.
Bob Parsons (hereinafter "Parsons") has been the District Manager for Automotive for 12 years. Accordingly, Parsons was, during the relevant time period, the District Manager for Automotive. As the District Manager for Automotive,
Parsons is responsible for, inter alia, customer service,
business direction, profit, and sales for a geographical region which included the Altamonte Springs and East Colonial locations.
Petitioner's second promotion came after Gill decided to select her for the position of Service Tech Coordinator, which was a management position. In deciding to select Petitioner for this position, Gill conferred with Parsons. The duties and responsibilities of the Service Tech Coordinator were to take care of scheduling or payroll in the back shop, customer flow and profitability, take care of equipment in the back shop and order supplies.
During her employment as a Service Tech Coordinator at Respondent's Altamonte Springs Auto Center, Petitioner sought advancement to the position of assistant manager, which would have been an opportunity for promotion. Petitioner specifically inquired about the position with her supervisor, Gill, on at least two occasions. Each time Petitioner was told that the position had already been filled. When the assistant manager's position came open in early 1996 for a second time, a male applicant was given the position.
Respondent routinely made use of an informal, word-of- mouth system regarding both notification of the availability of an assistant manager's position as well as the actual placement
of applicants into the position. Respondent's auto center manager and the district manager for the auto center were aware and participated in the perpetuation of an informal, word-of- mouth system regarding notification of job openings and advance opportunities.
There were two assistant manager positions that came open during the time Petitioner was employed at the Altamonte Springs location. The first position was given to J. R. Bunch. Gill spoke with Petitioner about the position, and Petitioner indicated that she was not interested and Petitioner recognized that Bunch was a well qualified candidate. The second position went to Dennis Lacey, who had been a salesman in the auto center for approximately 15 years, and was good with customers.
As the Service Tech Coordinator, Petitioner had problems with the payroll in the back shop, as well as with some customer service issues where she would essentially become defensive with customer complaints. Petitioner scheduled more technicians to work at times when they were not needed to do business on a given day. In other words, the number of hours scheduled for the technicians was based on a certain percentage of the money collected, and Petitioner was always over the percentage. This had the effect of making the auto center less profitable.
Parsons met with Gill and informed him that he had to get the payroll situation under control. As a result of Parson's mandate, Gill met with Petitioner in January 1997 to discuss the fact that she had again over-scheduled more technicians than were needed.
On or about January 9, 1997, Gill called Petitioner into his office to discuss her job performance. When Gill began to address his concern, Petitioner became very defensive and started yelling and screaming. She walked out and went upstairs into the training room. Gill went into the training room and observed Petitioner using the telephone. He told Petitioner that he needed to see her after she finished with the telephone. She ignored him, and when she finished her telephone conversation, she walked downstairs and exited the building.
A few minutes later, Petitioner came into Gill's office and said she had been upstairs talking to her psychiatrist and she had to leave work and go talk to her psychiatrist. Gill then informed Petitioner that that was fine, but he needed a note from the doctor indicating that she was fit to return to work. Petitioner then left the job.
This was the first time Gill knew anything about Petitioner being under the care of a doctor for any reason.
Petitioner never worked at the Altamonte Springs auto center again. Shortly after the meeting in January 1997,
Petitioner went to Parsons and asked if she could transfer to a different auto center and take a demotion to the technician position. Petitioner told Parsons that she wanted a transfer and demotion because her doctor had told her that because of the pressure of the job of Service Tech Coordinator, it would be best for her. At that time, Petitioner did not hand Parsons a note or anything else that indicated she was suffering from anxiety, nor did she inform Parsons that she believed she was suffering from any harassment from Gill or anyone else.
Parsons told Petitioner that he would check the stores in the area and see if there was a position available. Parsons then contacted Gill and asked him if he had a problem with Petitioner transferring. Gill did not object to the transfer, and Gill had no further involvement with Petitioner's employment. When Parsons approached Gill regarding Petitioner's request was the first time Gill had any knowledge that Petitioner wanted to transfer. Gill did not force Petitioner to seek a transfer.
At no point during her employment with Respondent, did Petitioner complain to Gill that she felt she was being discriminated against or treated differently because of her gender. At no point during her employment with Respondent, did Petitioner ever complain to Gill that she felt she was being discriminated against or being treated differently because of an
alleged disability. While Petitioner was under the supervision of Gill, he was never aware of any permanent disability that Petitioner may have had. While Petitioner was under the supervision of Gill, she never made a request for an accommodation from him because of an alleged disability.
Petitioner never complained to Gill that she was being harassed. Petitioner never complained to Gill that she believed she was denied a promotion to the assistant manager's position because of her gender.
Although Petitioner was aware of Respondent's toll- free telephone hotline number where employees could call and complain about their employment, Petitioner never called to complain about any treatment she received from Gill.
Gill did not make disparaging comments about women or women in the workplace. It was not credible that Gill suggested to Petitioner that she should cut her hair, wear makeup, and wear Dockers pants in order to look more professional. Service Tech Coordinators, including Petitioner, wore uniforms.
Gill's employment decisions with respect to Petitioner, were not based upon or influenced by her gender or any alleged disability.
In regard to Petitioner's request for transfer and demotion, Parsons spoke with Bill Kleinschmidt, the Auto Center Manager for the Colonial location, to ask if he had room for a
technician. Kleinschmidt informed Parsons that he had no problem with Petitioner's transferring to his location because she has a reputation as an excellent technician. Parsons then processed Petitioner's request for demotion and transfer to the Colonial location. Petitioner's pay remained the same following her voluntary demotion. Petitioner was not forced to take a demotion or transfer.
Parsons never had any conversations with Petitioner regarding her seeking an assistant manager position. At no point during her employment with Respondent, did Petitioner complain to Parsons that she felt she was being denied promotion, discriminated against, or treated differently because of her gender or her alleged disability. Parsons was never aware of any alleged permanent disability Petitioner may have had or of any request for an accommodation by Petitioner because of an alleged disability, nor did Petitioner complain to Parsons that she was being harassed.
After Petitioner transferred to the Colonial location, Kleinshmidt became concerned about her tardiness and absences. He had discussions with Petitioner regarding these issues, and she indicated that she would take care of them. However, the problem was not corrected, and Kleinschmidt issued Petitioner a written Memorandum of Deficiency regarding her problem with attendance. Petitioner assured him that she would correct the
problem. Petitioner did not indicate that she was having any sort of difficulty or that her attendance problems were a result of any medication she was taking. Petitioner did not complain that she was being singled out because of her gender with respect to the Memorandum of Deficiency she received. Daniel Aponte, who was a technician at the Colonial location and also had attendance problems, was terminated because of his attendance problems.
At the time Kleinschmidt issued Petitioner the Memorandum of Deficiency, he was not aware of any illness Petitioner may have suffered from, nor was he aware of any alleged disability Petitioner may have had. Petitioner did not indicate that she needed an accommodation with respect to her schedule because of any illness or disability.
On or about September 23, 1997, Petitioner made a recommendation to a customer that Respondent needed to replace four tires because of an alignment that was not properly done. Kleinschmidt reviewed the situation and determined that only two tires should be replaced by Respondent because the other two were not affected by the alignment problem. Petitioner was offended that Kleinschmidt reversed a decision she had made. Kleinschmidt has had to correct other male technicians' recommendations to customers. He did not single out Petitioner by correcting her recommendation to the customer. Petitioner
was never disciplined for this incident, and no employment decisions regarding Petitioner were made because of her gender.
At this time during her employment with Respondent, Petitioner never complained to Kleinshmidt that she felt she was being discriminated against or treated differently because of her gender or because of an alleged disability. Kleinschmidt was not aware of any alleged disability Petitioner may have had and was not aware of any request for an accommodation by Petitioner because of any alleged disability.
Petitioner never complained to Kleinschmidt that she was being harassed or that a fellow technician, Wes Shaner, referred to her as a "dumb ass bitch." Petitioner did not complain to Kleinschmidt that Wes Shaner was harassing her at work.
Petitioner did not discuss her "disability" or that she was having "psychological" problems with her supervisors. Petitioner was not regarded by her supervisors as having a physical or mental impairment while employed by Respondent. Petitioner was not proven to be a disabled person, nor was she perceived to be disabled by her employer.
The evidence failed to prove that Respondent's employment decisions toward Petitioner were based upon or influenced by her gender or alleged disability.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this proceeding, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner contends that she was unlawfully demoted, not promoted, and subjected to a hostile work environment by Respondent because it discriminated against her due to her gender and handicap. Petitioner relies on the Florida Civil Rights Act of 1992 (FCRA), Section 760.01, et seq., Florida Statutes (1997). The FCRA prohibits certain specified unlawful employment practices and provides remedies for such violations.
The Florida Civil Rights Act of 1992 provides, in pertinent part, as follows:
Purposes, Construction; Title
* * *
The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the State freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health and general welfare, and to promote the interests, rights, and privileges of individuals within the state.
The Florida Civil Rights Act of 1992 shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provision involved.
* * *
Unlawful employment practices.-
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.
* * *
Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-760.10 for an employer, . . . to:
Take or fail to take any action on the basis of . . . handicap . . . in those certain instances in which . . . absence of a particular handicap . . . is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.
The FCRA is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2. School Board of
Leon County v. Weaver, 556 So. 2d 443 ( Fla. 1st DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a
federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991).
In Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), the court analyzed the types of claims under the FCRA. In that case, the court noted as follows:
Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, . . . by showing disparate treatment, and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination; however, as to the latter, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. (citations omitted) Id. at 1189 n.2
Petitioner in this case has sought to establish a disparate treatment claim. The Chandler court delineated the
procedure for establishing a disparate treatment claim. The Court held as follows:
The United States Supreme Court set forth the procedure essential for establishing such claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792 93 S. Ct. 1817, 36 L.Ed.
2d 668 (1973), which was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct.
1089, 67 L.Ed.2d 207 (1981). Pursuant to
the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. (citations omitted). Id. at 1185-86.
In order to establish a prima facie case of disparate treatment sex discrimination under the FCRA, Petitioner must show that: (1) she is a member of a protected class; (2) she was subject to adverse employment action; (3) her employer treated similarly situated male employees more favorably; and
she was qualified to do the job. See Maniccia v. Brown, 171
F.3d 1364, 1368 (11th Cir. 1999).
In order to establish a prima facie case of employment discrimination based on her handicap under the FCRA, like the Americans with Disabilities Act (ADA), Petitioner must demonstrate that: (1) she is disabled; (2) she is an otherwise qualified individual, with or without accommodation; (3) she was subject to unlawful discrimination because of her disability; and (4) her employer knew or had reason to know of her disability. Hilburn v. Murata Electronics North America, Inc.,
181 F.3d 1220 (11th Cir. 1999); Hammon v. DHL Airways, Inc., 165 F.3d 441 (6th Cir. 1999). The FCHR has adopted these federal standards. See, e.g., Hunter v. Winn-Dixie Stores, FCHR Case
No. 82-0799 (February 23, 1983).
In this case, Petitioner has met her initial burden of disparate treatment sex discrimination. However, Respondent has articulated legitimate, non-discriminatory reasons for its employment actions, and Petitioner has failed to establish sufficient evidence that Respondent's assertive justification is false or that its employment actions are a pretext for intentional discrimination. Reeves v. Sanderson Plumbing
Products, Inc., __U.S. , 120 S. Ct. 2097, 2108 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 510 (1993).
In regard to the allegations of handicap discrimination, Petitioner has the burden of presenting evidence sufficient to establish that her handicap (psychological stress) was a determining factor in the employment decision made to demote her. See U.S. Postal Service Board of Governors v.
Aikens, 460 U.S. 711, 715 (1983). In other words, Petitioner must prove that what motivated Respondent to demote her was her mental condition or Respondent's perception of her mental condition.
Under the FCRA and the ADA, a person is considered to have a disability if he or she: (1) has a physical or mental impairment which substantially limits one or more of major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment. An person is deemed to be "disabled" if he or she satisfies any one o these three enumerated definitions. A physical impairment, standing alone, however, is not necessarily a disability as contemplated by the law. It requires that the impairment substantially limit one or more of the person's major life activities. Gordon v. E. L. Hamm and Associates, 100 F.3d 907, 911 (11th Cir. 1996).
Petitioner at all times relevant to this action, has failed to prove that she is considered to have a disability, and that she is a handicapped person within the meaning of the FCRA or the ADA.
Petitioner produced no credible evidence that any supervisor or other employee of Respondent made the decision to demote her based upon a handicap, either perceived or real.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice.
DONE AND ENTERED this 26th day of April, 2001, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2001.
Azizi M. Coleman, Clerk
Donald C. Works, III, Esquire Anthony J. Hall, Esquire
Scott E. Siverson, Esquire
Dana A. Baird, General Counsel Department of Management Services 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.
