TAMMY L. KING,
vs.
Respondent.
) Case No. 03-1576
Pursuant to notice this cause came on for formal hearing before P. Michael Ruff duly-designated Administrative Law Judge on September 16, 2003, in Pensacola, Florida. The appearances were as follows:
For Petitioner: K. Jeffrey Reynolds, Esquire
924 N. Palafox Street Pensacola, Florida 32501
For Respondent: Banks T. Smith, Esquire
The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against by being terminated, allegedly on account of her race, and in retaliation for filing a claim concerning discrimination.
This cause arose upon the filing of a charge of discrimination with the Florida Commission on Human Relations (Commission) on May 30, 2002, by the Petitioner, Tammy L. King. The charge of discrimination claims that the Petitioner was discriminated against because of her race (white) as well as for alleged retaliation concerning her filing of a claim of discrimination.
The Petitioner was terminated from her position of employment with the Respondent. In essence the Petitioner maintains that during her employment with Service Master Professional Services, Inc., the Respondent, she was discriminated against by a supervisor, Gene Janushanis, because she was white. She maintained that Mr. Janushanis threatened her and used profanity towards her, but did not threaten or use profanity towards black employees when speaking to them. She stated that he refused to allow her to discipline black employees. On June 20, 2001, she wrote a letter to the Equal Employment Opportunity Commission (EEOC) complaining about
Mr. Janushanis's treatment of her. She provided a copy of the letter to the owners of the Respondent. She relates that she was retaliated against and was fired on June 25, 2001.
The cause came on for hearing as noticed. The Petitioner presented the testimony of three witnesses, including the
Petitioner's testimony and the Petitioner's Exhibit One, which was admitted into evidence. Additionally, after the hearing, the Petitioner was allowed to submit a late exhibit, Petitioner's Composite Exhibit Two, consisting of various items of financial information and records concerning the question of lost pay and benefits and the like regarding her alleged discriminatory termination. The Petitioner's late-filed Exhibit Two is admitted into evidence.
The Respondent presented one witness and Exhibits One through Fourteen, which were admitted into evidence. Before adjournment of the hearing the parties requested the opportunity to submit proposed recommended orders upon an extended briefing schedule and Proposed Recommended Orders were timely submitted on before October 6, 2003. Those Proposed Recommended Orders have been considered in the rendition of this Recommended Order.
Tammy King, the Petitioner, became employed by the Respondent in June of 2000. She was employed as an operations manager, supervising the cleaning service work for various customer accounts as well as the people employed to perform the cleaning service work for those accounts. She was employed by the Respondent for approximately one year. The owners of the Respondent company are Linda and Daniel Coley.
On October 18, 2000, Ms. King was evaluated by her evaluator and supervisor Christopher Stettner and received an excellent evaluation, which was apparently co-extensive with the end of her probationary period.
Gene Janushanis also was in a supervisory capacity over the Petitioner. Mr. Janushanis, in his supervisory role, is the primary focus of the Peititoner's complaint of discriminatory conduct concerning his conduct and attitude toward her. The Petitioner contends, in essence, that Mr. Janushanis refused to allow the Petitioner to discipline black employees and treated her more harshly, with harassment, including cursing at her, and otherwise interfered with her performance of her job. She stated that he treated black employees, including black supervisors in similar positions to the Petitioner, more favorably, as to disciplinary or job performance issues, than he treated the Petitioner.
The Petitioner maintains that she had no problems, disciplinary or otherwise, in the performance of her job before Mr. Janushanis was hired as her supervisor and that their numerous altercations commenced shortly thereafter. However, she also developed a difficult relationship with Christopher Stettner, the supervisor who gave her the excellent evaluation at the end of her probationary period. Apparently, their relationship deteriorated soon thereafter and became quite
hostile. In fact, Mr. Stettner filed an internal complaint or grievance against the Petitioner concerning alleged harassment of him by the Petitioner. This resulted in the Respondent's scheduling additional "anti-harassment training" for the Petitioner and other employees thereafter. Thus, a hostile relationship with abrasive arguments ensued between the Petitioner and Mr. Stettner, as well as between the Petitioner and Mr. Janushanis, starting in the late part of 2000 and through the first half of the year 2001.
Cassey Clark, the Human Relations Director for Respondent, witnessed a number of "very harsh arguments" between Tammy King and office employees or supervisors Dwayne Coley, Chris Stettner, and Gene Janushanis. Both owners and employees witnessed very hostile, violent arguments between Mr. Janushanis and the Petitioner on a number of occasions, sometimes in the presence of customers of the company and generally in the presence of other employees or owners. These altercations included instances where the Petitioner refused to perform directions of her supervisor.
Additionally, a substantial number of employees had verbal altercations with the Petitioner concerning receiving credit for, and payment for, the hours they had worked. On a repetitive basis the Petitioner failed to submit correct hours for the payroll and in one case got into a verbal altercation
with an employee, Sonya Ross, chased the employee out in the parking lot, and refused to give her her last paycheck, telling her that she would mail the check to her, which was against company policy. The Petitioner exhibited a hostile, threatening attitude and conduct toward employees concerning hours worked and other aspects of her opinion of the way they were performing their jobs, as well as concerning payroll issues. Such instances occurred with at least nine employees. This hostile, threatening attitude and failure to comply with the payroll policies of the Respondent, as well as the several instances of the Petitioner failing to perform as directed by her supervisors, constituted misconduct under the regular policies of the Respondent.
These instances of misconduct occurred on a frequent basis through the first half of 2001, including an instance where an employee called to state that she had to be out for two days because her baby was sick with a high fever. The employee followed company policy and provided documentation from the physician involved concerning her need to be off from work. She then called Tammy King to say that she had to go back to the hospital with her child, and Ms. King told her that she would be terminated. The employee then called the owner, Linda Coley, to inform her of the problem because she was afraid of losing her job. Ms. Coley then spoke with Ms. King and reminded her that
it was against company policy to terminate an employee if he or she brought proper documentation from the physician or hospital, which was the case. This also was a clear violation of company policy concerning employees and supervisors.
These instances of misconduct and the very hostile verbal altercations between the Petitioner and Mr. Janushanis, her branch manager, continued until June of 2001. The Respondent counseled with both the Petitioner and Mr. Janushanis about their conduct and attitude between themselves and toward other employees. Ultimately the decision was made in mid-June 2001 to terminate the Petitioner and Mr. Janushanis as well.
On June 22, 2001, the Petitioner was terminated, as was Mr. Janushanis, on the same date. On June 20, 2001, the
Petitioner had filed a complaint with the EEOC, by letter, and informed the Respondent of that fact. The decision to terminate the Petitioner, however, had been made prior to the filing of the complaint with the EEOC.
The Petitioner has failed to establish that any actions taken by the Respondent toward her were related to her race. The supervisor complained of by the Petitioner was of the same race, white, and there is no persuasive evidence that shows any intent by the owners or management of the company to treat similarly-situated members of another race more favorably.
In fact, there was preponderant and substantial evidence of misconduct on behalf of the Petitioner which established a legitimate, nondiscriminatory reason for her termination. Although her initial performance was rated as excellent in the initial months of her employment, the Petitioner failed to continue that level of performance. In fact, her misconduct on the job, including the instances enumerated in the above findings of fact shows that the Petitioner's conduct and performance had deteriorated so that she was not properly performing the various requirements of her employment position, when viewed in the context of regularly- adopted company policy.
Upon the Respondent's becoming aware of these conduct shortcomings, and failure to properly perform in her position, as well as the improper conduct by her supervisor, the Respondent did not condone the Petitioner's level of conduct nor that of her supervisor, Mr. Janushanias. Rather, the Respondent sought to assist them in improving their conduct and performance. When these efforts were not successful, the Respondent ultimately terminated both of them.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.57(1) and 120.569, Fla. Stat.
Pursuant to Sections 760.01 through 760.11, Florida Statutes, it is unlawful for Florida employers to discriminate on the basis of race in employment decisions. The Respondent is an employer for purposes of the relevant provisions of Chapter 760, Florida Statutes, and the Petitioner is an employee. The Florida Civil Rights Act, Chapter 760, Florida Statutes, is patterned after Title VII U.S.C. (the Civil Rights Act of 1964). The First District Court of Appeal determined in School Board of Leon County v. Hargis 400 So. 2d 103, (Fla. 1st DCA 1981), that the legal principles established in the Federal Anti- Discrimination Laws, specifically Title VII, as amended, are to be accorded great deference when applying Chapter 760, Florida Statutes. See also School Board of Leon County v. Weaver, 556 So. 2d 443, 445 (Fla. 1st DCA 1990). Therefore, relying on federal court decisions construing Title VII is appropriate when construing cases arising out of Chapter 760, Florida Statutes. Harper v. Blockbuster Entertainment Corporation, 139 F.3d 1385, 1387 (11th Cir. 1998).
The Petitioner in a case such as this has the burden of establishing by a preponderance of the evidence, a prima facie case of unlawful discrimination. McDonnell Douglas Corp., v. Green, 411 U.S. 792 (1973). A prima facie case requires that the evidence be adequate to create an inference that an employment decision was based upon a discriminatory criterion.
International Brotherhood of Teamsters v. United States, 431
U.S. 324, 358 (1977). If a prima facie case is established then the employer has the burden to produce evidence articulating a legitimate, non-discriminatory reason for the employment decision at issue. McDonnell Douglas Corp., 411 U.S. at 801; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-55 (1981). The Petitioner retains the ultimate burden of persuasion and must persuade the court by demonstrating by a preponderance of evidence that he or she was the victim of intentional discrimination. Burdine, 450 U.S. at 256; St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
A Petitioner may establish a prima facie case of discriminatory termination by showing (1) he is a member of a protected class; (2) that an adverse employment action occurred;
(3) that he and a similarly-situated non-protected person received dissimilar treatment; and (4) that there is sufficient evidence to infer a causal connection between the Petitioner's race and the adverse employment action. Woodbury v. Sears
Roebuck & Co., 901 F. Supp 160, (M.D. Fla. 1995). The Petitioner established that she is white and she maintains that she has been discriminated against based upon her race because the supervisor Mr. Janushanis, refused to let her discipline black employees and, in disciplinary situations, treated black employees more favorably than he treated her. This is her
assertion in testimony and it was not supported or corroborated by any other testimony or evidence. Although she maintains that there were black employees who were treated more favorably than she, she named no such employees. She did not otherwise establish who such employees might be nor any of the facts and circumstances which would indicate that they are similarly- situated employees of a different race, that is, not of her same classification or protected status and who were treated more favorably.
Concerning the fourth element referenced above in establishing a prima facie case, the Petitioner's proof fails. She brought forward no evidence to show that there was any causal connection between her adverse employment action (termination) and her race. In fact, the supervisors with whom she had a hostile relationship were white and the primary protagonist of the Petitioner, Mr. Janushanis, is white and he was terminated on the same day the Petitioner was terminated. There is simply no evidence at all to show that she was terminated for any racially discriminatory reasons.
In order to determine whether a exemplar employee is similarly situated, it must be determined whether the employees are involved in the same or similar conduct and they must be identified. If similarly-situated employees treated more favorably than the Petitioner cannot be identified by the
Petitioner and their conduct can not be described sufficiently clearly to determine whether their conduct was the same or similar to that of the Petitioner, then the Petitioner fails to establish a prima facie case. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Even had the Petitioner demonstrated a prima facie
case, which she did not, the Respondent's burden to show that there was a legitimate, nondiscriminatory reason for the Petitioner's termination is one of the production of evidence not of preponderant proof. The Petitioner must then overcome that production with evidence that shows that the proffered reasons for the termination were pretextual and that the real reason was racial discrimination. See Robertson v. the Home Depot, 976 F. Supp 1467, 1473 (S.D. Fla. 1997). Even if an employer terminates a Petitioner for excessively harsh reasons, so long as the employer articulates a legitimate, nondiscriminatory reason for the action taken (here poor job performance, insubordination and misconduct) and so long as the reason articulated for that termination is not for discriminatory reasons encompassed by Title VII or Chapter 760, Florida Statutes, and pled by the Petitioner in its charge or in its Petition, the Petitioner cannot prevail. See Nix v. WLCY
Radio/Rahal Communications, Inc., 738 F.2d 1181, 1187 (11th Cir.
1984).
Here the preponderant evidence clearly shows that the Petitioner's conduct, attitude and performance were deteriorating markedly over the course of late 2000 and early 2001. Even though there was no persuasive evidentiary showing that the treatment the Petitioner felt she received was due to her race, by her primary protagonist, Mr. Janushanis or the Respondent, the evidence clearly shows that the hostile, argumentative attitude of both Mr. Janushanis and the Petitioner toward each other and to others was not tolerated or condoned by the Respondent. The Respondent made genuine efforts to have both employees counseled and trained further in proper management methods to avoid harassment and other hostile working circumstances, policies and conduct. When these methods of providing additional training in managing colleagues and employees failed, the company ultimately terminated both the Petitioner and Mr. Janushanis, as Ms. Linda Coley put it, "to keep the peace." This effort to improve the general atmosphere of working conditions and to avoid a hostile environment in the work place was a sufficient, legitimate, non-discriminatory reason for both employees to be terminated. Even if one might consider such a termination to be too harsh in the case of the Petitioner, so long as it was not for a discriminatory reason, the decision may stand unchallenged in this forum and under Chapter 760, Florida Statutes.
The Respondent met its burden of production to show a legitimate, nondiscriminatory reason by providing evidence that the decision to terminate the Petitioner was based on objective management criteria, after a good faith effort to train the Petitioner and her protagonist to alleviate the hostile working environment largely existing between the two of them. See
Holifield supra. at 1564. The Respondent has thus met its burden of production of evidence so as to allow a conclusion that the termination was not motivated by discriminatory animus. See Burdine, 450 U.S. at 254-55.
The Petitioner has the burden to show that the Respondent's reason was pretextual and that actual intentional discrimination occurred. The Petitioner did not meet that burden. See Arnold v. Burger Queen System, Inc., 509 So. 2d 959 (Fla. 2nd DCA 1987). Mere conclusory allegations of discrimination are insufficient. Woodbury, 901 F. Supp at 1565. The Petitioner failed to produce evidence that the Respondent was not experiencing violations of policy, improper work performance, misconduct, and improper attitude on the part of the Petitioner, which are the general reasons for the Petitioner's termination. The Petitioner did not produce persuasive evidence that could lead to a conclusion that the Respondent's evidence was unworthy of credence. The Petitioner was required to show that the proffered reasons had no basis in
fact, that the proffered reasons did not actually motivate the employment decision in question, or that they were insufficient to motivate the employment decision. See Robertson, 976 F. Supp at 1475. Thus, the Petitioner's burden to show pretext was not met.
In summary, there is simply no persuasive evidence to show that the termination of the Petitioner from her position of employment with the Respondent or any of the events or decisions leading up to it were motivated by reasons of racial discrimination. Likewise, it was not demonstrated by any persuasive evidence that the termination of the Petitioner was in retaliation for her filing a claim letter with the EEOC. The preponderant evidence of record clearly shows that the decision to terminate the Petitioner occurred prior to her making her claim to the EEOC. Consequently, no preponderant evidence supportive of the Petitioner's claim has been established.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety.
DONE AND ENTERED this 3rd day of December, 2003, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2003.
K. Jeffrey Reynolds, Esquire 924 N. Palafox Street Pensacola, Florida 32501
Banks T. Smith, Esquire Hall, Smith & Jones Post Office Box 1748 Dothan, Alabama 36302
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
