vs.
Respondent.
) Case No. 05-2988
Pursuant to notice, a final hearing was held in this case on October 6, 2005, in Orlando, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Timothy G. Johnson, Esquire1
The issue is whether Respondent committed an unlawful employment practice against Petitioner when her employment assignment with Respondent was terminated in November 2004.
Through a Notice of Determination dated July 13, 2005, the Florida Human Relations Commission (Commission) advised the parties of its determination that there is no reasonable cause to believe that Respondent, Cingular Wireless, LLC (Cingular), committed an unlawful employment practice against Petitioner when her employment assignment with Cingular was terminated in November 2004. On August 11, 2005, Petitioner timely filed a Petition for Relief (Petition) with the Commission.
On August 19, 2005, the Commission referred the Petition to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct a hearing on the Petition. The final hearing was scheduled for and held on October 6, 2005.
Petitioner testified in her own behalf at the hearing.
Petitioner’s Exhibits P1 through P8 were received into evidence. No testimony or evidence was presented by Cingular. The Transcript of the hearing was filed on October 13, 2005.
The parties were given 10 days from the date of the hearing to file their proposed recommended orders (PROs). Petitioner did not file a PRO. Cingular filed a PRO on October 18, 2005, which has been given due consideration.
Petitioner is a 48-year-old African-American female.
On or about September 10, 2004, Petitioner was placed with AT&T Wireless as a customer service specialist by a staffing agency, AppleOne.
Petitioner's job duties as a customer service specialist included answering phone calls from AT&T Wireless' customers about their bills and assisting them with problems that they were having with their accounts.
For the most part, Petitioner received positive feedback regarding her job performance as a customer service specialist. That feedback, which is reflected on the Advisor Evaluation Detail forms received into evidence as Exhibit P7, came from her supervisors as well as from quality assurance specialists.
Petitioner testified that she generally got along well with her co-workers,2 but that she preferred getting assistance and taking instruction from men rather than women.
After AT&T Wireless was taken over by Cingular, Petitioner and the other customer service specialists working for AT&T Wireless were required to attend a two-week training class regarding Cingular’s policies and procedures.
The training class attended by Petitioner was also attended by her supervisor, Wendy Miller. Ms. Miller is a white female.
On the first day of the class, Petitioner was having trouble logging into the computer system that was being used in the training class. Ms. Miller, who was sitting directly behind Petitioner, attempted to ask Petitioner a question about the problems that she was having and/or provide her assistance, but Petitioner simply ignored Ms. Miller. According to Petitioner, she ignored Ms. Miller because she was trying to pay attention to the teacher.
As a result of this incident, Ms. Miller sent an e-mail to AppleOne dated November 30, 2004, which stated in pertinent part:
It has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment due to insubordination. She has been coached on her attitude for which she is not receptive to and several other people have mentioned that they do not want to help her due to her not wanting to listen.
The last incident was today during our CSE class where she demonstrated insubordination and disrespect to me.
In a later e-mail, dated March 7, 2005, Ms. Miller described the incident in the training class as follows:
[Petitioner] was one of the reps not able to get into [the computer] system so I was attempting to assist her because she was
sitting directly in front of me. I attempted to ask her a question and she turned her back to me & put up her hand as to say “don’t speak to me” and she completely ignored me even as I kept speaking to her. . . . .
The descriptions of the incident in Ms. Miller’s e- mails are materially the same as Petitioner’s description of the incident in her testimony at the hearing.
On the evening of November 30, 2004, Petitioner was called by someone at AppleOne and told that her assignment with Cingular had been terminated.
Petitioner was paid by AppleOne during her entire tenure with AT&T Wireless and Cingular.
Petitioner’s salary while she was working at AT&T Wireless and Cingular remained constant at $10 per hour.
Petitioner’s entire tenure with AT&T Wireless and Cingular was approximately two months.
Petitioner testified that she did not receive any other assignments through AppleOne after her assignment with Cingular was terminated. She attributed her inability to get other assignments through AppleOne to the fact that AppleOne "sided with" Cingular, who was its client, but there is insufficient evidence to make such a finding.
In January 2005, Petitioner filed separate charges of discrimination with the Commission against AppleOne and
Cingular. According to Petitioner, she was paid $400 by AppleOne to settle her claim against that company.
Petitioner testified that she sold vacation plans and did other “odd jobs” between November 2004 and mid-February 2005 when she was hired by Sears as a home delivery specialist. Her job duties in that position include contacting customers to coordinate the delivery of appliances purchased from Sears.
Petitioner testified that her initial salary with Sears was $9 per hour and that as of the date of the hearing her salary was $10 per hour.
Petitioner testified that other customer service specialists had “problems” or “personality conflicts” with Ms. Miller, but she was unable to identify any other employee (of any race or age) who was similarly insubordinate or disrespectful towards Ms. Miller (or any other supervisor) and who received discipline less severe than termination.
Petitioner’s actions toward Ms. Miller during the training class were disrespectful, at a minimum.
Petitioner testified that Ms. Miller acted like a white supremacist, but there is no credible evidence in the record to support that claim.
Petitioner also testified that AT&T Wireless and Cingular did not have any permanent customer service specialists
that were as old as she, but there is no credible evidence in the record to support that claim.
Petitioner presented no credible evidence regarding the race, age, or other characteristics of the person who filled her position at Cingular after her assignment was terminated.
CONCLUSIONS OF LAW
DOAH has jurisdiction pursuant to Sections 120.569, 120.57(1), and 760.11(7), Florida Statutes (2004).
Section 760.10(1)(a), Florida Statutes (2004), which is part of the Florida Civil Rights Act of 1992 (Act), provides that it is an unlawful employment practice for an employer:
[t]o 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, . . . [or] age, .
. . .
The Act was patterned after Title VII of the Civil Rights Act of 1964 and, as a result, case law construing Title VII is persuasive when construing the Act. See, e.g., Florida
State University v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Brand v. Florida Power Corporation, 633 So. 2d 504,
509 (Fla. 1st DCA 1994); Department of Community Affairs v.
Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
Cingular argues in its PRO that Petitioner was an employee of AppleOne (not Cingular) and that there is
insufficient evidence of a “joint employer” relationship between AppleOne and Cingular to consider Cingular to be Petitioner’s employer for purposes of the Act. This argument is rejected.
There is sufficient evidence in the record to establish that Cingular exercised control over the manner in which Petitioner performed her duties even though she was paid by AppleOne, which is what the case law requires to establish a joint employer relationship. See, e.g., Amarnare v. Merrill, Lynch, Pierce, Fenner & Smith, 611 F. Supp. 344, 349 (D.N.Y. 1984), aff'd 770 F.2d 157 (2d Cir. 1985) (table); Neal v.
Manpower International, Inc., 2001 WL 1923127, at **7-8 (N.D. Fla. Sept. 17, 2001). See also EEOC Notice 915.002, Enforcement Guidelines: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, December 3, 1997 (cited in Beaulieu v. Northrop Grumman
Corp., 161 F. Supp. 2d 1135, 1141-42 (D. Hawaii 2000)). For
example, AppleOne’s removal of Petitioner from her assignment at Cingular was in direct response to Ms. Miller’s e-mail, which stated that “[i]t has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment” (emphasis supplied), and, as reflected in the Advisor Evaluation Detail forms, AT&T Wireless/Cingular employees directed, evaluated, and critiqued the precise manner in which Petitioner performed her job duties as a customer service specialist.
Petitioner’s discrimination claim is not based upon any direct evidence of discrimination, which is:
evidence which, if believed, would prove the existence of a fact in issue without inference or presumption. Only the most blatant remarks, whose intent could be nothing other than to discriminate . . . constitute direct evidence of discrimination. For statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged decision. Remarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination.
Bass v. Board of County Commissioners, 256 F.3d 1095, 1105 (11th Cir. 2001) (citations omitted).
As a result, Petitioner’s claim must be analyzed under the framework established by the United States Supreme Court in McDonnell Douglass Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S.
248 (1981), and reaffirmed and refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). See also Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000).
Under this framework, Petitioner has the initial burden to establish a prima facie case of unlawful discrimination. See St. Mary’s Honor Center, 509 U.S. at 506.
In order to establish a prima facie case of wrongful termination, which is the essence of Petitioner’s discrimination
claim, Petitioner must present evidence that: (1) she belongs to a group protected by the Act; (2) she was qualified for the job from which she was discharged; (3) she was discharged; and (4) her former position was filled by a person outside of her protected class or that she was disciplined differently than a similarly-situated employee outside of her protected class. See
Jones v. Lumberjack Meats, Inc., 680 F.2d 98, 101 (11th Cir. 1982); Scholz v. RDV Sports, Inc., 710 So. 2d 618, 623 (Fla. 5th DCA 1998); Cesarin v. Dillards, Inc., Order No. 03-037 (FCHR Apr. 29, 2003) (adopting the Recommended Order in DOAH Case No. 01-4805, but clarifying what must be established as the first element of the prima facie case).
If Petitioner establishes a prima facie case, the burden shifts to Cingular to produce evidence that the adverse employment action was taken for legitimate non-discriminatory reasons. See St. Mary’s Honor Center, 509 U.S. at 506-07. If Petitioner fails to establish a prima facie case, the burden never shifts to Cingular.
Once a non-discriminatory reason is offered by Cingular, the burden shifts back to Petitioner to demonstrate that the proffered reason is merely a pretext for discrimination, or stated another way, that the proffered reason is “false” or “unworthy of credence” and that the real reason
for Cingular’s decision to terminate Petitioner's assignment was her race or age. Id. at 507-08, 515-17.
The ultimate burden of persuasion remains with Petitioner throughout the case to demonstrate a discriminatory motive for the adverse employment action, id. at 508, 510-11, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that [Petitioner’s] proffered reason [of discrimination] . . . is correct." Id. at 524. In this regard, "[i]t is not enough ... to dis believe the employer; the factfinder must believe the [Petitioner’s] explanation of intentional discrimination." Id. at 519 (emphasis in original).
Applying these standards to the facts of this case, it is concluded that Petitioner failed to establish a prima facie
case. She established the first three elements, but she failed to establish that she was treated less favorably than a similarly-situated employee outside of her protected class or that her position was filled by a person outside of her protected class.
For an employee to be considered similarly-situated to Petitioner, she must be similar “in all relevant respects.” See Department of Children & Family Servs. v. Garcia, 2005 WL 2030310, at *2 (Fla. 3d DCA Aug. 24, 2005) (citing cases).
Specifically,
it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways. The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed. We require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (citations omitted).
Petitioner presented no evidence whatsoever that other customer service specialists (of any race or age) were retained after committing disrespectful or insubordinate conduct similar to that which she committed towards Ms. Miller.
Because Petitioner failed to establish a prima facie
case, the burden never shifted to Cingular to proffer a legitimate, non-discriminatory reason for its decision to terminate Petitioner’s assignment. Nevertheless, there is evidence in the record that satisfies Cingular’s burden of production on this issue. Indeed, Petitioner admitted in her testimony that she turned her back on and ignored Ms. Miller in the training class, which was the precise conduct that Ms.
Miller considered to be disrespectful and insubordinate and which resulted in the termination of Petitioner's assignment.
Even if Petitioner had established a prima facie case, she failed meet her ultimate burden of persuasion because she failed to establish that the reasons given by Cingular for her firing were “false,” “unworthy of credence,” or otherwise pretextual. Indeed, as noted above, she admitted in her testimony that she engaged in the conduct for which her assignment with Cingular was terminated.
RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Cingular.
DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida.
T. KENT WETHERELL, II Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2005.
1/ No appearance was made on behalf of Cingular at the final hearing, apparently due to a calendaring error by Mr. Johnson. See Respondent’s Motion for Continuance of Hearing (filed Oct. 6, 2005; withdrawn Oct. 13, 2005) (requesting a continuance of the final hearing “set for October 20, 2005 [sic]” because Mr. Johnson had a conflict on that date); Cingular’s PRO, at 1 n.1 (“Due to Respondent’s scheduling error, Respondent was not present for the evidentiary hearing . . . .”). Mr. Johnson’s Notice of Appearance was filed on October 6, 2005, at 11:37 a.m., which is approximately one hour after the final hearing had concluded.
2/ No weight has been given to the criticisms of Petitioner’s attitude towards her co-workers contained in Exhibits P4, P5, and P8, because the individuals who made the statements contained in those exhibits did not testify at the hearing and Petitioner had no recollection of the events described in those statements. And cf. § 120.57(1)(c), Fla. Stat. (2004) (hearsay may be used to supplement or explain other evidence but it may not be the sole basis upon which a finding of fact is made).
Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Timothy G. Johnson, Esquire
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.
