STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A hearing was held pursuant to notice, on June 23, 2008, in Gainesville, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Rong Ran, pro se

1604 Southwest 40th Terrace Apartment E

Gainesville, Florida 32607

For Respondent: Jeffrey H. Traynam, Esquire

Infinite Energy, Inc.

7001 Southwest 24th Avenue Orlando, Florida 32607

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 9, 2007.

PRELIMINARY STATEMENT

On November 9, 2007, Petitioner, Rong Ran, filed an Employment Charge of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that Respondent, Infinite Energy, Inc., violated Section 760.10, Florida Statutes, by discriminating against her on the basis of race and national origin, which resulted in her termination.

Specifically, Petitioner alleged that she was subject to disparate treatment, was denied promotions and training, and was unlawfully discharged.

The allegations were investigated and on April 4, 2008, FCHR issued its Determination: No Cause and Notice of Determination: No cause. A Petition for Relief was filed by Petitioner on April 22, 2008.

FCHR transmitted the case to the Division of Administrative Hearings on or about April 24, 2008. A Notice of Hearing was issued setting the case for formal hearing on June 23, 2008.

The hearing proceeded as scheduled.

On June 11, 2008, an Order on Pending Motions was issued.

On June 17, 2008, Respondent filed a Motion to Compel or, in the Alternative, Motion for Continuance. Attempts to schedule a telephone conference on the Motion prior to the hearing date were unsuccessful. At the commencement of the hearing, argument was heard on Respondent’s Motion, which was denied.

At hearing, Petitioner testified on her own behalf and presented the testimony of James Thomas. Petitioner’s Exhibits numbered 1 through 12 were admitted into evidence. Respondent presented the testimony of Corinne Clements. Respondent’s Exhibits numbered 1 through 16 were admitted into evidence.

A one-volume transcript was filed on July 9, 2008.

Respondent timely filed a Proposed Recommended Order, and Petitioner timely filed post-hearing letters, which have been considered in the preparation of this Recommended Order.1/

FINDINGS OF FACT

1. Petitioner is a Chinese-American female who was hired by Respondent on or about August 29, 2005, as a bilingual Customer Service Representative I (CSR I) in the Customer Service Department.

2. Respondent is a natural gas marketing company providing natural gas to customers in Florida, Georgia, New Jersey, and New York. The function of Respondent’s Customer Service Department is to assist its natural gas customers.

3. The Customer Service Department divides its CSR I and Customer Service Representative II (CSR II) employees into teams in the call center. The call center floor is divided into four sections each of which contain a number of work stations. Each team is based in its section with a person who is “team leader.” In each area, the team leader has a supervisor. Petitioner sat

   with her team in a work station closest to her team leader. Petitioner felt isolated from her co-workers in the location were she was placed because the work station next to her was vacant for a period of time.

4. Petitioner speaks English and Chinese. Because Petitioner was hired as a bilingual CSR I, her initial rate of pay was $9.75 per hour. This rate of pay was $.50 per hour higher than the starting wages of non-bilingual customer service representatives.

5. After being employed for one year, Petitioner received an Employee Performance Evaluation which rated six areas of job performance with a score range of 1 for “unsatisfactory performance” to 5 for “exceptional performance.” Petitioner received a rating average of 3.3 (a score of 3 indicates “meets expectations” and a score of 4 indicates “exceeds expectations.”) Petitioner received a 6.6 percent raise following her annual performance evaluation in August 2006.

6. In August 2007, Petitioner received another annual Employee Performance Evaluation with a rating average of 2.5 (a score of 2 indicates “marginal performance”). Petitioner received a 5 percent raise following her second employee performance rating in August 2007.

7. Petitioner thereafter received a cost of living wage increase and another bilingual wage increase. At the time she was terminated from employment in November 2007, Petitioner was receiving a rate of pay of $11.50 per hour.

8. Respondent typically imposes disciplinary action to its employees in the following sequence: a verbal warning; a first written warning; a second written warning; a final warning; termination from employment.

9. Petitioner’s personnel file reveals that in 2006, there were six instances in which Petitioner received verbal warnings followed by first written warnings, and one instance in which she received a second written warning. The categories listed on the personnel documents for which Petitioner received these disciplinary actions were tardiness, behavior/conduct, absenteeism, and adherence to schedule.

10. Petitioner’s personnel file reveals that in 2007, she received progressive discipline for failure to follow policy and procedure. That is, she received a verbal warning on April 19, 2007; a first written warning on April 25, 2007; a second written warning on May 18, 2007, and a final warning on June 17,

    2007.

    
    

11. Also in 2007, Petitioner received a verbal warning for

    
    

    absenteeism.

12. In between the time she received the verbal warning until she was terminated on November 1, 2007, Petitioner received almost 50 coaching sessions. From March of 2006 until she was terminated in November 2007, Petitioner received 105 coaching sessions. Respondent provides coaching sessions to employees so that they can improve their job performance when needed. During a coaching session, a supervisor or other person will sit with the employee during a call and, afterwards, instruct or “coach” the employee as to how their performance could be improved.

13. On November 1, 2007, Petitioner received a termination notice for failure to follow policy and procedures and performance.

14. In January 2007, Respondent sent an e-mail to employees which consisted of a job posting for the position of Quality Assurance Analyst-Bilingual. The job description for a Quality Assurance Analyst lists “Bilingual in Spanish a plus” under the category “Minimum Education, Work Experience and Qualifications.” This is a salaried position with an expected hiring range of $37,000 to $40,000 (presumably an annual salary.)

15. Petitioner did not receive an interview for this position. John Pinillos, an employee of Respondent already

    working in the quality assurance department who is fluent in English and Spanish, was hired for the position.

16. In August 2007, Petitioner applied for the position of Payment Processor. The job posting noted, “Performance, attendance, tardiness and any disciplinary actions will be reviewed as part of the initial screening process.” The expected hiring range was listed as $9.08-$9.99 (presumably per hour).

17. It is Respondent’s policy that when an employee applies for a job, the employee’s disciplinary actions are reviewed from his or her personnel file. Petitioner’s application for this position came after the final warning in June 2007, which ultimately resulted in her dismissal. Petitioner was not granted an interview for the Payment Processor position.

18. At a point in time that is not entirely clear from the record, Petitioner applied for a CSR II position. The person who was hired for the position was an employee named Jeffrey Hill. Mr. Hill had not received any disciplinary actions, and had 26 counseling sessions during the year prior to his being hired for the job.

19. Typically, an employee performing at a desirable level receives approximately 20 to 50 coaching sessions within a year.

20. When Petitioner was terminated, she was escorted out of her work area. Other persons collected her personal belongings. Petitioner felt embarrassed by this and believes that she was treated this way because of her national origin. However, at hearing, Petitioner acknowledged that she was not aware of whether other employees who were terminated were allowed to collect their own belongings.

21. It is Respondent’s policy that employees in the customer service and call centers who are being terminated are escorted from the call room to another location to have the termination meeting. At that time, the employee’s supervisor goes to the employee’s desk with a witness, gathers the employee’s personal belongings, and places them in a box. The box is taken to the location where the termination meeting is taking place.

22. There was no competent evidence presented that establishes that Petitioner’s termination, or any other employment action taken by Respondent, was based on race or national origin.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat.

24. Section 760.10(1), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race or national origin.

25. In discrimination cases alleging disparate treatment, the Petitioner generally bears the burden of proof established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).2/ Under this well established model of proof, the complainant bears the initial burden of establishing a prima facie case of discrimination. When the charging party, i.e., Petitioner, is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Id. Alexander v. Fulton

    County, Georgia, 207 F.3d 1303 (11th Cir. 2000). The employee must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. "The employee must 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." Department of Corrections v. Chandler, supra at 1186; Alexander v. Fulton County, Georgia, supra. Petitioner has not met this burden.

26. To establish a prima facie case regarding Petitioner’s allegation that Respondent failed to promote her because of her race or national origin, Petitioner must prove that: (1) she is a member of a protected class; (2) she was qualified and applied for the promotion; (3) she was rejected despite her qualifications; and (4) equally or less qualified employees who are not members of the protected class were promoted. See Alexander v. Fulton County, supra at 1339 (11th Cir. 2000); Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir. 1999); Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir. 1988).

27. Petitioner meets the first element in that she is Chinese-American. The persons who were hired in these positions were not Chinese-American, although may have been members of other minority groups. However, there is insufficient evidence in the record that she met the job qualifications for the three positions for which she applied. Moreover, in comparing her rate of pay to one of the positions for which she applied, i.e.,

    the Payment Processor position, it is questionable whether it would have indeed been a promotion.

28. Regarding the fourth element, there is little evidence in the record regarding the qualifications of the persons who were hired for the positions. There is simply insufficient evidence to establish that the persons who were hired for these positions were equally or less qualified. Where a respondent proffers a reasonable motivation for a promotional decision, it is not up to a court to question the wisdom of the employer’s reasons. Lee v. GTE Florida, Inc. 226 F.3d 1249 (11th Cir. 2000).

29. To establish a prima facie case of discrimination based on disparate treatment, Petitioner must prove that:

    (1) she is a member of a protected class; (2) she was subject to an adverse employment action; (3) her employer treated similarly situated employees, who are not members of the protected class, more favorably; and (4) she was qualified for the job or benefit at issue. See McDonnell, supra; Gillis v. Georgia Department of Corrections, 400 F.3d 883 (11th Cir. 2005).

30. Petitioner has met the first and second elements to establish a prima facie case of discrimination in that she is a member of a protected class (she is Chinese-American) and was subject to an adverse employment action, i.e., she was not promoted and was terminated.

31. However, she has not proven the third element, that her employer treated similarly situated employees who are not members of the protected class more favorably. In the months leading up to her termination, Respondent applied its progressive discipline policy. That is, she received a verbal warning, a first written warning, a second written warning, and a final warning. During this period of time, she also received more coaching session than most employees receive. She has not established that other employees who have received progressive discipline were not treated in a similar manner. See Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997).

32. Petitioner did not present competent evidence to prove the fourth component of establishing a prima facie case regarding her being qualified for the job from which she was terminated, although that does not appear to be at issue in that she was hired for the job.

33. As to Petitioner’s other allegations that she was subject to disparate treatment, i.e., being isolated in the seating arrangement and being escorted out of her work area when terminated, there is insufficient evidence to establish that these matters rise to the level of adverse employment action.

    To be actionable, the employment action must be materially adverse as viewed by a reasonable person in the circumstances, not by the employee’s subjective view. The adverse action must

    be material as “[n]ot all conduct by an employer affecting an employee constitutes adverse employment action.” Davis v. Town of Lake Park, 245 F.2d 1232, 1238 (11th Cir. 2001).

34. Applying the McDonnell analysis, Petitioner did not meet her burden of establishing a prima facie case of discriminatory treatment. Even assuming that Petitioner had demonstrated a prima facie case of discriminatory conduct, Respondent demonstrated a legitimate, non-discriminatory reason for Petitioner’s termination and not being promoted. That is, Respondent’s actions were based on its application of its progressive discipline policy and its determination of who was more qualified for the positions she sought.

35. Even if it were necessary to go to the next level of the McDonnell analysis, Petitioner did not produce any evidence that Respondent’s legitimate reasons were pretext for discrimination. Therefore, Petitioner has not met her burden of showing that a discriminatory reason more likely than not motivated the actions of Respondent toward Petitioner or by showing that the proffered reason for the employment decision is not worthy of belief.

36. In summary, Petitioner has failed to carry her burden of proof that Respondent engaged in racial or national origin discrimination toward Petitioner when it denied her promotions and terminated her. Petitioner presented no evidence that

established that race or national origin played any part in the employment actions taken by Respondent. Petitioner’s speculation and personal belief concerning the motives of Respondent are not sufficient to establish intentional discrimination. See Lizaro v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001). (“Plaintiffs have done little more than to cite to their mistreatment and ask the court to conclude it must have been related to their race. This is not sufficient.”)

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2008.

ENDNOTES

1/ Petitioner attached documents to her post-hearing letters. However, these attachments are in the nature of late-filed exhibits and, therefore, cannot be considered in formulating these findings of fact. § 120.57(1)(j), Fla. Stat.

2/ FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED:

Rong Ran

1604 Southwest 40th Terrace Apartment E

Gainesville, Florida 32607-4088

Jeffrey H. Traynam, Esquire 7001 Southwest 24th Avenue Gainesville, Florida 32607

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 08-002074

Orders for Case No: 08-002074