STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELYN BROWN,

Petitioner,

vs. NUVOX,

Respondent.

)

)

)

)

) Case No. 10-2592

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 25, 2010, in Orlando, Florida, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street Orlando, Florida 32803

For Respondent: Gail Ellen Farb, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

100 North Tampa Street, Suite 3600 Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner on the basis of her gender, age, and race as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes.

PRELIMINARY STATEMENT

On November 23, 2009, Petitioner, Jacqueline Brown, filed a Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations (FCHR), alleging that Respondent, NuVox1 (Respondent), discriminated against her pursuant to Chapter 760 of the Florida Civil Rights Act,

Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act.

On April 30, 2010, FCHR issued a Notice of Determination: No Cause, regarding her claim. The Petition for Relief alleging "disparate treatment in the terms and conditions of her employment" was timely filed with FCHR. On May 13, 2010, FCHR referred the matter to the Division of Administrative Hearings (DOAH) for assignment of an Administrative Law Judge to conduct a hearing on the allegations of employment discrimination made by Petitioner.

On the following day, May 13, 2010, an Initial Order was sent to both parties requesting, inter alia, mutually convenient dates for a final hearing. Based on the response of the parties, a final hearing was scheduled on July 21, 2010.

2010.

On July 2, 2010, the case was rescheduled to August 25,

The hearing was held on August 25, 2010, as rescheduled.

Petitioner, Jacquelyn Brown, testified on her own behalf.

Respondent presented three witnesses: Brenda Saez, Arleen Couvertier, and Katylyn Weems. The 36 exhibits were entered into evidence and marked as follows: Joint Exhibits 1 through 20, Respondent's Exhibits 21 through 35, and

Petitioner's Exhibit 36.

The Transcript of the hearing was filed with DOAH on September 9, 2010. On September 30, 2010, an Order Granting Enlargement of Time was entered extending the time for filing proposed recommended orders to October 14, 2010. Both parties timely submitted Proposed Recommended Orders.

All statutory references are to Florida Statutes (2009), unless otherwise noted.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence:

1. Petitioner is a 49-year-old, African-American female.

   
   

   Petitioner was hired as a customer service representative at Respondent's Maitland, Florida, location on June 3, 2002.

   Petitioner received a copy of NuVox’ Employee Handbook, which addressed Respondent's anti-discrimination policies, as well as its policies regarding employee conduct, attendance, paid time off, and termination.

   
   

2. Respondent provides voice and data communications services to businesses.

3. On or about August 24, 2009, Petitioner was discharged from her employment with Respondent.

4. Arleen Couvertier was Petitioner's supervisor between January 30, 2009, and May 2009. On February 20, 2009, Petitioner received a verbal warning for violating a policy regarding breaks, when she left for a break during a team meeting. Petitioner was informed that failure to comply with the expectations stated in the warning could result in further disciplinary action up to, and including, immediate termination.

5. On April 8, 2009, Petitioner asked to have May 13, 2009, off as she had been subpoenaed to be in court. Petitioner was advised that she would not have enough paid time off to cover an absence on May 13, 2009, as she had already been approved for a three-day vacation at the end of May into early June, which would put her time off balance at an unacceptable negative 15 hours. Respondent suggested that Petitioner reduce her planned vacation by one day in May so the requested May 13, 2009, time off could be approved. Petitioner was reminded that if she kept her vacation hours, the May 13, 2009, court day would be an unplanned absence, which would result in an unpaid occurrence in accordance with Respondent's policies. Petitioner did not rearrange her vacation schedule and took May 13, 2009,

   
   

   off as an unapproved, unpaid absence, thus, earning an attendance occurrence.

6. On May 11, 2009, Katylyn Weems became Petitioner’s supervisor.

7. In May and June, Petitioner did not meet her performance goals. Petitioner's supervisor reviewed her performance statistics with Petitioner and suggested ways that she could improve.

8. On July 30, 2009, Petitioner received a verbal warning from Ms. Weems, which was witnessed by her former supervisor, Ms. Couvertier, for an attitude problem that was borderline insubordinate, because Petitioner failed to acknowledge or respond to three different managers’ in-person, email, and instant message communications on July 29, 2009. Ms. Couvertier felt that Petitioner’s body language, her failure to answer a question asked from three feet away, and subsequent failure to turn away from her computer to answer the same question asked by Ms. Couvertier directly to Petitioner, was insubordination.

9. On August 6, 2009, Petitioner was placed on a Final Written Warning for poor performance. In addition to her low work quality scores in May (45 percent) and June (54 percent), Petitioner scored equally as low in July (49 percent), compared to her goal of 85 percent through August. Petitioner was informed that she had to show significant performance

   
   

   improvement in 11 specific areas, including, but not limited to, continue to be on time at the start of the shift. Petitioner was told that she was expected to show immediate and sustained improvement in her performance and that failure to comply with the expectations in the final warning could result in further disciplinary action up to, and including, immediate termination.

10. On August 10, 2009, Petitioner asked her supervisor to allow her to take Thursday, August 20, 2009, off from work.

    Ms. Weems denied her request, explaining that she had previously approved Petitioner’s request to take off Monday, August 24, 2009, and Wednesday, August 26, 2009, which was going to create a negative 13-hour balance and, therefore, she could not approve any greater negative time off balance.

11. On August 20, 2009, Petitioner left a message for Ms. Weems that she would not be in that day because she had an

    appointment, which was later repeated by email. Petitioner did not appear for work on August 20, 2009. Ms. Weems sent an email to Petitioner informing her that she had earned a third unpaid occurrence for her August 20, 2009, absence without paid time off available, along with information about her two other occurrences. Ms. Weems also informed Petitioner that her day off on August 24, 2009, was no longer approved due to her lack of paid time off.

    
    

12. On Friday, August 21, 2009, Petitioner called in to say she would not be in to work. Ms. Weems verbally informed Petitioner on the telephone that because she had taken unapproved time off on August 20 and 21, 2009, the approvals for time off on August 24 and 26, 2009, had both been rescinded and the days off would have to be rescheduled as she had no more available paid time off. Knowing that Petitioner had been subpoenaed to appear in court on August 26, 2009, Ms. Weems suggested that she try to come in on August 21, 2009, even arriving late, so that she would still have a paid time off day available to use on August 26, 2009. Petitioner said, “okay” before she ended the call, but did not come in to work at all on August 21, 2009.

13. On August 24, 2009, Ms. Weems reminded Petitioner that her absence on August 20, 2009, was unapproved and that Petitioner had taken that day off anyway, as well as August 21, 2009. Ms Weems further reminded Petitioner that the August 20 and 21, 2009, absences had caused the approvals for time off on August 24 and 26, 2009, to be rescinded as Petitioner had no paid time off and could not have a further exception. In response, Petitioner emailed Ms. Weems, "I understand[,] but I will not be here on the 26th[.] I will be in court."

14. As a result, on the same day, Petitioner was terminated due to insubordination related to her attendance and

    
    

    poor performance. The "insubordination" is related to Petitioner taking both August 20 and 21, 2009, off when she was told that she could not have August 20, 2009, as paid time off.

15. Respondent presented evidence that credibly supports its assertion that its attendance policy was applied equitably without consideration of race, sex, or age.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat.

17. Subsection 760.10(1), Florida Statutes, in relevant part, makes it an unlawful employment practice for Respondent to discriminate against Petitioner because of Petitioner's race, sex or age. Chapter 760, Florida Statutes, entitled the Florida Civil Rights Act, adopts the legal principles and judicial precedent set forth under Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000, et seq.; King v. Auto, Truck, Indus. Parts and Supply, Inc., 21 F. Supp. 2d 1370 (N.D. Fla. 1998); Carlson v. WPLG/TV-10, Post-Newsweek Stations of Florida, 956 F. Supp. 994 (S.D. Fla. 1996).

18. The United States Supreme Court has established an analytical framework within which courts should examine claims of discrimination, including claims of race, sex, and age discrimination. In cases alleging discriminatory treatment,

    
    

    Petitioner has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Combs v. Plantation Patterns, 106 F.3d 1519 (11th

    Cir. 1997).

    
    

19. Petitioner can establish a prima facie case of discrimination in one of three ways: (1) by producing direct evidence of discriminatory intent; (2) by circumstantial evidence under the framework set forth in McDonnell Douglas

    Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 668

    
    

    (1973); or (3) by establishing statistical proof of a pattern of discriminatory conduct. Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1989). If Petitioner cannot establish all of the elements necessary to prove a prima facie case, Respondent is entitled to entry of judgment in its favor. Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990).

20. To establish a prima facie case of discrimination, Petitioner must show: that she is a member of a protected class; that she suffered an adverse employment action; that she received disparate treatment from other similarly-situated individuals in a non-protected class; and that there is sufficient evidence of bias to infer a causal connection between her race, sex and age and the disparate treatment. Andrade v. Morse Operations, Inc., 946 F. Supp. 979 (M.D. Fla. 1996).

    
    

21. Petitioner made a prima facie showing that due to her race, sex, and age, she is a member of a protected class and that she suffered an adverse employment action--she was discharged. However, Petitioner failed to make a prima facie showing that she received dissimilar treatment from individuals in a non-protected class or that there was any bias against Petitioner. Even if evidence of bias did exist, it was insufficient to infer a causal connection between Petitioner's race, sex, and age and the alleged disparate treatment.

22. If Petitioner had satisfied her burden of establishing a prima facie case of discrimination, an inference would have arisen that the adverse employment action was motivated by a discriminatory intent. Texas Department of Community Affairs v.

    Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green,

    
    

    411 U.S. 792 (1973). The burden would have then shifted to Respondent to articulate a legitimate, non-discriminatory reason for its action. Id.

23. Respondent articulated a legitimate,

    
    

    non-discriminatory reason for its action. Petitioner was insubordinate when she refused to comply after warning, on August 20 and 21, 2009, with the attendance policy. Petitioner also failed to meet performance expectations.

24. Once Respondent successfully articulates a non- discriminatory reason for its action, the burden shifts back to

    
    

    Petitioner to show that the proffered reason is a pretext for unlawful discrimination. Petitioner must provide sufficient evidence to allow a reasonable fact-finder to conclude that the proffered reason is not the actual motivation for the adverse employment action. Standard v. A.B.E.L. Services, Inc.,

    161 F.3d 1318 (11th Cir. 1998).

    
    

25. Petitioner may show that Respondent's articulated reason is a pretext by showing that the non-discriminatory reason should not be believed; or by showing that, in light of all the evidence, discriminatory reasons more likely motivated the decision than the proffered reason. Id. Petitioner did neither. Petitioner failed to present any evidence showing that Respondent either should not be believed or that discriminatory reasons, rather than the proffered reason, more likely motivated the adverse employment action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, NuVox, did not discriminate against Petitioner, Jacquelyn Brown, and dismissing the Petition for Relief.

DONE AND ENTERED this 15th day of December, 2010, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2010.

ENDNOTE

1/ On or about February 8, 2010, NuVox Communications, Inc., was acquired by Windstream Corporation; references in this Recommended Order to Respondent are to Windstream Corporation.

COPIES FURNISHED:

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

Jerry Girley, Esquire The Girley Law Firm

125 East Marks Street Orlando, Florida 32803

Gail Ellen Farb, Esquire Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

100 North Tampa Street, Suite 3600 Tampa, Florida 33602

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: 10-002592

Orders for Case No: 10-002592