STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ELIAS MAKERE,
vs.
Petitioner,
Case No. 18-0373
ALLSTATE INSURANCE COMPANY,
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, this case was heard in Jacksonville, Florida, on July 31, 2018, before Lawrence P. Stevenson, and on November 28 through 30, 2018, and January 29, 2019, before
E. Gary Early, designated Administrative Law Judges of the Division of Administrative Hearings (“DOAH”).
APPEARANCES
For Petitioner: Elias Makere, pro se
No. 701
3709 San Pablo Road South Jacksonville, Florida 32224
For Respondent: Carmen Rodriguez, Esquire
Law Offices of Carmen Rodriguez, P.A. Suite 411
15715 South Dixie Highway Miami, Florida 33157
STATEMENT OF THE ISSUE
Whether Petitioner, Elias Makere, was subject to an unlawful employment practice by Respondent, Allstate Insurance
Company (“Respondent” or “Allstate”), on account of his race or due to retaliation for his opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
PRELIMINARY STATEMENT
On June 30, 2017, Petitioner filed an eight-page complaint of discrimination (“Complaint of Discrimination”) with the Florida Commission on Human Relations (“FCHR”) which alleged that Respondent violated section 760.10 of the Florida Civil Rights Act of 1992 (“FCRA”), by discriminating against him on the basis of his race or as retaliation.
On December 15, 2017, the FCHR issued a Determination:
No Cause, and a Notice of Determination: No Cause, by which the FCHR determined that reasonable cause did not exist to believe that an unlawful employment practice occurred.
On January 19, 2018, Petitioner filed a 231-page Petition for Relief (the “Petition”) with the FCHR. The Petition included allegations of racial discrimination for which there is no evidence of their having been presented to FCHR or having been part of the FCHR investigation. The Petition also, for the first identifiable time, alleged that Allstate, and in particular Lisa Henry, engaged in sexually provocative and inappropriate behaviors, which Petitioner alleged to be “sexual harassment and discrimination.” He alleged that “[t]he FCHR ignored these events.”
On January 19, 2018, the Petition was transmitted to DOAH to conduct a final hearing.
The hearing was scheduled and continued several times, and the parties engaged in an active and vigorous motion practice, dispositions of which are contained in the docket of this proceeding.
Petitioner has argued that he amended his Complaint of Discrimination to encompass allegations and instances of discrimination beyond those alleged in his June 30, 2017, complaint. No written evidence of any amendment was offered or received in evidence. Nonetheless, Judge Stevenson noted that the FCHR investigator referenced a number of allegations that were not included in the Complaint of Discrimination, and inferred that those allegations had been investigated. On June 6, 2018, he entered an Order on Petitioner's Motions for Official Recognition of the Investigative Memorandum from the Florida Commission on Human Relations, by which he determined that “at the final hearing Petitioner will be allowed to introduce evidence as to any matter addressed by the [FCHR] Investigative Memorandum.”
The final hearing was convened on July 31, 2018, with Judge Stevenson presiding. Respondent filed an Emergency Motion for Dismissal based on Petitioner’s previous refusal to engage in a meaningful pre-hearing exchange of exhibits, and his “refus[al]
to answer Allstate’s questions inquiring as to the contents of these exhibits” during his deposition several days before the commencement of the hearing. Judge Stevenson deferred ruling on the motion so long as Petitioner provided his exhibits to Respondent, and allowed Respondent to take Petitioner’s deposition after the hearing convened on July 31, 2018.
Petitioner’s deposition took up the entire day scheduled for the hearing. The hearing was recessed and, with input from the parties, scheduled to reconvene on November 28 through 30, 2018.
Among the numerous motions filed by Petitioner prior to the hearing being reconvened was an October 19, 2018, Motion to Recuse the Hon. Lawrence P. Stevenson, which was based on
Judge Stevenson’s denial of several requests by Petitioner to schedule a telephonic conference, which Judge Stevenson determined to be unnecessary. The motion was denied on October 22, 2018, as being legally insufficient. Petitioner
thereafter filed a Renewed Motion to Recuse the Hon. Lawrence P. Stevenson on November 8, 2018, again based on his dissatisfaction with Judge Stevenson’s rulings on various motions, including those related to his desired telephonic conference. On November 13, 2018, Judge Stevenson, though correctly finding the motion to be legally insufficient, nonetheless recused himself, whereupon the case was transferred to the undersigned.
The hearing was reconvened on November 28, 2018, with the undersigned presiding. Over the next three days, the testimony of 14 witnesses was taken. The hearing was adjourned at approximately 4:00 p.m. on Friday, November 30, 2018, with Petitioner having not yet testified. On December 12, 2018, the final hearing was scheduled to reconvene and conclude on January 29, 2019.
On January 16, 2019, Petitioner filed a Motion to Recuse the Hon. E. Gary Early. Being the successor judge in a case in which a recusal had already been requested and granted, the undersigned made findings and conclusions on Petitioner’s allegations, and denied the motion for the reasons set forth in the January 18, 2019, Order Denying Petitioner's Motion to Recuse.
On January 22, 2019, Petitioner filed a Notice of Appeal of Non-Final Orders with the Florida First District Court of Appeal. That case was designated as Case No. 1D19-0284.
On January 25, 2019, Petitioner filed a second Notice of Appeal of Non-Final Orders with the Florida First District Court of Appeal, appealing another Order with which Petitioner was dissatisfied. The cases were consolidated. Petitioner also filed a Motion to Stay Proceedings Pending Appeal, which was denied on January 28, 2019. On March 29, 2019, Case No. 1D19-
0284 was dismissed.
The final hearing reconvened as scheduled on January 29, 2019. At its commencement, Petitioner requested a ruling on his August 16, 2018, Motion for Official Recognition of Comparative Facts (Exam Progress), which had not been disposed of prior to Judge Stevenson’s recusal. The motion was denied for the reasons set forth in the January 25, 2019, Order Denying Motion for Official Recognition of the DW Simpson Salary Survey.1/
During the portion of the final hearing conducted on November 28 through 30, 2018, Petitioner presented the testimony of Janice Bradley, Philip Kite, Kazahiko Nagai, Alex Vlassov, Michael Parsons, Catrice Hathorn, Patricia Boland, David Dickson, Louis Posick, Richard Schaeffer, Scott Randles, Marilou Halim, Lisa Henry, and Ellis Manucy, all of whom were, during the relevant time periods, employees of Allstate.
During the portion of the final hearing conducted on January 29, 2019, Petitioner presented the testimony of Greg Guidos, and testified on his own behalf. Petitioner’s Exhibits E-1, E-5 through E-7, G-1, I-1, L-1 through L-3, and M-1 were received in evidence.
At the conclusion of Mr. Guidos’s testimony on January 29, 2019, Petitioner moved to have the undersigned recused. Having heard argument on the issue, and having reviewed the case of Rogers v. State, 630 So. 2d 513 (Fla. 1993), provided by
Petitioner, the undersigned denied the motion. It was
determined that Rogers dealt with an initial recusal, which is
governed only by a determination of legal sufficiency. In addition, after further review, it is noted that Rogers is
predicated on Florida Rule of Criminal Procedure 3.230(4), which is not applicable here. Moreover, Petitioner’s motion was made in violation of section 120.569(2)(a), Florida Statutes, which provides, in pertinent part, that “[a]ny party may request the disqualification of the administrative law judge by filing an affidavit with the division prior to the taking of evidence at a hearing, stating the grounds with particularity.” Therefore, the denial of the motion is reaffirmed.
Respondent presented the testimony of Mr. Nagai, Mr. Schaeffer, Ms. Henry, and Mr. Manucy. Respondent’s Exhibits 1, 3A, 3B, and 10 were received in evidence.
The evidentiary record was closed. Twenty days from the date of the filing of the Transcript was established as the time for filing post-hearing submittals. Thereafter, the hearing adjourned on January 29, 2019.
A nine-volume Transcript of the final hearing was filed with DOAH, with the final volumes having been filed on
February 25, 2019. On March 14, 2019, a joint motion requesting additional time to file post-hearing submittals to April 2, 2019, was filed. The joint motion was granted. On March 19, 2019, Petitioner filed a motion to expand the number of pages
allowed for the proposed recommended orders. The motion was granted, and the parties were allowed 80 pages for their proposed recommended orders.
On March 21, 2019, Petitioner filed a third Notice of Appeal of Non-Final Orders with the Florida First District Court of Appeal. That case was designated as Case No. 1D19-1082 and remains pending.
On April 2, 2019, Petitioner filed an “Errata Sheet” to the hearing Transcript. The Transcript constitutes part of the official record of this proceeding. Petitioner’s Errata Sheet does not. Therefore, the Errata Sheet has not been considered.
On April 2, 2019, Petitioner timely filed his Proposed Recommended Order. Respondent submitted its Proposed Recommended Order on April 2, 2019, at 5:01 p.m., which, by rule, was filed on April 3, 2019. Petitioner filed a Motion to Strike. After a determination was made that Petitioner was not prejudiced by the delay, the Motion to Strike was denied. Those post-hearing submittals of the parties have been considered in the preparation of this Recommended Order.
On April 11, 2019, Petitioner filed a second “Proposed Order.” That document has not been read or considered.
References to statutes are to Florida Statutes (2018) unless otherwise noted.
FINDINGS OF FACT
Petitioner, who was at all times relevant to this matter an employee of Respondent, is African-American.
There was no direct testimony as to the number of persons employed by Respondent. However, given the testimony describing a large institution with multiple departments, there is sufficient competent, substantial evidence to establish an inference that Respondent employs more than 15 full-time employees at any given time.
In the summer of 2013, Petitioner applied and interviewed for a position with Respondent. The interview team included Ms. Henry, Ms. Halim, and Mr. Schaeffer. Petitioner was hired over several other candidates as an Actuarial Technician, starting on November 18, 2013, and was enrolled in Allstate’s Actuarial Career Program (“ACP”).
In January 2014, Petitioner took and passed the examination to become an Associate of the Society of Actuaries (“ASA”). He was promoted to the position of Actuarial Associate.
Respondent’s actuarial department was divided into the life insurance side and the health insurance side. However, all of the employees of the actuarial department were housed on the seventh floor of Respondent’s building.
The “life” side of the actuarial department was managed by Lisa Henry, who supervised Petitioner from the time of his employment to the time of his termination. Petitioner was the only actuary in Ms. Henry’s section.
The “health” side of the actuarial department was managed by Louis Posick. There were three or four actuaries in Mr. Posick’s section.
Within the “life” and “health” sides of the department are further distinctions between product development work and valuation work. The distinctions are not important. However, Petitioner was on the product development side. Mr. Nagai and Victor Ciurte were on the valuation side.
In order to sign an actuarial opinion, one must be an actuary in good standing and a Fellow of the Society of Actuaries (“FSA”). Being an ASA is not enough.
The ACP is designed to provide support to qualified “high potential” employees to receive their FSA certification as long as the employee maintains continuous progress. Support includes allowing ASA associates paid study time for their exams, paying for examination fees, paying for preparation courses, and paying travel expenses to examination sites. The ACP Guidelines provide that “[e]xam fees are paid in advance for the first and second tries of the same exam and in arrears upon passing thereafter.”
When Petitioner began his employment, he was provided with Respondent’s ACP Guidelines (the “Guidelines”). The Guidelines contain the following provisions that are pertinent to this proceeding:
Continued Eligibility of Members: This is based on active study towards FSA, exam progress and job performance. All criteria need to be satisfied for eligibility to continue.
* * *
2. Exam Progress: A member must have passed at least one exam in the last three qualifying half-years as well as two exams within the last five qualifying half-years,
i.e. “1-in-3 and 2-in-5” rule. . . .
* * *
4. Loss of Eligibility: Upon loss of eligibility, an employee may post for another position at Allstate but ongoing employment with Allstate is not guaranteed. A reasonable amount of time as determined by the employee’s manager will be allowed for the employee to endeavor to secure a suitable opportunity within Allstate. Per company policy, employment will not be terminated for unacceptable job performance unless the employee has been advised that his/her performance is unacceptable.
In short, the Guidelines provide that failure to pass an examination in three tries is cause for termination from the ACP, without a guarantee of continued employment with Allstate.
Upon the loss of eligibility, actuarial department employees are given 30 days to secure employment with
Respondent. If no actuarial position is open, or if an employee chooses not to accept a non-actuarial position, employment is terminated.
At some point in the latter part of 2015, Petitioner was asked to work on the development of an Enhanced Group Term Life “Snap Quote” rate-quoting tool. The tool was similar to a Group Voluntary Accident Product (“GVAP”) 6 tool that Petitioner had worked on earlier during his period of employment. Petitioner worked on GVAP 6 with Ms. Bradley, an African- American woman who was hired by Ms. Halim as an actuarial product consultant in the “health” side of the actuarial department.
Although the Snap Quote tool was to be used by Allstate’s health side, Petitioner was “pulled in” from the life side due to his experience with Excel macros and technical capability to build a tool. Since the tool was a “health” side tool, Ms. Halim was in charge of managing its development. In that regard, although Petitioner did not organizationally report to Ms. Halim, she was responsible for giving directions to the development team, including Petitioner.
The Snap Quote tool was designed to be an Excel spreadsheet based rate calculating and quoting tool. Various data regarding the group members would be provided and inputted into the spreadsheet, i.e., date of birth, gender, job title,
and salary, to evaluate risk and, based thereon, a rate would be calculated.
The Snap Quote tool was considered to be a “rogue IT solution.” Generally, rate tools and other software tools would be developed and deployed by the IT department. However, if the IT department did not have the budget, and the “business side” was able to take on a project using the business side’s budget, that solution was welcomed, since the ultimate goal of both departments is to solve problems. As described by Mr. Dickson, “[t]hey have problems and [IT] couldn't pay for it, so the business wanted to create solutions.”
The fact that the business side might be developing a tool would not diminish the IT department’s responsibility to ensure that the software was secure, did not use any copyrighted open source materials, and would not compromise Allstate’s system. As further explained by Mr. Dickson, “[s]o as long as they are secure, they don't have copyright infringements, they meet the other tenets that the architects decide, then so be it. We can deploy the software.” Regardless of the section responsible for budget and development, the IT department was exclusively responsible for decisions regarding deployment.
Mr. Schaefer confirmed that Allstate’s business side, including the actuarial department, had no role in the decision
as to how the Snap Quote tool, or any software, was to be deployed and distributed within the company.
During the development of the Snap Quote tool, a reviewer from the actuarial team and a reviewer from the compliance team would test various versions to ensure that the tool functioned the way the group desired, e.g., that the rates were correct, that the benefits were displaying correctly, and things of that sort.
A primary complaint received from the reviewers was that a reviewer from one team would provide comments, and Petitioner would make changes to the tool and upload the revised version before the other team provided comments. That created confusion as to which version was under review. Ms. Halim instructed Petitioner that he was to wait for everyone to review a version before making changes so that everyone would be consistent and on the same page, an instruction that she had to repeat at least three times. Nonetheless, Petitioner continued to revise the tool before comments were received, which created confusion within the team. The problem created internal delays in getting the builds the way that the team wanted. However, the final deadline was met.
During the period in which Ms. Halim was directing Petitioner’s work-related activities, he never complained to her that he felt he was being discriminated against for racial
reasons. Ms. Halim had no involvement in Petitioner’s termination.
In order to remain in good standing in the ACP, Petitioner was required to pass one of the actuarial examinations in May 2016. He had failed the examination on two previous occasions.
Petitioner did not pass the examination, and was, therefore, no longer eligible for the ACP. In July 2016, Ms. Henry learned that Petitioner had not passed the examination.
The ACP Guidelines are clear that the failure of either the “1-in-3” rule or the “2-in-5” rule, i.e., the repeated failure of the actuarial examination requirements of the position, would result in removal from the program. However, Allstate retained the ability to place an employee in an alternative position if one were available.
Ms. Henry had only one actuarial position in her section. She needed an employee who could ultimately succeed her as an FSA actuary. She was battling health issues, and wanted someone that could take her place in her absence in case she was not there.
When Petitioner lost eligibility for advancement, the only option for continued employment in Ms. Henry’s “life” side section would be as a “career ASA,” which has no room for
advancement. Ms. Henry “did not find it worth my while based on my expectations for that role to try to create a different role because I needed someone that could be my successor and do what I do.” Since Ms. Henry did not have another position in which to place Petitioner, she chose not to fill the only actuarial position in her section with a career ASA.
Ms. Henry discussed Petitioner’s employment status with Mr. Schaeffer, and a decision was made that Petitioner would not be offered to fill the sole actuarial position as a “career ASA.”
Petitioner’s workplace behavior, performance, and her ability to manage him was a factor, which included instances of failing to meet deadlines, failing to comply with company policies, and failure to take and implement direction.
Mr. Schaeffer was blunter in his assessment, testifying that Petitioner was simply not a good employee, being unable to appropriately communicate with other employees, and not following directions regarding work projects.
On August 12, 2016, Petitioner was called to the human resource (“HR”) department offices on the first floor. He met with Ms. Henry and Mr. Manucy, and was advised that, as a result of his failure to pass on his third attempt of the FSA actuarial examination, he was no longer eligible to participate in the ACP. As a result, he was being terminated from his position as
an actuarial associate in Ms. Henry’s section. He was advised that he had 30 days of paid continuing employment, during which time he could apply for any open positions within Allstate.
The evidence suggests that there were no open actuarial positions other than that previously held by Petitioner. For legitimate reasons as explained by Ms. Henry and Mr. Schaeffer, Petitioner was not offered that position as a career ASA. There were no actuarial positions open in the “health” section, with those ASA positions being filled by
Mr. Nagai and Mr. Ciurte, who were, at the time of Petitioner’s termination, eligible and participating ACP students.
No evidence was presented as to whether there were any open non-actuarial positions available, or whether Petitioner gave any consideration to applying for a non-actuarial position. There was no evidence offered or received as to whether Petitioner actually applied for any vacant position.
Petitioner was also given the option “to hit the voluntary termination button in the HR system” to register his leaving the company as a voluntary termination instead of an involuntary termination.
Being unable to secure a different position with Allstate, Petitioner was involuntarily terminated, effective September 12, 2016.
During the termination meeting, Petitioner made no statements to suggest that he had been the subject of any form of employment discrimination.
Since Petitioner’s termination, Ms. Henry has not hired an actuary or actuarial student to fill the position. She did hire two support staff to keep up with higher-level customer service requests that could not be handled outside the department. Both were internal transfers. They perform non- actuarial work, some of which had previously been done by Petitioner, but do not perform actuarial work. Neither of the support employees are qualified as actuaries or actuarial students, nor do they need to be.
Allstate has a long-standing formal policy of prohibiting all types of discrimination and retaliation. If an employee is found to engage in discrimination or harassment against another employee, the offender is subject to discipline, including potential termination.
Allstate has mandatory annual training, known as inclusive diversity training, which is designed to instruct employees on Allstate’s policy of non-discrimination based on, among other characteristics, race and sex. The training is designed to instruct and remind Allstate employees “that we can be better by -- than the sum of our parts by leveraging the uniqueness of each individual and not making any judgments based
on race, gender, or sexual preference.” Each of the Allstate witnesses who were asked confirmed that they participated in the diversity training. Part of the training includes that “if you see someone who does participate in [discrimination],
report it.”
Most of the Allstate witnesses were asked if they had ever seen employees “marginalizing” other employees based on racial stereotypes, single out employees, or treat employees differently based on racial characteristics. Not one indicated that such would be acceptable, and not one indicated that they had ever seen such to have occurred. When asked if Allstate would want to rid its actuarial section of black actuaries “in order to preserve that esteem held for the actuarial profession,” Ms. Hathorn testified that Allstate would not, “[b]ecause if you're smart and you can do the job, I would not think that the company would allow something like that to occur.”
When asked by Petitioner whether she knew of a particularly racist stereotype, i.e. “that black men are akin to monkeys, apes, and gorillas,” Ms. Bradley testified that “I have not met anyone in our department that holds that view because then I would be uncomfortable working there. And I have never been uncomfortable working there since the day I walked in that
building.” Petitioner asked virtually all of the witnesses whether they knew of or ascribed to any of his self-described racial stereotypes. None did.
On June 30, 2017, Petitioner filed his Complaint of Discrimination with FCHR. It included five pages of allegations that Respondent violated section 760.10, by discriminating against him on the basis of his race or as retaliation. The Complaint of Discrimination contained no allegations of sexual discrimination or harassment, by Lisa Henry or any other person, and contained no allegation of sexual remarks or actions by any person that created a hostile work environment.
On August 31, 2017, Petitioner was interviewed by the FCHR investigator. During that interview, he offered to discuss “the five examples of harassment and discrimination” identified in his Complaint of Discrimination. He also indicated that “I have many more allegations that I have not supplied you guys yet.” The interview included no allegations or discussion of sexual discrimination or harassment, by Lisa Henry or any other person, and contained no allegation or discussion of sexual remarks or actions by any person that created a hostile work environment.
In November 2017, the FCHR investigator issued a six-page Investigative Memorandum (“IM”). In the IM, the investigator noted that, on September 29, 2017, she requested
additional information regarding “the last harassing incident while working for Respondent between June 29, 2016 and
August 12, 2016.” She then stated that she received information on October 13, 2017, which she went on to describe. The IM included no allegations or discussion of sexual discrimination or harassment, by Lisa Henry or any other person, and contained no allegation or discussion of sexual remarks or actions by any person that created a hostile work environment.
On December 15, 2017, the FCHR issued a Determination: No Cause, and a Notice of Determination: No Cause, by which the FCHR determined that reasonable cause did not exist to believe that an unlawful employment practice occurred.
On January 19, 2018, Petitioner filed a 231-page Petition for Relief with the FCHR. The Petition included allegations of racial discrimination for which there is no evidence of their ever having been presented to FCHR or having been part of the FCHR investigation. They include (but are by no means limited to) incidents of profanity-laced screaming, physical assaults, knife threats and rubber-band shooting, and an allegedly racially-motivated move of Allstate’s actuarial department to the eighth floor of Respondent’s building. The Petition also, for the first identifiable time, alleged that Allstate, and in particular Lisa Henry, engaged in sexually provocative and inappropriate actions which Petitioner alleged
to be “sexual harassment and discrimination.” He noted that “[t]he FCHR ignored these events.” Almost all of the allegations in the Petition involved incidents that occurred well prior to June 30, 2016, which is 365 days prior to his June 30, 2017, Complaint of Discrimination.
During his testimony at the final hearing, Petitioner stated that “I spoke with FCHR on numerous occasions between the June 30th, 2017 date where I filed it and the date that it was closed. So I discussed sexual harassment and many other events before I submitted that in November 2017.” Petitioner alleged that, on November 2, 2017, he amended his complaint with FCHR to add a number of additional allegations. The amendment was not introduced in evidence. Again, nothing was offered in evidence to substantiate the claim. The investigative report, at footnote 9, indicates that Petitioner submitted an “October 13, 2017, response to RFI.” Based on the totality of the competent substantial evidence in the record, the only inference that can be drawn is that additional incidents and allegations would have been provided no earlier that October 13, 2017.
The investigator ultimately included numerous allegations beyond those described in the Complaint of Discrimination in her investigative report. The investigative memorandum contains what can only be described as a litany of perceived abuses directed at Petitioner by Allstate employees
(and by employees of Petitioner’s prior employer), but makes no analysis or conclusions regarding those alleged events. Except for a very few, all of the incidents referenced in the investigative report occurred well prior to June 30, 2016.
In accordance with Judge Stevenson’s June 6, 2018, Order, he allowed evidence to address matters identified in the investigative memorandum. Thus, to ensure as complete a record as possible for consideration by the FCHR, findings as to as many allegations as are identifiable will be made herein.
The June 30, 2017, Complaint of Discrimination
The Complaint of Discrimination alleged five “Events.” For ease of reference, they will be discussed as Events in the order presented in the Complaint of Discrimination, i.e.,
Event 1, Event 2, etc.
Event 1 - Threat to Employment
Petitioner alleged that, at some time from July 1, 2016 to July 11, 2016, Petitioner advised Richard Schaeffer of several instances of sabotage, harassment, threats, and retaliation, to which Mr. Schaeffer allegedly responded, “[y]ou need to figure out if this is the place for you to work.” Petitioner felt that his statement was a threat to his employment for reporting racial discrimination.
Mr. Schaeffer recalled a discussion between
Mr. Schaeffer and Petitioner within a few days prior to his
termination. Mr. Schaeffer recalled suggesting that Petitioner “might consider another profession because you couldn't pass the exams for this one.” Mr. Schaeffer described the statement as “general career advice,” and based on Allstate “need[ing] actuaries who will work with other people, not people who want to work on an island all by themselves and not be bothered with other people.”
Mr. Schaeffer testified that Petitioner never made any complaint of sexual or racial discrimination to him. He stated plainly that “[w]hile you worked for me you never complained about your work being sabotaged.” He had no recollection of any discussion regarding racist dolls, complaints of racial harassment, or racial terms.
Regardless of the exact timing of the meeting, or exactly what was said, there is no competent, substantial, or persuasive evidence that Mr. Schaeffer’s statement was driven by racial animus or discrimination.
With regard to the allegation that any conversation that Petitioner had with Mr. Schaeffer was a “threat” to his employment for reporting racial discrimination, Petitioner failed to meet the burden of proof to demonstrate through competent, substantial, or persuasive evidence, that
Mr. Schaeffer’s statement was driven by racial animus or discrimination, that he reported racial or sexual
discrimination, or that any statement made by Mr. Schaeffer was a threat to his employment.
Event 1 of the Complaint of Discrimination lists four specific topics allegedly discussed with Mr. Schaeffer: “(a) Patricia Boland’s deliberate act of sabotage; (b) Kaz & Phil’s constant racial harassment; (c) David Dickson’s threats, lies, and subterfuge; (d) Lisa Henry’s retaliation.”
Despite the fact that all but the “act of sabotage” occurred well before June 30, 2016, 365 days prior to the filing of the Complaint of Discrimination, they will be discussed herein so as to provide a clear record for review by the FCHR.
Sabotaged Work by Ms. Boland
Petitioner alleged that, on June 30, 2017,2/ Ms. Boland “deliberately deformed her census data, and blamed me for the subsequent mismatched quote in an attempt to compromise my employment.”
The data regarding the group for which a term insurance plan was to be provided came to the underwriters in “census records” provided by the agents. The data consists of dates of births, genders, job titles, and salaries for each of the persons identified as being in the group. The underwriters would typically “take that information, plug it into one of the tabs of the generator [which could include the Snap Quote tool],
and from there there's some functionality that allows us to manipulate or create the quote that the group is looking for.”
Mr. Vlassov, who was a group underwriter, testified that mistakes were made, albeit infrequently, when census records were inputted and group participants were changed from male to female. Those instances were accidental “because we didn't have the sorting program in place. And of course, you had to do manual -- manual sort, A to Z, the usual sorting. And so switching within the columns. And of course, it's possible the other underwriter can forget just to -- misplace male and female.”
On June 30, 2016, a quote was developed that appeared to deviate from a prior quote for the same group. It appears that the genders of the group, eight of one gender and five of the other, were switched. Such a switch can affect the risk calculation and, therefore, the rate.
Petitioner claims that Ms. Boland deliberately changed the genders in the census data in order to sabotage his work on the Snap Quote tool. As he testified, “I was being framed for a bad calculation, knowing by someone -- by Patricia Boland I was being framed by Patricia Boland in an attempt to get me terminated or at the very least get my job compromised.”
The precise cause of the mismatched data was not definitively explained. However, the greater weight of the
evidence, and the most plausible inference that can be drawn for that evidence, supports a finding that the switched genders were the result of an error on the part of the underwriters in
Ms. Boland’s section in entering the data into the Snap Quote tool. There is not a shred of competent substantial evidence to support the assertion that Ms. Boland manipulated the data in an effort to sabotage the validity of the Snap Quote tool.
With regard to Ms. Boland’s job duties, Mr. Schaeffer indicated that she would check the accuracy of the Snap Quote tool, but had no ability to sabotage it.
Mr. Schaeffer met with Petitioner in early July 2016 to discuss work-related matters. Mr. Schaeffer testified that Petitioner did not advise him that Ms. Boland “had sabotaged his work,” or express a belief that she had, stating that, “I would remember conversations if you thought people were sabotaging your work.”
As will be discussed in the Conclusions of Law, Petitioner bears the burden of proving specific instances of discrimination by a preponderance of the evidence. With regard to the allegation that Ms. Boland sabotaged the data being inputted into the Snap Quote tool or that Ms. Boland otherwise took any action directed at Petitioner for reasons of racial bias or animus, Petitioner failed to meet the burden of proof.
Racial Harassment by Mr. Nagai and Mr. Kite
The claim of racial harassment is predicated on allegations that Mr. Nagai and Mr. Kite “constantly mocked me, antagonized me, and racially ostracized me,” that Mr. Nagai placed a “racist doll” on Petitioner’s desk. The “racist doll” will be discussed in Event 2. The alleged utterance of “you look like a chimpanzee” will be discussed in Event 4.
Early in Petitioner’s period of employment, he and
Mr. Nagai appeared to be on relatively good terms. When the in- house gym closed for renovations in February 2014, Petitioner, Mr. Nagai, and a female co-worker went to Planet Fitness over the lunch hour. That apparently did not last long, as he accused them of “mocking” him, and changed his gym schedule to go at night after work.
Over a period of at least two years,3/ Petitioner,
Mr. Nagai, and Mr. Kite staged a joint Christmas event for their co-workers. They planned it together, bought a small Christmas tree, and made gifts for their co-workers. They jointly gave gifts to their co-workers “by calling each one at a time, and we wished holidays as they came and then got a gift.” As described by Mr. Nagai, “[w]e planned, we executed, and we had a great time.” Petitioner described the holiday festivities as “a good way to build camaraderie and it would be beneficial to the rest
of the staff.” He indicated, however, that “the bonding did not happen because there was discrimination harassment that ensued.”
At some point, Petitioner participated in planning a “25th year anniversary at Allstate” commemoration for Mr. Kite. As stated by Petitioner, “I wanted that for Mr. Kite. I wanted him to be thanked for his service. I wanted him to be celebrated for the time that he put in there.” Little else was discussed about the time or circumstances of that event.
Mr. Nagai believed that he had a good relationship with Petitioner, and was appreciative of Petitioner for having taught him things. His testimony was credible and is accepted.
During the period in which Mr. Nagai worked in proximity to Petitioner, he did not see any conduct towards Petitioner that he considered discriminatory, inappropriate, or offensive, nor did Petitioner tell Mr. Nagai that he considered his conduct discriminatory.
Contrary to Mr. Nagai’s understanding of the nature of their relationship, Petitioner testified to a number of complaints that he had with Mr. Nagai, from his hours, to his work ethic, to his standing desk, to his office banter. He had similar complaints with regard to Mr. Kite. He never expressed those complaints with either Mr. Nagai or Mr. Kite.
Mr. Nagai’s work hours were typically 7:00 to
7:30 a.m. to 5:00 p.m. If he was studying for an examination,
he would arrive at work at 6:00 a.m., study for a few hours, and leave at 5:00 p.m. There was no credible evidence offered or received to suggest that Mr. Nagai’s work schedule was in any way influenced by Petitioner, or that he set his hours to advance a racial bias or animus towards Petitioner.
Petitioner indicated to Ms. Henry that he found
Mr. Nagai to be a distraction. Petitioner objected that, in his opinion, Mr. Nagai did not work as hard as Petitioner did, and complained that Mr. Nagai “danc[ed] around” while working at his standing desk. He also believed that with Mr. Nagai’s standing desk, “if I walk anywhere, he's watching me.” When Ms. Henry asked if she should discuss Mr. Nagai’s behavior with his supervisor, Mr. Posick, Petitioner declined, indicating that he would take care of it himself, and that he did not want to elevate things.
Ms. Henry had no recollection of Petitioner complaining of harassment, or of Mr. Nagai or others “mocking”
him.
With regard to the allegation that Mr. Nagai and
Mr. Kite engaged in a campaign of mocking, antagonizing, and ostracizing Petitioner for reasons of racial animus or bias, Petitioner failed to meet the burden of proof.
Conflict with David Dickson
At all times relevant to this proceeding, Mr. Dickson was an Allstate vice president, whose responsibilities included oversight of the IT department.
The Snap Quote tool was a business solution that was being developed outside of the IT department. Nonetheless, the IT department had a mandatory responsibility to ensure that the product was within the “guardrails” that would allow it to be supported securely on Respondent’s system. With regard to anything deployed to any Allstate server or hardware, security is one of the tenets that must be protected. Therefore, if the product could not be supported, the project would have to be terminated.
During the development of the Snap Quote tool, Petitioner began to communicate with the Core Technology Services group within Respondent’s IT department. Mr. Dickson testified credibly that Allstate’s IT department was responsible for vetting the software to make sure there were not any security loopholes, open source copyright infringements, or the like. The responsibility as to how the Snap Quote tool would be loaded onto Respondent’s computer system, and made available for use by Respondent’s various home and field offices, rested exclusively with the IT department.4/
Among the persons assigned by Allstate to work with Petitioner was Matt Miller. Although Mr. Miller did not directly report to Mr. Dickson, Mr. Dickson believed that, as an IT leader, members of the IT team had some figurative obligations to him.
At some time prior to December 17, 2015, Mr. Miller spoke with Mr. Dickson and expressed that he was “uncomfortable” speaking with Petitioner about the Snap Quote project. It was not a detailed conversation, but it left Mr. Dickson with the impression that there was a problem between Petitioner and the IT section.
On or about December 17, 2015, Mr. Dickson called Petitioner. It was his first time communicating with Petitioner.
Mr. Dickson’s purpose in placing the call was to act as a facilitator and to try and work out difficulties that had arisen between Petitioner and the IT department about the rollout of the Snap Quote tool. It was his intention to engage Petitioner in problem solving to find a solution to the problems between the product side and the IT side.
The telephone call started with a discussion of solutions to the rollout that Matt Miller and the IT team were discussing with Petitioner. At some point during the telephone call, things “became elevated” as Petitioner asked Mr. Dickson a
number of questions, including his title and position within Allstate, who he was responsible for supervising, and who he worked for. Mr. Dickson testified that Petitioner became louder, and that his call “turned into an inquisition.”
Mr. Dickson then ended the call.
After the initial telephone call, Mr. Dickson asked Petitioner for a demonstration of the Snap Quote tool. During that second meeting, Petitioner was taking notes of options for deploying the Snap Quote tool that the two were discussing. Petitioner asked Mr. Dickson to sign the document. Mr. Dickson perceived that Petitioner was again becoming “elevated.” At that point, Mr. Dickson, who did not have the authority to commit to security-related solutions, “just went into defusal,” and got up to leave the room. Petitioner did not want
Mr. Dickson to leave until he signed the document, and became, in Mr. Dickson’s view, agitated, upset and very loud and vocal, to the point that it became “almost a safety issue.”
After the second meeting, Mr. Dickson spoke with Mr. Schaeffer about his interactions with Petitioner. As a result, it was arranged for Petitioner to demonstrate the
capabilities of the Snap Quote tool in a third meeting at which Mr. Dickson, Mr. Schaeffer, Ms. Henry, and members of the IT team would be in attendance. Among the purposes of the demonstration was to engage in a discussion of Allstate’s IT
architectural guidelines, which Mr. Dickson described as being “way above both of us, you know, coming down from corporate,” and what could be done from a security standpoint. Price and deployment times may have been factors, but the primary issue was security.
During the demonstration, Petitioner produced a Word document that contained notes of the meeting, a chronology, and options for deployment of the Snap Quote tool. Petitioner asked Mr. Dickson to sign the document to commit to Petitioner’s preferred solutions that Mr. Dickson was still trying to problem-solve. Mr. Dickson again chose to terminate the meeting rather than proceed. He described the initial telephone conversation and the demonstration meetings as “one of the most uncomfortable situations I've ever had to experience at Allstate.”
Mr. Schaeffer’s description of the third meeting went into greater detail than that of Mr. Dickson. Mr. Schaeffer indicated that the meeting was intended as a follow-up about how to deploy the Snap Quote tool. Petitioner and Mr. Dickson had different opinions as to how the deployment would be accomplished. As the meeting progressed, Petitioner accused
Mr. Dickson of changing his mind about how the tool would be distributed, being unethical, and “lying and things like that,” and asked him to sign a form. Mr. Schaeffer was direct and
unequivocal in his testimony that Petitioner called Mr. Dickson a liar during the meeting. Mr. Schaeffer described the situation as being fairly contentious between the two, to the point that Mr. Schaeffer asked Petitioner not to speak anymore in the meeting, and to have no further direct contact with
Mr. Dickson. The meeting then ended. At no time during the meeting did Petitioner state that Mr. Dickson’s conduct was in any way racial harassment.
Ms. Henry testified that the meeting devolved due to Petitioner’s disagreement with the deployment solution recommended by Mr. Dickson and the IT department. Petitioner did not suggest to Ms. Henry that Mr. Dickson was acting illegally or in violation of Allstate procedures. Rather, she indicated that Petitioner “thought that [Mr. Dickson] was trying to throw his weight around and make [Petitioner] look bad.” She further testified that Petitioner was “disrespectful to everybody in the room,” and that as a result of Petitioner’s conduct, the meeting was “very contentious and antagonistic and accusatory and the tone was just not appropriate for the business environment.”
After the meeting, Petitioner filed an internal ethics complaint against Mr. Dickson. In addition, Petitioner requested that Mr. Dickson, an Allstate vice president, be prohibited from communicating with the actuarial department for
a period of six months. Neither party introduced a copy of the ethics complaint in evidence. Petitioner described the complaint as being related to “unethical conduct” in that:
He used bullying tas- -- tactics, bureaucracy to subjugate me as an employee and he targeted me in a discriminatory fashion because other people were in the same boat, yet I was getting all of his ire. That was unethical . . . . [He] told me a stack of lies. He threatened my employment. He sent someone to take over my duties, all of these were not in line with the company's goals. These were in line with ostracizing and marginalizing me as an employee.
There is no competent substantial evidence in the record that the ethics complaint included any charge of racial animus, bias, or harassment, or that any of the interactions between Petitioner and Mr. Dickson were racially motivated.
Mr. Dickson recalled very little about the process of the investigation because it was, in his estimation, so outlandish that he did not dwell on it. The outcome of the investigation resulted in no action being taken against
Mr. Dickson.
Subsequent to the demonstration meeting, Mr. Dickson had no further involvement with Petitioner. He made no request that Petitioner be removed from the Snap Quote product, or that Petitioner face any consequence relating to the product.
Mr. Dickson had no role in a recommendation to discipline or terminate Petitioner.
There is no competent, substantial, or persuasive evidence that any of the interactions between Petitioner and Mr. Dickson included any element of racial animus, bias, or discrimination, and none is found.
Petitioner did not discuss the ethics complaint with Mr. Schaeffer, who did not learn of it “until well after the fact,” and knew nothing of its details.
Prior to Petitioner’s termination, Mr. Schaeffer met with Petitioner and advised him that his accusations that
Mr. Dickson was lying and asking him to sign documents “made the meeting impossible and in no way was helping us get cooperation from the IT department that we needed.” Mr. Schaeffer stated that Petitioner was making it difficult to get tasks done because he was making enemies of people. Those statements have no tinge of racial animus, and none is found.
With regard to the allegation that the incidents with Mr. Dickson were influenced by Mr. Dickson’s racial bias or animus towards Petitioner, or that Petitioner reported racial discrimination resulting therefrom, Petitioner failed to meet the burden of proof.
Retaliation by Lisa Henry
Petitioner has alleged that Ms. Henry retaliated against him “for filing that report on David Dickson.”
On March 31, 2016, Petitioner’s 2015 performance evaluation was completed. Petitioner objected to his overall “inconsistent” evaluation. He believed he was entitled to a “better than expected” evaluation.
Ms. Henry explained the basis for her evaluation. She indicated that a rating of inconsistent “means that sometimes it was good, sometimes it was bad, that not all goals were met. There's a formal definition in the HR system that I used the guidelines for [ ] my decision, so there were certain business goals that were fine and there were -- and leadership goals which are also a very important part of being an employee, and the balance between those two led me to give him an inconsistent.” She went through various sections of the evaluation, explaining the basis for her decisions. Her testimony was credible. Certainly, an evaluation that rates on a scale of performance involves an element of subjectivity. It is not the role of the undersigned to quibble with whether a particular rating is warranted. Rather, it is to determine whether an evaluation is influenced by racial or sexual discrimination, bias or animus, or whether it constitutes retaliation as that term is used in section 760.10(7).
Petitioner registered his disagreement with his 2015 performance evaluation, not only in discussions with Ms. Henry, but also in his written comments to the 2015 evaluation. In his
written comments, Petitioner stated his belief that the evaluation was “rooted in tainted ground,” and that “this final review signals something more unethical.” However, he also stated that “I enjoy working for [Ms. Henry]; for my company; and in the capacity that we do it. In the future, I hope that we can work more harmoniously, fairly, honorably, transparently, and with standard setting accountability.” The preponderance of the evidence suggests that the “tainted ground” and “unethical” review was directed to the incident with Mr. Dickson. Despite his lengthy comments, Petitioner made no reference to being subjected to any form of racial or sexual discrimination or harassment, or that it was retaliation as defined in section 760.10(7).
There is no question but that the incident with Mr. Dickson was an element of Ms. Henry’s evaluation of
Petitioner, and the decision not to retain him after he failed out of the ACP. However, that incident was determined to be an example of Petitioner’s inability to work cooperatively with Allstate employees, supervisors, and business partners.
Petitioner’s “opposition” to Mr. Dickson’s involvement was based on his disagreement with the manner in which the Snap Quote tool was to be deployed. To the extent Petitioner’s behavior towards Mr. Dickson formed a basis for his evaluation, the performance rating was founded on a determination that Petitioner could not
work cooperatively with Allstate employees, supervisors and business partners, as was determined to be a critical element of the job. It was not influenced by Petitioner’s race or sex.
There was no competent, substantial, or persuasive evidence offered to establish that any employment decision made by Ms. Henry was based on Petitioner’s opposition to acts of discrimination based on race, color, religion, sex, national origin, age, handicap, or marital status.
At the time the decision had been made to terminate Petitioner, he had filed no claim of discrimination with the federal Equal Employment Opportunity Commission, the Florida Commission on Human Relations, or a designated representative thereof.
Petitioner was participating in Allstate’s investigation conducted in response to his ethics complaints against Mr. Dickson and Ms. Henry. Those ethics complaints could, indirectly, be participation in his subsequent FCHR claim. However, the greater weight of the evidence establishes that neither the ethics claims nor the internal investigations involved any claim of discrimination cognizable under the FCRA. Thus, Petitioner’s involvement in those ethics complaints was not “participation” in any form of proceeding involving a claim of race or sex discrimination, or retaliation for actions related thereto.
With regard to the allegation that Ms. Henry retaliated against him for reasons of his opposition to incidents of racial or sexual discrimination, or for his participation in a proceeding designed to remedy racial or sexual discrimination either through her 2015 evaluation or through the decision to terminate Petitioner on August 12, 2016, Petitioner failed to meet the burden of proof.
Event 2 - The “Racist Doll”
Sometime prior to July 2015, several solar-powered dancing hula dolls had been placed on the tops of the dividers between the cubicles occupied by Petitioner, Mr. Nagai, and Mr. Kite. The evidence was not compelling as to where the hula dolls came from, but the evidence supports a finding that they were in the office.
In July 2015, Mr. Nagai purchased two three-packs of solar toys from the Dollar Tree thinking, “it would be nice to have within the team.” The packs contained a monkey, a panda, and a parrot, each on a moving swing. Mr. Nagai testified that he gave the parrots to two women in the accounting department, and randomly distributed the monkeys and the pandas in the department. One of the monkeys was placed on Petitioner’s desk. Mr. Kite received a toy, Mr. Nagai kept one for himself, and one was apparently given to a fourth person. It is not known who received which of the other toys.
Mr. Nagai testified, credibly, that he “randomly put those on people's -- friends' desks. So as I pull from the bag, that's the one he -- they get. I believe I gave it to all the people in our side. And some people got panda. Some people got monkeys.” He viewed the toys as simple office decorations.
Petitioner testified that he found the toy to be offensive and “objectionable,” symbolizing that he was considered “the office monkey.” Nonetheless, he never complained about the toy to Mr. Nagai, Ms. Henry, or anyone else, and never told anyone that he found the toy to be offensive. Petitioner did not remove the toy from his desk, where it remained for months until it was replaced as Christmas approached with solar powered Santa Clauses, snowmen, and other holiday characters.
Had Petitioner ever told Mr. Nagai that he was uncomfortable with the toy, or found it inappropriate, Mr. Nagai would have removed it.
With regard to the allegation that the solar-powered toy that Mr. Nagai placed on Petitioner’s desk was intended to and had the effect of exposing Petitioner to racial denigration, or that Mr. Nagai selected the monkey to place on Petitioner’s “cube” as an act of racial animus or bias, Petitioner failed to meet the burden of proof.
Event 3 - Sabotage of the Grading of the Actuarial Exam
Petitioner has alleged that Allstate manipulated the grading of Petitioner’s May 2016 actuarial exam. Testing and grading is performed by the Society of Actuaries (“SOA”). Allstate is not involved in the administration of the examination or its grading. The examination was not administered at the Allstate offices. Nonetheless, Petitioner claims that he would have passed the exam, except Allstate convinced the SOA to alter his answers so that he would fail, thus, creating a falsified basis for his termination. He further alleged that he has distinctive handwriting, so it would have been a simple matter for Allstate to have identified his test.
Prior to Petitioner taking the May 2016 exam,
Ms. Henry asked Ms. Halim to review Petitioner’s practice exam with the goal of helping Petitioner pass the May 2016 exam.
Ms. Halim has her FSA. Ms. Halim is not, nor has she ever been an actuarial examination grader. Years prior -- as far back as 2003 -- Ms. Halim served as an exam writer, and developed multiple-choice questions for the examinations to become an ASA. She had no involvement in writing examinations to become an FSA.
Ms. Henry thought that Ms. Halim could contribute some advice. If Ms. Halim had felt that she could not contribute, she would have declined. Ms. Halim’s advice was
generally limited to suggesting that Petitioner’s handwriting be larger and clearer so as to make it more legible for the exam grader, and to “box” his calculations related to an answer so the grader would not have to search the paper.
Petitioner failed the May 2016 examination. It was his third consecutive time failing the examination. Ms. Halim was not involved in either of the previously failed tries.
Petitioner produced no competent substantial evidence to support his allegation that Allstate somehow conspired with the SOA to falsify the results of Petitioner’s examination for the purpose of having him fail the examination, thus, creating a pretext for his termination under the terms of the ACP. The evidence established that such a conspiracy is not possible.
With regard to the allegation that Allstate somehow influenced the grading of Petitioner’s actuarial examination, Petitioner failed to meet the burden of proof.
Event 4 - “You Look Like a Chimpanzee”
Related to Petitioner’s complaint that Mr. Nagai and Mr. Kite mocked, antagonized, and ostracized him was Petitioner’s allegation that, at some time during the fall of 2015, Phil Kite yelled “you look like a chimpanzee” to Petitioner as he was walking through the office. Petitioner alleged that the statement was an act of racial discrimination.
Mr. Kite specifically denied having ever made a statement like that described by Petitioner. Mr. Kite testified that “[i]t is not in my nature to do anything that would belittle someone's appearance, physical or otherwise. And so I would not do that.”
Petitioner asked Mr. Kite if “anybody [was] going to contradict what you just testified to,” to which Mr. Kite answered “No.” Mr. Kite was correct. The following testifying witnesses were asked if they heard Mr. Kite yell out, “You look like a chimpanzee”: Ms. Bradley; Mr. Nagai; Mr. Parsons;
Mr. Posick; and Ms. Henry. Not one witness testified that they heard the alleged statement, despite several having workstations that would have been in easy earshot. Ms. Bradley further testified that she never joked about Petitioner looking like a chimpanzee, nor did she hear negative comments about him.
Petitioner did not report the alleged statement to anyone within his supervisory chain of command, to Allstate’s HR hotline, to Allstate’s HR department, or to anyone at Allstate.
With regard to the allegation that Mr. Kite called out to Petitioner “you look like a chimpanzee,” whether in an effort to racially denigrate Petitioner or otherwise, Petitioner failed to meet the burden of proof.
Event 5 - Disproportionate Terminations
Petitioner’s Complaint of Discrimination alleged that, between spring 2014 and spring 2016, a statistically disproportionate number of black employees on the seventh floor were terminated from employment. He listed Pam Bernaba, “Bryce,” “Winston,” “Ms. Bryant,” and Sharon Spruitt as black employees, and Lidiya Olsen, a white Russian employee, who were “abruptly terminated.”
There was no competent, substantial, or persuasive evidence, of any kind, offered or received to support the allegation.
With regard to the allegation that between spring 2014 and spring 2016, a statistically disproportionate number of black employees on the seventh floor were terminated from employment, Petitioner failed to meet the burden of proof.
The November 30, 2017, Investigative Memorandum
Pursuant to Judge Stevenson’s June 6, 2018, Order, evidence was allowed to address matters discussed in the FCHR’s IM. The Memorandum deals with many disparate allegations, some of which have no evidentiary support. Most involve incidents that occurred more than 365 days prior to the filing of the Complaint of Discrimination. Some involve allegations against prior employees. To the extent an allegation identified in the IM derived from the Complaint of
Discrimination, and was discussed previously, it will not be repeated here. However, other incidents identified in the IM, none of which were set forth in the Complaint of Discrimination, will be discussed herein so as to provide a clear record for review by the FCHR.
2012 Incidents - Previous Employer
The IM referenced two incidents that occurred in 2012, before Petitioner was hired at Allstate. Those incidents are not only well beyond the 365-day jurisdictional threshold for relief, but involve a previous employer. Why the investigator chose to include them in the IM is a mystery. Nonetheless, there was no evidence offered or received to support the allegations.
The Condolence Card
The IM next recited Petitioner’s allegation that “[s]taff screamed at [Petitioner] for buying a condolence card.”
In August 2015, Petitioner purchased a condolence card for an Allstate employee. Whether he knew it or not, a condolence card was already being circulated throughout the actuarial department. The managers or someone in the department handled those situations in a more coordinated manner as was, apparently, the normal practice.
Petitioner gave the employee his card, so there were two cards, “which caused confusion.” For whatever reason, this
upset the grieving employee, who approached Ms. Halim and expressed her feelings.
After the cards were distributed, Petitioner was sitting in a “huddle room” in the actuarial department.
Ms. Halim approached Petitioner, asked that he not send cards out on his own, and said that she was “pissed” at him. She was upset, and her voice was “elevated.”
Frankly, the undersigned is at a loss as to why an extra condolence card would be a source of consternation. It seems a small matter to be “pissed” about. Nonetheless, the incident was exclusively the result of Petitioner going outside of the “normal” way of doing things in the department. There is no evidence that the incident had anything to do with racial animus or discrimination.
Throwing Things
The IM next stated that Petitioner alleged that “between 2014 - 2016, . . . [Petitioner’s] manager threw items at [Petitioner].”
During his testimony, Petitioner alleged that
Ms. Henry would “throw candy at me. She threw paper at me. She threw a banana at me once.” The allegation was not mentioned in the Complaint of Discrimination. Despite having Ms. Henry on
the stand, along with others who would have been in a position to observe such behavior, Petitioner never questioned anyone about the alleged conduct.
There was no indication that the conduct occurred on or after June 30, 2016 (365 days prior to the June 30, 2017, Complaint of Discrimination), and the context of the statement, and the totality of the evidence concerning the period after June 30, 2016, indicates that, if it occurred, it occurred before June 30, 2016.
Furthermore, there was no evidence whatsoever to support a finding that, even if the event occurred as described by Petitioner, it was a result of racial or sexual animus, bias, discrimination, or harassment, or that it was done as an act of retaliation as defined in section 760.10(7).
Mr. Nagai’s Performance
The IM next recited Petitioner’s allegation that Mr. Nagai’s work product was inaccurate, and that that he
“received superior treatment for a pattern of poor work and poor behavior.”
Mr. Nagai was honest that, of course, he has made mistakes, and has owned up to them. However, he also testified, credibly, in response to a question as to whether his errors made him fear for his job, that “I take my work -- I take pride in my work. So whenever I find errors and mistakes, I take it
seriously . . . . However, my errors was immaterial, [and] I was not afraid -- based on the amount of the errors I made, I was not afraid.”
Mr. Posick testified that “Mr. Nagai had proven to be someone that I could depend on, and the quality of his work was good.” He further testified that Mr. Nagai is “a valued employee. The work that he's doing has evolved over time, and I depend on him. He's built a number of processes that have improved the work that we do. He understands them. He's a value to the company and to me personally. . . . [Mr. Nagai] is an incredibly hardworking individual that, when given a task and a deadline, will do the work necessary to complete that task. That's the highest praise that I can give him.” Mr. Posick’s testimony is credited. There was no competent, substantial, or persuasive evidence to suggest that Mr. Nagai received superior treatment for work or behavior that was comparable to that of Petitioner, or that employment decisions with regard to
Mr. Nagai were the result of any racial bias or animus towards
Petitioner.
Finally, the IM recited Petitioner’s allegation that soon after spring of 2014, Mr. Nagai “got removed from the [ACP] but allowed to keep his exact same job, title, and salary.” The evidence demonstrates that Mr. Nagai was removed from the ACP for failing an examination in the spring of 2017, after
Petitioner’s termination. He remained qualified for the job he held at the time as an actuarial associate. Mr. Nagai worked in a different section, with a different number and mix of positions, and with a different supervisor.
There was no competent, substantial, or persuasive evidence to suggest that Mr. Posick’s decision to offer
Mr. Nagai a position as a “career ASA” after his removal from the ACP was the result of any racial bias or animus towards Petitioner.
Coaching by Ms. Henry
In addition to the foregoing allegations regarding Mr. Nagai, the IM referenced Petitioner’s complaint that
Ms. Henry “lied about spending all of 2015 conducting coaching sessions with him.”
The statement related to alleged acts that occurred more than 365 days prior to the filing of the Complaint of Discrimination. Furthermore, there was no evidence offered or received to suggest that Ms. Henry lied about coaching, to whom she may have lied, or that any such lie was motivated by racial or sexual harassment or discrimination.
The evidence demonstrated that, prior to 2016, Ms. Henry had no formal coaching sessions with Petitioner. However, she considered daily direction and education on how
Allstate works and how her employees interact with customers to
be “coaching.” After Petitioner’s receipt of his “inconsistent” evaluation in early 2016, Mr. Schaeffer spoke extensively with Petitioner about his job performance. Petitioner complained that he was not given feedback during the year that his job performance was not satisfactory, and requested specific examples. It was suggested that regular coaching would be appropriate. Ms. Henry scheduled regular coaching sessions for the second Friday of every month. Petitioner declined to appear for the scheduled coaching sessions. He gave no contemporaneous excuse or notice; he would just not show up. Later, Petitioner complained that Allstate was singling him out by giving him too much coaching.
There was no competent, substantial, or persuasive evidence to suggest that Ms. Henry lied about her efforts to coach Petitioner, either in 2015 or at any other time; and in any event, her coaching efforts, whether formal or informal, had nothing to do with Mr. Posick’s supervision of Mr. Nagai, and were in no way proven to be the result of racial or sexual harassment or discrimination towards Petitioner.
Salary Disparity
The IM discussed the allegation that Petitioner’s salary was less than comparable employees, and that black employees’ salaries were less than a group of “other white employees.” There was no competent, substantial, and persuasive
evidence offered or received as to the salaries of the listed employees, except for that of Mr. Nagai.
As to the comparison between Petitioner and
Mr. Nagai, the evidence indicates that Petitioner was first hired as an actuarial technician in November 2013 at an annual salary of $65,000. Petitioner provided no evidence of any salary increases after his hiring, though the ACP Guidelines provide for an employee raise after achieving the ASA, which Petitioner achieved in 2014. In contrast, Mr. Nagai’s starting salary as an actuarial technician was $60,000, less than that of Petitioner.
There was no competent, substantial, or persuasive evidence to suggest that there was a racially based salary disparity at Allstate during Petitioner’s period of employment or otherwise, and none is found.
“Shackle the Monkey”
The IM recited Petitioner’s allegation that
Ms. Henry, during a discussion of his performance evaluation, stated to him that “this is how I choose to grade you. I choose to shackle the monkey before it becomes a gorilla.” She allegedly restated that comment at some unidentified 2016 meeting.
Petitioner received his final performance evaluation from Ms. Henry in the spring of 2016. Thus, the alleged
statement occurred more than 365 days prior to the filing of the Complaint of Discrimination.
Ms. Henry gave Petitioner a performance rating of “inconsistent.” Petitioner did not agree with the rating, stated that he should have been rated “better than expected” on everything, accused Ms. Henry of being inaccurate and unethical, and refused to sign the evaluation.
Petitioner alleged that, as she was discussing Petitioner’s final performance evaluation with him, Ms. Henry punctuated her evaluation with the statement that she would “shackle the monkey before he becomes a gorilla.”
Ms. Henry denied having made the statement, either to Petitioner or in a separate 2016 meeting with Caroline (or Catherine) Levy.
Mr. Schaeffer testified that he did not know Ms. Henry to have used that term.
Petitioner further alleged that he reported the alleged statement during his July 2016 meeting with
Mr. Schaeffer. Mr. Schaeffer specifically denied any such report, stating, “That I would remember. You never made any complaints about racial harassment or racial terms such as that that were used.”
With regard to the allegation that Ms. Henry stated she would “shackle the monkey before he becomes a gorilla,” Petitioner failed to meet the burden of proof.
“Devalued the Profession”
The IM described an alleged “going away lunch” during which Mr. Posick stated that Petitioner “devalued the profession,” and that his recently achieved ASA “watered down the profession.” The IM indicated that the event occurred in July 2015.
Petitioner testified that, in June 2014, he and several employees, including Mr. Posick and Mr. Nagai, were at a going away lunch when Mr. Posick stated, loudly enough for all to hear, that Petitioner’s “credentials devalued the profession,” and that Petitioner’s ASA made his less valuable. Regardless of which date is accurate, the alleged statement occurred more than 365 days prior to the filing of the Complaint of Discrimination.
Mr. Posick testified that he never said that Petitioner’s credentials devalued the profession. He testified that he never said Petitioner’s ASA made his less valuable. He testified that he has never said anything to that effect about anyone.
Although Mr. Nagai had no specific recollection of having attended that particular going away luncheon, he had no
recollection of ever having heard Mr. Posick make such statements. Though Petitioner alleged that others were in attendance, and “[e]veryone laughed,” no other witnesses were called to substantiate the allegation.
With regard to the allegation that Mr. Posick stated that Petitioner’s “credentials devalued the profession,” and that Petitioner’s ASA made Mr. Posick’s less valuable, Petitioner failed to meet the burden of proof.
Working from Home
The IM indicated that Petitioner asked to work from home at some time between June 14 and June 22, 2016. His request was denied. Petitioner claimed that the denial was discriminatory, since two white employees had been allowed to work from home. The denial of the request occurred more than
365 days prior to the filing of the Complaint of Discrimination.
Petitioner was frequently described as one who preferred limited interaction with his co-workers. Ms. Henry described him as “preferr[ing] to keep to yourself with the computers and chugging away at programming.” As a result, starting in May or June of 2014 (according to Petitioner), barely six months from the time he was hired, he began to ask to work from home. He testified that:
I wanted to work from home. Actuarial work can be done remotely. I can do actuarial work right now. You know, I can go down to
Antarctica, pop up a laptop, and I can start crunching numbers, Your Honor. We don't need to be passing -- hand -- we don't need to be hand shaking. We don't even have to talk to one another, Your Honor. It can be done remotely. I could have done my job remotely at home.
Petitioner’s requests were ongoing. Ms. Henry had no direct reports who worked from home. Petitioner was Ms. Henry’s only actuarial employee.
As stated by Mr. Schaeffer, there are legitimate, business-related reasons for having employees working at their place of employment. He testified that actuarial employees’ availability to meet and discuss matters with co-workers, supervisors, and business partners is a necessary component of the position, particularly when, as here, the actuarial department is relatively small. His reasoning is reasonable and accepted. Petitioner’s requests to work from home were not granted.
Petitioner argued that two Allstate employees were allowed to work from home. According to Petitioner, those employees were not African-American, and that race must have been the basis for the denial of his request.
One of the alleged comparators was a woman who was on maternity leave, and asked to extend her leave for a few weeks. She was allowed to work from home during that period of several weeks before returning to work at the office.
The second alleged comparator was a woman whose husband was stricken with cancer. She needed to work from home to care for him. She asked for and received permission to work from home so she could provide care.
The two women who were allowed to work from home are, in no way, comparators to Petitioner. That the two women were allowed to temporarily work from home for legitimate medical and family reasons, and Petitioner was not allowed to permanently work from home, is not evidence of racially disparate treatment.
Petitioner also identified Bridgette Tennant as being another white employee that was allowed to work from home. Although Ms. Tennant had been with Allstate for 22 years when Petitioner was hired, during all times relevant to this proceeding she was not a salaried employee of Allstate. She was never in the ACP. She was a contractor who worked on an hourly basis. She received no paid vacations, holidays, sick leave, or retirement. The work assigned to her was limited to what she could do remotely. As a result, there were only two or three tasks that she was assigned. Ms. Tennant’s position at Allstate is not at all comparable to that of Petitioner, and Allstate’s decision to allow Ms. Tennant to work from a remote location is not evidence of racially disparate treatment.5/
Ms. Halim also indicated that various employees on her team were, on occasion, allowed to work temporarily from
home, for a week or less. Ms. Halim does not supervise Petitioner. It was not revealed whether the employees being granted temporary work-from-home status were actuarial employees or support staff. The reasons for the decisions were not asked or volunteered. Ms. Halim has more than one actuarial employee on the “health” side of the actuarial department. Ms. Halim’s decisions to allow her employees to temporarily work from home, while Petitioner was not allowed to work permanently from home, is not evidence of racially disparate treatment.
In addition to his requests to work from home, at some point after March 2015, Petitioner asked to change his work hours so that he would not be in the office when other employees would be there. Petitioner provided no reasoning for his request. However, his requested hours would have made it so that he would not have been in the office during the regular work hours of his supervisor.
Allstate attempted to accommodate Petitioner’s request by allowing him to start earlier in the day and adjusting his schedule with the understanding that Petitioner needed to be available “during core hours” if other business partners wanted to schedule afternoon meetings.
Petitioner also asked to move his workstation to be away from his co-workers. Allstate was short of room as it was, so there was no room to move Petitioner.
With regard to Allstate’s decision to require Petitioner to come to work at the office, as he had been hired to do, Petitioner failed to meet the burden of proof that the decision was driven by racial or sexual discrimination, bias, or animus.
Other Random Allegations
The IM included a number of other observations, sometimes buried in a discussion of other issues, and sometimes separately. They include, but are not limited to that Petitioner filed an ethics complaint against Ms. Henry after his final evaluation; that Allstate hired employees after his termination; that Ms. Henry “forced [Petitioner] to sign annual reviews, with which he disagreed”; and various incidents that “used a combination of passive aggression and physical intimidation.” Having carefully reviewed the IM, the undersigned finds that Petitioner failed to meet the burden of proof that the incidents described therein were driven by racial or sexual discrimination, bias, or animus, or by retaliation for having opposed an unlawful employment practice, or for having participated in an investigation, proceeding, or hearing under the FCRA.
Other Allegations of Discrimination
In addition to the foregoing, Petitioner spent considerable time discussing matters that he claimed were
provided to FCHR, but which were not included in the Complaint of Discrimination, or discussed in the IM. Several of those matters warrant discussion.
Dinner and a Movie
Petitioner alleged (for the first time) in his Petition that Ms. Henry propositioned him repeatedly in 2014 -- advances that he spurned -- thereby constituting sexual harassment, creating a hostile work environment, and forming a basis for retaliation.
When Petitioner was hired in November 2013, Ms. Henry understood that he was new to Jacksonville, and perceived that he had few activities outside of work.
Early in Petitioner’s period of employment, during routine office banter, he expressed an interest in a movie that Ms. Henry knew her husband wanted to see. Ms. Henry and her husband were going out to dinner and to see the movie, so she invited Petitioner to join them.
It was Ms. Henry’s practice with employees that were new to town to ask if they needed to learn new restaurants or wanted to be taken places. She saw no harm in the offer. It was free to be declined and, in fact, Petitioner did decline with no consequences.
Ms. Henry has, over the years, made numerous similar invitations to persons who were new to town. As stated by
Ms. Henry, “I have been to dinner with many people in our department and lunch and bowling and movies, and it's just social interaction.”
Ms. Henry also asked Petitioner if he wanted to go bowling since Petitioner had mentioned that he enjoyed bowling. She told him that Allstate employees had formed a league team that had an open spot. She would generally ask Petitioner anytime she thought he was working too much and needed a distraction. She asked him on more than one occasion, and recalled that Petitioner did join the league at one point. However, Petitioner’s typical response was that he would “like to but [he was] studying or busy or it's hard to get there because [he] rode a bike and it was on the other side of town.” She did not specifically recall the frequency of her invitations.
Since Petitioner gets around by bicycle, if Petitioner wanted to attend something that was too far to go by bicycle, Ms. Henry offered on occasion to drive him, stating, “I thought that was a polite thing to do.”
Petitioner testified that Ms. Henry approached him on one occasion between November 2013 and the start of 2014 and suggested that they go to dinner and a movie together, and that “she also added in that her husband would not be there.” He characterized the alleged invitation as “asking me to go on
dates,” which he characterized as being inappropriate and “set[ting] a bad tone for my employment there.” The undersigned finds Petitioner’s description of events to be, perhaps, the result of a simple misunderstanding. In any event, the undersigned finds Ms. Henry’s testimony and description of her intent to be credible and sincere.
There was absolutely nothing improper, inappropriate, or unethical about Ms. Henry’s expressions of common decency and civility. Her attempts to engage Petitioner in social activities were not tinged with even a hint of sexual motivation. They involved no racial discrimination or bias.
Her invitations cannot, under any reasonable evaluation of the evidence, be construed to have created a hostile work environment. Petitioner’s refusals to join Ms. Henry and her husband for dinner and a movie, or to join the Allstate bowling team, were not grounds for retaliation and, in fact, did not cause retaliation of any kind.6/
Retaliation Complaint against Ms. Henry
In January or February 2016, Petitioner filed an internal ethics complaint against Ms. Henry. Ms. Henry had no specific information about the complaint or the allegations. Neither party introduced a copy of the complaint in evidence.
It was Ms. Henry’s vague understanding that Petitioner was asserting that she was retaliating against him
for his complaint against Mr. Dickson. She was interviewed but, other than questions regarding the third meeting involving Petitioner and Mr. Dickson to discuss the Snap Quote tool, had no recollection of the issues. At no time was Ms. Henry advised by the HR investigators that the complaint had anything to do with retaliation for complaining about race discrimination or sex discrimination.
At the time Petitioner failed the third actuarial examination, she did not know if the investigation was still ongoing.
There is no competent, substantial, and persuasive evidence to establish that the complaint against Ms. Henry had anything to do with racial or sexual discrimination, harassment, or retaliation.
“Closet Actuary”
During his period of employment, Petitioner alleged that Mr. Schaeffer referred to him as a “closet actuary.” Petitioner took that to be an affront to his manhood, and evidence of sexual harassment and discrimination.
Mr. Schaeffer credibly testified that the term “closet actuary” is one he heard early in his career, more than
25 years ago, and describes “somebody [who] just wants to work in a closet and have work shoved under the door to them, they do
it and spit it back out, that is what I mean by a closet actuary, somebody who does not want to work with other people.”
Mr. Schaeffer testified, accurately, that Petitioner did not want to work with other people, and had asked to work during times that others would not be at the office. He noted that, during the final months of Petitioner’s employment, he asked to work at “unusual hours.” The request was denied. Although a large department can afford to have actuaries “who just want to sit in a corner and crank out numbers, [and] not deal with other people,” Allstate had a small actuarial department. Therefore, Allstate needed its employees to work regular “core hours,” to communicate and work with people in other departments and fellow employees in their department.
Mr. Schaeffer stated that he may have directed the term “closet actuary” at Petitioner because “we need actuaries who will work with other people, not people who want to work on an island all by themselves and not be bothered with other people.”
A preponderance of the evidence demonstrates that the term “closet actuary” has no racial or sexual connotation, and that the use of the term is not evidence of discrimination of any kind.
Move to the Eighth Floor
Petitioner alleged in his Petition that Allstate’s planned move of the actuarial department to the eighth floor after the completion of renovations was timed to occur after his termination, so that senior management would not have to share space with a black actuary.
Allstate had, for about five years prior to Petitioner’s termination (which mathematically would have also started before he was hired), been remodeling floors in its building to upgrade the mechanical equipment and physical capabilities, and to create more occupancy. Virtually every department in the building moved at one point during the five- year renovation period. During 2016, Allstate was remodeling the eighth floor.
When the eighth floor was remodeled, it produced more space for more employees. No team was transferred from the eighth floor during the remodel. The expectation was that the actuarial department, which was on the seventh floor, would move to the eighth floor upon completion, since the reconfigured space would allow for a department of the size of the actuarial department.
Allstate’s executive level management also occupies the eighth floor.
The renovations of the eighth floor were completed at some time in early 2017, and the actuarial department moved. By the time of the hearing, the actuarial department took up almost every available seat allotted to it.
When asked if he thought the move felt like an “improvement,” Mr. Kite indicated it did not, stating that “[a] cubicle is a cubicle.”
Petitioner asked Mr. Guidos, “[d]id you make it a condition for the eighth floor move to be terminating Elias Makere's employment,” to which the answer was “no.” His testimony is credited.
With regard to the move of the actuarial department to the eighth floor, there was no competent, substantial, or persuasive evidence to support a finding that its occurrence after Petitioner’s termination was influenced, in any manner, by racial or sexual discrimination, bias, or animus towards Petitioner, or in retaliation for any action or statement by Petitioner.
Payment for Third Examination
During his testimony, Mr. Nagai indicated that Allstate paid for his third actuarial examination that he failed, leading to his removal from the ACP. Mr. Posick suggested, with less certainty, that Allstate paid for
Mr. Ciurte’s third actuarial examination that he failed, leading
to his removal from the ACP. Petitioner was compelled to pay for his failed third examination.
There was no other evidence regarding the circumstances of the payments to Mr. Nagai and Mr. Ciurte. As indicated, both were in different sections, with different supervisors, and different employment status. There was no evidence that the payments were made as a result of racial discrimination, animus, or bias.
More to the point, despite Petitioner providing testimony that he paid for his failed third examination, while others did not, Petitioner never pled that in his Complaint of Discrimination. It was not discussed in the IM. It was not included in the 231-page Petition for Relief. Thus, regardless of whether Mr. Nagai and Mr. Ciurte’s third examinations were paid, and Petitioner’s was not, that issue is not cognizable in this proceeding.
Reporting Discrimination
It is uniformly recognized that for an employer to be found to have engaged in discrimination or harassment under the FCRA, it must have been placed on notice of the offending conduct. The evidence in this case demonstrates that Petitioner never complained about, and never expressed offense or concern with any of the incidents discussed herein, with the exception of the incident with David Dickson.
Respondent has a policy that employees should report discrimination and harassment, and has established protocols by which they may do so. The human resources department has a telephone hotline with a published list of telephone numbers for reporting discrimination. An employee can report to his or her manager, or their manager’s manager.
During the period of his employment, Petitioner never reported to anyone at Allstate that he believed he was being subjected to racial or sexual discrimination or harassment.
During his period of employment, there are two documented instances of Petitioner having complained of any workplace conduct. The first was his ethics complaint against Mr. Dickson. That complaint was not founded on racial discrimination, nor did it constitute a report of any form of discrimination.
The second was his complaint against Ms. Henry, which he described as being about “[h]er retaliatory conduct towards me when I complained about David Dickson and that retaliatory conduct evidenced itself in the performance evaluation.” There is no competent substantial evidence that the complaint had anything to do with racial or sexual discrimination, nor did it constitute a report of any form of discrimination.
Petitioner did not call the Allstate hotline, file a complaint with the HR department, or complain of any form of discrimination to anyone within his chain of supervision.
Petitioner did not report any type of discrimination to Mr. Randles. Mr. Randles was never made aware of any acts of discrimination towards Petitioner, or of anything that he considered inappropriate.
In May 2015, Petitioner’s 2014 performance evaluation was completed. Petitioner objected to his overall “as expected” evaluation. He believed he was entitled to a “better than expected” evaluation. He registered his disagreement not only in discussions with Ms. Henry, but in his written comments to the 2014 evaluation. Despite his lengthy comments, Petitioner made no reference to being subjected to any form of discrimination, harassment, or retaliation.7/
On March 31, 2016, Petitioner’s 2015 performance evaluation was completed. Petitioner objected to his overall “inconsistent” evaluation. He believed he was entitled to a “better than expected” evaluation. He registered his disagreement in his discussions with Ms. Henry, and in his written comments to the 2015 evaluation. In his written comments, Petitioner disagreed with Ms. Henry’s assessment, “believ[ing] that it’s rooted in tainted ground,” and that “this final review signals something more unethical.” The evidence
established conclusively that those issues were related to his ethics complaint against Mr. Dickson, and not to any racial or sexual discrimination, harassment, or retaliation, and do not constitute a report to Allstate of discrimination, harassment, or retaliation.
Petitioner did not complain to Mr. Schaeffer about racial or sexual discrimination, harassment, or retaliation while he was in Mr. Schaeffer’s chain of supervision. Petitioner alleged that he informed Mr. Schaeffer of incidents of discrimination, including the alleged sabotage by Ms. Boland, the “racist doll,” and Mr. Kite’s alleged “chimpanzee” statement. Mr. Schaeffer specifically and credibly denied that Petitioner disclosed any of that information. There is no documentary evidence to support the allegation.
Petitioner did not complain to Ms. Halim about racial or sexual discrimination, harassment, or retaliation while he was working at her direction on the development of the Snap Quote tool.
At no time during his employment did Petitioner advise his supervisor, Ms. Henry, that there was anything happening at the office that he believed to constitute racial discrimination, harassment, or retaliation. He never indicated that his issues with his co-workers had anything to do with Petitioner being a black male.
During the period of his employment, Petitioner never stated any objection to his co-workers regarding their behavior, did not tell them that he found their alleged actions and comments offensive, and did not ask that they stop. He never complained about the “racist doll,” and left it on his desk for months without objection.
The basis for Petitioner’s failure to complain or object was his apparent belief that his perceptions were shared by everyone, and, thus, the discrimination was obvious. They were not.
As will be discussed in the Conclusions of Law, Petitioner bears the burden of proving that he reported incidents of discrimination to his employer in order to give the employer an opportunity to remedy the situation. Petitioner failed to meet the burden of proof.
Comparators
Petitioner testified that a gravamen of his complaint centered on his understanding that “I was terminated for taking an actuarial exam and failing that actuarial exam, but my non- black counterparts were not terminated when they did the exact same thing.”
The IM indicated that Petitioner “named Bridgett Tennant, Nagai and Kite as those who even though failed their
exams of exhibited deficient performance, [Allstate] still retained them.”
Mr. Nagai and Mr. Kite worked on the health/valuation side of the actuarial department. Their chain of supervision included Mr. Posick and Mr. Randles.
Petitioner was in the life/product development side.
His chain of supervision included Ms. Henry and Mr. Schaeffer.
Mr. Posick had several actuarial positions in his section. Ms. Henry had one actuarial position in her section, filled by Petitioner.
In his Proposed Recommended Order, Petitioner also identified Tonya Dostie and Victor Ciurte as comparators.
Phil Kite
Mr. Kite is an actuarial analyst. He is not an actuary or an actuarial student. He has never been in the ACP, and has not taken an actuarial examination during his tenure with Allstate. Although Mr. Kite has a degree in actuarial science, he is “a technical person, a support of the actuarial department in another capacity.”
Mr. Kite has worked at Allstate for 28 years. He started in the underwriting section, and worked in the actuarial department for the past 18 years. He has knowledge of applications to manage and report information, especially as it
concerns reporting on a monthly basis for booking reserves, but does not perform actuarial work for Allstate.
Mr. Kite did not perform the same duties as Petitioner. He did not work in the same section, or for the same manager. Mr. Kite is not a comparator against which to gauge the adverse employment action reflected by Petitioner’s termination.
Bridget Tennant
Ms. Tennant’s position with Allstate is discussed in paragraph 170. Ms. Tennant is not a comparator against which to gauge the adverse employment action reflected by Petitioner’s termination.
Tonya Dostie
Ms. Dostie was identified as a comparator solely because her supervisor, Ms. Halim, allowed her to work from home. Ms. Dostie was one of the women allowed to work from home as set forth in paragraphs 166 through 169. Ms. Dostie is not a comparator against which to gauge the employment decision taken with regard to Petitioner.
Mr. Nagai
Mr. Nagai was in Allstate’s ACP. At some time after Petitioner was terminated from employment, Mr. Nagai failed to pass the requisite exams. He was dismissed from the ACP.
Mr. Nagai was retained by Mr. Posick as a career ASA, which is a suitable option for Mr. Nagai. As such, he was not an FSA actuary, and had no opportunity for advancement.
Although he can be promoted based on the merit of his work, his position will not change unless he continues to take actuarial exams without financial or administrative support from Allstate.
Mr. Posick testified credibly that the decision to offer Mr. Nagai a position in his section after he was removed from the ACP was based solely on his being a dependable worker who regularly completes his assigned work. As indicated previously, Mr. Posick was complementary of Mr. Nagai as “someone that I could depend on, and the quality of his work was good, so I chose to transition the position to a career ASA position.”
Mr. Randles testified that Mr. Nagai “had the skill set necessary to do the financial job that we were asking him to do. He has done that well, and he worked well with other people in the department and worked well with the other people outside the department that he needed to interact with to perform his job,” all of which were described as critical elements of that position. As such, the decision was made to retain Mr. Nagai after his removal from the ACP, as is allowed under the ACP Guidelines.
As set forth herein, Petitioner was perceived as having issues with taking instruction, completing tasks as directed, and working with other employees, supervisors, and business partners, and his ability to advance into Ms. Henry’s position that were not consistent with the critical elements of the position. That perception, whether accurate or not, was not formed as the result of racial or sexual discrimination, animus, or bias.
Petitioner and Mr. Nagai were in sections of the actuarial department with a different mix and number of actuarial employees, and different duties. Mr. Nagai had different supervisors than Petitioner, none of whom was involved in the decision to terminate Petitioner or in the decision not to retain Petitioner as a career ASA in Ms. Henry’s section.
Mr. Nagai is not a comparator against which to gauge any employment decision taken with regard to Petitioner.
Victor Ciurte
Mr. Ciurte is in Mr. Nagai’s section within the actuarial department, and was similarly situated to Mr. Nagai in many respects.
Mr. Ciurte was in Allstate’s ACP. At some time after Petitioner was terminated from employment, Mr. Ciurte failed to pass the requisite exams. He was dismissed from the ACP.
Mr. Posick testified credibly that the decision to offer Mr. Ciurte a position as a career ASA in his section after he was removed from the ACP was based solely on his performance. Mr. Ciurte was described as having “made incredible progress since he's reported to me on his ability to both communicate high level concepts as well as research.” Although Mr. Posick could have terminated Mr. Ciurte, he chose to retain him because he was able to “solve problems and research independently, to the point that “[c]urrently I trust him to present at the highest level.”
Mr. Randles testified that Mr. Ciurte’s “job performance was very well. He continued to do the skills that we needed on the financial actuary side very well, and he continued to do that. He also worked well with the other people in the department, and so he was retained for that position.”
Petitioner and Mr. Ciurte were in sections of the actuarial department with a different mix and number of actuarial employees, and different duties. Mr. Ciurte had different supervisors than Petitioner, none of whom were involved in the decision to terminate Petitioner or in the decision not to retain Petitioner as a career ASA in Ms. Henry’s section.
Mr. Ciurte is not a comparator against which to gauge any employment decision taken with regard to Petitioner.
Ultimate Findings of Fact
Each of the persons who were involved in the decision to terminate Petitioner testified credibly that Petitioner’s race or sex had no bearing on the decision, nor was the decision made as retaliation for Petitioner’s opposition to any practice falling under the ambit of section 760.10. Rather, the decision to remove Petitioner from the ACP was one required by the ACP Guidelines and applied equally to each employee that failed to meet the one-in-three rule. The decision to not offer continued employment in a different position as a career ASA was based on his inability to become an FSA, thus, being able to succeed
Ms. Henry upon her retirement, his unwillingness to work in a collaborative manner with Allstate’s employees, managers, and business partners, and his inability to complete tasks assigned.
In the absence of some corroborative evidence, Petitioner’s statements alone do not provide the support to sustain his charge of discrimination. A review of the entire record of this proceeding reveals no corroborative evidence that many of the alleged statements and comments even occurred, much less that they were the result of racial or sexual discrimination, harassment, animus or bias, or that they were retaliation for opposing or participating in a proceeding regarding such discrimination.
CONCLUSIONS OF LAW
248. Sections 120.569, 120.57(1), and 760.11(7), Florida Statutes, grant the Division of Administrative Hearings jurisdiction over the subject matter of this proceeding and of the parties.
Discrimination
With regard to Petitioner’s claim of discrimination on the basis of race and sex, section 760.10(1) provides, in pertinent part:
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.
With regard to Petitioner’s claim of retaliation, section 760.10(7) provides, in pertinent part:
(7) It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
Thus, the alleged retaliation must be for a reason that is subject to protection under the FCRA, i.e., race, color,
religion, sex, national origin, age, handicap, or marital status.
Section 760.11(1) provides, in pertinent part, that “[a]ny person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the [FCHR] within 365 days of the alleged violation.” In order to pursue a claim for discrimination, “[t]he proper focus for purposes of establishing the time at which the limitations period begins to run is on the time of the discriminatory act.” Calhoun v. Fed. Nat’l Mortgage Assn.,
823 F.2d 451, 455 (11th Cir. 1987) (quoting Chardon v.
Fernandez, 454 U.S. 6, 8 (1981); Salazar v. Am. Tel. & Tel. Co.,
715 F. Supp. 351, 354 (S.D. Fla. 1989)).
“‘Discrete discriminatory acts are not actionable if time barred, even if they are related to acts alleged in timely filed charges.’ Discrete acts of discrimination include termination, failure to promote, denial of a transfer, work assignments and retaliation claims.” Bender v. Miami Shores
Vill., 2012 U.S. Dist. LEXIS 15052, at *11-12 (S.D. Fla. 2012) (citing AMTRAK v. Morgan, 536 U.S. 101, 113-114 (2002)); see
also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 970 (11th Cir. 2008).
Petitioner filed his charge of discrimination with the FCHR on June 30, 2017. Any claims in the Complaint of Discrimination or the Petition for Relief alleging acts that
occurred prior to June 30, 2016, are presumptively time barred under section 760.11(1).
Section 760.11(7) provides that upon a determination by the FCHR that there is no probable cause to believe that a violation of the FCRA has occurred, “[t]he aggrieved person may request an administrative hearing under ss. 120.569 and 120.57, but any such request must be made within 35 days of the date of determination of reasonable cause.” Following the FCHR determination of no cause, Petitioner filed his Petition for Relief requesting this hearing.
Construction of the Civil Rights Act
Chapter 760, part I, is patterned after Title VII of the Civil Rights Act of 1964, as amended. When “a Florida statute is modeled after a federal law on the same subject, the Florida statute will take on the same constructions as placed on its federal prototype.” Brand v. Fla. Power Corp., 633 So. 2d
504, 509 (Fla. 1st DCA 1994); see also Valenzuela v. GlobeGround
N. Am., LLC, 18 So. 3d 17 (Fla. 3rd DCA 2009); Fla. State Univ. v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't of
Cmty. Aff. v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
Petitioner has the burden of proving by a preponderance of the evidence that Respondent committed an unlawful employment practice. See St. Louis v. Fla. Int'l
Univ., 60 So. 3d 455 (Fla. 3rd DCA 2011); Fla. Dep't of Transp.
v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).
Means of Proving Discrimination
Employees may prove discrimination on the basis of race, sex, or as a result of retaliation by direct, statistical, or circumstantial evidence. Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d at 22.
Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption. Denney v. City of Albany, 247 F.3d
1172, 1182 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). Courts have held that “‘only the most blatant remarks, whose intent could be nothing other than to discriminate . . .’ will constitute direct evidence of discrimination.” Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d 1354, 1359 (11th Cir. 1999)(citations omitted).
As set forth in the findings of fact herein, Petitioner failed to prove any acts or remarks that would constitute direct evidence of discrimination. Although Petitioner alleged a number of actions by co-workers, supervisors, and business partners that he believed to be evidence of racially discriminatory animus or bias, none was proven by a preponderance of the evidence to have had any form of racial animus, bias, or intent. Similarly, Petitioner
alleged a number of acts and statements that he believed to be evidence of sexual discrimination or harassment, none of which were proven to have had any form of sexual motivation or intent.
Likewise, Petitioner failed to prove discrimination on the basis of race by statistical evidence. Although Petitioner pled racially disparate pay and termination rates, none were proven by a preponderance of the evidence. Furthermore, such broadly pled allegations as made by Petitioner, e.g. that black employees Pam Bernaba, “Bryce,” “Winston,” “Ms. Bryant,” and Sharon Spruitt, and white employee Lidiya Olsen, were “abruptly terminated,” include no information regarding the purported employees, the stated grounds for their termination, or that their positions were within the class of employment occupied by Petitioner. Their “abrupt termination,” even if proven, without any testimony to provide some statistical context, does not constitute competent and substantial statistical evidence of racial bias. In the absence of some basis of comparison to measure against the raw numbers, “[s]tatistics without any analytical foundation are ‘virtually meaningless.’” Wilson v. B/E Aero., Inc., 376 F.3d 1079, 1089 (11th Cir. 2004) (citing Evans v. McClain of Ga., Inc., 131 F.3d
957, 963 (11th Cir. 1997)).
In the absence of any direct or statistical evidence of discriminatory intent, Petitioner must rely on circumstantial
evidence of such intent. In McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973), and as refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the United States Supreme Court established the procedure for determining whether employment discrimination has occurred when employees rely upon circumstantial evidence of discriminatory intent.
Under the three-part test, Petitioner has the initial burden of establishing a prima facie case of unlawful discrimination or retaliation under the FCRA. McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Texas Dep’t of Cmty. Aff. v.
Burdine, 450 U.S. at 252-253; Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006); Valenzuela v.
GlobeGround N. Am., LLC, 18 So. 3d at 22. “The elements of a prima facie case are flexible and should be tailored, on a case- by-case basis, to differing factual circumstances." Boykin v.
Bank of America Corp., 162 Fed. Appx. 837, 838-839 (11th Cir. 2005)(citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1123
(11th Cir. 1993)).
If Petitioner is able to prove his prima facie case by a preponderance of the evidence, the burden shifts to Respondent to articulate a legitimate, non-discriminatory reason for its employment decision. Tex. Dep’t of Cmty. Aff. v.
Burdine, 450 U.S. at 255; Dep’t of Corr. v. Chandler, 582 So. 2d
1183 (Fla. 1st DCA 1991). An employer has the burden of production, not persuasion, to demonstrate to the finder of fact that the decision was non-discriminatory. Id. This burden of production is "exceedingly light." Holifield v. Reno, 115 F.3d
at 1564; Turnes v. Amsouth Bank, N.A., 36 F.3d 1057, 1061 (11th
Cir. 1994).
If the employer produces evidence that the decision was non-discriminatory, then the complainant must establish that the proffered reason was not the true reason but merely a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks,
509 U.S. at 516-518. In order to satisfy this final step of the process, Petitioner must “show[] 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.” Dep’t of Corr. v.
Chandler, 582 So. 2d at 1186 (citing Tex. Dep't of Cmty. Aff. v.
Burdine, 450 U.S. at 252-256). The evidence must be such that it reveals “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence.” Combs v. Plantation Patterns Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir.
1997)(citations omitted). Petitioner would have to prove not
only that the employer’s stated reason for the employment decision was false, but also that discrimination was the real reason for the decision. Jiminez v. Mary Washington Coll.,
57 F.3d 369, 378 (4th Cir. 1995). The demonstration of pretext “merges with the plaintiff's ultimate burden of showing that the defendant intentionally discriminated against the plaintiff.” Holifield v. Reno, 115 F.3d at 1565.
The law is not concerned with whether an employment decision is fair or reasonable, but only with whether it was motivated by unlawful discriminatory intent. In a proceeding under the FCRA, “[w]e are not in the business of adjudging whether employment decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.” Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d at 1361. In that regard, it is not the responsibility of the undersigned to “sit as a super-personnel department that reexamines [Allstate’s] business decisions.” Chapman v. AI Transp., 229 F.3d 1012, 1030
(11th Cir. 2000)(citing Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1470 (11th Cir. 1991)). As set forth by the Eleventh Circuit Court of Appeals, “[t]he employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.” Nix v. WLCY Radio/Rahall Commc’ns,
738 F.2d 1181, 1187 (11th Cir. 1984). Moreover, “[t]he employer’s stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve.” Dep’t
of Corr. v. Chandler, 582 So. 2d at 1187. Time-Barred Allegations
The only allegations of discrete discriminatory acts that occurred within 365 days of the June 30, 2017, Complaint of Discrimination were Ms. Boland’s alleged sabotage of the Snap Quote tool, which occurred on June 30, 2016; Mr. Schaeffer’s pre-termination conversation with Petitioner; a denial of one of Petitioner’s many requests to work from home; and Petitioner’s termination.
With regard to whether Petitioner’s claims of racial and sexual discrimination may be considered in this proceeding, the Supreme Court has established that:
Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable “unlawful employment practice.” [The petitioner] can only file a charge to cover discrete acts that “occurred” within the appropriate time period. While [petitioner] alleged that he suffered from numerous discriminatory and retaliatory acts from the date that he was hired through . . . the date that he was fired, only incidents that took place within the timely filing period are actionable
. . . . All prior discrete discriminatory
acts are untimely filed and no longer actionable.
AMTRAK v. Morgan, 536 U.S. at 114. Thus, except for the four events described above, all of Petitioner’s complaints of discrimination are time-barred.
Hostile Work Environment
Notwithstanding the foregoing, claims involving hostile environment are different in kind from discrete acts, and by their nature involve repeated conduct. AMTRAK v. Morgan,
536 U.S. at 115. The “unlawful employment practice” occurs over a longer time period and “in direct contrast to discrete acts, a single act of harassment may not be actionable on its own
. . . . Such claims are based on the cumulative affect of individual acts.” Id. (citing Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993)).
In order to establish a hostile work environment, individual acts of discriminatory conduct are not measured in isolation. Id. (citing Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 270 (2001)). In cases alleging a hostile work environment, “when the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,’
Title VII is violated.” Id. at 116 (citing Harris v. Forklift
Systems, Inc., 510 U.S. at 21).
In order to establish a claim based on a hostile work environment, it is necessary to evaluate the totality of the evidence, “including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance,” including acts that occur outside the 365-day filing period. Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. at 23).
“Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id. at 117.
Notice of Discrimination
The evidence firmly establishes that Petitioner never made any complaint to anyone at Allstate regarding the allegedly discriminatory and harassing conduct that he claims pervaded the workplace.
Although Allstate had an established and disseminated anti-harassment policy that provided reporting opportunities other than Petitioner’s immediate supervisor, and Petitioner knew of the policy, he did not avail himself of those opportunities. See Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998); Madray v. Publix Supermarkets, 208 F.3d 1290,
1298 (11th Cir. 2000). It is well established that “once an employer has promulgated an effective anti-harassment policy and disseminated that policy and associated procedures to its employees, then ‘it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances.’” Madray v.
Publix Supermarkets, 208 F.3d at 1300 (citing Farley v. Am. Cast
Iron Pipe, 115 F.3d 1548, 1554 (11th Cir. 1997)).
For Allstate to be liable under the FCRA for the acts of its non-supervisory employees, Petitioner must prove that Allstate knew or should have known of the harassment, and failed to take prompt remedial action. Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 1029-1030 (Fla. 1st DCA
2002); see also Dudley v. Metro-Dade Cnty., 989 F. Supp. 1192, 1200 (S.D. Fla. 1997); Jackson v. Hennessey Auto, 190 Fed.
Appx. 765 (11th Cir. 2006). Due to Petitioner’s failure to report, Allstate had no direct notice of any racially or sexually motivated discrimination or harassment.
Actual Knowledge
For Petitioner to demonstrate that Allstate had actual knowledge, he must prove that he complained to higher management of the problem. Kilgore v. Thompson & Brock Mgmt.,
Inc., 93 F.3d 752, 754 (11th Cir. 1996).
Petitioner failed to demonstrate that Allstate had actual knowledge of any acts driven by racial animus or bias, or any acts of sexual harassment. The internal ethics complaints were, as described extensively herein, unrelated to any discrimination based on race or sex. The record is devoid of any evidence that Petitioner gave notice to Allstate of any alleged discrimination or harassment based on race or sex.
Id. at 754; Madray v. Publix Supermarkets, 208 F.3d at 1300.
Constructive Knowledge
For Petitioner to demonstrate that Allstate had actual knowledge, he must prove that the harassment was so severe and pervasive that an inference of constructive knowledge to the employer arises. Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d at 754.
The following factors have been considered with regard to the issue of constructive notice of harassment:
(1) the remoteness of the location of the harassment as compared to the location of management; (2) whether the harassment occurs intermittently over a long period of time; (3) whether the victims were employed on a part-time or full-time basis; and
whether there were only a few discrete incidents of harassment. Benn v. Fla. E. Coast Ry. Co., 1999 U.S. Dist. LEXIS 14314, at *18 (S.D. Fla. 1999).
Even if there was some racial animus involved in the “racist doll” -- which there was not -- Petitioner allowed the toy, of which his was one of six in the actuarial department, to remain on his desk for months without moving and without complaining to Mr. Nagai or Ms. Henry. Therefore, neither
Ms. Henry nor anyone else at Allstate would have known that the toy was offensive to him.
With respect to the comments allegedly made by co- workers -- none of which were proven -- they were generally isolated, and none were so overtly racist as to cause an immediate understanding of a racially charged intent. Thus, Petitioner failed to demonstrate that the allegedly discriminatory and harassing comments and behaviors were sufficiently severe or pervasive to constitute constructive knowledge on the part of Allstate. Benn v. Fla. E. Coast Ry. Co., 1999 U.S. Dist. LEXIS 14314, at *18-19.
Discrimination on the Basis of Race
Racially Discriminatory Acts
Prima Facie Case
To establish a prima facie case of racial discrimination under McDonnell Douglas, Petitioner must
demonstrate by a preponderance of the evidence that: 1) he is a member of a protected class; 2) he was qualified for the position; 3) he was subjected to an adverse employment action;
and 4) his employer treated similarly situated employees outside of his protected class more favorably than he was treated.
Burke-Fowler v. Orange Cnty., 447 F.3d at 1323. With regard to
a case involving termination, there is authority to suggest that, in order to meet the fourth element of the McDonnell
Douglas test, “the position was filled by a person outside the protected class.” Davis v. Coca-Cola Bottling Co., 516 F.3d
955, 985 n.41 (11th Cir. 2008).
When determining whether similarly situated employees have been treated differently, an evaluation must be made that the employees were in comparable circumstances but were treated differently. In making that determination:
“[I]t 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 employee must show that she and the employees outside her protected class are similarly situated “in all relevant respects.” Thus, “the quantity and quality of the comparator's misconduct [must] be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.”
Similarly situated employees “must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff's, without such differentiating conduct that would distinguish their conduct or the appropriate discipline for it.” If a plaintiff fails to present sufficient
evidence that a non-protected, similarly situated employee was treated more favorably by the employer, the defendant is entitled to summary judgment. (internal citations omitted).
Valenzuela v. GlobeGround N. Am., LLC., 18 So. 3d at 22-23.
Petitioner demonstrated that he is a member of a protected class, that he was qualified to hold his position with Respondent,8/ and that he was subjected to an adverse employment action, i.e., termination from employment.
Where Petitioner has failed in the establishment of his prima facie case is his failure to demonstrate that other persons outside of his protected racial classification, but within comparable positions, were subject to personnel decisions that differed from those applied to him.
The evidence demonstrates that all ACP students who failed the one-in-three exam passage rule were removed from the program. If they could not obtain employment with Allstate in another position, they would be terminated.
After Petitioner was terminated from Allstate because he did not or could not obtain alternative employment, Mr. Nagai and Mr. Ciurte failed to meet the one-in-three rule. Both were removed from the ACP.
However, Mr. Nagai and Mr. Ciurte were in a different section within the actuarial department than was Petitioner, with a different number of available positions, a different mix
of duties, and different supervisors. Mr. Posick and Mr. Randle had reasonable bases for their decisions to retain Mr. Nagai and Mr. Posick as career ASAs, based on their performance, their ability to complete tasks delegated to them, and their ability to work with Allstate employees, managers, and business partners.
Petitioner had different supervisors, Ms. Henry and Mr. Schaeffer. Ms. Henry had a single actuary in her section, and demonstrated a credible need for someone who could advance as an FSA and ultimately succeed her in her position. Ms. Henry also had reasonable concerns regarding Petitioner’s performance, his ability to complete tasks delegated to him, and his ability to work with Allstate employees, managers, and business partners.
In addition to the foregoing, Allstate has not filled Petitioner’s position with a person outside the protected class or otherwise. Ms. Henry has hired two support staff for her section since Petitioner’s termination. They were not hired as successors in Petitioner’s position. Both are white. Neither are actuaries or actuarial students. They have completely different roles in the section than Petitioner had.
In short, Petitioner failed to prove that Respondent’s decision to terminate him was the result of any consideration of or discriminatory intent based on race, or that
his treatment as an employee differed in any material way from the treatment afforded other similarly situated employees, regardless of their race. Therefore, Petitioner failed to prove a prima facie case of discrimination, and his petition for relief should be dismissed.
Legitimate, Non-discriminatory Reason
Assuming -- for the sake of argument -- that Petitioner made a prima facie showing, the burden would shift to Respondent to proffer a legitimate non-discriminatory reason for its action.
Respondent met its burden by producing substantial credible evidence that Petitioner was terminated solely for failing out of the ACP, and for deficiencies in his job performance, as detailed herein, and for no other reason.
Pretext
Assuming -- again, for the sake of argument -- that Petitioner made a prima facie showing, then upon Respondent’s production of evidence of a legitimate non-discriminatory reason for its action, the burden shifted back to Petitioner to prove by a preponderance of the evidence that Respondent’s stated reasons were not its true reasons, but were a pretext for discrimination.
The record of this proceeding does not support a finding or a conclusion that Respondent’s proffered explanation
for its personnel decisions was false or not worthy of credence, nor does it support an inference that the explanation was pretextual.
For the reasons set forth herein, Petitioner failed to prove circumstantial evidence of racial discrimination under McDonnell Douglas and its progeny. Although this conclusion applies directly to those allegations that are not time-barred as set forth above, it applies with equal force to each of the allegations of discrete discriminatory conduct set forth herein, regardless of when they occurred.
Racially Hostile Work Environment
As set forth in detail herein, Petitioner failed to prove that he was exposed to or the subject of any actions or remarks that were founded upon racial animus or bias. Many of the acts and statements were simply not proven to have occurred. As to other incidents, Petitioner may have had an entirely subjective apprehension that actions related to simple and innocent office interaction (the “racist doll”), work performance (e.g., the interaction with Mr. Dickson, and the evaluation of his work performance), and legitimate business expectations (e.g., denial of the request to work from home) were racially charged. However, there was no objective evidence to support that belief.
The totality of the evidence adduced in this case established that Allstate in general, and the actuarial department specifically, was not permeated with discriminatory intimidation, ridicule, and insult that could, by any reasonable and objective measure, be determined to have been sufficiently severe or pervasive to alter the conditions of Petitioner’s employment, or create a racially abusive working environment. Therefore, Petitioner failed to meet his burden of proof that he was forced to work in a racially hostile work environment. Discrimination on the Basis of Sex
Sexually Discriminatory Acts
The FCRA prohibits sex-based discrimination in two ways: by a tangible adverse employment action; or by creation of a hostile workplace environment caused by sexual harassment that is so severe or pervasive as to alter the terms and conditions of work. Blizzard v. Appliance Direct, Inc., 16 So.
3d 922, 926 (Fla. 5th DCA 2009)(citing Baldwin v. Blue
Cross/Blue Shield of Ala., 480 F.3d 1287 (11th Cir. 2007); and Thornton v. Flavor House Prod., Inc., 2008 U.S. Dist. LEXIS
103099 (M.D. Ala. 2008)).
In an action based on sexual harassment “a plaintiff may establish a violation of Title VII by proving that the harassment either was directly linked to the grant or denial of an economic quid pro quo or created a hostile work environment.”
Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1551-1552 (11th
Cir. 1997) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).
In order to establish a claim based on sexual harassment by his supervisor, Ms. Henry, Petitioner was required to show: (1) that he is a member of a protected group; (2) that he was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment was based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and
that there is a basis for holding the employer liable.
Blizzard v. Appliance Direct, Inc., 16 So. 3d at 927 (citing
Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999); and Speedway Superamerica, L.L.C. v. Dupont, 933 So. 2d 75 (Fla. 5th
DCA 2006)).
Petitioner is a member of a protected class, since the term “sex” in section 760.10 is a general term that in everyday usage can mean either male or female. See Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 597-598 (2004);
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1988).
Petitioner failed to produce any persuasive evidence to support a prima facie case that he was subjected to
unwelcome sexual advances or harassment by Ms. Henry. No co- workers observed any sexually oriented conduct on the part of Ms. Henry directed towards Petitioner or anyone else.
Petitioner failed to prove that Ms. Henry made any sexual overtures towards him of any kind. Petitioner never mentioned or complained to co-workers or management about any sexual misconduct by Ms. Henry until well after his termination for cause, and well after his Complaint of Discrimination. Whatever subjective apprehension of any romantic interest by Ms. Henry held by Petitioner is not supported by even a shred of objective evidence to support Petitioner’s after-the-fact claims of sexual impropriety.
Sexually Hostile Work Environment
As set forth in detail herein, Petitioner failed to prove that he was exposed to or the subject of any unwelcome sexual harassment, such as sexual advances, requests for sexual favors, or other conduct of a sexual nature. Therefore, Petitioner failed to meet his burden of proof that he was forced to work in a sexually hostile work environment.
Retaliation
The FCRA’s retaliation provision comes in two forms -
- opposition-based or participation-based conduct. With regard to those forms of conduct, it is established that “[a]n employee is protected from discrimination if (1) ‘he has opposed any
practice made an unlawful employment practice by this subchapter’ (the opposition clause) or (2) ‘he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter’ (the participation clause).” Clover v. Total Sys. Servs., Inc.,
176 F.3d 1346, 1350 (11th Cir. 1999).
“Section 760.10(7), Florida Statutes, is virtually identical to its Federal Title VII counterpart, 42 U.S.C.
§ 2000e-3(a). The FCRA is patterned after Title VII; federal case law on Title VII applies to FCRA claims.” Hinton v.
Supervision Int'l, Inc., 942 So. 2d 986, 989 (Fla. 5th DCA 2006)(quoting Guess v. City of Miramar, 889 So. 2d 840, 846 n.2
(Fla. 4th DCA 2005)).
In construing 42 U.S.C. § 2000e-3(a), the Eleventh Circuit has held that:
[t]he statute's participation clause “protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC.”
. . . The opposition clause, on the other hand, protects activity that occurs before the filing of a formal charge with the EEOC, such as submitting an internal complaint of discrimination to an employer, or informally complaining of discrimination to a supervisor. (citations omitted).
Muhammed v. Audio Visual Servs. Group, 380 Fed. Appx. 864, 872 (11th Cir. 2010). The division of section 760.10(7) into the “opposition clause” and the “participation clause” is recognized
by Florida state courts. See Blizzard v. Appliance Direct,
Inc., 16 So. 3d at 925-926. In explaining the difference between the two clauses, the Second District Court of Appeal has
held that:
FCRA's “opposition clause [protects] employees who have opposed unlawful [employment practices].” . . . However, opposition claims usually involve “activities such as ‘making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of coworkers who have filed formal charges.’” . . . Cases involving retaliatory acts committed after the employee has filed a charge with the relevant administrative agency usually arise under the participation clause.
Carter v. Health Mgmt. Assoc., 989 So. 2d 1258, 1263 (Fla. 2d
DCA 2008).
Participation Clause
With regard to the broad coverage afforded under the participation clause, the Eleventh Circuit has explained:
Congress chose to protect employees who “participate[ ] in any manner” in an EEOC investigation. The words “participate in any manner” express Congress' intent to confer "exceptionally broad protection" upon employees covered by Title VII “the
adjective ‘any’ is not ambiguous . . . .
[It] has an expansive meaning, that is, one or some indiscriminately of whatever kind
. . . . [A]ny means all.” Because participation in an employer's investigation conducted in response to a notice of charge of discrimination is a form of participation, indirect as it is, in an EEOC
investigation, such participation is sufficient to bring the employee within the protection of the participation clause.
Clover v. Total Sys. Servs., Inc., 176 F.3d at 1353.
In order to establish a prima facie claim of retaliation under the participation clause, a petitioner must, “in addition to filing formal charges with the Equal Employment Opportunity Commission (EEOC) or its designated representative, [a petitioner] was required to demonstrate: (1) a statutorily protected expression; (2) an adverse employment action; and,
(3) a causal connection between the participation in the protected expression and the adverse action.” Hinton v. Supervision Int’l, Inc., 942 So. 2d at 990.
Respondent’s alleged acts of retaliation were entirely predicated upon his ethics complaints filed against Mr. Dickson and Ms. Henry, and the alleged retaliatory adverse action visited upon him as a result. Neither of those complaints were either predicated on, or investigated as, incidents of racial discrimination. Rather, Petitioner complained against Mr. Dickson for his unethical behavior involving essentially, Mr. Dickson throwing his weight around, bullying, and lying, all related to his decisions regarding deployment of the Snap Quote tool. As to Ms. Henry, his complaint was “for filing that report on David Dickson.”
Neither of Petitioner’s internal ethics complaints were shown to have been related to racial discrimination or harassment. Therefore, the resulting investigations were not the result of Petitioner having “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [section 760.10(7)].”
Other than the internal ethics complaints, there was no adverse employment action that occurred prior to Petitioner filing his Complaint of Discrimination. “The participation clause includes activity done in connection with proceedings conducted by the federal government and its agencies: an employee has invoked the jurisdiction of the federal government through its agency, the EEOC. And we have held that expansive protection is available for these adjudicative kinds of proceedings run by the government.” EEOC v. Total Sys. Servs., 221 F.3d 1171, 1175-1176 (11th Cir. 2000). Therefore, Petitioner’s claim does not fall under the participation clause.
Opposition Clause
Claims under the opposition clause are not subject to the same degree of “expansive protection” that comes about after a claim of discrimination is filed with the appropriate civil rights agency. Rather:
Opposition clause acts, however, are taken outside of the context of a government review and, instead, are taken in the
context of the ordinary business environment and involve employers and employees as employers and employees. As in this case, whether to fire an employee for lying to the employer in the course of the business's conduct of an important internal investigation is basically a business decision; this decision, as with most business decisions, is not for the courts to second-guess as a kind of super-personnel department.
EEOC v. Total Sys. Servs., 221 F.3d at 1176 (citing Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d at 1361).
The record of this proceeding contains no direct or statistical evidence of any retaliation on the part of Respondent as a result of Petitioner’s opposition to acts of discrimination directed against others as a result of their race, color, religion, sex, national origin, age, handicap, or marital status.
In order to establish a prima facie case of retaliation, Petitioner must demonstrate by a preponderance of the evidence: “(1) that [he] engaged in statutorily protected expression; (2) that [he] suffered an adverse employment action; and (3) there is some causal relationship between the two events.” (citations omitted). Holifield v. Reno, 115 F.3d at 1566; see also Muhammed v. Audio Visual Servs. Group, 380 Fed.
Appx. at 872; Tipton v. Canadian Imperial Bank, 872 F.2d 1491 (11th Cir. 1989).
Petitioner’s claim of retaliation is directed exclusively to his allegation that he was retaliated against as a result of his conflict with Mr. Dickson regarding the deployment of the Snap Quote tool. That is simply not statutorily protected expression. His allegations have nothing to do with whether the wrongful conduct was the result of his race, or as a result of his opposition to acts of discrimination directed against others.
For the reasons set forth herein, Petitioner did not meet his burden to establish a prima facie case of discrimination by retaliation.
Conclusion
Respondent put forth persuasive evidence that Petitioner was terminated from employment as a result of his failure to meet the terms of the ACP under which he was hired. The decision by Allstate to not rehire Petitioner into either his former position as a career ASA, or into another position was based not only on the lack of other open positions that Petitioner would accept (or apply for), but also on his job performance and his willingness and ability to work with other employees, managers, and business partners. The evidence introduced at the final hearing was not sufficient to meet the burden of proof to establish, by a preponderance of competent and substantial evidence, that the decision to not rehire
Petitioner after his termination from the ACP was a result of race, sex, or retaliation.
There was considerable evidence that Petitioner was a skilled and hard-working employee. It may have been unfair for Respondent not to allow Petitioner to “go down to Antarctica, pop up a laptop, and [ ] start crunching numbers,” eschewing contact and collaboration with other employees, managers, and business partners. However, the decision to move on from Petitioner after he failed his third actuarial examination, and was removed from the ACP does not, in light of the evidence in this proceeding, suggest that Petitioner was fired due to his race or his sex, or establish that he was the subject of retaliation as a result of her opposition to an unlawful employment practice as defined in section 760.10.
Section 760.10 is designed to eliminate workplace discrimination, but it is “not designed to strip employers of discretion when making legitimate, necessary personnel decisions.” See Holland v. Washington Homes, Inc., 487 F.3d 208, 220 (11th Cir. 2007). The decision taken by Allstate was a legitimate, necessary personnel decision. Because Petitioner failed to put forth sufficient evidence that Respondent had some discriminatory reason for its personnel decision, his petition must be dismissed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Allstate Insurance Company, did not commit any unlawful employment practice as to Petitioner, Elias Makere, and dismissing the Petition for Relief filed in FCHR No. 2017-01432.
DONE AND ENTERED this 18th day of April, 2019, in Tallahassee, Leon County, Florida.
S
E. GARY EARLY 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 18th day of April, 2019.
ENDNOTES
1/ On April 3, 2019, Petitioner filed a Renewed Motion for Official Recognition of Comparative Facts, arguing that the original August 16, 2018, motion had not yet been disposed of. The undersigned, having been inundated with no fewer than
22 motions since the close of the hearing, not including various notices, filings, and not including documents related to his appeal of non-final orders, simply overlooked the fact that the motion had been denied on the record during the hearing, and again denied the motion on April 3, 2019. The rulings, and the substance thereof, were the same in both.
2/ Since Petitioner was terminated effective September 12, 2016, it is presumed that the correct dates were July 1, 2016, to
July 11, 2016.
3/ Petitioner started at Allstate in November of 2013. He was terminated in August of 2016. Therefore, the Christmas festivities had to have occurred in December 2013 and 2014, or in December 2014 and 2015.
4/ As it turned out, the Snap Quote tool was ultimately determined to be too bulky to be downloaded to field agent computers, and is no longer used by Allstate.
5/ Much of Petitioner’s complaint is predicated on his belief that Allstate did not want people exposed to an “inferior” black actuary. If that were the case, one might conclude it would be advantageous for Allstate to have allowed Petitioner to work from home, where he would not be seen by Allstate’s managers, employees, and business partners.
6/ Petitioner also alleged that Ms. Henry asked him to go bowling with her on August 10, 2016, within a day or two of his termination. That allegation was first made in his Petition.
Ms. Henry had no recollection of having made such a request, and noted that by the date alleged by Petitioner, the decision to terminate Petitioner had been made, awaiting only HR approval.
In addition, since her husband could no longer bowl due to health reasons, she had given up the sport in deference. The evidence is not persuasive that Ms. Henry invited Petitioner to go bowling with her on August 10, 2016.
7/ By the time of his testimony, Petitioner changed his story to “she springs up and gives me a second best rating, so that was clouded in the harassment. It seemed to me that she was upset that I did not submit to her romantic and social desires. I did not submit to it and so I was being punished. So I -- I took exception to the discriminatory way and the subjective way that she was grading me --.” While it may have “seemed to him” that Ms. Henry had some romantic interest driving her acts of common civility and kindness, there is not a shred of evidence that it “seemed” that way to anyone else. As set forth in greater detail in the “Dinner and a Movie” section, Petitioner’s unwarranted and undeserved attack on Ms. Henry’s character is rejected.
8/ A reasonable argument can be made that Petitioner was not qualified for his position with Allstate, and was not meeting
Allstate’s legitimate employment expectations. One of the requirements of Petitioner’s job was that he must continue to progress in the SOA actuarial examinations, and meet the requirements of the ACP. He did neither. However, for purposes of this Order, it is determined that Petitioner had the actuarial qualifications to remain employed as a career ASA. However, as established, a position to remain as such was not available, and other factors independent of his actuarial skills led Allstate to reasonably decide not to retain Petitioner.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020 (eServed)
Stephani Koutsodendris, Esquire Liebler, Gonzalez & Portuondo
44 West Flagler Street Miami, Florida 33130 (eServed)
Christine M. Manzo, Esquire Liebler, Gonzalez & Portuondo
44 West Flagler Street Miami, Florida 33130 (eServed)
Carmen Rodriguez, Esquire
Law Offices of Carmen Rodriguez, P.A. Suite 411
15715 South Dixie Highway Miami, Florida 33157 (eServed)
Elias Makere No. 701
3709 San Pablo Road South Jacksonville, Florida 32224 (eServed)
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 27, 2019 | Agency Final Order | |
| Apr. 18, 2019 | Recommended Order | Petitioner failed to meet his burden of demonstrating that he was terminated from employment due to race and sex discrimination and retaliation. His Petition should be dismissed. |
