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GLORIA ANN MARTIN vs. THE BRADENTON HERALD, INC., AND KNIGHT-RIDDER NORTHEAST, 83-000736 (1983)

Division of Administrative Hearings, Florida Number: 83-000736 Latest Update: Aug. 30, 1984

The Issue Whether respondents unlawfully (1) discriminated against petitioner on the basis of her sex, and (2) retaliated against her for opposing sexually discriminatory practices.

Findings Of Fact Petitioner's discrimination claim is two-fold. First, she contends that respondent sexually discriminated against her by paying her less salary and excluding her from participating in the managerial bonus plan and weekly managerial staff meetings when male employees, performing equal or comparable work, were paid more and participated in the bonus plan and staff meetings. Second, she contends that respondent retaliated against her--by firing her-- because she complained of its sexually discriminatory policies. As alleged, both unlawful employment practices occurred between January, 1978, and November, 1979, during which time petitioner was respondent's Personnel Manager, both in title and in fact. Petitioner, now 47, graduated from the University of Michigan in 1958 with a Bachelor of Arts Degree. She majored in journalism, minored in psychology and sociology, attended on scholarship, and maintained a B average. After graduation, she became a policewoman with the Detroit Police Department, where she counseled and referred juvenile offenders. She then retired and raised her children during the next 10 years, after which she obtained a real estate license and sold residential real estate. On March 4, 1974, she was hired by the Detroit Free Press as an "Executive Secretary and Administrative Assistant to the Personnel Director." At that time she had no formal training or prior employment in personnel. The Detroit Free Press and respondent Bradenton Herald, Inc., both newspapers in the Knight-Ridder Newspapers, Inc. group, are separate and distinct entities. There is no evidence of record that employees of Knight-Ridder Newspapers, Inc. directed or participated in any of the alleged unlawful employment practices complained of by petitioner. In September, 1975, after one and one-half years with the Detroit Free Press, petitioner wrote respondent, (Bradenton Herald, Inc.) about possible future openings in its Personnel Department, stating that she would like to move to the Gulf Coast area of Florida within the next year. She stated that she wished to relocate because she had two dependent school age children and wished to live near her parents in Clearwater, Florida rather than contending with the bad weather and drawbacks that she was experiencing in Detroit. (P-33) She also indicated that she did not plan to start "job hunting" until early the next year. She described her current position, stating that she had responsibility for handling the day-to-day personnel operation of the Detroit Free Press, which had 2,000 employees. She listed her duties as testing and supervising employees; maintaining personnel files; handling stock purchase plans, unemployment claims, interviewing; handling correspondence and secretarial work for the personnel section; writing letters to all employees; informing labor and corporate officials on a regular basis of all personnel changes; maintaining accurate address information on all employees; preparing monthly personnel reports, quarterly employee reports, monthly reports to the Knight-Ridder Newspaper headquarters in Miami, Florida, and quarterly reports to the National Alliance of Businessmen regarding the hiring of Vietnam veterans and the disadvantaged; verifying employment, credit and employee references; distributing performance appraisal reports including the compilation of delinquency lists and records; researching personnel files and making appropriate responses; handing out applications to prospective employees and answering employee questions regarding insurance, stock purchase and other employee benefits; answering the telephone and handling all calls; scheduling the conference room; maintaining contact with functional and department heads as well as employees at all levels of the newspaper; and, making extensive contact with the general public, as well as most applicants for positions of employment. (P-33) In August, 1975, petitioner's work at the Detroit Free Press was becoming increasingly clerical and a source of frustration to her. She felt clerical work no longer challenged her. Her supervisor agreed with her assessment, observing that she was "becoming super at the [personnel] testing situation." He discerned no way out of her dilemma but recommended that a raise in her salary be considered "because of her ability and work." (P-33) At the time of her job inquiry, respondent was a small newspaper, acquired in 1973 by Knight-Ridder Newspapers, Inc., and in the process of organizing various departments and functions. It had no openings in Personnel but, in October, 1975, offered her a position as secretary to William LaMee, the Publisher. She rejected the job offer because, as she explained, her training had advanced to the point where she believed she could handle a personnel management position. Subsequently, in March, 1976, respondent offered and petitioner accepted a position as "Personnel Assistant" to Byron Callahan, both Personnel Director and Promotion Manager at the Bradenton newspaper. Petitioner replaced Doris Hiscox, the former Personnel Assistant. At that time, the paper had no Business Manager. II. Petitioner began work at her new job in April, 1976. Respondent paid her travel and moving expenses from Detroit, Michigan to Bradenton, Florida, which indicates that it perceived her as being more than a clerical employee. It was respondent's practice to pay travel and moving expenses of managerial and professional employees. Petitioner performed the functions of the newly created Personnel Section, functions formerly handled by the Accounting Department. Byron Callahan, the new Promotions Personnel Director, was responsible for these functions, in addition to various promotional or public relations activities of the newspaper. These included such things as preparing the newspaper's Manatee County Fair Booth; establishing a safety committee; preparing special section promotions; running newsroom personnel promotions; handling promotions for the DeSoto Celebration; handling a special promotion performance of "Up With People"; preparing a "supervisory manual"; negotiating for the acquisition of equipment and reduction of service costs; becoming involved with minority organizations and community action groups; auditing and reporting hiring and promotion patterns to assure compatibility with the affirmative action program; conducting career counseling for minority employees; implementing training programs; initiating drug awareness programs; handling United Way representation, including "loaned executive" program; initiating special promotion publications; implementing radio advertisements in the newspaper; establishing a speakers' bureau; establishing public tours through the newspaper; reducing building maintenance staff; procuring estimates for demolition of one of respondent's properties; completing the maintenance and restriping of the employee's parking lot; and initiating training of all personnel concerning Occupational Safety and Health Act safety programs. (R-4 through R-7) Within a month after petitioner's arrival at her new job, Mr. Callahan was fired and replaced by Donald Heath, who was hired as the new Business Manager. His responsibilities included the Advertising Department as well as Personnel and Promotions, the two areas for which Mr. Callahan had been responsible. Although petitioner's functions remained relatively unchanged, her responsibilities as the Personnel Assistant increased as Mr. Heath--who had no personnel experience--relied on her to carry out the newspaper's personnel functions. Unlike Mr. Callahan, he did not assist in performing these functions. After three months at her new job, petitioner wrote the Personnel Manager of the Detroit Free Press, asserting that she was fully and completely responsible for personnel functions at the Bradenton newspaper. During her first five months at the newspaper, she was happy with her work and, by all reports, performing her duties well. She had received two pay increases and was then earning $200.00 per week. The quantity and pace of her work, however, began to trouble her. She was almost single-handedly performing, with some part-time clerical assistance, all of the personnel work for the newspaper. Yet she did not hold the title of Personnel Manager. In January, 1977, she wrote the Detroit Free Press asking to be considered for its Personnel Manager position, should it become available. In September, 1977, when the position became available, she applied to he the personnel Manager of the Detroit newspaper, stating that she was ready to move into a personnel management position on a large metro paper. She wrote that she wanted to move back to Detroit, because of, among other things, personal family reasons. After receiving no response, she renewed her request in October, 1977, and enclosed another resume. (P-33) On January 10, 1978, petitioner was promoted, both in title and fact, to the position of Personnel Manager by William Appleby, respondent's then General Manager. (She had, in fact, been performing the duties of a personnel manager for almost two years.) As Personnel Manager, her duties required her to: Interview, test, and recruit prospective job applicants; Pre-screen all applications and resumes received from job applicants; Interpret prospective job applicants' test scores for department heads, General Manager and Publisher. Test management applicants for employment. Test applicants for positions at other Knight- Ridder Newspapers, at the request of those papers; Administer and prepare all unemployment, workers compensation, OSHA (Occupational Safety and Health Act) and EEO (Equal Employment Opportunity) reports; Represent the newspaper at unemployment hearings. Supervise the switchboard employees and the operation of the switchboard; Supervise the in-house print shop, including approval of all in-house printing orders. Write, supervise and edit the employee handbook; Maintain the newspaper's personnel records in "KRIS," Knight-Ridder's computerized central data bank; Set up periodic performance evaluation and salary review programs for all employees; Prepare regular quarterly reports to the Publisher regarding activities of the Personnel Department; Write regular memoranda to employees regarding personnel matters of interest; Assist General Manager and Controller in setting up Personnel Department budget; Write, edit and produce the monthly employee newsletter, Headliners; Write, employment ads for the newspaper; Devise a new job application for the newspaper; Represent the newspaper at Knight-Kidder Personnel Directors' meetings in Miami. Attend management training seminars; Become a member of NPRA - Newspaper Personnel Relations Association and SPA - Sarasota Personnel Association. She was also responsible for employee of the month and year programs, employee service awards, press releases on managerial appointments, employee tours and orientation programs, employee bulletin board, employee Christmas luncheon and employee open house. She also supervised the print shop, which was operated by one person. She had no authority to hire or fire him, but--within three months of her employment--had cleared up a workload backlog of several months and had the shop running smoothly. She approved all printing orders. She also supervised the switchboard, which had one full-time and one part-time employee. They sometimes helped her type and score test results. (P-33) The secretary to the Publisher and General Manager also provided petitioner with 15 hours per week of clerical assistance and maintained all personnel records. This secretary also helped petitioner with basic interviewing and correspondence; answering inquiries concerning employment positions; preparing ads for positions of employment; administering of tests; and processing of insurance claims. As in the past, petitioner was expected to, and did, perform many of the clerical duties associated with Personnel. The Publisher and General Manager expected that petitioner would initiate training and employee counseling programs in addition to performing her other duties, although they made no specific request for such programs. Because of the rapid turnover of employees, and her lack of adequate clerical and administrative assistance, she was unable to initiate these programs although she did some informal counseling of employees. As the newspaper's new Personnel Manager, one of her duties was to edit and re-write the Employee Handbook. She organized and substantially revised it, and was praised for her accomplishment by the Vice-President for Personnel at Knight-Ridder: "It is a very vast improvement over what you [respondent Bradenton Herald, Inc.] had in the past and better than most of our other companies." (P-33) She also programmed required personnel statistical information in the newspaper's new computer system. In regard to her other duties, she acknowledges that the training of the switchboard operators was performed by the telephone company and that she handled only three contested unemployment claims and no worker's compensation hearings. During the last three months of her employment at the newspaper, she assumed responsibility for preparing the monthly newsletter, which she admits was a professional, not a managerial, function. She had no dealings with employee unions since there were no unions at the Bradenton newspaper. During the time petitioner was Personnel Manager, respondent published an internal organizational chart indicating that six employees reported to the General Manager: Personnel Manager Promotion Manager Advertising Director Circulation Director Production Manager Controller. Petitioner contends that her functions, duties, and responsibilities were comparable to or equal to those of the Advertising Director, Circulation Director, Production Manager and Classified Manager, who reported to the Advertising Director. These positions were filled by males. Unlike petitioner, these four male employees participated in the managerial compensation bonus plan and weekly managerial staff meetings. They also were paid more than petitioner. Her predecessor, Mr. Callahan, had participated in the managerial bonus plan and weekly managerial staff meetings. Of six positions reporting to the General Manager, two (Personnel Manager and Promotion Manager) were filled by female employees. Neither participated in the bonus plan or weekly managerial staff meetings. Contrary to petitioner's contention, the four employees to which she compares herself had greater responsibilities than she had, and a higher level of skill and effort were required of them. The four positions were not equal, or virtually equal, or even comparable to that of the Personnel Manager, which required less skill and effort, and had less responsibility. The only significant similarity among these positions was that most reported directly to the General Manager. The real and substantial differences between them, however, far outweigh this similarity. The major functions of the newspaper were in the advertising, production, circulation and accounting department. These were the "on-line" departments, in contrast to an administrative support department, such as Personnel. These departments exercised substantially more responsibility for the operation of the newspaper than did the Personnel Department. The most important departmental head (excluding the Publisher/President and General Manager) was the Advertising Director. The functions of the Advertising Director included establishment of revenue goals, budgets and adjustments to budgets; management of personnel and internal organizations; preparation and implementation of sales strategy and marketing practices; establishment of rates for advertising; and coordination of special advertising projects. The Advertising Director accounted for 70-80 percent of the total revenue of the newspaper, which approached twelve million dollars annually. He was directly accountable for a staff of approximately forty persons, whom he had sole authority to hire and fire. He was responsible for his staff's training, coordination, and development, and the expenditure of budgeted funds, including the implementation and constant adjustment of the budget throughout the year. Within the Advertising Department, three lower level management personnel reported to the Advertising Director: the Retail Ad Manager, who was accountable for approximately 80 percent of the revenue generated within that department; the Classified Ad Manager, who was responsible for approximately 20 percent of the revenue, and the National Advertising Manager. These managers were interviewed and hired by the Advertising Director; petitioner did not interview them before they were hired. The Retail Ad Manager was responsible for special sections, real estate ads and television ads. He had a sales staff of eight persons. His duties included preparing training programs, advertising booklets and brochures, and recommending purchases and redesign of equipment. The Classified Ad Manager was responsible for the hiring, firing, training and performance of the ten people on his staff. The Advertising Department trained its staff without assistance from the personnel section. Petitioner's successor, aided by a newly hired second employee in Personnel, took over these functions, including recruitment, interviews, screening, scheduling and training. After the departure of petitioner's immediate successor, these functions continued to be carried out with only one individual in the Personnel Section, Donna Campbell. The next major department of the newspaper was the Circulation Department, which was responsible for 20 percent to 30 percent (approximately $3 million) of the total revenue of the newspaper. This department had the largest departmental staff and distributed papers to almost 20,000 customers. It employed district managers, who were responsible for over 60 newspaper carriers. The Circulation Manager had direct responsibility and authority for the hiring and firing of his employees, the transportation and delivery of the newspapers, and the coordination of all circulation and collection functions, including sales promotions. Budgeting and adjustments to the budget was required throughout the year in coordination with the Advertising Director, and the Controller. The Production Director headed the third major department of the newspaper and was responsible for 50 employees in five operational departments: composing, camera, plate making, press and pressroom. Each department had a supervisor and two had assistant supervisors or foremen. For example, the Supervisor of the Pressroom had responsibility for ordering supplies and supervising the press operators. The Mail Room Foreman supervised 15-20 employees, whose responsibilities included the bundling of newspapers for dissemination through circulation. The Production Director was responsible for the printing of the newspaper, the training of his staff, and the preparation of his department budget. The annual budget for this department was $1.5 million, which included purchasing and maintaining equipment. He was also responsible for ordering and maintaining adequate inventory and supplies, including the purchasing of newsprint. The value of the inventory exceeded $1 million. His operational decisions were not subject to the prior approval of the Publisher or General Manager. The Controller was the fourth major operational department. He was the chief financial officer and responsible for the fiscal operation of the newspaper. He supervised a staff of approximately 15 people, including a Credit Manager, who supervised two employees, and an Accounting Manager, who supervised fifteen employees. The annual accounts receivable for the newspaper approached $8 million. He monitored the other three departments to ensure they remained within their budgets. In contrast, petitioner's duties as Personnel Manager can only be described as administrative or clerical in nature. One expert witness, who testified on her behalf, acknowledged that the personnel department in a newspaper the size of respondent's could be handled by a clerical staff rather than a Personnel Manager. Her supervisory and budgeting responsibilities were limited and circumscribed. She supervised one full time switchboard operator and one print-shop employee, whom she could neither hire nor fire. Her main role was to provide administrative support to the operational "on-line" departments of the newspaper. Her pay was within the range of, or even exceeded, the pay of male employees holding similar mid-management positions, such as Mail Room Supervisor, National Co-op Manager, Home Delivery Manager, Single Copy Manager, Credit Manager and Building Maintenance Supervisor. Petitioner was ineligible to participate in the managerial bonus compensation program, which was limited to department heads who exercised substantially greater responsibilities than she. Many managerial positions, with substantially greater responsibilities than those of the Personnel Manager, were also ineligible. These included the Pressroom Foreman, Composing Room Foreman, District Managers, Sub-editors, Accounting Manager and Credit Manager. In the newspaper industry, executive or management bonus programs are not normally made available to Personnel Managers. Moreover, it is a generally accepted practice in the industry to pay more compensation to the heads of production, editorial, advertising, and circulation than to the head of personnel. This is because the former are generally regarded as exercising greater responsibilities. The basis for establishing the relative importance of the respective managers was neither by their title or position on the newspaper's organizational chart, nor the rank of the position to whom they reported. For example, the Building Superintendent reported to the General Manager, supervised employees and had authority to expend funds without prior approval. But he was not equal to the Advertising Director in responsibility or managerial importance. The organizational chart merely depicted the various sections of the newspaper and to whom these sections were accountable. During the period of petitioner's employment as Personnel Manager, she was excluded from weekly staff meetings and the annual Christmas party, which was primarily for the newspapers' customers. Her exclusion was consistent with the newspaper's policy to exclude mid-management personnel, whether male or female. The weekly staff meetings were intended to include only managers having primary responsibility for "on-line" functions of the newspaper. As Personnel Manager, petitioner had no "on-line" functions. III. In October, 1978, after returning from an equal employment opportunity seminar, petitioner became convinced that she was the victim of sex discrimination. She complained to General Manager Appleby, asserting that her exclusion from the managerial bonus plan and weekly managerial staff meeting was evidence of sex discrimination. In January, 1979, she repeated her complaint to General Manager Appleby, who attributed her exclusion from the bonus plan and staff meetings to the policies of Publisher LaMee and promised to discuss her complaints with him. Her complaint of sex discrimination was, under the circumstances, reasonable, and made in good faith. Although the newspaper had many female employees, none were included in its top-management or the important "on-line" positions. 2/ These were occupied, exclusively, by males. No females participated in the managerial bonus system or attended the weekly managerial staff meetings. Petitioner was excluded from the staff meetings, although her predecessor--who had been responsible for personnel, in addition to his other duties--was a regular participant. Because they occupied lower ranking positions, females, as a group, were paid less than on-line or executive male managers. Finally, Publisher LaMee's style of relating to and supervising female employees was perceived to be overbearing, condescending, and demeaning. In fact, he treated both male and female subordinates, alike, with abruptness and brooked no dissent. He sometimes abused and intimidated employees and was viewed, by some, as a "tyrant." An employee who crossed his policies could expect recrimination or retaliation. Although Publisher LaMee denied any knowledge of petitioner's complaints of sex discrimination, his denial is rejected as unworthy of belief. General Manager Appleby told him of her two complaints after each was made. Soon after petitioner complained to Mr. Appleby, and during the ensuing year, Publisher LaMee wrote notes to himself and left them on his desk. Those noted contained short phrases such as, "Fire Ann," "Fire A.M.," and "Can Ann." His attitude toward her became increasingly critical. On November 30, 1979, Publisher LaMee fired her for writing a personal letter during working hours and leaving the office prior to the close of business hours. He fired her abruptly and summarily, without first talking to the General Manager, her immediate supervisor. On the day in question, petitioner left work 15 minutes before 5:00 P.M., after other managers, including the Publisher and General Manager, had already left for the day. Indeed, the Ad Manager was, at that time, playing golf, though not on leave. Before leaving work, she notified the switchboard operator and left a number where she could be reached. Respondent supplies a third reason why petitioner was fired, though that reason was not expressed to her at the time. She was, according to respondent, lazy and had demonstrated a deteriorating work performance. Respondent asserts that petitioner was fired for these three reasons and denies that her prior complaints of sex discrimination were a factor in her dismissal. This assertion, and denial, are rejected as pretextual and unworthy of belief. The allegation that petitioner was lazy and her work deteriorating is inconsistent with her individual personnel record. Throughout her employment, she consistently, and repeatedly, received merit pay increases and positive comments about her performance. The only negative written comment is contained in a personnel extract compiled in late 1978 and early 1979. The extract, at least in part, is based on Publisher LaMee's derogatory comments about her. His credibility is already suspect so little weight is given the extract. Testimony by two of respondent's witnesses that she was frequently orally reprimanded is rejected as vague and inconsistent with her regular meritorious reviews and salary increases. Moreover, in petitioner's unemployment compensation hearing occurring after her dismissal, respondent did not express the view that she was fired, even in part, because of laziness or deteriorating job performance. Failure to express the view then detracts from its credibility now. As for her writing a personal letter during office hours, this was a practice engaged in by other managerial employees without disciplinary action. Petitioner was not paid an hourly wage and did not "punch a time clock." Because she and other managers worked overtime and on weekends without additional pay, they were given latitude during business hours, so long as they performed their work properly,. As for leaving 15 minutes early, this was also a common practice among managers at or above petitioner's level. Publisher LaMee had never before fired any employee for either of these reasons. The firing of petitioner for either or both of these reasons, is inconsistent with respondent's past treatment of its other employees, both male and female. In summary, the evidence convincingly supports an inference, now drawn, that petitioner was terminated from her employment, at least in part, because she opposed, and twice complained of, sexual discriminatory practices of her employer. There was a causal link between her complaints of sex discrimination and her dismissal. Her complaints were a substantial or motivating factor in respondent's decision to fire her. The three nondiscriminatory reasons given as grounds for her dismissal are unworthy of belief and rejected as pretextual, or a cover-up, for a discriminatory motive. IV. In 1978, respondent paid petitioner an annual salary of $12,140.80. She worked only 11 months in 1979--since she was fired on November 30, 1979--and earned $13,216.00--$1,201.45 per month. If she had not been fired in November, she would have earned $14,417.40 in 1979. In 1980, she worked at two jobs and earned a total of $7,239.87. In 1981, she earned $10,209.68; in 1982, $12,911.11; and in 1983, approximately $12,000.00. Since the hearing in this case occurred in November, 1983, evidence of her subsequent earnings should be supplied the Commission on Human Relations by supplemental evidence. Her salary at respondent's newspaper increased 8.85 percent between 1978 and 1979, from $12,140.80 to $13,216.00. If it is assumed that this rate of increase would have continued through 1984, but for her termination, she would have earned $15,693.34 in 1980; $17,082.20 in 1981; $18,593.97 in 1982; $20,239.53 in 1983; and $22,030.73 in 1984. A comparison of what she earned from other employment, and what is reasonable to expect she would have earned if she had remained in respondent's employ after November 30, Earnings From Other Employment 1979, are depicted below: Expected Earnings If She Had Not Been Fired Difference 1979 (Dec.) -0- 1,201.45 1,201.45 1980 7,239.87 15,693.34 8,453.47 1981 10,209.69 17,082.20 6,872.52 1982 12,911.11 18,593.97 5,682.86 1983 12,000.00 22,239.53 8,239.53 1984 * 22,030.73 * Total 30,449.83 To be calculated based on submittal of supplemental evidence before the Commission on Human Relations. Must be adjusted based on submittal of supplemental evidence. It follows that petitioner's salary loss due to her termination in November 30, 1979, totals $30,449.83, subject to adjustment for earnings during 1984. Petitioner is also obligated to pay her attorney a reasonable attorney's fee for his representation. Both parties agreed that the amount of any attorney's fee to be awarded should be determined by the Commission on Human Relations when it takes final action in this case, so no evidence was presented on this issue.

Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Human Relations enter an order finding that: Respondent is not guilty of committing an unlawful employment practice against petitioner in terms of her salary or her exclusion from the managerial bonus plain and weekly staff meeting; Respondent is guilty of engaging in an unlawful employment practice forbidden by Section 760.10(7), since it fired her because of, at least in part, her past complaints of and opposition to respondent's alleged sexually discriminatory practices; and Further, the order should prohibit respondent from engaging in further sexually discriminatory practices; and require that respondent (1) reinstate petitioner, with restoration of all job benefits; (2) pay her $30,449.83 in back pay, subject to adjustment for 1984 earnings; and (3) pay her a reasonable attorney's fee, as determined by the Commission. That Knight-Ridder Newspapers, Inc. be dropped as a party-respondent. DONE and ENTERED this30th day of August, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1984.

USC (1) 29 CFR 800.129 Florida Laws (2) 120.57, 760.10

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