00-003843 Synthia Dianne Mallard vs. Florida Gulf Coast University Status: Closed Recommended Order on Friday, February 2, 2001.

Summary: Petitioner failed to show discrimination in firing. Preponderant proof showed Petitioner was simply not competent to give proper job performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYNTHIA DIANNE MALLARD, )

)

Petitioner, )

)

vs. ) Case No. 00-3843

)

FLORIDA GULF COAST UNIVERSITY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice this cause came on for hearing before

P. Michael Ruff, duly-designated Administrative Law Judge of the

Division of Administrative Hearings on November 21, 2000. The

hearing was conducted by video teleconferencing. The Petitioner

was present in Jacksonville, Florida, the Respondent and the

Administrative Law Judge were present in Tallahassee, Florida.

The appearances were as follows:

APPEARANCES

For Petitioner: Synthia Dianne Mallard, pro se .

1205 West 6th Street, Apartment 2

Jacksonville, Florida 32209

For Respondent: Robert C. She arman, Esquire

Henderson, Franklin, Starnes & Holt

Post Office Box 280

Fort Myers, Florida 33902

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Petitioner has been discriminated against by being

denied adequate training and being dismissed from her employment

for reasons of her race (African-American).

PRELIMINARY STATEMENT

This cause arose upon the filing of a Charge of

Discrimination and Petition for Relief by the Petitioner,

Synthia Dianne Mallard. In her charge of discrimination and

Petition she essentially alleges that she was discharged from

her employment, and before that occurred, was denied adequate

training because of her race, which is African-American. The

Respondent, Florida Gulf Coast University (Gulf Coast), filed an

Answer to the Petition denying the allegations and, in the

Statement of Position attached and incorporated in their

response, alleged in detail the various aspects of her training

and the identity of the employees and managers who assisted with

her training, both African-American and non-minority.

The cause came on for hearing as noticed. At the hearing,

the Petitioner testified on her own behalf and offered

Petitioner's composite Exhibit A into evidence. The Respondent

called to testify Dr. Robert Raze, Dr. Kathleen Shea Abrams, and

submitted Respondent's Exhibits A through F into evidence. Upon

the conclusion of the proceeding, the parties were accorded the

opportunity to file proposed recommended orders. The Respondent

elected to file a Proposed Recommended Order which has been

considered in the rendition of this Recommended Order. The

Petitioner did not file a proposed Recommended Order.

FINDINGS OF FACT

1. The Florida Gulf Coast University (Gulf Coast) o perated

in Tallahassee, Florida at times pertinent hereto, for the

purpose of improving teaching and learning in the area of

environmental education in the public schools as well as

community colleges and universities. Dr. Kathleen Shea Abrams

served as the Director of the Office of Environmental Education

(OEE) from October 1990 until the office closed in July of 2000.

She was responsible for making OEE employment decisions in

conformance with Gulf Coast's hiring approval procedures.

2. Dr. Abrams, a s Director, was responsible for organizing

a hiring committee and interviewing candidates for the vacant

office assistant position. With approval from Gulf Coast and

the hiring committee Dr. Abrams selected Synthia Dianne Mallard,

the Petitioner, for the position on August 14, 1996. Pursuant

to the position description for the office assistant position,

Ms. Mallard would be required to prepare routine correspondence,

reports, requisitions, invoices, travel documents, etcetera, as

well as answer the telephone and provide information for routine

questions and make referrals as appropriate. She was required

to screen calls and perform other assigned duties and was

required to possess the knowledge, skills and ability to produce

grammatically correct, oral and written work products.

3. Following her employment, Ms. Mallard was provided with

information regarding OEE telephone procedures. The written

procedural guidelines expressly set forth the information to be

obtained when taking a message.

4. Dr. Abrams requested Tara Johnson, an African-American

student clerical assistant who was working for the OEE, to

provide training to Ms. Mallardaining was based upon the

office procedural manual which outlined requirements for

completing university forms, described the mail pick-up and

delivery process, discussed operation of the office telephone

systems and other relevant matters. Dr. Abrams also met with

Ms. Mallard several times a week for five to ten minutes or more

to communicate work requests and provide brief written

instructions and information to her. During these meetings Dr.

Abrams recommended several times that Ms. Mallard review

portions of the procedural manual and refer to it as she carried

out her work.

5. At the time that Ms. Mallard j oined the OEE, a set of

computer-generated address labels were available to be affixed

to envelopes for daily courier pick-up and delivery to Gulf

Coast. As the supply ran low, Dr. Abrams requested that

Ms. Mallard print new ones. Since Ms. Mallard explained that

she did not know how to print labels, Dr. Abrams allowed her to

write labels by hand. The handwritten labels printed by

Ms. Mallard, however, did not follow the same format as the

computer-printed ones and improperly included the office's

return address. As a result an envelope was returned to the

office by courier who misread the return address as the primary

address. Dr. Abrams instructed Ms. Mallard to omit the return

address thereafter and wrote a sample label for Ms. Mallard to

follow. Despite these efforts, Dr. Abrams was forced to speak

to Ms. Mallard on several additional occasions about this

subject as she continued to improperly address the mail.

6. In preparing correspondence, Dr. Abrams would write out

letters long-hand and deliver these to Ms. Mallard for typing.

Through this process, Dr. Abrams discovered that Ms. Mallard was

unfamiliar with the proper format for business letters or

memoranda. After returning several drafts of letters because of

errors in spacing, margins, and capitalization, Dr. Abrams

advised Ms. Mallard to refer to examples of business letters

from existing files and use them as models. Ms. Mallard

required additional instruction on how to use the office

typewriter.

7. Dr. Abrams stated to Ms. Mallar d at one point that she

appeared to have over-estimated her clerical skills and computer

training. She asked Ms. Mallard to establish a weekly goal of

mastering one new skill a week. In order to achieve this goal,

Ms. Mallard received computer instructions from Tara Johnson and

other staff members including Dr. Robert Raze. Ms. Mallard

cautioned Dr. Abrams, however, that the expectation "to master"

the skills might be too high.

8. As part of her duties, Ms. Mallard was asked to

inventory and organize an office supply cabinet consisting of

four shelves of supplies. Although Dr. Abrams estimated that

the task should take a maximum of three to four hours to

complete, Ms. Mallard did not finish the job until several weeks

later.

9. After several weeks, Dr. Abrams arrived at the

conclusion that Ms. Mallard lacked important secretarial skills

and would be unable to consistently produce a quality work

product. Determining that Ms. Mallard would be unable to

elevate her skills to an acceptable level, Dr. Abrams requested

Ms. Mallard's termination as an employee by correspondence dated

December 2, 1996.

10. In addition to the performance deficiencies that

Dr. Abrams observed personally, she also received complaints

concerning the Petitioner's performance from other employees.

11. Dr. Raze was hired by Dr. Abrams in 1991, and served

as a "Coordinator," a senior professional position at the OEE.

Dr. Raze experienced difficulty in receiving complete and

accurate telephone messages from the Petitioner. Dr. Raze

advised Dr. Abrams that Ms. Mallard had failed to obtain basic

information such as the complete correct name of the individual

calling, the entity which the individual represented, the

purpose of the call and the return phone number on certain

messages.

12. Shannon Guillemette, another employee, reported an

incident where she missed an important return telephone call

because of Ms. Mallard's failure to answer incoming office

telephone calls in accordance with her job description.

Ms. Guillemette advised that similar incidents occurred in the

past as well. These complaints were received by Dr. Abrams in

the ordinary course of business as the Director of the office.

13. The Petitioner prepared correspondence dated

December 11, 1996, to Steven Belcher, Director of Human

Resources at Gulf Coast in response to the letter from

Dr. Abrams requesting her termination. The Petitioner's,

correspondence in response to the termination letter itself

contained numerous errors in grammar, spelling and punctuation,

which were consistent with the deficiencies earlier identified

by Dr. Abrams in the Petitioner's job performance. In December

of 1996, the Petitioner was terminated from her employment

position. The Respondent, through its witnesses and exhibits,

has established that legitimate business reasons existed for

that termination. The proven reason for Ms. Mallard's

termination from employment was "poor job performance."

14. When Ms. Mallard was terminated from the OEE, the

office employed a total of nine individuals. Five of those

individuals were African-American and four were non-minority.

The Petitioner, Ms. Mallard, is an African-American and so is

Dr. Raze. Dr. Abrams is a non-minority and is responsible for

the decision to both offer employment and to hire Ms. Mallard as

well as the decision to terminate her.

15. Dr. Raze observed no instances of racial

discrimination in the operation of the OEE from the time he was

first hired in September 1991 through the closing of the office

in July of 2000. The Petitioner failed to introduce any

testimony or evidence corroborating her charge of racial

discrimination.

CONCLUSIONS OF LAW

16. In order for a Petitioner, situated as Ms. Mallard, to

establish a prima facie case of racial discrimination, such a

Petitioner must demonstrate that she belongs to a protected

class; that she performed her duties at the requisite level

reasonably expected by her employer up to the time of her

discharge or that, if she did not, employees outside of the

protected group performed their duties in a similar fashion but

were not terminated. See McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973);. Jones v. Gerwins , 874 F.2d 1534 (11th Cir.

1989); Delgado v. Lockheed-Georgia, Co. , 815 Fed.2d 641 (11th

Cir. 1987); Alexander v. Fulton County, GA , 207 F.3rd 1303

(11th Cir. 2000).

17. It is only if the charging party i.e., the Petitioner,

is able to make out a prima facie case that the burden to go

forward with evidence shifts to the employer to articulate a

legitimate, non-discriminatory explanation for the employment

action. This is not the same as proving that there was a good

reason or good cause for the action. The employer need not

persuade the finder of fact that the employee's performance

justified termination, but only that the decision was non-

discriminatory. Halswell v. Kimberly Clark , 683 F.2d 285 (8th

Cir. 1982); Alexander v. Fulton County, GA , 207 F.3rd 1303 (11th

Cir. 2000); Turns v. AmSouth Bank N.A. , 36 F.3d 1057, 1061 (11th

Cir. 1994). The employer may terminate an employee for a good

reason, a bad reason or for no reason at all. Nix v. WLCY Radio

Rahall Communications , 738 F.2d 1811, 1817 (11th Cir. 1984);

Pasco County School Board v. Perc , 353 So. 2d 108 (1st DCA

1997); DeMarco v. Publix , 360 So. 2d 134 (3rd DCA 1978).

18. Once an employer articulates a legitimate non-

discriminatory explanation for a termination, the charging party

may prevail only by demonstrating that that explanation was not

in fact a legitimate explanation, but was in reality a mere

pretext for what amounted to unlawful discrimination. See

St Mary's honor Center v. Hicks , 113 S. Ct. 2742 (1993);

Isenbergh v. Knight Ridder Newspaper Sales, Inc. , 97 F.3d 436

(11th Cir. 1996).

19. When the same person both hires and fires an employee

within a relatively short period of time, an inference arises

that no discrimination has occurred. This inference is based

upon recognition of the fact that an employer who is willing to

hire an individual within a protected class is unlikely to fire

that same person simply because of her membership in the

protected class. Burhmaster v. Overnight Transp. Co. , 61 F.3d

461 (6th Cir. 1995); Proud v. Stone , 945 F.2d 796 (4th Cir.

1991); Lowe v. J.B. Hunt Transport, Inc. , 963 F.2d 173 (8th Cir.

1992).

20. The Petitioner has failed to establish a prima facie

case of race discrimination in that she has failed to prove that

she performed her duties at the requisite level, reasonably

expected by her employer up to the time of her discharge or

that, if she did not, employees outside of the protected group

who performed their duties similarly were not terminated.

21. The Respondent has nevertheless adequately articulated

a legitimate, non-discriminatory explanation for terminating

Ms. Mallard's employment. Ms. Mallard in turn, failed to

produce any evidence indicating that the Respondent's

legitimate, non-discriminatory explanation for the termination,

lack of proper job performance, was a pretextual explanation.

Moreover, the Respondent is entitled to the "same actor"

inference, referenced above, in rebuttal of the charging

party's, Mr. Mallard's, claim of race discrimination.

Accordingly, in consideration of the Petitioner's failure to

establish a prima facie of race discrimination, the Respondent's

articulation of legitimate, non-discriminatory reasons for the

Petitioner's termination, as well as the Petitioner's failure to

demonstrate them to be pretextual, the claim of race

discrimination must fail.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record and the candor and

demeanor of the witnesses, it is, therefore,

RECOMMENDED:

That a final order be entered by the Florida Commission on

Human Relations determining that the Petition for Relief filed

by Synthia Dianne Mallard be denied and that this cause be

dismissed.

DONE AND ENTERED this 2nd day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Admini strative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed wit h the Clerk of the

Division of Administrative Hearings

this 2nd day of February , 2001.

COPIES FURNISHED:

Synthia Dianne Mallard

1205 West 6th Street, Apartment 2

Jacksonville, Florida 32209

Robert C. Shearman, Esquire

Henderson, Franklin, Starnes & Holt

Post office Box 280

Fort Myers, Florida 33902

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Azizi Coleman, Acting Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

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.