01-003384 Donna Conway vs. Vacation Break Status: Closed Recommended Order on Friday, November 16, 2001.

Summary: Petitioner did not meet her burden of proving a prima facie case; therefore, Respondent not guilty of disparate treatment and/or wrongful termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA CONWAY, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3384

)

VACATION BREAK, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on November 5,

2001, in Tallahassee, Florida, before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Donna Conway, pro se

3156 Mount Zion Road, No. 606

Stockbridge, Georgia 30281

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment act against Petitioner pursuant to Chapter 70 of the

Pinellas County Code, as amended, and Title VII of the U.S.

Civil Rights Act of 1964, as amended.

PRELIMINARY STATEMENT

On February 9, 1998, Petitioner Donna Conway (Petitioner)

filed a Charge of Discrimination (Charge) with the Community

Affairs Department, Human Rela tions Division, of the City of

St. Petersburg, Florida (City). Said Charge alleged that

Respondent Vacation Break (Respondent) had committed an unlawful

employment act against Petitioner pursuant to Chapter 70 of the

Pinellas County Code, as amended, and Title VII of the U.S.

Civil Rights Act of 1964, as amended. Specifically, the Charge

alleged that Respondent engaged in racial discrimination by

treating Petitioner in a disparate manner on December 15, 1997,

and by unlawfully terminating her employment as a telemarketer

on December 17, 1998.

The City notified Respondent about Petitioner's Charge in a

letter dated February 17, 1998. This letter invited Respondent

to participate in Mediation Early Resolution. Subsequently, the

parties agreed not to part icipate in Mediation Early Resolution.

By letter dated May 27, 1998, the City requested Respondent

to file a position statement together with supporting

documentation. On June 23, 1998, Respondent submitted a

position statement and a copy of its "New Emp loyee Policy and

Procedures" manual.

By letter dated April 15, 1999, an investigator for the

City advised Petitioner that Respondent had filed an answer to

her complaint. The letter stated Respondent's position as

follows:

Respondent Vacation Break st ated that you

were let go based on the failure to produce

a sufficient number of bookings as defined

in your paperwork. Respondent Vacation

Break indicated that they hired and trained

every single week for the same office

because the turn over [sic] was h igh. With

their answer, Respondent Vacation Break

enclosed the "New Employee Policy and

Procedures" manual signed by you indicating

that a minimum of 25 bookings had to be

attained each pay period after the 2 week

[sic] training period. The rules also

in dicated, among many other rules, that the

employees could only use the approved script

provided by the company.

The April 15, 1999, letter requested Petitioner to file a

written response to Respondent's position statement if she

disagreed with Respondent' s answer. The April 15, 1999, letter

also requested Petitioner to include in her response any

documents and/or signed, notarized witness statements, which

supported Petitioner's allegations.

Receiving no written response from Petitioner, the City

sent her two additional letters dated June 18, 1999, and

June 30, 1999. The letters stated that the City would dismiss

Petitioner's case if she did not file a written response as

previously requested.

By letters dated July 13, 1999, July 28, 1999, and

February 3, 2000, the City requested Respondent to furnish

additional information. Respondent did not submit the

information in response to these letters and did not request an

extension of time in which to do so.

The City sent Respondent a final letter dated February 15,

2000, via regular and certified mail, requesting additional

information. The February 15, 2000, letter stated that if

Respondent did not submit the requested information on or before

February 25, 2000, the City would process a cause fi nding based

on adverse inference. Respondent failed to submit the

information in a timely manner.

The City's Division of Human Relations prepared a Final

Investigative Report Memorandum dated February 29, 2000. Said

report recommended that the City issu e a finding that Reasonable

Cause exists to believe that Respondent committed a

discriminatory employment practice as alleged in the Charge.

In letters to Petitioner and Respondent dated April 5,

2000, via regular and certified mail, the City determined that

reasonable cause existed to believe that Respondent committed a

discriminatory practice act as alleged in the Charge. The

April 5, 2000, letters enclosed a copy of the Findings of Fact,

Analysis, and Conclusions upon which this determination was

ba sed. Each letter also enclosed an Invitation to Participate

in Conciliation form.

On or about April 15, 2000, Petitioner responded to the

City's invitation to participate in conciliation. Petitioner's

response indicated that she would engage in concilia tion

discussions.

Respondent received its certified copy of the City's

April 5, 2000, letter on April 11, 2000. Petitioner received

her certified copy of the City's April 5, 2000, letter on

April 17, 2000.

By letter dated March 21, 2001, the Cit y requested

Petitioner to complete an enclosed Conciliation Settlement

Proposal form. This letter requested Petitioner to return the

form on or before April 2, 2001. In a letter dated June 11,

2001, the City advised Petitioner that if she did not submit the

form on or before June 25, 2001, the City would issue a

complaint and the matter would be scheduled for a pre - hearing

conference.

By letter dated August 17, 2001, the City advised

Petitioner that conciliation efforts were unsuccessful. The

City enc losed a copy of the Complaint and a Notice of

Pre - Hearing Conference with this letter.

The Complaint dated August 17, 2001, sets forth the

jurisdiction and venue, substantive allegations, and a prayer

for relief on behalf of Petitioner as the char ging party.

The City referred this case to the Division of

Administrative Hearings on August 27, 2001. Neither party

responded in writing to the Initial Order which was issued on

August 28, 2001.

On September 12, 2001, the undersigned issued a Notice of

Hearing and Order of Prehearing Instructions. The Notice of

Hearing scheduled the formal hearing for November 5, 2001.

Respondent did not make an appearance at the hearing. The

efforts of the undersigned's office to call Respondent using the

teleph one number provided by the City were unsuccessful because

the number was no longer in service.

During the hearing, Petitioner testified on her own behalf

and offered one composite exhibit, which was accepted into

evidence. Petitioner's composite exhibi t consists of the City's

letters and documents referenced above.

At the conclusion of the hearing, Petitioner was advised

that she had the opportunity to order a transcript of the

proceeding and to file a proposed recommended order. She was

advised that the proposed recommended order would be due on or

before November 15, 2001, if a transcript was not filed with the

Division of Administrative Hearings.

A transcript of the hearing was not filed with the Division

of Administrative Hearings. Petitioner filed a Proposed

Recommended Order on November 15, 2001.

FINDINGS OF FACT

1. Petitioner, a black female, is a member of a protected

group.

2. Respondent is an employer as defined in the Pinellas

County Code, as amended, and Title VII of the Civil Rig hts Act

of 1964, as amended.

3. Respondent hired Petitioner as a telemarketer on

December 8, 1997. Petitioner's job required her to call the

telephone numbers on a list furnished by Respondent. After

making the call, Petitioner was supposed to solicit the booking

of vacations in time - share rental units by reading from a script

prepared by Respondent. The script included an offer to sell

potential customers three vacations in three locations for $69.

4. When Respondent hired Petitioner, she signed a copy of

Respondent's "New Employee Policy and Procedures" manual.

Petitioner admits that this manual required her to book 25

vacations each pay period after a two - week training period. She

also admits that the manual required her to only use the

prepared script, including preplanned rebuttals to customer

questions when talking over the telephone.

5. Petitioner understood that during the two - week training

period, she would be required to book 14 vacations or be

terminated. She knew that Respondent's su pervisors would

monitor her sales calls. Petitioner sold four vacation packages

in her first week at work with no complaints from her

supervisors. In fact, one of Respondent's supervisors known as

Mike told Petitioner, "You got the juice."

6. On Decem ber 15, 1997, Mike monitored one of

Petitioner's calls. Petitioner admits that she did not use the

scripted rebuttals in answering the customer's questions during

the monitored call. Instead, she attempted to answer the

customer's questions using her own words. According to

Petitioner, she used "baby English" to explain the sales offer

in simple terms that the customer could understand.

7. After completing the monitored call on December 15,

1997, Mike told Petitioner to "stick to the shit on the scrip t."

Mike admonished Petitioner not to "candy coat it." Petitioner

never heard Mike use profanity or curse words with any other

employee.

8. Before Petitioner went to work on December 16, 1997,

she called a second supervisor known as Kelly. Kelly was th e

supervisor that originally hired Petitioner. During this call,

Petitioner complained about Mike's use of profanity. When Kelly

agreed to discuss Petitioner's complaint with Mike, Petitioner

said she would talk to Mike herself.

9. Petitioner went to work later on December 16, 1997.

When she arrived, Mike confronted Petitioner about her complaint

to Kelly. Petitioner advised Mike that she only objected to his

language and hoped he was not mad at her. Mike responded, "I

don't get mad, I get even."

10. When Petitioner stood to stretch for the first time on

December 16, 1997, Mike instructed her to sit down. Mike told

Petitioner that he would get her some more leads.

11. Mike also told Petitioner that she was "not the only

telemarketer that had n ot sold a vacation package but that the

other person had sixty years on her." Petitioner was aware that

Respondent had fired an older native - American male known as Ray.

Respondent hired Ray as a telemarketer after hiring Petitioner.

12. When Petitione r was ready to leave work on

December 17, 1997, a third supervisor known as Tom asked to

speak to Petitioner. During this conversation, Tom told

Petitioner that she was good on the telephone but that

Respondent could not afford to keep her employed an d had to let

her go. Tom referred Petitioner to another company that trained

telemarketers to take in - coming calls. Tom gave Petitioner her

paycheck, telling her that he was doing her a favor.

13. During Petitioner's employment with Respondent, she

wa s the only black employee. However, apart from describing the

older native American as a trainee telemarketer, Petitioner did

not present any evidence as to the following: (a) whether there

were other telemarketers who were members of an unprotected

clas s; (b) whether Petitioner was replaced by a person outside

the protected class; (c) whether Petitioner was discharged while

other telemarketers from an unprotected class were not

discharged for failing to follow the script or failing to book

more than four vacations during the first ten days of

employment; and (d) whether Petitioner was discharged while

other telemarketers from an unprotected class with equal or less

competence were retained.

14. Petitioner was never late to work and never called in

sick.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 120.65(7), Florida

Statutes; Chapter 70 of the Pinellas County Code, as amended ;

and Title VII of the United States Civil Rights Act of 1964, as

amended.

16. Chapter 70 of the Pinellas County Code relates in part

to discrimination in employment practices. On March 12, 1996,

Pinellas County and the City entered into an interlocal

agreement. In this agreement, Pinellas County delegated

authority for the investigation, processing, conciliation and

enforcement of complaints brought under Chapter 70 of the

Pinellas County Code to the City for that portion of Pinellas

County south of U lmerton Road. Accordingly, this case was

investigated and processed by the City pursuant to Chapter 15 of

the St. Petersburg Municipal Code.

17. Chapter 70 of the Pinellas County Code is

substantially equivalent to state and federal laws relating to

disc riminatory employment practices. See Title VII, United

States Civil Rights Act of 1964, as amended, and Chapter 760,

Florida Statutes. Therefore, the cases interpreting the state

and federal laws are persuasive authority for interpreting

Chapter 70 of th e Pinellas County Code.

18. Section 70 - 53 of the Pinellas County Code, as amended,

prohibits unlawful discrimination in employment practices. That

ordinance provides as follows in relevant part:

(1) Employers. It is a discriminatory

practice for an e mployer to:

a. Fail or refuse to hire, discharge or

otherwise discriminate against an individual

with respect to compensation or the terms,

conditions, or privileges of employment

because of race, color, religion, national

origin, sex, age, marital status , or

disability . . . .

19. Petitioner has the initial burden of proving a prima

facie case of racial discrimination based on disparate treatment

and/or unlawful termination. Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 108 9 (1981);

McDonnell Douglas v. Green , 411 U.S. 792, 93 S. Ct. 1817 (1973).

Petitioner has not met her burden in either respect.

20. In Jones v. Gerwens , 874 F.2d 1534, 1540 (11th Cir.

1989), the court stated as follows:

Accordingly, we hold that, in ca ses

involving alleged racial bias in the

application of discipline for violation of

work rules, the plaintiff, in addition to

being a member of a protected class, must

show either (a) that he did not violate the

work rule, or (b) that he engaged in

miscond uct similar to that of a person

outside the protected class, and that the

disciplinary measures enforced against him

were more severe than those enforced against

the other persons who engaged in similar

misconduct.

21. Petitioner did not prove a prima facie case of racial

discrimination based on disparate treatment for the following

reasons: (a) She admits that she failed to follow Respondent's

rule against adlibbing when talking to customers; and (b) She

failed to present evidence that any other simil arly situated

employee outside the protected class received less severe

punishment for engaging in similar misconduct. In fact,

Petitioner presented no evidence that any other trainee

telemarketer ever failed to follow the script during a monitored

call o r otherwise.

22. In Anthony T. Lee, et al. v. Russell County Board of

Education of Russell County, Alabama, et al. , 684 F.2d 769, 773

(11th Cir. 1982), the court stated as follows:

Focusing first on the race discrimination

charge, it is well establish ed that such a

claim may be analyzed under the McDonnell

Douglas structure developed in Title VII

suits. The McDonnell Douglas test, as

recently explained by the Supreme Court in

Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S.Ct. 10 89, 67

L.Ed.2d 207 (1981), and as modified by this

circuit for application in discharge (as

opposed to hiring) cases, is as follows: If

plaintiff proves by a preponderance of the

evidence that he or she is a member of a

protected class, was qualified for the

position held, and was discharged and

replaced by a person outside of the

protected class or was discharged while a

person outside of the class with equal or

lesser qualifications was retained, then

plaintiff has established a "prima facie

case" of dis crimination.

23. In making her case relating to unlawful termination,

Petitioner presented evidence of the following: (a) She was a

member of a protected group; (b) She was qualified to work as a

telemarketer; and (c) She was terminated. However, Petit ioner

presented no evidence to show that she was replaced by a person

outside of the protected class or was discharged while a person

outside of the class with equal or lesser qualifications was

retained. The only other employee, trainee or otherwise, tha t

Petitioner testified about was an older native - American male who

sold no vacations and was terminated after a few days of

employment. Therefore, Petitioner failed to prove a prima facie

case of discriminatory discharge under the test set forth in

Anthon y T. Lee , 684 F.2d at 773.

24. After filing its answer and position statement with

the City on or about June 23, 1998, Respondent failed to furnish

the City additional information or to make an appearance at the

formal hearing on November 5, 2001. Howe ver, in light of

Petitioner's failure to present a prima facie case of disparate

treatment and/or unlawful termination, the undersigned cannot

find that Respondent committed unlawful employment practices by

adverse inference.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the City's Human Relations Review Board enter a final

order dismissing Petitioner's Complaint.

DONE AND ENTERED this 16th day of November, 2001, in

Tallahassee, Leon County, Flori da.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www. doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of November, 2001.

COPIES FURNISHED :

Bruce Boudreau

Vacation Break

14020 Roosevelt Boulevard

Suite 805

Clearwater, Florida 33762

Donna Conway

3156 Mount Zio n Road

No. 606

Stockbridge, Georgia 30281

William C. Falkner, Esquire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 33756

Stephanie Rugg, Hearing Clerk

City of St. Petersburg

Community Affairs Department

Post Office Box 2842

S t. Petersburg, Florida 33731

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

30 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the Human

R elations Officer of the Human Relations Division, Community

Affairs Department, City of St. Petersburg.