05-000096 Beatrice L. Mays vs. Progress Energy Corporation Status: Closed Recommended Order on Thursday, January 12, 2006.

Summary: Petitioner alleged, but failed to prove, that she was discriminated against based on her race and that Respondent retaliated against her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEATRICE L. MAYS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0096

)

PROGRESS ENERGY CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A n administrativ e hearing was conducted in this case on

November 4, 2005, in Orlando, Florida, before Jeff B. Clark,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Curtis B. Lee, Esquire

37 North Orange Avenue, Suite 500

Post Office Box 3412

Orlando, Florida 3280 2

For Respondent: Thomas M artin Gonzale z , Esquire

Thompson, Sizemore & Gonzalez

501 East Kennedy Boulevard , Suite 1400

Post Office Box 639

Tampa, Florida 3360 1

STATEMENT OF THE ISSUES

Whether Respondent discriminated against Petitioner on the

basis of her race or color in violation of Chapter 760 , Florida

Statutes (2003) ; and, whether Respon dent retaliated against

Petitioner in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

On December 27, 2003, Petitioner filed with the Florida

Commission on Human Relations (FCHR), a Charge of

Discrimination, alleging discrimination based upon race and sex

and retaliation. In Petitioner's Charge of Discrimination, she

alleges that in May 2003, she was singled out for a "360

survey," and that, subsequent to the survey , she was retaliated

against and was made to feel intimidated by her super visor. She

further alleges that in December 2003, she was terminated for

her personal use of Respondent's stamp machine and that two

white, male employees who used the stamp machine for their on

personal purposes were not discharged.

On December 7, 2004, FCHR, after investigating Petitioner's

Charge of Discrimination, entered a Notice of Determination: No

Cause. Thereafter, Petitioner's Petition For Relief dated

January 4, 2005, was filed with FCHR. In her Petition For

Relief, Petitioner claimed that Re spondent "violated the Florida

Civil Rights Act of 1992 when it harassed and intimidated myself

through verbal abuse undue scruity [sic] because of my race and

sex and by its [sic] eventual termination of myself the

Complaintant [sic] ."

The case was forwar ded to the Division of Administrative

Hearings by FCHR on January 11, 2005, and received on

January 12, 2005. An Initial Order was sent to both parties on

January 19, 2005.

On February 16, 2005, the case was scheduled for final

hearing on March 25, 2005. On March 22, 2005, Petitioner moved

to have the case continued , and the case was rescheduled for

May 17, 2005, in Orlando, Florida .

On May 16, 2005, Petitioner again moved to have the case

continued , and the case was rescheduled for August 10, 2005. On

A ugust 5, 2005, Petitioner requested an additional continuance ,

and the case was rescheduled for November 4, 2005.

The case was heard, as rescheduled, on November 4, 2005.

During the hearing, Petitioner testified on her own behalf

and presented the testi mony of Stephanie Ann Tate. Petitioner

offered two exhibits which were received into evidence as

Petitioner's Exhibits 1 and 2. Respondent presented three

witnesses: Stephen E. McKinnie, Sandra D. Shields, and Faith

Whirley. Respondent offered nine exh ibits, eight were received

into evidence as Respondent's Exhibits 1 through 8. One exhibit

was withdrawn.

A two - volume Transcript of the proceeding was filed with

the Division of Administrative Hearings on November 28, 2005.

On December 9, 2005, an Ord er Granting Extension of Time to File

Proposed Recommended Order was entered allowing the parties

until December 16, 2005 , to file their proposed recommended

orders. Respondent mailed its Proposed Recommended Order on

Friday, December 16, 2005. It was fi led at 9:05 a.m. ,

December 19, 2005. Although technically late, Petitioner is not

prejudiced , and Respondent's Proposed Recommended Order was

considered by the undersigned .

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of facts are made:

1. Respondent, Progress Energy Corporation, is a public

utility which provides electrical power. Respondent is an

employer as defined by Subsection 760.02(7), Florida Statutes

(2003) .

2. Petitioner is an African - American female. She began

working for Respondent i n October 1980. Petitioner was finally

discharged from her employment on December 12, 2003. During her

period of employment, she received various promotions and

eventually bec a m e a service coo rdinator. She worked at the

Jamestown Operations Center and was responsible for designing

electrical power services and customer coordination. In 1992,

Petitioner was terminated and re - hired at a lower position as

discussed hereinafter.

3. Steven McKin nie became Petitioner's supervisor in

March 2002. While Petitioner's performance was adequate,

Mr. McKinnie received complaints from both co - employees and

customers about Petitioner's work performance. As a result, he

engaged in private counseling sessio ns with Petitioner as he did

with other employees.

4. Concerned about Petitioner's performance, Mr. McKinnie

consulted with Respondent's D epartment of Human Resources

regarding the advisability of employing a "360 survey" as a tool

for improving Petitione r's performance.

5. A "360 survey" provides an employee with confidential

assessments made by co - employees as a tool for self - improvement.

A "360 survey" is not a disciplinary tool, nor does it effect an

employees status.

6. After receiving Petitioner's approval to conduct the

"360 survey," on March 6, 2003, Mr. McKinnie distributed the

survey questionnaire to Petitioner's co - employees. On the

evening of March 6, 2003, Petitioner e - mailed Mr. McKinnie

objecting to the "360 survey."

7. The following da y, March 7, 2003, the Jamestown

Operations Center staff, including Petitioner and Mr. McKinnie,

were in Deland, Florida , for a "two c's" (compliments and

concerns) meeting. This is another human resources ' tool. This

gives employees the opportunity to ex press their concerns and

for management to respond to those concerns.

8. During the "c and c" meeting, Petitioner voiced her

complaint about the "360 survey." This was Mr. McKinnie's first

notice of her objection. She also complained that Mr. McKinnie

t reated employees as if they were in high school and intimidated

them (or words to that effect). No mention was made of racial

or sexual discrimination.

9. The results of the "360 survey" were offered to

Petitioner as a self - improvement tool. The survey was not

included in her performance evaluation nor did it effect her

pay.

10. In early December 2003, Respondent's management

received a complaint from a co - employee that Petitioner was

using Respondent's postage machine for personal use. Shortly

there after, Sandra Shields, conducted an investigation of the

alleged impropriety. Respondent's postage machines and the cost

of mailing are to be used for Respondent's business purposes

only, not for personal use.

11. During the investigation, Petitioner ass erted that

other employees similarly used the postage machine for personal

use. She declined to identify any employees. The investigation

failed to corroborated Petitioner's assertion.

12. Petitioner had two employment - related incidents of

theft. In 19 90, she was arrested during her lunch period and

incarcerated for retail theft. The company vehicle she was

driving was impounded. She entered a pre - trial diversion

program and admitted the theft. Her arrest and record of

pre - trail diversion was made a part of her employment record.

On a second occasion, in June 1992, Petitioner received a letter

of reprimand because she "misused her position as an Engineering

Technician for personal gain." She had produced and submitted

engineering drawings for under ground cable installation at the

residence of a family member . The letter of reprimand noted:

"This type of action cannot be tolerated. Further violations of

this nature will result in disciplinary action, up to and

including termination." As noted on the letter of reprimand,

Petitioner did not agree with it (the letter).

13. Incidental to this incident, Petitioner was

terminated. She grieved her termination and was rehired at a

lower paid position. The letter of reprimand was placed in her

employme nt record.

14. As a result of Petitioner's misuse of the postage

meter, aggravated by the two previous incidents of theft,

Petitioner was terminated.

15. Subsequent to her termination, Petitioner complained

to the Respondent's "Ethics Line" and invoked Respondent's

dispute resolution process to contest her termination.

Additional investigations did not change the facts or the

outcome.

16. At the hearing, Petitioner presented no direct

evidence of discrimination or statistical evidence of

discrimination .

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569, 120.57(1) , and 760.11, Fla . Stat .

(2003) .

18. Petitioner has the burden of proving by the

prepond erance of the evidence that Respondent committed an

unlawful employment practice. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

19. It is an unlawful employment practice for an employer

to discharge or otherwise discriminate against any individual

with respect to compensation, terms, conditions, or privileges

of employment, because of such individual ' s race or color.

§ 760.10(1)(a), Fla. Stat. (2003).

20. It is also an unlawful employment practice to

d iscriminate against any person because the person opposes an

unlawful employment practice or has filed a charge of an

unlawful employment practice. § 760.10(7), Fla. Stat . (2003) .

21. The provisions of Chapter 760, Florida Statutes

(2003) , are analogous to those of Title VII of the Civil Rights

Act of 1964, 42 U . S . C . §§ 2000(e) et seq . Cases interpreting

Title VII are, therefore, applicable to Chapter 760, Fl orid a

Stat utes . School Board of Leon County v. Hargis , 400 So. 2d 103

(Fla. 1st DCA 1981).

22. To prove a prima facie case of retaliation, Petitioner

must show the following: (a) she engaged in statutorily

protected expression; (b) she suffered an adverse employment

action such as demotion and/or assignment to a position with

less responsibility; a nd (c) the adverse employment action was

causally related to the protected activity. See Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385, 1388 (11 th Cir.

1998).

23. A prima facie case of discrimination based upon race

or sex may be established i n one of three ways: first, through

direct evidence of discriminatory intent by the employer;

second, through statistical proof that a neutral policy has an

adverse impact on a protected group; or third, by meeting the

familiar disparate treatment test se t forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973). Carter v. City of Miami ,

870 F.2d 578, 581 (11 th Cir. 1989).

24. As Petitioner presented no direct evidence of

discrimination or any statistical evidence of discrimination,

she was require d to establish a prima facie case under the

McDonnell Douglas framework. Under McDonnell Douglas , a prima

facie case of race or sex discrimination may be established by

showing the following: (1) Petitioner belongs to an identified

minority; (2) Petition er was subjected to adverse job action;

(3) Petitioner ' s employer treated similarly situated employees

outside Petitioner ' s classification more favorably; and

(4) Petitioner was qualified to do the job. See 411 U.S. at

802; Holifield v. Reno , 115 F.3d 155 5, 1562 (11th Cir. 1997).

The " prima facie case under McDonnell Douglas must be

established and not merely incanted. " Coco v. Elmwood Care,

Inc. , 128 F.3d 1177, 1178 (7th Cir. 1997).

25. Under the McDonnell Douglas model of proof, the

Petitioner bear s the initial burden of establishing a prima

facie case of discrimination. Proof of a prima facie case under

McDonnell Douglas raises a presumption that the employer ' s

decision was motivated by discrimination. Saint Mary’s Honor

Center v. Hicks , 509 U.S. 502, 506 (1993).

26. Once this presumption is raised, the Respondent is

able to rebut it by introducing admissible evidence of a reason,

which is believed by the trier of fact and supports a finding

that discrimination or retaliation was not the cause of the

challenged employment action. Gri g sby v. Reynolds Metals Co. ,

821 F.2d 590, 594 (11 th Cir. 1987) ; and Equal Opportunities

Employment Commission v. Navy Federal Credit Union , 424 F.3d

397, 405 (4th Cir. 2005) . The employer is required only to

"prod uce admissible evidence which would allow the trier of fact

rationally to conclude that the employment decision had not been

motivated by discriminatory animus ." Texas Department of

Community Affairs v. Burdine , 450 U.S. 2 48, 257 (1981). The

employer "ne ed not persuade the court that it was actually

motivated by the proffered reasons . . . [i]t is sufficient if

the [employer's] evidence raises a genuine issue of fact as to

whether it discriminated against the plaintiff." Id. at 254.

This burden is chara cterized as "exceedingly light." Perryman

v. Johnson Products Co., Inc. , 698 F.2d 1138 , 1142 (11th Cir.

1983).

27. Once the employer produces evidence of a legitimate,

nondiscriminatory reason for the challenged action, any

presumption of discrimination or retaliation arising out of the

prima facie case " drops from the case. " See Krieg v. Paul

Revere Life Ins. Co. , 718 F.2d 998, 1001 (11 th Cir. 1983), cert.

denied 466 U.S. 929 (1984) ; and Navy Federal Credit Union , 424

F.3d at 405 . The ultimate burden r emains upon the complainant

to prove that the employer intentionally discriminated or

retaliated. See Burdine , 450 U.S. at 256. Stated another way,

" the ultimate question in a d ispa rate treatment case is not

whether the plaintiff establish a prima facie case or

demonstrate a pretext, but ' whether the defendant intentionally

discriminated against the plaintiff. '" Pashoian v. GTE

Directories, 208 F. Supp. 2d 1 293 (M.D. Fla. 2002).

28. The burden shifting analysis of McDonnell Douglas

applies both to claim s for discrimination and retaliation. Navy

Federal Credit Union , 424 F.3d at 405. Thus, once Petitioner

establishes a prima facie case of retaliation or discrimination,

a presumption is raised that the employer ' s actions were caused

by discriminatory or retaliatory animus .

29. Petitioner established that she is a member of a

protected class. Further, Petitioner was the subject of adverse

job action as a result of her termination. However, Petitioner

has failed to establish the remaining prima facie cas e of

discrimination.

30. Petitioner failed to introduce any evidence to create

an inference of discrimination. She has failed to cite any

non - minority employees who were treated differently than she was

treated under similar circumstances. In order t o make a prima

facie case, Petitioner must demonstrate there were employees

outside of the protected class who engaged in similar conduct ,

but were not subject to the same adverse employment action.

Maniccia v. Brown , 171 F.3d 1364, 1368 (11th Cir. 199 9 ). The

most important factors in comparing disciplinary actions imposed

on employees are the nature of the offenses in relation to the

punishment imposed. Id. "We require that the quantity and

quality of the comparator's misconduct be nearly identical to

prevent courts from second guessing employers' reasonable

decisions and confusing apples with oranges." Id. With respect

to her claims discrimination, there is no evidence, other than

Petitioner's unsupported allegation, that other employees were

using t he postage meter for personal use. The evidence

indicates that more than one investigation failed to ascertain

the names of any individuals, other than Petitioner, who

improperly used the postage machine. Even assuming some other

individual was discovere d, because Petitioner's employment file

contains a unique warning that further misuse of her position

for personal gain would not be tolerated and could result in

termination, it would be ha r d to find a comparator.

31. Petitioner failed to prove a prima f acie case of

retaliation because she failed to establish that she had engaged

in a statutorily protected expression and was thereafter the

subject of an adverse employment action.

32. Being the subject of a "360 survey" does not evidence

discrimination. There is no evidence that her objections to her

supervisor's counseling was the result of racial or sexual

discrimination or retaliation. The evidence suggests that her

termination, which occurred approximately six months after the

"360 survey" and her o bjections voiced at the March 7, 2003,

"c and c" meeting, was a result of her misuse of the postage

machine and no more.

33. Assuming arguendo that Petitioner had met her initial

burden, the sequence of presentation of evidence then required

Respondent to come forward and articulate valid,

nondiscriminatory reasons for the termination of Petitioner.

Respondent has done so. The burden to articulate a legitimate

business reason for the action is one of production, not of

persuasion. The c ourt need not weigh the credibility of the

nondiscriminatory reason at this stage of the burden shifting

analysis. Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S.

133, 142 (2000); St. Mary's Honor Center v. Hicks , 509 U.S. 509.

Respondent presented ample evidenc e to support Petitioner's

termination. Petitioner presented no evidence that contradicted

Respondent's witnesses. Indeed, she admitted that she had

misused the Respondent's postage machine for personal gain.

34. Petitioner has the continuing burden of persuading the

trier of fact that Respondent intentionally discriminated

against her. Texas Department of Community Affairs v. Burdine ,

supra . When a Petitioner alleges disparate treatment,

"liability depends on whether the protected trait actually

moti vated the employer's decision." Hazen Paper Co. v.

Briggins , 507 U.S. 604, 610 (1993) . The plaintiff's race or

gender must have actually played a role in the employer's

decision - making process and had a determinative influence on the

outcome. Petitioner simply cannot prevail on her claims of

disparate treatment unless she can demonstrate that Respondent

intentionally discriminated against her. Cason Enterprises,

Inc. v. Metropolitan Dade County , 20 F. Supp. 2d 1331, 1337

(S.D. Fla. 1998).

35. However , Petitioner has failed to either establish

a prima facie case, show Respondent ' s legitimate

non - discriminatory reasons for its action were pretextual , or

demonstrate Respondent intentionally discriminated against her.

36. Even if Petitioner had establi shed a prima facie case

of discrimination based upon race or color, Respondent

articulated legitimate , nondiscriminatory reasons for all of the

challenged conduct. Petitioner failed to demonstrate that

Respondent ' s legitimate nondiscriminatory reasons wer e

pretextual in any way.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED t hat Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTER ED this 12th day of January, 2006 , in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 96 75 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January , 2006 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

20 09 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore & Gonzalez

501 East Kennedy Boulevard, Suite 1400

Post Office Box 639

Tampa, Florida 33601

Curtis B. Lee, Esquire

37 North Orange Avenue, Suit e 500

Post Office Box 3412

Orlando, Florida 32802

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit 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.