06-000339 Gwendolyn Salter vs. International Paper Status: Closed Recommended Order on Friday, November 3, 2006.

Summary: Petitioner failed to establish a prima facie case of sexual and racial discrimination because she did not show that she was qualified for the job position because of her substandard performance, which was the non-discriminatory reason for her demotion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GWENDOLYN SALTER, )

)

Petitioner, )

)

vs. ) Case No. 06-0339

)

INTERNATIONAL PAPER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal proceeding and hearing,

before P. Michael Ruff, duly-designated Administrative Law Judge

of the Division of Administrative Hearings. The hearing was

conducted in Pensacola, Florida, on May 17, 2006. The

appearances were as follows:

APPEARANCES

For Petitioner: Frederick J. Gant, Esquire

Albritton & Gant

Post Office Box 12322

322 West Cervantes Street

Pensacola, Florida 32581

For Respondent: Vincent J. Miraglia, Esquire

International Paper Company

6400 Poplar Avenue, Tower II

Memphis, Tennessee 38197

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Petitioner was the victim of an unlawful employment

practice by allegedly being discriminated against as to a

demotion and pay decision on the basis of race and sex, in

purported violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose on June 8, 2005, when the Petitioner filed

a Charge of Discrimination with the Florida Commission on Human

Relations (Commission). The Petitioner maintained in her charge

that she had been discriminated against between August 2004 and

December 2004, for reasons of her race (African-American) and

her sex (female). Specifically she claims she was

discriminatorily demoted from Lead Lumber Grader to Grader and

was also discriminatorily denied a pay raise.

The Commission embarked on an investigation of her charges,

and following the conclusion of that investigation on

December 13, 2005, the Commission issued a Determination that

there was no reasonable cause to believe that an unlawful

employment practice had occurred. The Petitioner thereafter

filed a Petition for Relief, which was duly transmitted to the

Division of Administrative Hearings and the undersigned

Administrative Law Judge.

Thereafter, after a discovery process, the matter was

scheduled and heard in a two-day Administrative Hearing

concluding on May 17, 2006. Due to unknown reasons the filing

of the Transcript of the proceeding was delayed for a number of

months before finally being filed with the undersigned and being

provided to the parties. Thereafter, after a stipulated

extended briefing schedule and an additional request for

extension of time, which was granted to the Petitioner, the

Proposed Recommended Orders were timely filed on or before

September 8, 2006.

During the hearing, the Petitioner presented eleven

witnesses and the Petitioner's Exhibits A, B, C, F, H, K, M, and

O were admitted into evidence. The Respondent presented one

witness and the Respondent's Exhibits 5, 7, 14, and 16 were

admitted into evidence.

The Proposed Recommended Orders have been considered in the

rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Gwendolyn Salter, is an African-

American female who was initially employed by International

Paper in June 2000 as an Operator. Shortly thereafter she was

promoted to the position of Lumber Grader and on December 15,

2001, was promoted to the hourly position of Lead Grader.

2. The Respondent, International Paper Company, is a

forest product company. At its McDavid, Florida facility it

operates a sawmill which produces lumber and other building

products for sale to forest product dealers, lumber yards, and

dealers in the construction industry. The sawmill opened in the

year 2000.

3. It is very important to determine the value of all

pieces of lumber a sawmill produces. Variance in the grade of a

given board can mean the difference in several dollars in value

per board. In order to determine and set the value or price of

a piece of lumber, the sawmill must employ Lumber Graders. The

Graders inspect lumber to determine the type and number of

defects and therefore to determine what the grade of a given

board is, including the determination of whether a board should

be trimmed to eliminate some defects.

4. The Southern Pine Inspection Bureau (SPIB) promulgates

standard lumber grading rules, which are accepted and applied by

all members of the lumber-producing industry that are members of

the Southern Pine Association. The rules govern how each board

is graded. Boards are basically graded one, two, three, four or

MSR. Number one is the best grade and a board with the most

knots or other defects would be graded a four. An MSR board is

generally a grade two board that is particularly strong. Such

boards are primarily used for structural members.

5. When grading lumber, the graders determine in the

grading process whether a board should be trimmed in order to

remove defects to enhance its grade and value. If there is a

defect at the end of the board, for example, the board can be

trimmed to the next shorter standard length, which would

actually increase the value of that board. Since a board's

value can vary several dollars per piece, depending on its

grade, the integrity of the grading system is integral to the

successful operation and profitability of the Respondent's

sawmill.

6. The McDavid Mill operated with four shifts. There were

about four to five graders working on each shift. They worked

on only the "dry end" of the mill. That means that they worked

grading lumber after it was sawed in the sawmill, had been kiln

dried, to remove excess moisture, and dressed in the planer

mill. Then it was graded, including any necessary final

trimming. The graders, have approximately two seconds to

observe a board, flip it to look for defects on all four sides,

and grade it. They look for natural defects, including knots,

and make a mark or a symbol on a board indicating its grade.

Additionally, the McDavid Mill has a machine vision grader (MVG)

that automatically grades the wane and the size of each board.

Wane is a defect involving a tapering or lessening of a board's

proper dimension generally caused by the board being sawn near

the outside margin of a log so that the logs curvature and

natural taper and bark tend to reduce the size and square

dimension along the edge of a board.

7. The Petitioner was promoted to the position of "Lead

Grader" on December 15, 2001. It thus became her responsibility

to review the performance of each of the graders at the

facility.

8. The McDavid Mill through its operations manager, Alan

Orcutt, instituted a new Grader Performance System in November

2003. The new system rated graders every eight weeks based on

their grade decision accuracy, their trim decision accuracy, and

their knowledge of grading rules. A grader's pay could vary

every eight-week period depending on his or her performance

during the previous eight week period.

9. The Lead Grader, the Petitioner, was charged with

implementing this system. It was the responsibility of the Lead

Grader to ensure that at least 1200 boards were reviewed for

each grader, each eight-week period, either by the Lead Grader,

by the MVG operator, or by SPIB reviewers. Essentially, the

SPIB reviewers or inspectors would select a "pack" of boards and

review them to ensure that the graders had graded those boards

properly. The reviewers would record if a board was above

grade, below grade, or properly graded.

10. Secondly, the Lead Grader was responsible for

reviewing the graders' trim decision accuracy. The Lead Grader

was required to review at least 100 "trim boards" for each

grader for each period, to determine if the graders made the

correct trim decisions. The SPIB inspectors would record the

percentage of boards trimmed accurately. For board trimming

decisions, the board is not processed, but is placed into a pack

where it is viewable in its entirety by the reviewer. The

reviewer sees exactly what the grader saw in looking at the

board, and thus can determine whether or not the grader made the

correct decision about whether to trim the board and, if so, how

much, and where. In other words, the viewer can determine

whether it was appropriate to make a two-foot cut on one end,

whether or not a knot should be cut out of the board or whether

it was under-trimmed or over-trimmed.

11. The Lead Grader was also responsible for monitoring

the graders' knowledge of lumber grading rules. The Lead Grader

was thus required to give two 25-question written examinations

(test) every eight-week period to graders concerning the written

grading rules. The Lead Grader was required to administer the

test twice per eight-week period on a crew-by-crew basis,

correct the answers and return a copy to the grader with the

correct answers and an overall score. In order to ensure the

integrity of the testing process, the tests were only allowed to

be given in group settings. Tests were not allowed to be given

to individual graders. There had to be more persons present in

the testing room than just the Lead Grader and one individual

grader being tested.

12. The graders were ranked B, A, or AA, and their pay

would be adjusted accordingly. AA was the highest rating and

was paid the highest salary rate. The ranking were based on a

combination of grading accuracy, trim decision accuracy, and

scores on the grading examination. In order to be ranked AA,

for example, a grader would be required to have at least two

percent of boards above grade, two and a half percent below

grade, with 95 percent trim decision accuracy and 90 percent

correct answers on the written test of grading rules knowledge.

Depending on the scores, he or she could change ranks each

eight-week period and thus change the salary level.

13. The McDavid Mill's grader performance system was thus

implemented in November 2003. Mr. Orcutt discussed the Lead

Grader performance expectations with the Petitioner during a

meeting with all graders. Essentially, Mr. Orcutt explained

that the Petitioner was responsible for implementing the new

performance system, specifically: re-grading 1200 boards per

grader per period, reviewing 100 trim boards per grader per

period, and providing at least two grading exams to each grader,

each period.

14. When the Grader Performance System was implemented in

November 2003, the manager, Mr. Orcutt, intended that the first

eight-week period would be a "dry run" in which the results of

the grading of the various graders would have no effect on pay

rates. The second eight-week period which ran from January to

February 2004, was supposed to be "for the record" and would

affect pay rates. Ultimately, Mr. Orcutt determined that the

Petitioner's data on the graders was inaccurate and incomplete,

and therefore he decided to extend the dry run until the third

eight-week period during which pay rates would be affected by

the graders' performance ratings.

15. On February 6, 2004, Mr. Orcutt provided the

Petitioner her performance review. In that review, Mr. Orcutt

stated that the Petitioner had "not met expectations." He

explained that this referred to the Petitioner's failure to keep

track of the performance of all the graders, as well as

deficiency issues regarding the grade rule test being

administered inappropriately.

16. On February 27, 2004, Mr. Orcutt issued a 30-day

performance improvement plan to the Petitioner. In it he put

her on notice that she must improve her performance in the

execution of her role as a Lead Grader. He explained that

during the first two months of 2004, the Petitioner had failed

to meet the minimum expectations of the Lead Grader performance

standards provided to her in November 2003. Specifically, this

referred to Mr. Orcutt's finding that the Petitioner had failed

to review the requisite number of boards during the first two

months of 2004. The Performance Improvement Plan also explained

that if the Petitioner failed to meet the expectations that had

been explained to her in November 2003, that she would be

removed from her position as Lead Grader and demoted to a Shift

Grader position.

17. Mr. Orcutt also decided to transfer the responsibility

for in-putting the grader data into the computer to the

accounting department. Mr. Orcutt explained that he had

received complaints from graders to the effect that the

Petitioner was failing to accurately keep records of the number

of boards being reviewed, as entered into the computer, which

could affect the pay rate of the graders. Mr. Orcutt believed

that this change would allow the Petitioner to focus on

monitoring the graders.

18. Jessie Ford is an African-American male. He was hired

by International Paper at the McDavid Mill in March 2004 as a

Dry-End Superintendent. He was hired to replace Mr. Orcutt, who

had been promoted. Mr. Ford was responsible for safety,

production, and quality of the dry-end production portion of the

mill, which included supervision of the graders.

19. During his first few months he monitored the

Petitioner's performance and determined that the Petitioner

appeared to be complying with the Lead Grader performance

expectations. He did, however, verbally counsel the Petitioner

about giving tests to individual graders, instead of in the

required setting of administering tests to the group of graders

simultaneously.

20. In August 2004, Mr. Ford asked the Petitioner if she

had completed the requisite number of board re-grades in

accordance with the lead grader performance expectations.

Although the Petitioner indicated to him that she had completed

the re-grades, a review of the data by Mr. Ford and Mr. Orcutt

indicated that the Petitioner was under the required board count

for re-grading as to several of the graders.

21. Mr. Ford and Mr. Orcutt met with the Petitioner to ask

her about the missing boards and also about the discrepancy in

what she had told Mr. Ford. The Petitioner explained that she

believed that she had reviewed 1200 boards. She claimed that

she had reached 1200 by combining the boards that were reviewed

for trim tests, with boards reviewed with grading. This

explanation revealed both that the Petitioner had failed to meet

her minimum expectations and also that the Petitioner appeared

not to understand the program almost nine months after it had

been implemented. Further, there were a couple of graders, for

whom the re-grading count remained low, even if one (wrongly)

counted their trim test boards in the aggregate total.

22. Mr. Ford and Mr. Orcutt also spoke to the Petitioner

about giving tests to graders on an individual basis, as was

prohibited by the performance evaluating system that had been

implemented in November 2003. That system required that the

test be only given to a group of people or more than one person

at a time in order to ensure the integrity of the test and of

the performance evaluation system. When confronted with the

question of whether she had given a test to an individual alone,

the Petitioner responded that there was "someone else" in the

room during the test. This again demonstrated to Mr. Ford and

Mr. Orcutt that the Petitioner did not really understand the

requirements of the performance evaluation or testing system.

23. Following that meeting with the Petitioner, Mr. Ford

and Mr. Orcutt met with the human resources manager, Karen

Rutherford, as well as the mill manager, Alan Smith. They

discussed the issues and possible solutions regarding the

Petitioner's performance. Mr. Ford explained in his testimony

that the group determined that it was his decision whether or

not to discipline the Petitioner.

24. Mr. Ford therefore reviewed the November 2003

performance expectations and the February 2004 Performance

Improvement Plan directed at the Petitioner. Mr. Ford

determined that the Petitioner had been properly advised of her

responsibilities as Lead Grader, the consequences of inadequate

performance after imposition of the improvement plan, and had

failed to meet expectations. On August 27, 2004, he demoted the

Petitioner from Lead Grader to a Shift Grader role or position,

in accordance with the February Performance Improvement Plan.

Mr. Ford explained to the Petitioner that she had failed to

obtain the proper amount of boards in her re-counts, and that

she had improperly given tests to graders on an individual

basis, as prohibited.

25. The Petitioner claims that she was discriminatorily

demoted to a grader from the Lead Grader position and was

discriminatorily denied a raise. She grounds this position on

the contention that similarly-situated employees outside her

protected class were treated differently and more favorably in

similar situations, and that her temporary supervisor in the

fall of 2003, Mr. Garrett, had a discriminatory attitude toward

her and against women. This contention is based upon an alleged

discriminatory statement he made and upon the fact that he also

required her, in addition to her normal Lead Grader duties, to

work on the MVG machine when its regular operator had been

fired, and after she had trained his replacement. In essence,

the Petitioner complains that Jamey Garrett was prejudiced

against her and once made a comment that he "really did not care

for working with women."

26. Mr. Garrett had temporarily been placed in partial

supervision of the Petitioner as Acting Dry-End Superintendent

in the late summer and fall of 2003. At about this time,

Mr. Orcutt, and/or Mr. Garrett, acting singly or in concert,

directed the Petitioner to assume operation of the MVG machine

when its normal operator was fired. She also was required to

train a replacement operator for the machine. That effort took

about three weeks. Thereafter she asked that her temporary

assignment to the machine operation be ended. Mr. Garrett

instead told her that he needed her to operate it through the

rest of 2003 (approximately two to three months). She

maintains, in her own testimonial opinion, that Mr. Garrett

and/or Mr. Orcutt "loaded her up" with this extra duty in order

to intentionally cause her to fail at her duties as Lead Grader.

27. There is no evidence other than the Petitioner's

unsupported opinion, that Mr. Garrett or Mr. Orcutt had this

intent in requiring her to perform the extra duty, which

incidentally began well before the implementation of the

November 2003 new performance and evaluation standards for

graders, which the Petitioner, as Lead Grader, was required to

learn and implement.

28. The only evidence the Petitioner provided concerning

Mr. Garrett's discriminatory animus towards women is the alleged

statement referenced above. Mr. Garrett denied making that

comment. In fact, however, he did admit, regarding concerns he

had about working as a supervisor, (which had not been his

permanent assignment), that he asked a promotion board to help

him work better with women. This was because he feared that his

size (he is 6'5") was intimidating to women. This statement

does not indicate any discriminatory intent toward women, nor

does the alleged statement about not caring about working with

women indicate any such intent, especially because of its

isolated nature. Moreover, the persuasive evidence shows that

Mr. Garrett actually worked well with women and that he promoted

several women during his tenure in a supervisory role. The

Petitioner herself recalled a conversation with Mr. Garrett in

about March 2004 in which he stated that he thought he and the

Petitioner were getting along a lot better.

29. Mr. Garrett's only supervisory authority over the

Petitioner was as a set-up supervisor near the end of 2003 and

the beginning of 2004, during which time he did not have actual

disciplinary authority over the Petitioner. That responsibility

remained with Mr. Orcutt. He did apparently have the ability to

make recommendations concerning employee matters, including

discipline, to Mr. Orcutt.

30. In fact, the evidence reveals that the only

disciplinary issue concerning the Petitioner in which

Mr. Garrett was actually involved occurred on or about March

2004. Mr. Garrett had been instructed by Mr. Orcutt to issue

disciplinary sanctions to the Petitioner. Mr. Garrett therefore

met with the Petitioner and allowed her to explain her version

of the situation. After listening to her side of the story he

accepted her explanation as correct and tore up the disciplinary

memo and imposed no discipline. Therefore, although she

received a less satisfactory performance evaluation in February

2004 and was placed upon a Performance Improvement Plan in late

February 2004, no formal discipline was imposed upon the

Petitioner until her demotion in August 2004.

31. The Petitioner contends that she was denied a raise

because of her sex. The only evidence related to a raise was

testimony provided by Mr. Garrett, who indicated that the

Petitioner could not receive a raise because she was already

receiving the maximum pay for her grade level as a Lead Grader.

The raise in question at that time was given to the other

graders but not to the Lead Grader, the Petitioner, because she

was already making the maximum of her pay range. Indeed, the

Petitioner admitted that the raise was given to all graders,

including black graders and female graders. The Petitioner

acknowledges that she was the only individual denied a raise at

the time in question. Mr. Garrett's explanation as to the

reason she was not given a raise, when the others of both races

and sexes were, is accepted as accurate.

32. Further, the Petitioner admitted that she was also

given the same rate of pay as the highest ranking, AA graders

once she was demoted out of the lead grader position. The

Petitioner's contention based upon her own opinion that she was

denied a raise because of her race or sex is not deemed credible

and persuasive under these circumstances.

33. On June 8, 2005, the Petitioner filed her charge of

discrimination with the Commission. In the charge she claimed

that she had been discriminated against between August 2004 and

December 2004, based upon her race and sex. She claimed

discriminatory demotion as well as being discriminatorily denied

a raise. The Commission after its investigation issued a

Determination of No Reasonable Cause to believe that an unlawful

practice had occurred. That determination was issued on

December 13, 2005, and the Petition for Relief was filed

January 26, 2006, initiating this proceeding.

34. The Petitioner claimed in her Petition for Relief that

in addition to being demoted and denied a raise because of her

race and sex that the Respondent maintained a hostile work

environment based upon issues of sex and race. The Petitioner

also maintained that she was replaced when demoted by a white

male, who took over the position of Lead Grader. She contends

that the white male, Mr. LePage, was allowed to maintain a count

of his own boards or pieces of lumber that he had reviewed while

monitoring the graders, while the Petitioner's numbers of

reviewed or inspected boards were maintained in the computer

record by the company receptionist. She also maintained that

Mr. LePage gave a non-proctored skill test to graders, but was

not demoted for it, whereas the Petitioner was demoted for

allegedly giving a non-proctored skill test to a grader or where

no one else was present in the test room.

35. The persuasive evidence shows that the Petitioner was

not similarly situated with her replacement, Mr. LePage.

Although she contends that Mr. LePage also provided a test to a

grader individually instead of giving the test only in a group

setting and yet was not demoted, their circumstances are not

comparable. Mr. LePage had only held the Lead Grader position

for a few months when the allegation against him was raised.

When it was raised, his first disciplinary incident in that

position, Mr. Ford counseled him and admonished him that he was

only to give test in group settings. The Petitioner, however,

had been in the Lead Grader position for a number of years and

had been warned about the testing issue at least twice

previously. Moreover, she had been admonished about her

performance in conjunction with her February 2004 performance

evaluation and had already been placed on a performance

improvement plan at that time in part for that same issue

concerning individualized testing. Thus she was not similarly

situated as an employee to Mr. LePage who was disciplined less

harshly because it was his first such transgression and warning.

In a similar context, it is inferred that Mr. LePage was allowed

to input his own board counts into the computer system because,

unlike the Petitioner, he had not told management that he had

performed and reported the proper board counts when that was

proved not to be the case.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Florida Statutes (2005).

37. Section 760.10, Florida Statutes, forbids the

imposition of an adverse employment action by an employer on an

employee for discriminatory reasons regarding race or sex.

There is no dispute that the Petitioner meets the statutory

definition of employee, as does the Respondent meet the

definition of employer.

38. Section 760.11(1), Florida Statutes, provides

pertinently as follows:

(1) Any person aggrieved by a violation of

ss. 760.01-760.10 may file a compliant with

the commission within 365 days of the alleged

violation . . . .

39. The Petitioner filed her Charge of Discrimination on

June 8, 2005. Therefore, any discriminatory act that occurred

on or before June 8, 2004, is time-barred because of this

statutory provision, unless the Petitioner is able to prove that

actions occurring before that time were continued into the

jurisdictional time period, referenced above, and were part of a

continuing pattern of discriminatory conduct or hostile,

discriminatory working environment conditions and circumstances.

40. Throughout the hearing the Petitioner opined in her

testimony that she was discriminated against by Jamey Garrett.

Although those allegations, based upon the above findings of

fact, are not established as factually accurate, they are also

time-barred by Section 760.11(1), Florida Statutes, because they

all occurred long before June 8, 2004. Moreover, the

preponderant persuasive evidence, and the above findings of fact

based thereon does not show that any conduct or circumstances

occurring during the time that the Petitioner was partially

supervised by Mr. Garrett had any relationship or continuing

influence on the circumstances occurring, and decisions made,

regarding the Petitioner's discipline, commencing in February

2004. Indeed, the Petitioner herself testified that Mr. Garrett

moved to the other side of the mill, in an unrelated operation,

by April 2004 and that her interaction with him after April 2004

was "non-existent." Thus any allegations concerning Mr. Garrett

discriminating against the Petitioner are time-barred.

41. In any event, the above found facts concerning Mr.

Garrett's relationship with the Petitioner failed to show that

he had any discriminatory animus toward her or was acting in a

discriminatory fashion. In fact, even if his isolated comment

referenced in the above findings of fact occurred, neither it,

nor the other circumstances regarding his relationship with the

Petitioner established any discriminatory environment or

discriminatory intent on his part with regard to any employment

decision affecting the Petitioner. In fact, his conduct toward

the Petitioner in March 2004, when he tore up a disciplinary

memorandum, and when he acknowledged that he and the Petitioner

were getting along better, shows just the opposite.

42. Further, the Petitioner's June 8, 2005, Charge of

Discrimination was limited to her claims that she was

discriminatorily demoted in August 2004, and denied a pay raise.

The Petitioner did not indicate on her charge filed with the

Commission that there was a continuing pattern of discriminatory

practice and nothing in the charge indicates that allegedly

discriminatory conduct occurred prior to her demotion.

Therefore, allegations unrelated to her demotion or alleged

denial of a pay raise are time barred and may not be addressed

in this proceeding.

43. The Division of Administrative Hearings and the

undersigned is without jurisdiction of any claim not raised in

the initial charge of discrimination before the Commission. New

or different types of discrimination cannot be alleged in the

Petition for Relief or at the formal proceeding instituted under

Sections 120.569 and 120.57(1), Florida Statutes, unless they

were originally alleged in the Charge of Discrimination and

investigated by the Commission. The Commission must first

investigate the allegations of the charge, and only when it

enters its "cause finding" may a Petition for Relief attacking

the proposed final agency action be filed. Because more than

365 days elapsed since the occurrence of any purported events

underlying any such additional allegation, her charges can not

now be amended. See § 760.11(1), Fla. Stat.; Williams v. Shands

at Alachua General Hospital and Santa Fe Health Care , DOAH Case

No. 98-2539 (Recommended Order entered January 8, 1999; Final

Order July 16, 1999); Luke v. Pic N Save Drug Company, Inc. ,

DOAH Case No. 93-4425 (Recommended Order filed August 25, 1994;

Final Order December 25, 1994); Haynes Abet vans America

Mailing, Inc. , 159 F.3d 246, 254 (6th Cir. 1998).

44. The legislative scheme, contained in Chapter 760,

Florida Statutes, incorporates and adopts the legal principles

established in the federal anti-discrimination laws under Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

Section 2000E, et seq . Florida courts have determined that

federal discrimination law provides guidance for construing the

relevant provisions of Chapter 760, Florida Statutes. Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205, 1209

(Fla. 1st DCA 1991).

45. The United States Supreme Court has delineated the

burden of proof in discrimination cases in the opinions in

McDonnell-Douglas Corporation v. Green , 411 U.S. 792 (1973),

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). Under that standard the Petitioner has the initial

burden of proving a prima facie case of discrimination. After

the establishment of a prima facie case the burden to go forward

with evidence shifts to the employer to articulate a legitimate,

non-discriminatory reason for the adverse employment action at

issue. Thereafter, it is incumbent upon the Petitioner, the

employee, to adduce evidence which would show that the

employer's professed reason for the adverse employment action is

in fact pretextual and actually involved a discriminatory intent

or was the product in the context of this case of a racially or

sexually hostile working environment. The ultimate burden of

persuasion in the case, however, always remains with the

Petitioner bringing the action. St. Mary's Honor Center v.

Hicks , supra .

46. In order to establish a prima facie case of

discriminatory demotion or denial of pay raise, the Petitioner

must establish: (a) That she is a member of a protected class;

(b that she was qualified for the position; (c) that she

suffered an adverse employment action such as the demotion; (d)

that she was replaced by someone of comparable or lesser

qualifications, not a member of her protected class and/or that

other employees not members of her protected class who were

similarly situated, as for instance by committing violations of

employer policies or rules, were treated differently and more

favorably. See Stumiolo v. Sheaffer Eaton, Inc. , 15 F.3d 1023,

1025 (11th Cir. 1994); Underwood v. North Port Health Services ,

57 F. Supp. 2nd, 1289, 1300 (M.D. Ala. 1999).

47. The Petitioner has established that she is a member of

a protected class that she is a woman and that she is African-

American, a minority. She has also established that she

suffered an adverse employment action by the demotion. She was

replaced by someone of comparable qualifications who was not a

member of her protected class, a white male, Paul LePage. She

did not, however, prove by preponderant persuasive evidence that

he was similarly situated to her. As explained in the above

findings of fact, although he also administered a test to a

grader individually, instead of in a group session, and thus

violated company rules, that was the only incident established

in the evidence whereby he violated policy or rules. She had

done so, and had been warned against doing so, more than once

and was already on a Performance Improvement Plan partially

because of that sort of conduct. Thus her conduct was more

serious as a violation, by its recurrent nature, than was his

and he was not already on a graduated discipline status, (i.e.

the Performance Improvement Plan). Thus, their circumstances

were different and LePage was not truly a comparable, exemplary

employee.

48. Moreover, the Petitioner did not establish that she

was qualified for the position that she held because she failed

to comply with the Lead Grader performance expectations and

standards. As described in the above findings of fact, the

Petitioner failed to re-grade 1200 boards for each grader for

the period ending in August 2004 either through mistake, because

she didn't understand the performance standards she was to

adhere to or intentionally. It does not matter which of these

was the reason, the fact remains that she did not perform up to

the appropriately adopted performance expectations for the Lead

Grader position. Similarly, she gave a grading test to an

individual instead of giving the test in a group setting, as she

had been required by company policy and rules, concerning which

she had been admonished previously. Because she was either

unable or unwilling to comply with the Lead Grader performance

expectations in this regard, she did not establish that she was

actually qualified to be a Lead Grader and it was for that

reason that Mr. Ford demoted her.

49. Moreover, the fact that Mr. Ford is of the same race

as the Petitioner undermines somewhat the Petitioner's claims

that she was discriminated against on the basis of her race.

See Dungee v. Northeast Foods, Inc. , 940 F. Supp. 682, n. 3

(Dist. of N.J. 1996) holding that where the decision-makers are

members of the plaintiff's protected class "weakens any possible

inference of discrimination."

50. If the Petitioner were to satisfy her initial burden

of presenting a prima facie case, the employer, in articulating

or producing evidence of legitimate, non-discriminatory reason

for its action:

. . . need only articulate-it need not

prove-the existence of a legitimate, non-

discriminatory reason for its action. The

plaintiff then retains the burden of

persuading the court that the offered reason

is a pretext and that a discriminatory reason

more likely motivated the employer in its

actions.

Texas Department of Community Affairs v. Burdine , supra at 1209.

Evening assuming arguendo that the Petitioner established a

prima facie case, she did not establish that the legitimate,

non-discriminatory reason articulated by the Respondent for the

demotion was pretextual. The proof elicited by the Respondent

established persuasively that the Petitioner failed to comply

with the Lead Grader performance expectations after having been

given ample notice and training as to what was expected. The

Petitioner has adduced no persuasive, preponderant evidence that

the articulated reason for her demotion and the reason she was

not given the relevant pay raise was a pretext for

discrimination.

51. Even if it be assumed arguendo that Mr. Orcutt was

wrong in his belief that the Petitioner had failed to re-grade a

sufficient number of boards (which the evidence shows he was

not), a mistaken belief by the employer or the supervisor who

imposes the employment action at issue does not demonstrate

pretext or discriminatory intent. Mitchell v. Worldwide

Underwriters Insurance Company , 967 F.2d 565, 567 (11th Cir.

1992); Elrod v. Sears Roebuck and Company , 939 F.2nd 1466, 1470

(11th Cir. 1991).

52. The Petitioner always retains the ultimate burden of

persuasion. St. Mary's Honor Center v. Hicks , supra . In order

to establish pretext the Petitioner herein asserted conclusory

allegations based upon her own opinions, not supported by other

testimony and evidence. Her argument appears to be that

Mr. Garrett influenced the determination to demote her because

he did not like working with women. See Llampallas v. Mini-

Circuits Lab, Inc. , 163 F.3d 1236, 1248 (11th Cir. 1998) (when

the harasser and the decision-maker are not the same person, the

plaintiff must prove that the harasser's discriminatory animus

caused the employer to terminate the plaintiff in order to

establish an inference of causation); Zakalama v. Mt. Sinai

Medical Center , 842 F.2d 291, 294 (11th Cir. 1988). In the

instant situation, the decision-maker was Jessie Ford. Mr. Ford

considered the opinions of Mr. Orcutt, but he did not discuss

the Petitioner's situation with Mr. Garrett in any manner. At

the time of the disciplinary events in question Mr. Garrett had

no supervisory authority over the Petitioner and was employed in

a different part of the sawmill operation. The Petitioner

contends that Mr. Garrett had a great deal of influence over his

supervisor Mr. Orcutt. However, other than her conclusory

assertions based upon her unsupported opinion she provided no

evidential support for this allegation. A petitioner's

unsupported conclusory assertions or opinions cannot, standing

alone, establish discriminatory intent or a discriminatorily

hostile working environment. Swanson v. General Services

Administration , 110 F.3d 1180, 1188 (5th Cir. 1997).

53. Additionally, the only support the Petitioner provides

for her allegation that Mr. Garrett had a discriminatory bent

against women is the alleged statement made by him in 2002: "I

really don't care for working with women." This was an isolated

statement. No such other utterance or similar utterance by

Mr. Garrett or any other person in a supervisory or even in a

co-employee capacity was proven. Mr. Garrett denies making the

comment. He does admit that, in response to a question about

concerns he had while working as a supervisor that he had asked

a promotion board to help him work better with women because he

feared that his size was intimidating to women. This does not

indicate that he harbored any hostile or discriminatory intent

towards women; rather, it indicates otherwise. Additionally,

the evidence showed that Mr. Garrett worked well with women and

that he promoted several women during his tenure. Indeed, the

Petitioner herself recalled a conversation with Mr. Garrett in

about March of 2004 wherein he stated that he thought he and the

Petitioner were getting along better. In any event, off-hand

comments and isolated incidents are insufficient to establish a

hostile work environment or discriminatory intent. Blevins v.

Helig-Myers Corp. , 52 F. Supp. 1337 (M.D. Ala. 1998).

54. Mr. Garrett's only supervisory authority over the

Petitioner was as a "set-up supervisor" at the end of 2003 and

beginning of 2004, during which time he did not have actual

disciplinary authority over the Petitioner (although he could

recommend). That responsibility remained with Mr. Orcutt.

Additionally, the evidence reveals that the only disciplinary

issue regarding the Petitioner with which Mr. Garrett was

involved occurred in or about March 2004. Mr. Orcutt had

instructed Mr. Garrett to issue the disciplinary action to the

Petitioner. Mr. Garrett met with the Petitioner and allowed her

to explained her side of the story or circumstances. After

hearing her version of the events in question, he accepted her

explanation and tore up the disciplinary memorandum and did not

impose the discipline.

55. Inasmuch as the Petitioner provided no evidence that

she was demoted because of her race or her sex, her

discriminatory demotion claim must fail. The evidence rather is

preponderant and persuasive to the effect that, as the employer

maintains, she was demoted because she failed to perform the

duties of her job in a passably acceptable manner, as delineated

in the above findings of fact.

56. The Petitioner has not presented any evidence that

shows that she was denied a raise because of her sex or her

race. The only evidence related to a raise was testimony

provided by Mr. Garrett, who indicated that the Petitioner could

not get a raise under the regular company pay policy and rules

because she had already reached the top of her pay range as a

Lead Grader. The raise at that time was given to graders, but

not to the Lead Grader, because she was already at the maximum

pay level for her position. The Petitioner in her testimony

admitted that the raise was given to all graders, including

black graders and female graders, not just male graders.

57. The Petitioner claimed that she was the only

individual denied a raise. Whether or not that was true, the

fact that she did not get a raise was for the above-mentioned

legitimate reason and had nothing to do with her race or her

sex. Further, the Petitioner also admitted that she was given

the highest rate of pay for a grader, that of AA grader, even

when she was demoted out of the lead grader position.

Consequently, there is no preponderant, persuasive evidence that

the Petitioner was denied a raise because of her race or her

sex.

58. The Respondent has requested that it be awarded a

reasonable attorney's fee and cost, citing Section 760.11(6),

Florida Statutes, which provides that the Commission

discretionarily may award a prevailing party a reasonable

attorney fee and costs. No evidence has been adduced in support

of attorney's fees or costs. It is also true that, as yet, the

Respondent is not a prevailing party since the final order of

the Commission has not been entered. Consequently, any decision

regarding attorney's fees or costs must be made by the

Commission upon the entry of a final order, determining the

prevailing party.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED:

That a final order be entered by the Florida Commission on

Human Relations dismissing the Petition for Relief in its

entirety.

DONE AND ENTERED this 3rd day of November, 2006, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative 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 with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 2006.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Frederick J. Gant, Esquire

Albritton & Gant

Post Office Box 12322

322 West Cervantes Street

Pensacola, Florida 32581

Vincent J. Miraglia, Esquire

International Paper Company

6400 Poplar Avenue, Tower II

Memphis, Tennessee 38197

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.