06-003788 Theresa L. Dawson vs. Bank Of America Status: Closed Recommended Order on Tuesday, October 9, 2007.

Summary: Petitioner did not prove racially motivated discrimination by Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THERESA L. DAWSON, )

)

Petitioner, )

)

vs. ) Case No. 06-3788

)

BANK OF AMERICA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on August 9 and 10, 2007, in Orlando, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Dennis Wells, Esquire

Webb, Wells & Williams, P.A.

280 Wekiva Springs Road, Suite 2090

Longwood, Florida 32779-5946

For Respondent: Annette Torres, Esquire

Abigail K. Kofman, Esquire

Sterns, Weaver, Miller, Weissler,

Alhadeff & Sitterson, P.A.

150 West Flagler Street, Suite 2200

Miami, Florida 33130

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated

against Petitioner by terminating her employment in violation of

Section 760.10, Florida Statutes, 1 the Florida Civil Rights Act.

PRELIMINARY STATEMENT

Petitioner filed an Employment Charge of Discrimination

with the Florida Commission on Human Relations (the

"Commission") on May 4, 2006. A Determination: No Cause was

entered by the Commission on September 13, 2006. Petitioner

filed her Petition for Relief on September 29, 2006, and the

Petition was forwarded to the Division of Administrative

Hearings (DOAH). The Petition alleges an unlawful employment

practice; specifically that Petitioner's employment with

Respondent had been terminated wrongfully on the basis of age

and race (African-American). After several continuances for

cause, the final hearing in this matter was conducted at the

time and place set forth above.

At final hearing, Petitioner testified on her own behalf

and also called the following witnesses: Sherri Nichols, former

teller at the Bank of America Rosemont branch (hereinafter,

"Rosemont"); Carmita Kelly, former teller at Rosemont; Dorothy

Faulk, former personal banker and customer services specialist

at Rosemont; Karen Franklin, former head teller at Rosemont; and

Jeremy Barkley, customer service manager/assistant manager at

Rosemont. Petitioner offered seven exhibits into evidence;

Exhibits 1, 2, 4, and 5 were admitted. Respondent called three

witnesses: Marcia Clark, business banking client manager at

Rosemont; Roy Gonzaque, vice president and senior investigator

for Bank of America; and Debbie Nelson, Bank of America consumer

market manager. Respondent offered Exhibits 1 through 3, 8

through 10, 14, 17, 22 through 24, 27, 30, 34, 35, and 39 into

evidence, each of which was admitted.

During the final hearing, Petitioner made an ore tenus

motion for an order allowing certain proffered documents to be

submitted as late-filed exhibits. 2 Petitioner was directed to

file a written motion stating the basis and support for his

motion; Respondent was given the opportunity to respond. No

motion was filed, thus none of the documents proffered by

Petitioner in the final hearing will be considered evidence in

this case. Petitioner was also granted the opportunity to

submit transcripts of pre-hearing depositions for inclusion into

the record, but no transcripts were filed at DOAH. At this

point, the record in this proceeding is closed.

The five-volume Transcript of the final hearing was filed

with the Clerk of the DOAH on September 25, 2007. The parties

asked and were afforded the right to file proposed recommended

orders on or before September 28, 2007. Each party timely

submitted proposed findings of fact and conclusions of law, and

each party's submission was considered in the preparation of

this Recommended Order by the undersigned Administrative Law

Judge. (Note: The Transcript of the final hearing is

erroneously marked as Case No. 07-3788 instead of 06-3788, but

otherwise appears accurate.)

FINDINGS OF FACT

1. Petitioner, Theresa Dawson, is a 47-year-old, African-

American woman. At all times pertinent to this matter,

Petitioner was employed by Respondent as a personal banker at

Rosemont. As a personal banker, Petitioner was responsible for,

inter alia , opening new accounts for customers of Bank of

America (the "Bank").

2. Petitioner had worked for the Bank (including its

predecessor entities) for almost 25 years, beginning her

employment in 1981 as a bank teller. She served at a number of

Bank branches until being transferred to Rosemont in 1998.

Petitioner was a valued employee of the Bank and was considered

to be one of the best workers at Rosemont. She was nominated

for and received bonuses almost every quarter. She received

annual salary increases well in excess of the average for her

peers. During a certain period when Bank headquarters directed

managers to limit all raises to two percent, Petitioner was

given a six-percent raise due to her substantial performance

record. Petitioner had never been disciplined or reprimanded by

the Bank concerning her employment activities until the actions

leading to this administrative proceeding.

3. Personal bankers were paid a base salary and could earn

additional compensation based upon performance. To obtain

bonuses or extra compensation, the employee must first meet all

of their objectives (as predetermined by the Bank). Once those

goals were met, more income in the form of incentives could be

earned. Incentives were based on productivity: A personal

banker would receive credit for opening new accounts in excess

of his or her stated goals. In addition, the employee could

accumulate points which could be used to purchase consumer goods

such as televisions, stereos and other household goods.

4. Each Bank employee was assigned a NBK number, which is

essentially an internal employee number. Each employee was also

asked to select a private, confidential password for use in

logging on to the Bank computer system. Bank policy forbade

employees from sharing their password with anyone, even with

Bank computer technology personnel. Passwords had to be changed

on a regular basis (usually every 90 days) as an added measure

of security. All employees were charged with understanding and

following the policy concerning passwords.

5. In order for a personal banker (or other authorized

employee) to open a new account for a customer, the employee

must log onto the Bank computer using their NBK and password.

The account would then be electronically opened using the Bank

computer system. Once the electronic process was complete, a

signature card would be printed for the customer's signature.

Sections of the signature card would be manually filled in by

the Bank employee who opened the account; that person would

theoretically be the same employee who had electronically opened

the account.

6. On Saturday, April 30, 2005, Marcia Clark, the bank

manager for Rosemont, was at work. It was a busy day at the

banking center. Dorothy Faulk, a long-time employee of the

Bank, was also working on that day. Faulk was a customer

service specialist who had authority, among other things, to

open new accounts for customers. On that day Faulk was filling

the role of personal banker (in name only; she was not included

in the personal banker's incentive program while filling the

role in that limited basis). Towards the end of the workday

(1:00 p.m. because it was Saturday), Clark found a new account

signature card on the office copy machine. The signature card

indicated that Petitioner had opened the account, but Clark knew

Petitioner had not been working on that day. Since it was

almost time to close for the day, Clark opted to deal with the

apparent discrepancy during the next business week.

7. On the following Tuesday, May 3, 2005, Clark asked

Petitioner about the signature card she had found the previous

Saturday. Petitioner indicated that Faulk must have logged on

to the Bank computer system using Petitioner's password. In

response to further inquiry by Clark, Petitioner admitted giving

her password to Faulk for that purpose. The next day, Clark

asked Faulk about the signature card and whether she had logged

on using Petitioner's password. Faulk said that she had indeed

used the password, but that it had been a one-time occurrence.

8. Clark then discussed the situation with her supervisor,

Debbie Nelson, the Bank's consumer market manager. Nelson was

concerned about what Clark told her, and she told Clark to

contact the Bank's senior investigator, Roy Gonzaque, so that he

could look into the matter. Meanwhile, Clark pulled internal

bank documents known as PMRRs (the Performance Measurement

Rewards and Recognition tool) in an effort to determine whether

there were other instances where Petitioner's password had been

used when she was not actually at work. 3

9. Within a week, Gonzaque came to Rosemont and interviewed

a number of employees, including Petitioner and Faulk. He also

examined the documents which had been reviewed by Clark and

which showed the following: December 18, 2004--four new

accounts were opened under Petitioner's password; March 5,

2005--three new accounts were opened under Petitioner's

password; March 19, 2005--three new accounts were opened under

Petitioner's password; and April 30, 2005--three new accounts

were opened under Petitioner's password. Each of those days was

a Saturday on which Petitioner was not at work. A signature

card was found for each of those days as well; each of the cards

had Faulk's handwriting on it. 4

10. Gonzaque questioned Petitioner and obtained a voluntary

written statement in which Petitioner admitted giving her

password to Faulk, but said she believed prior managers had

known about and condoned the practice. Petitioner then admitted

her wrong-doing and apologized for engaging in that activity.

Faulk was also questioned and wrote a statement saying that she

had been opening accounts using personal bankers' passwords for

about one and a half years. 5 Faulk said she opened accounts

under the personal banker number in order to make sure customers

would not have to wait to long. That statement is not credible

because Faulk had the authority to open new accounts under her

own number. Further, the statement contradicts what Faulk said

to Clark on the day she was first confronted. Faulk also wrote

that she didn't know Petitioner would benefit financially as a

result of the action. Again, this statement is not credible

because Faulk had been a personal banker and knew how the

incentive bonuses were calculated. Faulk stated that Clark not

only knew about this practice, but that Clark inquired why Faulk

was not opening accounts for other personal bankers as well in

order to be "fair." 6

11. Gonzaque, Nelson, and Clark met to discuss the situation

further. They called the Personnel Office at the Bank's

headquarters during their meeting. The Personnel Office

recommended that upon those facts, both Petitioner's and Faulk's

employment should be terminated. Despite the fact both

employees had exemplary work histories, a consensus was reached

by the three management personnel to terminate employment. It

was a difficult decision to make and, actually, was detrimental

to Rosemont because Faulk and Petitioner were well known by bank

customers.

12. Clark was responsible for informing Petitioner about the

termination of employment. When Clark did so, Petitioner did

not raise any objection. Without saying a word Petitioner

turned over her keys and other Bank property in her possession

and then walked out of the bank. She showed no emotion and made

no comments to Clark or anyone else.

13. Petitioner had earned performance and incentive bonuses

on a regular basis. Her earned bonus for the quarter preceding

her termination from employment was to be in excess of $8,300.

That was significantly larger than average bonuses earned by

other employees. 7 The Bank opted not to pay that bonus to

Petitioner on the basis that she had gained it fraudulently,

i.e. , by allowing someone else (Faulk) to open accounts for her.

As Gonzaque described it, Petitioner had "lied, cheated and

manipulated the system" to get the bonus.

14. Each Bank employee must read and understand the "Code of

Ethics and General Policy on Insider Trading" (the "Code"). The

Code is available both on-line and in hard copy format.

Petitioner acknowledged in writing annually that she had read,

understood, and agreed to comply with the Code. The Code

requires employees to abide by the Associate Handbook , to abide

by all Bank policies, and to seek counsel concerning any

questions about ethical issues that might arise. The Bank's

Associate Handbook includes information concerning passwords.

It states unequivocally that "Associates must not share their

passwords, including e-mail passwords, with any other person--

not even technical support personnel." Further, passwords were

not to be stored under keyboards or other unsecured places.

15. Two former Rosemont employees remembered isolated

incidences of password sharing. Sherri Nichols remembers an

assistant manager asking each teller for their passwords on one

occasion so that he could take some sort of test for them. The

assistant manager (Jeremy Barkley) does not remember doing so,

and his testimony is credible. Carmita Kelly remembers Barkley

using her terminal--where she had logged on--for a short period

of time while she stood nearby. Even if those instances did

occur, they did not involve use of a personal banker's password

to open new accounts. There was no other competent evidence

that employees had been sharing passwords in the manner alleged

by Petitioner.

16. Petitioner has not found suitable employment since the

date of her termination from Rosemont. She has applied to a

number of places without success. In some of her employment

applications, she misrepresented her departure from Rosemont,

indicating that she had not been terminated from employment.

Her explanation for that false statement was that "I was trying

to get employment." Petitioner seemed devoid of remorse or

guilt and appeared to believe that the end justified the means,

thus diminishing her credibility at final hearing. Unlike

Petitioner's failure, Faulk was able to obtain employment with

another lending institution only a couple of weeks after being

let go by Rosemont. She now works with yet another bank.

17. After Petitioner's and Faulk's employment was

terminated, Rosemont hired new employees. It appears the two

positions held by Petitioner and Faulk (personal banker and

customer service specialist, respectively) were not filled by

persons with the same level of experience as the terminated

employees. Rather, persons were hired who could be trained to

fill those positions upon further training. A number of persons

were hired, but it is unclear from the evidence at final hearing

whether any one person was hired to directly fill Petitioner's

position. Two white males were hired, as was a Hispanic woman,

but no witness could provide a clear history of when each was

hired and for what specific job.

18. At no time during her employment with the Bank or

Rosemont did Petitioner hear anyone make a discriminatory remark

to her based on her race or age. Employees described the

Rosemont employees as a "team" who all worked together for the

common good. Both the Bank and Rosemont had a history of

diversity in hiring practices. One of the three persons making

the decision to terminate the employment of Petitioner was

African-American.

19. The evidence at final hearing was conclusive that race

was not a factor in the decision to terminate Petitioner (and

Dorothy Faulk). 8 It is clear that Rosemont did not hire or fire

employees on the basis of race and that every employee was given

the opportunity for advancement regardless of race. In the case

of Petitioner, she had been regularly promoted, honored, and

financially rewarded for her work. She suffered no adverse

actions on the basis that she was African-American.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding

pursuant to Section 120.569 and Subsection 120.57(1), Florida

Statutes (2007).

21. The Florida Civil Rights Act of 1992 (the "Act") is

codified in Sections 760.01 through 760.11 and 509.092, Florida

Statutes. Among other things, the Act makes certain actions by

employers "unlawful employment practices" and gives the

Commission authority--following an administrative hearing

conducted pursuant to Sections 120.569 and 120.57, Florida

Statutes--to issue an order "prohibiting the practice and

providing affirmative relief from the effects of the practice,

including back pay." §§ 760.10 and 760.11(6), Fla. Stat.

22. One unlawful employment practice prohibited by the Act

is described in Subsection 760.10(1)(a), Florida Statutes:

It is an unlawful employment practice for an

employer:

To discharge or to fail or refuse to hire

any individual, or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

23. Petitioner has the burden of proof that she was the

victim of a discriminatory act. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 934 (Fla. 1996),

wherein the Court stated: "The general rule is that a party

asserting the affirmative of an issue has the burden of

presenting evidence as to that issue."

24. "Discriminatory intent may be established through direct

or indirect circumstantial evidence." Johnson v. Hamrick ,

155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001). However, direct

evidence is often unavailable, and so "inferential and

circumstantial proof" is permitted to prove discrimination.

Kline v. Tennessee Valley Authority , 128 F.3d 337, 338 (6th Cir.

1997).

25. Where, as in the instant case, the complainant uses

circumstantial evidence to prove intentional discrimination, the

shifting burden framework established by the U.S. Supreme Court

in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973), applies. Under this framework,

the complainant has the initial burden of establishing a prima

facie case of discrimination. If she meets that burden, then an

inference arises that the challenged action was motivated by a

discriminatory intent. The burden then shifts to the respondent

to articulate a legitimate, non-discriminatory reason for its

action. If the respondent successfully articulates a reason,

then the burden shifts back to the complainant to show that the

proffered reason is really pretext for unlawful discrimination.

See also Schoenfield v. Babbitt , 168 F.3d 1257 (11th Cir. 1999).

The petitioner must prove her prima facie case through the

traditional four-prong test established in McDonnell , supra ,

i.e. : (1) that she is within a protected class, (2) that she

was qualified for the position she held, (3) that she was

subjected to an adverse employment action, and (4) that

similarly situated employees outside her protected class were

treated differently or more favorably for the same violations.

See also Knight v. Baptist Hospital of Miami , 330 F.3d 1313

(11th Cir. 2003).

26. There is a similar four-prong test for establishing a

prima facie case of discrimination where, as in the instant

case, no decision maker has made discriminatory statements. The

complainant must show that (1) she is a member of a protected

group, (2) she was qualified for the job she formerly held,

(3) she was discharged from employment, and (4) after her

discharge, the position she held was filled by someone not

within her protected class. Singh v. Shoney's, Inc. , 64 F.3d

217 (5th Cir. 1995).

27. However, the courts have held that proof that amounts to

mere speculation and self-serving belief on the part of the

complainant concerning motives of the respondent, standing

alone, is not sufficient to establish a prima facie case. See

Lizardo v. Denny's, Inc. , 270 F.3d 94, 104 (2d Cir. 2001), where

the court said: "The record is barren of any direct evidence of

racial animus. Of course, direct evidence of discrimination is

not necessary. . . . However, a jury cannot infer

discrimination from thin air. Plaintiffs have done little more

than cite to their mistreatment and ask the court to conclude

that it must have been related to their race. This is not

sufficient." See also the holding in Little v. Republic

Refining Co., Ltd , 924 F.2d 93 (5th Cir. 1991), an age

discrimination case applying the same requirements for

establishing a prima facie case. "First, Little points to his

own subjective belief that age motivated Boyd [his supervising

employer]. An age discrimination plaintiff's own good faith

belief that his age motivated his employer's action is of little

value." Little , at 96. In Elliott v. Group Medical & Surgical

Service , 714 F.2d 556, 567 (5th Cir. 1983), cert. denied ,

467 U.S. 1215, 104 S. Ct. 2658, 81 L. Ed. 2d 364 (1984), the

court held that "[w]e are not prepared to hold that a subjective

belief of discrimination, however genuine, can be the basis of

judicial relief."

28. In the instant case, Petitioner proved that she was a

member of a protected class, that she was qualified for the

position she held, and that she was terminated from her

employment. She could not prove that the person or persons

hired to replace her were of a different race or age. She could

not prove that similarly situated employees outside her class

were treated differently for the same violations. 9 In short, she

did not prove a prima facie case.

29. Then, even though it is not required to do so because

the burden never shifted to it, Respondent showed a legitimate,

non-discriminatory reason for terminating Petitioner's

employment, to wit: Petitioner violated clearly elucidated

policy concerning use of her confidential password; she

defrauded Respondent by claiming the financial benefit for new

accounts she had not opened; and she lied to her employer

concerning her actions.

30. Petitioner was then unable to establish any evidence

that Respondent's actions were really a pretext for unlawful

discrimination. Rather, it is clear the decision to terminate

Petitioner's employment from the Bank was based solely on the

improper actions engaged in by Petitioner.

31. Petitioner failed in all the criteria regarding her

burden of proof in this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations, finding Respondent not guilty of

an unlawful employment practice and dismissing Petitioner's

Petition for Relief. It is

FURTHER RECOMMENDED that each party's request for an

assessment of attorney's fees and costs in this matter is

DENIED. Although Petitioner acknowledged that no one at the

Bank had ever made any remarks concerning her race, she

nonetheless alleged and attempted to prove that the issue

resulting in her termination from employment was motivated by

race. The facts did not support her allegation, but it was not

a frivolous charge in and of itself.

DONE AND ENTERED this 9th day of October, 2007, in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 9th day of October, 2007.

ENDNOTES

1/ Unless stated otherwise, all references to the Florida

Statutes herein shall be to the 2005 version.

2/ The documents included a spread sheet provided to Petitioner

by Respondent which Petitioner felt might show some

inconsistencies in the Bank's record keeping. However, no one

appeared at final hearing to authenticate the documents, and

their value was thus questionable, at best.

3/ PMRR reports are maintained to monitor business transactions

at the Bank. The reports have information concerning all

accounts opened by all employees. Managers of local banking

centers review summaries of the PMRR reports daily and weekly,

but not on a line-by-line basis. Rather, the managers refer to

summaries from the PMRRs which provide a broad overview for a

specific period of time. The reports pulled by Clark to begin

her investigation were a bit more in-depth than the summaries

she generally reviewed.

4/ Counsel for Petitioner correctly pointed out that signature

cards for the other identified accounts on those days were not

offered into evidence. He concludes that the cards may have

shown that someone other than Faulk was opening accounts using

Petitioner's password. There is no evidence to support that

theory, but even if true it would only support the continued

violation of Bank policy by Petitioner.

5/ Testimony from Petitioner that a prior bank manager, Cheryl

Page, had condoned the sharing of passwords was not

substantiated by competent testimony. Since Page had not worked

at the bank since 2003, that testimony also refuted Dorothy

Faulk's written statement that the practice had been going on

for only about one and a half years.

6/ Clark denies any knowledge of employees using others'

passwords to open accounts. Her testimony on this issue is

credible. Faulk had also testified that she had been given

several other employees' passwords, but there was no

corroborating evidence of that statement.

7/ For the same quarter in 2005, Petitioner had earned a bonus

of approximately $2,000. That bonus was far more consistent

with an average bonus for personal bankers.

8/ Petitioner has effectively dropped her claim concerning age

as a reason for her termination from employment. No evidence

was presented to attempt to prove discrimination on that basis.

9/ The only other personal banker identified by Petitioner as

having shared her personal password was Jill DeVita. The Bank's

investigator did expand his investigation to include DeVita.

Besides, DeVita did not testify and there was no testimony or

evidence as to DeVita's race, so it cannot be determined if she

would be outside Petitioner's protected class.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Dennis Wells, Esquire

Webb, Wells & Williams, P.A.

280 Wekiva Springs Road, Suite 2090

Longwood, Florida 32779-5946

Annette Torres, Esquire

Abigail K. Kofman, Esquire

Stearns, Weaver, Miller, Weissler,

Alhadeff & Sitterson, P.A.

150 West Flagler Street, Suite 2200

Miami, Florida 33130

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 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.