08-002578 Maureen Kuchar vs. Creditors Interchange, Llc Status: Closed Recommended Order on Wednesday, March 11, 2009.

Summary: Petitioner failed to prove discrimination based on gender (female) or age (52), as opposed to poor work performance. Petitioner failed to establish a prima facie case of sexual harassment or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAUREEN KUCHAR, )

)

Petitioner, )

)

vs. ) Case No. 08-2578

)

CREDITORS INTERCHANGE, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard, pursuant to notice, on November 24,

2008, by video teleconference at sites in Lauderdale Lakes and

Tallahassee, Florida, by Eleanor M. Hunter, Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Maureen Kuchar, pro se

2550 Northeast 51st Street

Fort Lauderdale, Florida 33308

For Respondent: Kathryn A. Terry, Esquire

Ford & Harrison LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of her age or gender, or sexually

harassed her, or retaliated against her in violation of the

Florida Civil Rights Act of 1992, as amended, Chapter 760,

Florida Statutes (2007).

PRELIMINARY STATEMENT

On November 9, 2007, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(the Commission). A Notice of Filing of Complaint of

Discrimination was provided to Respondent on November 14, 2007.

On December 3, 2007, Respondent filed a response denying the

allegations in the complaint. Following an investigation, the

Commission issued “Determination: No Cause” on April 22, 2008.

Petitioner filed a Petition for Relief, and the Commission

referred the matter to the Division of Administrative Hearings

on May 23, 2008.

Originally set for hearing before Administrative Law Judge

J. D. Parrish on August 15, 2008, the case was rescheduled for

final hearing on November 24, 2008, based on requests for

continuances filed by Petitioner and Respondent. Before the

hearing, the case was transferred to the undersigned.

At the hearing, Petitioner appeared and testified on her

own behalf, and presented the testimony of Javier Neptun, and

submitted four Exhibits for admission into evidence.

Petitioner’s Exhibits 1 and 2, statements from co-workers who

were not witnesses, were not received into evidence.

Petitioner’s Exhibit 3, a written statement from Javier Neptun,

was received into evidence. Initially, ruling was reserved on

the admissibility of Exhibit 4 to allow Petitioner to establish

the relevance of two CDs from her previous unemployment

compensation hearing, and they ultimately were admitted,

reviewed, and considered following the hearing, as requested by

the Petitioner.

After Petitioner presented her case-in-chief, Respondent's

motion to dismiss the case for the failure of Petitioner to

establish a prima facie case of discrimination was denied.

Respondent presented the testimony of Sara Mangan Riggie

and Christie Cahalan. Respondent’s Exhibits 1-8, 16, 22, and

24-25 were received. The Transcript of the hearing was filed on

December 9, 2008. Petitioner filed her Proposed Recommended

Order on January 21, 2009. Respondent filed proposed findings

of fact on January 23, 2009.

FINDINGS OF FACT

1. Petitioner, Maureen Kuchar (Petitioner or Ms. Kuchar),

filed a complaint, dated November 8, 2007, of age and sex

discrimination, sexual harassment, and retaliation with the

Commission. The record filed with the Commission indicated that

Ms. Kuchar was 52 years old and is a female.

2. Respondent, Creditors Interchange, LLC (Respondent or

Creditors), is an “employer” within the meaning of the Florida

Civil Rights Act of 1992. Respondent operates a debt collection

telephone call center in Fort Lauderdale, Florida, and has its

headquarters near Buffalo, New York.

3. Creditors employed Ms. Kuchar as a debt collector from

February 14, 2005, until she resigned "effective immediately" on

November 10, 2006. When she was hired, Ms. Kuchar signed

acknowledgments that she received a copy of the employee

handbook, a code of conduct, the non-harassment policy, and

sexual harassment training. The non-harassment and sexual

harassment training acknowledgement forms include requirements

to notify the Human Resources Department (HR) located in New

York, a supervisor, or a manager of any alleged violations.

4. Javier Neptun, a co-worker of Ms. Kuchar at Creditors,

sat in a nearby cubicle. Mr. Neptun identified their two

supervisors as Carol Shaw and Larry Tartaglino. Mr. Neptun

heard Ms. Shaw and Mr. Tartaglino and other employees calling

reported any of the incidents to HR.

5. After Ms. Kuchar told Ms. Shaw that she had to take

leave because of a family member’s attempted suicide, Mr. Neptun

and Ms. Kuchar believed co-workers were also told about

Ms. Kuchar's family issues in violation of Ms. Kuchar's privacy

rights. That belief is based on co-workers' comments about the

Baker Act that Ms. Kuchar overheard. In May 2006, Creditor's HR

representative in the New York headquarters, Sara Mangan Riggie,

heard about Ms. Kuchar's concern while investigating complaints

from another employee, Sherry Meredith. Ms. Riggie called and

talked to Ms. Kuchar, who confirmed her concerns about Ms. Shaw,

but she said things were otherwise "fine." Ms. Riggie followed

up with Ms. Shaw who denied sharing the information. Ms. Shaw

resigned in July 2006.

6. At her unemployment compensation hearing in February

2007, approximately three months after she quit, Ms. Kuchar for

the first time named the co-workers who allegedly made comments

about the Baker Act. Ms. Riggie interviewed the co-workers who

denied recalling any such conversations.

7. As she "increased her numbers" of collections,

Ms. Kuchar said she expected to get access to a personal

computer. She considered it essential to help track debtors,

many of whom had no telephones, and to contact their family

members.

8. Ms. Kuchar believes she was denied the same assistance

and access to the Internet by her supervisors, especially that

division manager J. P. Hanson provided for younger women

employees. There was, however, no evidence concerning the ages

of the women whom she alleged received favorable treatment. In

addition, Ms. Kuchar's failure to meet her collection goals were

documented in Employee Warning Notices that she checked "I agree

with the statements above," and signed on June 14, 2005,

November 22, 2005, December 14, 2005, and January 13, 2006. As

a result, her pay was decreased from $13.00 an hour to $12.00 an

hour on January 14, 2006. The evidence does not support

Ms.Kuchar's claim that she was increasing her collection numbers

and, therefore, reasonably expected additional support services.

9. According to Ms. Kuchar, in October 2005, Larry

Tartaglino took a picture of Ms. Kuchar’s behind and put it on

her keyboard in her cubicle. When she asked him about the

picture, Ms Kuchar said Mr. Tartaglino just laughed.

10. She never reported the incident to HR and first raised

the issue during her February 2007 unemployment compensation

hearing. Mr. Tartaglino left his job at Creditors in July 2006.

When Ms. Riggie attempted to investigate the claim, she could

not find other employees who knew anything about the incident.

The evidence of Mr. Tartaglino's alleged action is insufficient.

11. Ms. Kuchar testified that she was in the ladies

restroom, which had a broken lock on the door, when co-worker

Terry Cementic opened the door that led to the collection floor,

left it open, and walked away. There is no evidence to support

Ms. Kuchar's claim regarding this incident.

12. Ms. Kuchar and a co-worker, Ilene Calligan, age 45,

engaged in ongoing arguments in October 2006. Ms. Calligan

called Ms. Kuchar "stupid, dumb, you old bitch," and said she

should "grow up." In another incident, towards the end of the

month, Ms. Calligan leaned on Ms. Kuchar's cubicle while talking

to another co-worker, Paul Roberts. Ms. Kuchar started

screaming because she said they were laughing and talking over

her cubicle, interfering with her efforts to work. After each

incident, both women received Coaching Notes admonishing them

for their unprofessional behavior. After a verbal altercation

between Ms. Kuchar and Ms. Calligan, on October 31, 2006, both

were sent home for the rest of the day with pay.

13. Ms. Kuchar said she was using her cellular telephone

at work, during her break in the breakroom where cell phone use

was permitted at the time, when Division Manager Hansen slammed

the door to the breakroom almost "in [her] face." She thinks

that a co-worker was fired the next day for allowing her to

"vent" to him about the incident, but there is no evidence to

support her suspicion.

14. In the Employer Coaching Note related to the cell

phone incident, there is no mention of her being in the break

room, rather it says:

Topic of Discussion: Use of cell phone on

the collection floor

Facts: Maureen has been warned in the past

regarding use of her cell phone on the

collection floor. On 10/20/06, at

approximately 3:56 pm, Maureen was using her

cell phone on the collection floor.

Under the section for employee comments, Ms. Kuchar checked, "I

disagree with the statements above" and gave, as her explanation

"I was punched out and on my way out the door."

15. Approximately 15 people worked in the call center,

eight of whom formed a clique that Ms. Kuchar said ridiculed,

laughed at, and intentionally bumped into her chair or invaded

her space in her cubicle. Creditors admits that some of her co-

workers were rude and did not like Ms. Kuchar, but it

appropriately investigated and disciplined those involved in

incidents reported to its HR Department.

16. Ms. Kuchar said she called Ms. Riggie from the

telephone in the conference room in the Fort Lauderdale office,

and was interrupted by her supervisor, Fort Lauderdale office

manager Elizabeth Valencia, who took the telephone away from her

and told Ms. Riggie that she would handle the situation.

Ms. Riggie's notes do not support the claim that the call was

interrupted, but that it ended with her usual advise to the

employee to maintain the confidentiality of her complaints while

they were being investigated. There is insufficient evidence to

conclude that Ms. Kuchar was barred from or unable to make a

complaint to appropriate HR personnel.

17. Ms. Riggie received an email from Ms. Valencia on

November 10, 2006, notifying her that Ms. Kuchar had quit and

said it was because she had been treated unfairly. Ms. Riggie

left telephone messages for Ms. Kuchar to discuss her claim of

unfair treatment, but the calls were not returned.

18. Creditors, as explained by Christie Cahalan, Director

of Human Resources, did not receive most of the specifics of

Ms. Kuchar’s allegations of discrimination until her

unemployment compensation hearing in February 2007.

19. There is insufficient evidence that Ms. Kuchar's poor

relationship with her co-workers were based on either her age or

gender. There is no credible evidence of sexual harassment or

any retaliation against her.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat (2008).

21. Petitioner bears the burden of proof to demonstrate by

a preponderance of the evidence that Respondent intentionally

discriminated against her on the basis of her gender and age or

retaliated against her because of activity protected by the

discrimination statutes. Reeves v. Sanderson Plumbing Products,

Inc. , 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed 2d 105 (2000).

22. The evidence does not show that Petitioner received

disparate treatment compared to similarly-situated individuals,

not does it show that the alleged disparate treatment is

causally connected to Petitioner’s age or gender. Mayfield v.

Patterson Pump Co. , 101 F.3D 1371 (11th Cir. 1996).

23. A preponderance of the evidence does not establish a

prima facie case of sexual harassment. The alleged one-time

offensive behavior of Mr. Tartaglino was, even if assumed to be

true and of a sexual nature, not sufficiently severe or

pervasive to constitute “sexual harassment” as a matter of law.

See , e.g. , Gupta v. Florida Board of Regents , 212 F.3d 571, 583

(11th Cir. 2000), cert. d enied , 531 U.S. 1076 (2001)(“Innocuous

statements or conduct, or boorish ones that do not relate to the

sex of the actor or of the offended party are not counted.”);

and Mendoza v. Borden, Inc. , 195 F.3d 1238, 1245 (11th Cir.

1999), cert. d enied , 529 U.S. 1068 (2000)(actionable harassment

must be “sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive

working environment”).

24. There is no direct or circumstantial evidence of

retaliation against Petitioner. Ms. Kuchar agreed with her poor

performance evaluations that led to a reduction in her pay. Her

well-documented unprofessional behavior was the basis for the

employee coaching notes issued to her and, when appropriate, to

her co-workers. The actions were not a pretext for

discrimination. Mayfield , supra .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is RECOMMENDED that the Commission enter a final order

finding Respondent not guilty of the allegations, and dismissing

Petitioner’s Charge of Discrimination and Petition for Relief.

DONE AND ENTERED this 11th day of March, 2009, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of March, 2009.

COPIES FURNISHED :

Christie Cahalan

Creditors Interchange, LLC

80 Holtz Drive

Cheektowaga, New York 14225

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Kathryn A. Terry, Esquire

Ford & Harrison LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

Maureen Kuchar

2550 Northeast 51st Street

Fort Lauderdale, Florida 33308

Larry Kranert, 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.