08-003313 Ronica Tucker vs. Crane Aerospace And Electronics Status: Closed Recommended Order on Wednesday, June 3, 2009.

Summary: Respondent did not commit an unlawful employment practice concerning discrimination against Petitioner on the basis of her race or gender. The Petition for Relief should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONICA TUCKER, )

)

Petitioner, )

)

vs. ) Case No. 08-3313

)

CRANE AEROSPACE AND )

ELECTRONICS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for final hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on November 19 through 21, 2008, in

Shalimar, Florida.

APPEARANCES

For Petitioner: Bruce A. Minnick, Esquire

The Minnick Law Firm

Post Office Box 15588

Tallahassee, Florida 32317-5588

For Respondent: Marty Denis, Esquire

Barlow, Kobata & Denis

525 West Monroe Street, Suite 2360

Chicago, Illinois 60661

STATEMENT OF THE ISSUE

The issue for determination in this matter is whether Respondent engaged in unlawful employment practices by

discriminating against Petitioner on the basis of race or sex in

violation of the Florida Civil Rights Act of 1992, as amended.

PRELIMINARY STATEMENT

On May 16, 2007, Petitioner, Ronica Tucker, filed a timely

charge of discrimination with the Equal Employment Opportunity

Commission alleging that she had been discriminated against by

her employer, Crane Aerospace and Electronics, Inc., on the

basis of her race and sex. Petitioner's charge was transferred

to and investigated by the Florida Commission on Human Relations

("FCHR").

On June 9, 2008, FCHR issued a determination of no cause as

to all the claims brought by Petitioner and advised her of her

right to file an administrative appeal at the Division of

Administrative Hearings within 35 days.

On June 30, 2008, Petitioner filed a timely Petition for

Relief at FCHR requesting a formal administrative hearing. The

discrimination case was transferred to the Division of

Administrative Hearings on July 9, 2008, and was assigned Case

No. 08-3313.

Following a series of motions related to discovery issues,

primarily involving the timeliness and completeness of

Petitioner's responses to Respondent's requests, the final

hearing was limited to the presentation of five issues by

Petitioner concerning her claims of discrimination: 1) that

Petitioner was not promoted; 2) that Petitioner was not invited

to casual working dinners, a team luncheon, and award functions;

3) that Respondent changed processes and procedures while

Petitioner was on vacation; 4) that Petitioner received a

written reprimand and corrective action form; and 5) that

Petitioner received a negative performance review on April 24,

2007.

The final hearing was conducted on November 19 through 21,

2008. At the hearing, Petitioner testified on her own behalf;

called Marty Kassulke as a witness; and offered Exhibits 1

through 5, 5A, 6, 6A, 7 through 9, 9A, 9B, 10 through 13, 13A,

14 through 22, 22A, 23, 23A, 24 through 31, 33, and 35 through

39 into evidence. Respondent called Marty Kassulke, Nick Miles,

Don Pearson, Matt Mulrain, Mark Harris, Lois Speights, and Floyd

Cooper as witnesses; and offered Exhibits 9 through 11, 15, 17,

20 through 23, 25, 26, 30, 31, 34, 43 through 46, 57, 58, 60,

61, 63 through 65, 67, 68, 69A through 69H, and 70 through 75

into evidence.

A Transcript was filed on January 14, 2009. Respondent

filed its Proposed Recommended Order on March 9, 2009, and,

following leave from the undersigned, Petitioner filed her

Proposed Recommended Order on March 10, 2009.

References to statutes are to Florida Statutes (2008)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner is an African-American female who had

several years of progressive experience working in the field of

aerospace engineering when she was hired by Respondent in 2006

as a Quality Assurance Engineer III, the highest level for that

non-management position at Respondent.

2. Petitioner reported to Quality Manager Ken Koehler, who

is a white male.

3. When Petitioner began her employment with Respondent,

Steve Schneider was the site leader. After Schneider left, Don

Pearson, a white male, replaced him as the interim site leader.

Pearson served in this capacity from the middle of June 2006 to

February 2007.

4. Pearson had substantial managerial and quality manager

experience before joining Respondent and helped to implement the

operations excellence ("op ex") program. Under Pearson, the

reporting structure changed, and the quality assurance people

reported directly to the manufacturing managers.

5. As the interim site leader, Pearson had a leadership

team that reported to him consisting of Wes Ryan, the head of

the supply chain; Nick Miles, a value stream manager; Alan Hook,

an interim quality assurance manager; Floyd Cooper, the "op ex"

manager; Darlene Todd, a special projects manager; and Kris

Hoffman, an interim value stream manager.

6. Petitioner had a good working relationship with Site

Leader Mark Harris and an acceptable relationship with Pearson.

Both site leaders acted professionally towards Petitioner.

7. Miles, a white male, began work with Respondent in

January 2006 as an executive-level value stream manager. Miles

had prior management experience with Respondent in various

positions.

8. When Koehler left as the quality manager, Respondent

had already changed its management model to the value stream

approach. Petitioner began to report directly to Miles after

Koehler left. The value stream manager position, which was

designed to streamline operations on the manufacturing floor,

was a new concept to Respondent.

9. Between May 2006 when Koehler left and February 2007,

when Doug Bower started, Petitioner reported directly to Miles.

Miles was Petitioner's supervisor.

10. Morris Stevens, a white male who had been working as a

supervisor, was a quality engineer level two. There were two

senior level quality engineers, Petitioner and Jim Stein.

Tawanna Cobble was a quality level engineer two and an African-

American female. Arlene Hamilton was a quality engineer and an

Asian female.

11. Petitioner's job as a quality engineer was to monitor

production activities to ensure products were of good quality.

Some of Petitioner's responsibilities were to work on projects

to find solutions, perform data analysis, determine what was

happening with defects and test failures, and handling customer

complaints.

12. Petitioner's job duties included:

a. exhibiting tact and consideration in

dealing with her co-workers;

b. working cooperatively in group

situations;

c. contributing to meetings and group

efforts in a positive manner;

d. maintaining sensitivity to the needs and

feelings of others;

e. supporting the organization's goals and

values;

f. treating her co-workers or supervisors

with respect;

g. maintaining the confidence of her

supervisors or those above her in lines of

authority or supervision;

h. establishing positive relations with

others within the organization;

i. contributing effectively as a team

member;

j. cooperating with others and responding

appropriately in interpersonal situations;

k. inspiring trust in her co-workers and

supervisors;

l. upholding organizational values; and

m. identifing the root cause of and

solutions to problems.

13. In her interaction with her co-workers, Petitioner was

not expected:

a. to be condescending;

b. to make her co-workers feel badly; or

c. to belittle her co-workers in front of others.

14. Putting her co-workers down could be disruptive of the

team approach, cause friction in the workplace, and breed stress

with her co-workers.

15. Respondent does not deem it acceptable conduct for

Petitioner to call a co-worker a liar, whether in front of other

co-workers or supervisors.

16. Petitioner's statements made during a team meeting

that a manager was being untruthful to a customer was not

acceptable conduct in the workplace. These statements were not

diplomatic and might be considered disruptive.

17. Petitioner understood that she was expected not to

undermine the authority of other managers.

18. Respondent was involved in a program known as "op ex"

while Petitioner was under its employ. "Op ex" is part of the

lean enterprise or lean manufacturing process Respondent adopted

to focus on prioritizing business practices with the goal of

improving performance. Respondent committed to implementing

this philosophy throughout its operations.

19. "Op ex" was designed to achieve the goal of improving

matrixes involving safety, quality, delivery, and costs to

ensure delivery of the highest quality product on time and under

cost. The "op ex" program drove quality.

20. Respondent's employees were all required to

participate in the continuous improvement activities.

Petitioner was coached in "op ex".

21. Cooper held the post of "op ex" manager. He had been

the "op ex" manager since February 2006. Prior to that time he

had worked in various positions as a supervisor or manager for

approximately 20 years. Respondent used the value stream as

part of its "op ex" program.

22. "Root cause" relates to problem solving, data

analysis, and corrective actions by defining what the actual

root problem is and implementing a corrective action to keep the

problem from recurring in the future. Petitioner had

responsibility for group cause analysis. As part of her job

responsibilities, she was expected both to report the data and

to try to identify solutions to the problem.

23. Petitioner raised numerous issues related to her

failure to be promoted to positions she believed herself

qualified to fill. After Koehler left as the quality manager in

May 2006, a search was begun for both internal and external

candidates. At this time, Petitioner sent an email to Site

Leader Schneider asking to be considered for the interim quality

manager position. Schneider met with Petitioner for an hour to

discuss what his expectations were for the job, but three weeks

later he was let go as the site leader.

24. After Schneider left as site leader, the hiring

process for quality manager took several months. Petitioner

went through a group interview, then Pearson, the interim site

leader, interviewed both Petitioner and Cindy Burton, a white

female. Burton had been employed by Respondent for 20 years and

had previously served as the quality assurance manager. Burton

was qualified for the position of quality manager.

25. Pearson concluded that based upon her prior experience

as a quality assurance manager, Burton was better qualified for

the position than Petitioner. Pearson offered the position to

Burton. His decision to offer the job to Burton was based on

the problems the company was having, including product yield in

the factory, and upon her prior experience and familiarity with

the customer base and product line. Burton turned down the job,

and Pearson told Petitioner he would continue to seek candidates

from the outside since he did not believe she had enough

seasoning for the managerial position.

26. After Burton turned down the quality manager position,

Pearson interviewed eight-to-ten external candidates for the

job. Resumes from the internet were also considered. Bower, a

white male, who had been employed by Respondent for five years

at another site, was hired on February 22, 2007. Bower was

selected because he had experience as a quality assurance

manager, and with one of Respondent's customers, Smith

Aerospace. He had also been a production manager, and was both

a certified quality engineer and quality manager. Bower was

chosen for the position over Petitioner because he was better

qualified and had significant prior management experience.

27. Bower was qualified for the position based upon 10

years more of experience in the industry than Petitioner, his

professional certifications, and a strong resume. Petitioner

even acknowledged that Bower was better qualified than she for

the quality manager job.

28. The job description for the quality assurance manager

requires a bachelor's degree in a related field, plus five years

of manager level experience or a combination of education and

experience. Supervision in an electronics environment is

preferred. Based upon the job description alone, Petitioner

lacked some of the necessary qualifications. She did not have a

bachelor's degree and did not have five years of management

experience.

29. Petitioner believes she was passed over for a value

stream manager position in July 2006. Prior to Pearson's

becoming the interim site leader, Schneider selected Hoffman, a

white female, as an interim value stream manager. Hoffman had

worked for Respondent since April 18, 2005. She was a planner

who planned the purchasing of parts to meet the production

schedule. Hoffman had prior manufacturing experience with

Burton Golf, a company she owned. Petitioner was not involved

in the value stream job at the time Hoffman was selected for

this position. Petitioner expressed her happiness to Hoffman

when she was selected for the interim low value stream manager

job.

30. After replacing Schneider, Pearson promoted Hoffman

from the interim position to the permanent value stream manager

job. He sought to stabilize the leadership team at the site

since a site leader and quality assurance manager had left, and

rumors began to circulate that the facility might close.

Pearson also had observed Hoffman's performance in the interim

position in terms of team building and employing some of the "op

ex" tools, as well as her team's ability to meet commitments,

and deemed her the best fit for the position.

31. Petitioner also had hoped to secure a value stream

manager position that Pearson filled with Jack Cox. Pearson

selected Cox because he observed that Cox had practiced and

implemented "op ex" and had been a manager at several other

locations during his career. Cox was better qualified for a

value stream manager position than Petitioner.

32. Cox left after six months as a value stream manager.

Hoffman stepped down as a value stream manager after six months

and was demoted to cell leader for the shared services area.

After these changes, effective January 8, 2007, Respondent

announced a search for two value stream managers, one for shared

services and one for low voltage.

33. On that same date, Pearson announced that Hoffman

would become a cell leader and Martha Gentry, a white female,

would become an interim value stream manager at no increase in

salary from her previous position as cell leader.

34. Petitioner asked to apply for the value stream manager

position and was told it was closed to internal applicants. The

position of low voltage value stream manager remained open until

Darnell Rogers, an African-American male, was hired. Rogers was

better qualified for the value stream manager job than

Petitioner.

35. When Koehler resigned, Hook was made the interim

quality manager. Pearson continued him in this role based upon

his qualifications and in the interest in maintaining some

stability amidst all the changes being made. Between October

2006 and February 2007, Hook was the interim quality manager.

36. Petitioner claimed that she was acting as the interim

quality manager during this time period. She asked to be

appointed the interim quality manager, but was not given the

job. Although she was involved with preparing forms and the

monthly review of the strategic employment during this time

period, Petitioner was not part of the leadership team and was

not entitled to attend leadership dinners. Petitioner was

invited on one occasion to make a presentation before the

executive team.

37. Petitioner was paid $66,300 as of April 12, 2006.

This was more than both Gentry ($41,000), when she served as

interim value stream manager; and Hoffman (her salary increased

from $56,100 to $61,817.60), when she served as interim value

stream manager.

38. Petitioner had some interactions with various

employees that became an issue with respect to her assignments.

Lois Speights, a female of "mixed race black and white" as she

describes herself, was a quality inspector with Respondent for

13 years. She found it stressful to work with Petitioner and

testified that Petitioner was condescending and arrogant towards

her. Speights believed that Petitioner tried to make her feel

stupid, which added to her stress level.

39. Speights complained about how Petitioner treated her

to Miles, her supervisor, during the summer of 2006. After she

complained to Miles about Petitioner, the situation did not

improve and Speights felt as though Petitioner treated her "like

the dirt on the sole of her shoe."

40. Petitioner also had some behavior issues that arose in

team meetings. Two incidents were brought to Miles' attention.

Both occurred in late summer or early fall of 2006.

41. The first incident involved Petitioner throwing down

her materials and walking out of a meeting at which she

disagreed with comments being made.

42. The second incident occurred during an "op ex"

training class. Petitioner exhibited an argumentative tone with

other members of the training class; expressed disagreements

with how "op ex" was being handled; and, finally, threw up her

hands and expressed frustration with having to do whatever the

managers wanted done. Petitioner specifically disagreed with

the methods of training being used by Cooper.

43. Miles spoke with Petitioner about each of these

incidents and stressed the need to act professionally and

courteously at team meetings. Petitioner told Miles that she

recognized her behavior was not appropriate.

44. On December 12, 2006, Petitioner asked Stevens, a

co-worker, to pull some data for her. Stevens informed her that

he was too busy and that she would have to do it herself.

Petitioner thereafter sent a series of emails which appeared to

be disciplinary in nature concerning Stevens. Miles concluded

these emails were not appropriate since Petitioner was not the

supervisor of Stevens, and these could be disruptive to the

balance of the team.

45. Petitioner filed a complaint with Marty Kassulke, the

Human Resources Manager, about Gentry refusing to talk to her.

A meeting was held with Kassulke, Miles, Gentry, and Petitioner.

The issue involved Petitioner being argumentative with Gentry,

not cooperating or working well within the value stream team,

and not performing tasks requested by Gentry. Petitioner had

previously told Gentry she would not report to or take direction

from her.

46. Petitioner believes that Gentry overreacted. At the

close of the meeting, Petitioner and Gentry shook hands and

agreed to work together.

47. Petitioner experienced issues concerning the ability

to perform her job related to the Gunbay Program. This program

involved Northrop Grumman as a customer. Petitioner was

assigned to the project and attended periodic team meetings

concerning it. These meetings were attended by material

handlers, assemblers, and line inspectors.

48. Brian Fish was the director of engineering. Matt

Mulrain was the business manager whose responsibility included

interacting with customers. Mulrain worked at Keltec and with

Respondent for 25 years and had been a business manager for

nearly three years. He was expected to be the primary contact

with the customer.

49. As the quality engineer assigned to the Gunbay

Program, Petitioner had no managerial authority over the people

assembling the product. Setting the schedule and deadlines was

Mulrain's job.

50. Petitioner understood she was expected to respect the

lines of authority for the project and not to be disruptive at

the Gunbay Program team meetings, which were held on a daily

basis due to the pressure to deliver the project on time.

51. Mulrain attended a March 22, 2007, meeting of the

Gunbay Program team. The purpose of the meeting was to pull the

team together, discuss the day's activities, and to identify

delivery dates and completion dates for the team. About eight

people attended the meeting, including Petitioner; Fish, the

technical lead on the program; and Mulrain. Mulrain spoke up

about the urgency of meeting the deadlines for the customer, the

assemblers, and the inspectors. He had told the customer the

day before this meeting when it could expect delivery.

52. Petitioner disagreed with the deadline and spoke up at

the meeting stating she did not believe the deadline could be

met and that it was not appropriate for management to lie to a

customer about delivery dates. Mulrain believed Petitioner was

criticizing him for lying to the customer. Both Fish and

Mulrain became upset at Petitioner's comments.

53. At a meeting with Fish and Mulrain, Petitioner said

she realized she may have been out of line in making her

comments. Mulrain told Petitioner what she said was

unacceptable and that she accused him of lying to a customer.

Petitioner could have met in private with Fish or Mulrain to

express her disagreement with the deadline rather than calling

them out at the meeting.

54. Although Petitioner had a good working relationship

with Mulrain and Fish prior to this incident, Mulrain now

believed he could not go forward with Petitioner on the team.

He believed she had undermined the team. Mulrain and Fish

approached Bower and asked that Petitioner be removed from the

Gunbay Program team.

55. On March 29, 2007, Petitioner was given a corrective

action involving a verbal warning from Bower. Both Miles and

Kassulke echoed the sentiments of Fish and Mulrain regarding the

effect Petitioner's statements could have on the Gunbay Program

team.

56. Respondent's performance evaluations are done by a

team. Cooper, Todd, Hoffman, and Miles attended a meeting at

which forced rankings were given. A forced ranking is based

upon multiple evaluators so that not a single manager or

supervisor evaluates the employee. In November 2006, Kassulke

appointed the evaluation teams and participated as the

facilitator. The team met and discussed the different areas of

evaluation and gave rankings to the six quality engineers. The

outcome of the meeting was the composite scores of the forced

rankings.

57. Five categories were considered in making the rankings

based upon job knowledge, results, continuous improvement,

change agent, digital quotation, teamwork, and interpersonal

skills. Kassulke took the ratings of the six evaluators and

calculated a composite number.

58. Respondent's practice was to display the rankings on a

bell curve. Petitioner received an overall average of 1.625 on

a maximum scale of 4.0. When forced onto the bell curve,

Petitioner received a ranking of 1.0, making her the lowest

scored engineer out of six evaluated.

59. In January 2007, Petitioner asked Miles what she

needed to do to improve her performance. Miles told Petitioner

that she was perceived by some people as hard to work with.

Petitioner said she needed to work on getting along better with

others. Later that month, after Petitioner inquired about her

performance evaluation, Miles told her that her number one issue

was teamwork.

60. Petitioner received the performance evaluation on

April 24, 2007. The comment written on her evaluation which

received a 1.0 was "Roni has a difficult time working in the

team environment, and lacks the required tool set to excel in

her current position." These comments reflected the consensus

of the team meeting.

61. Respondent had a non-discrimination and harassment

policy in place during Petitioner's employment. This policy

included a toll-free hotline to call if an employee experienced

discrimination or harassment. Petitioner never called the

hotline to complain about her treatment by Respondent.

62. Petitioner filed a complaint with the EEOC on May 16,

2007.

63. Harris became the site leader in March 2007. He is

now the Director of Global Operations for Respondent. When he

started, his mandate was to improve the performance of the

operation in Ft. Walton. In April and May, he had daily walk

around meetings, which included the six quality engineers.

After several weeks studying the operation, he decided to

realign the quality manager responsibilities. Stein and Stevens

were assigned to program quality and had direct interaction with

the customers. Hamilton, Cobble, Hook, and Petitioner were

assigned to be process oriented quality engineers.

64. Harris moved Petitioner to take on the dock to stock

and supplier certifications to make the business better, drive

down some of the costs of the business, and to give Petitioner

an opportunity to do something professionally she had not done

at that point. Petitioner gave Harris some ideas on how to deal

with the dock to stock program which was a business initiative

and problem Harris was trying to solve. The program was trying

to reduce the time from the loading dock to the production floor

by decreasing handling time.

65. Petitioner received a memo effective July 2, 2007,

sent by either Harris or Kassulke. The memo emphasized that

"the restructure is designed to maximize [Respondent's]

effectiveness and efficiencies to achieve better service and

coordination for our customers, vendors and internal staff."

Harris relied primarily on recommendations by Bower about the

strengths or weaknesses of the quality engineers. Petitioner

was made the supply quality engineer as a result. Miles had

nothing to do with this restructuring.

66. Petitioner worked in various locations during her

tenure with Respondent. Prior to the June 2007 realignment, she

worked in a bullpen. After the July realignment, Petitioner

worked inside a fenced area that was locked at night to secure

the inventory. She had a desk and chair in that area as well as

three inspectors who had work stations, two white females and an

African-American female. Petitioner was not satisfied with the

work area to which she was assigned in the last realignment.

67. Petitioner submitted her letter of resignation on

July 30, 2007.

68. Petitioner acknowledged that only certain of

Respondent's managers even knew she was African-American. In

fact, on one occasion when answering how many African-Americans

attended a meeting that she attended, she answered "none." She

had never talked about her race and the issue never came up

until an encounter with Miles where he asked her if she was

African-American and she told him she was. This encounter was

awkward for Petitioner. Harris also was aware of Petitioner's

race, but Pearson, the site leader, and Mulrain, the business

manager, were not.

69. Other non African-American employees received

discipline from Respondent. Edgar Salcedo, an Hispanic male and

a non African-American, was a program manager who received a

performance improvement plan (PIP) on January 16, 2007, and was

removed from the Gunbay Program.

70. Kevin Kennedy, a white male, received a corrective

action on November 12, 2007. Burton, a white female, was issued

a final warning on June 3, 2008. John Irvine, a white male,

received a final warning. Hook, a white male, was given a PIP

as part of a corrective action dated September 13, 2007.

Hoffman, a white female, received a corrective action and a

verbal warning concerning her job duties and skills. She

received a PIP because she was not meeting the performance

expected of her position. Hoffman received a demotion as a

result of her performance.

71. Respondent's available progressive disciplinary steps

include a verbal warning, written warning, final warning, and a

PIP. Petitioner received only the lowest of the steps, a verbal

warning. She never received a PIP.

72. Petitioner did not receive a raise in 2007. She was

not alone since 23 employees did not receive raises that year,

including four quality engineers. At least 17 white employees

did not receive a raise in 2007.

73. Respondent hired and promoted other African-American

employees. Cobble, an African-American female, was promoted

from a quality engineer to a quality supervisor. Rogers, an

African-American male, was hired in 2007 as a value stream

manager. Speights, Iris Fidel, and Jennifer Williams, all

African-American females, were employed as assemblers.

74. Of the three quality engineers employed in November

2008, Yataive Harris is an African-American male, Marisol Sade

is Hispanic, and Ahmad Allaoui is from Morocco.

75. After resigning from Respondent, Petitioner was able

to secure a position in her field with General Dynamics.

CONCLUSIONS OF LAW

76. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

77. Petitioner is an "aggrieved person," and Respondent an

"employer" within the meaning of Subsections 760.02(10) and (7),

Florida Statutes, respectively. Section 760.10, Florida

Statutes, makes it unlawful for Respondent to discharge or

otherwise discriminate against Petitioner based upon an

employee's race or sex.

78. The Florida Civil Rights Act of 1992 (the "Act") makes

certain acts "unlawful employment practices" and gives FCHR the

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," if it finds that such an "unlawful employment

practice" has occurred. §§ 760.10 and 760.11(6), Fla. Stat.

79. Pursuant to Subsection 760.10(1), Florida Statutes, it

is unlawful for an employer to discharge, refuse to hire, or

otherwise discriminate against an employee with respect to

compensation, terms, conditions, or privileges of employment,

based on the employee's race, gender, or national origin.

80. Federal discrimination law may properly be used for

guidance in evaluating the merits of claims arising under

Section 760.10, Florida Statutes. See Brand v. Florida Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Dept. of

Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA

1991).

81. In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802-03 (1973), the Supreme Court articulated a burden of proof

scheme for cases involving allegations of discrimination under

Title VII, where the plaintiff relies upon circumstantial

evidence. The McDonnell Douglas decision is persuasive in this

case, as is St. Mary's Honor Center v. Hicks , 509 U.S. 502,

506-07 (1993), in which the Court reiterated and refined the

McDonnell Douglas analysis.

82. Pursuant to this analysis, the plaintiff (Petitioner

herein) has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n. 6 (Fla. 1st DCA), aff'd , 679 So. 2d 1183 (1996)

(citing Arnold v. Burger Queen Systems , 509 So. 2d 958 (Fla. 2d

DCA 1987)).

83. If, however, the plaintiff succeeds in making a prima

facie case, then the burden shifts to the defendant (Respondent

herein) to articulate some legitimate, nondiscriminatory reason

for its complained-of conduct. If the defendant carries this

burden of rebutting the plaintiff's prima facie case, then the

plaintiff must demonstrate that the proffered reason was not the

true reason, but merely a pretext for discrimination. McDonnell

Douglas , 411 U.S. at 802-03; Hicks , 509 U.S. at 506-07.

84. In Hicks , the Court stressed that even if the trier-

of-fact were to reject as incredible the reason put forward by

the defendant in justification for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question of whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. "It is not

enough, in other words, to disbelieve the employer; the fact

finder must believe the plaintiff's explanation of intentional

discrimination." Id. at 519.

85. In order to prove intentional discrimination,

Petitioner must prove that Respondent intentionally

discriminated against her. It is not the role of this tribunal

(or any court, for that matter) to second-guess Respondent's

business judgment. As stated by the court in Chapman v. AI

Transport , 229 F.3d 1012, 1031 (11th Cir. 2000), "courts do not

sit as a super-personnel department that reexamines an entity's

business decisions. No matter how mistaken the firm's managers,

the [Civil Rights Act] does not interfere. Rather, our inquiry

is limited to whether the employer gave an honest explanation of

its behavior (citations omitted). An employer may fire an

employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action

is not for a discriminatory reason."

86. At the administrative hearing held in this case,

Petitioner had the burden of proving that she was the victim of

a discriminatorily motivated action. See Department of Banking

and Finance, Division of Securities and Investor Protection v.

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

general rule is that a party asserting the affirmative of an

issue has the burden of presenting evidence as to that issue.");

Florida Department of Health and Rehabilitative Services v.

Career Service Commission , 289 So. 2d 412, 414 (Fla. 4th DCA

1974) ("The burden of proof is 'on the party asserting the

affirmative of an issue before an administrative tribunal.'").

87. There was an absence of proof at hearing that

Petitioner's managers, other than Miles and Harris (who was the

site leader for a short period of Petitioner's employment and is

now Director of Global Operations) were even aware Petitioner

was African-American. Knowledge of an employee's race is

required in order to prove a discriminatory business practice.

See Bafford v. Township Apartments Associates , 2007 U.S. Dist.

LEXIS 88109 (M.D. Fla. Nov. 30, 2007) ("Simply put, if Township

did not know of Plaintiff's race, it could not have intended to

discriminate against Plaintiff on the basis of race."); accord

Lubetsky v. Applied Card Systems, Inc. , 296 F.3d 1301, 1306

(11th Cir. 2002), cert. denied , 537 U.S. 1106 (2003) ("An

employer cannot intentionally discriminate against an individual

based upon his religion unless the employer knows the

individual's religion."). Petitioner's own testimony indicated

she did not consider herself an African-American.

88. The evidence produced at hearing failed to demonstrate

that Pearson knew Petitioner was African-American. Since he was

involved in the decision-making process concerning offering

Burton the quality manager job, selecting Bower as the quality

manager, continuing Hook as the interim quality manager, and

selecting Cox and Hoffman as value stream managers, he could not

have discriminated against Petitioner on the basis of her race

in the absence of knowledge of her race. Therefore, Respondent

did not commit an unlawful employment practice with respect to

the promotion issues raised by Petitioner. Further, decisions

by Mulrain and Fish concerning Petitioner's comments at the

Gunbay Program meeting which led to her removal from the program

could not have been racially motivated since they were unaware

of Petitioner's race at the time the decisions were made.

Bafford v. Township Apartments Associates , supra . Petitioner's

mere opinion regarding a discriminatory basis or motivation for

employment action does not suffice to establish that

discriminatory animus was present regarding the making of the

decision. Earley v. Champion International Corporation , 907

F.2d 1077 (11th Cir. 1990).

89. Petitioner's discrimination claims with respect to

Respondent's failure to promote her to a managerial position

must similarly fail. To make a prima facie case for failure to

promote, Petitioner must show: 1) that she belongs to the

protected class; 2) that she was qualified and applied for the

promotion; 3) that despite her qualifications she was rejected;

and 4) that the employer either filled the position with someone

of a different race and sex or sought to promote less qualified

employees who are not members of the protected class. If the

Petitioner establishes a prima facie case of discrimination, the

burden then shifts to the employer to articulate some

legitimate, non-discriminatory reason for the employee's

rejection. If the employer meets this burden of persuasion, the

Petitioner must then establish that the employer's proffered

reasons for the employee's rejection were pretextual. Taylor v.

Runyon , 175 F.3d 861, 866 (11th Cir. 1999).

90. Petitioner has failed to establish a prima facie case

of race discrimination involving a failure to promote. As

indicated above, there was no evidence that Pearson, who made

the promotions or decisions, was even aware of Petitioner's

race. Absent evidence of his knowledge of Petitioner's race,

Pearson cannot be found to have discriminated against Petitioner

on that basis.

91. Moreover, Petitioner's claims regarding sex

discrimination were not supported by the evidence at hearing.

Women were selected for several of the positions for which

Petitioner either applied or to which believed she should have

been promoted regardless of application. Petitioner was unable

to demonstrate at hearing that any of the promotions were

motivated by the gender of the applicants. Therefore, her

claims as to gender discrimination must fail.

92. Regarding the quality manager position, which Burton

was offered and for which Bower made the selection, Petitioner

has failed to make a prima facie case because Petitioner was not

qualified for that position based upon her education and

experience. The quality manager position required a bachelor's

degree in a related field, plus five years of manager level

quality experience, or a combination of education and

experience. Petitioner lacked both the bachelor's degree and

the five years of manager level quality experience.

93. Even if Petitioner had proven herself qualified for

the managerial positions for which she applied, for which she

did not, Respondent articulated legitimate non-discriminatory

reasons why others were selected instead of Petitioner.

Petitioner has not shown that these legitimate reasons were

merely a pretext for race or sex discrimination. The support

for this finding is strongly supported by the evidence of

record.

94. Burton was better qualified than Petitioner for the

quality manager job because she had prior experience as a

quality manager. Bower was better qualified for the quality

manager job because he also had prior experience as a quality

assurance manager. Petitioner even acknowledged in her own

testimony that Bower was better qualified than she for the

position. Petitioner has not demonstrated that the reasons for

these promotions were a pretext for race or sex discrimination.

95. Legitimate, non-discriminatory reasons were also given

for Hoffman's promotion to value stream manager. Pearson sought

to stabilize the leadership team at the Ft. Walton site, and

Hoffman had been the interim value stream manager previously

selected by Schneider. Petitioner testified that she had

thought it was great at the time Hoffman was given the job. No

pretext for race or sex discrimination was demonstrated by

Petitioner concerning this promotion.

96. Respondent articulated a legitimate non-discriminatory

reason for selecting Cox for the value stream manager job. Cox

had been a manager previously at several locations. Petitioner

has not shown that the reason was a pretext for race or sex

discrimination, and she acknowledged in her testimony that Cox

was better qualified than she.

97. After Gentry was selected as the interim value stream

manager in January 2007 and Petitioner was told the permanent

position was closed to internal candidates, Rogers, an African-

American male, was ultimately selected several months later.

Petitioner has not shown that the reasons for this particular

hire were a pretext for race or sex discrimination. Petitioner

also acknowledged that Mr. Rogers was better qualified for the

position than she.

98. When Pearson became the interim site leader in June

2006, he elected to keep Hook as the interim quality manager in

order to maintain some stability of leadership. That reason was

legitimate and non-discriminatory for Pearson's actions, and

Petitioner has not demonstrated that this was merely a pretext

for race or sex discrimination.

99. Based upon Petitioner's own admissions that the

employees selected for the manager positions discussed above

were at least as qualified or better qualified than she, her

claims of discrimination on the basis of race or gender must

fail. Moreover, the evidence fails to support Petitioner's

claim that the hiring decisions were merely a pretext for

discrimination. In the context of a promotion, it is not

sufficient for Petitioner to argue (which she scarcely has) that

she is better qualified for a position than another. Springer

v. Convergys Customer Management Group, Inc. , 509 F.3d 1344,

1349 (11th Cir. 2007). Petitioner "must show that the

disparities between the successful applicant's and his own

qualifications were of such weight and significance that no

reasonable person, in the exercise of impartial judgment, could

have chosen the candidate selected over the plaintiff." Id.

Petitioner must show not merely that Respondent's employment

decisions were mistaken, but that they were in fact motivated by

race. Alexander v. Fulton County , 207 F.3d 1303, 1339 (11th

Cir. 2000); Brooks v. County Comm'n , 446 F.3d 1160 (11th Cir.

2006). In this case, Petitioner did not meet her burden to show

that the disparities, if any, between her qualifications and

those of Burton, Bower, Hoffman, Cox, Gentry, Rogers, and Hook

were of such weight and significance that no reasonable person

could have chosen those individuals over her. The evidence

shows that these employees were selected on the basis of better

experience or other legitimate business reasons.

100. Petitioner alleged race or sex bias in the

application of discipline to her on the job. In order to

prevail on this claim, Petitioner must demonstrate that: 1)

that she did not violate the work rule, or 2) that she engaged

in misconduct similar to that of a person outside the protected

class, and that the disciplinary measures enforced against her

were more severe than those enforced against other persons who

engaged in similar conduct. McCalister v. Hillsborough County

Sheriff , 2006 U.S. App. LEXIS 31617 (11th Cir. Dec. 20, 2006);

Jones v. Gerwens , 874 F.2d 1534, 1540 (11th Cir. 1989).

101. Petitioner failed to establish a prima facie case of

either race or sex discrimination regarding the verbal

corrective action she was given for her comments during the May

2007 Gunbay Program meeting for several reasons. First,

Mulrain, whom Petitioner claims wanted her removed from the

program for discriminatory reasons, was not aware that she was

African-American. Therefore, the corrective action could not

have been taken by him based upon her race. Second, a verbal

corrective action does not even constitute an adverse employment

action. Counseling memoranda and "negative performance

evaluations, standing alone, cannot constitute an adverse

employment action." Davis v. Town of Lake Park , 245 F.3d 1232,

1241-42 (11th Cir. 2001), citing Sweeney v. West , 149 F.3d 550,

556 (7th Cir. 1998); Nelson v. University of Maine Sys. , 923 F.

Supp. 275, 282-83 (D. Me. 1996) ("mere criticism, or counseling,

of an employee" is not actionable); Coney v. Department of Human

Resources , 787 F. Supp. 1434, 1442 (M.D. Ga. 1992) (non-

threatening written reprimand, later removed from employee's

personnel file, held not actionable); Medwig v. Baker , 752 F.

Supp. 125, 137 (S.D.N.Y. 1990) (counseling of employee for

performance deficiency not materially adverse action). Finally,

Petitioner's own testimony established that she was not to

undermine the authority of her managers. Undermining her

supervisors in the workplace was not acceptable behavior, and

other opportunities existed for Petitioner to make known to her

managers her disagreement with their actions or comments

concerning promises made to customers. Petitioner's comments at

the March 22, 2007, Gunbay Program meeting were taken by her

supervisors as accusing them of lying, and, when made in such a

public setting, undermined their authority with other program

members. Her comments were not consistent with the work

expectations for Petitioner.

102. The evidence of record does not prove that other

employees, regardless of race or gender, were not similarly

disciplined. Petitioner received the mildest form of rebuke for

her actions, the verbal reprimand. Other employees, such as

Edgar Salcedo, Hook, Kennedy, and Burton, received far greater

discipline for less disruptive conduct such as failure to follow

through on tasks or for lack of responsiveness. Further, even

assuming that Petitioner established a prima facie case that she

was given a verbal corrective action because of her race or sex,

Respondent has articulated legitimate, non-discriminatory

reasons for the verbal corrective action, namely, that the

managers were trying to impress upon all members of the Gunbay

Program team the importance of meeting deadlines and delivery

dates. Petitioner's criticism of Mulrain at the team meeting

was out of line and undermined the objectives of what the team

was trying to accomplish.

103. Petitioner has failed to establish a prima facie case

of race or sex discrimination in her receiving the corrective

action form in March 2007. Petitioner failed to demonstrate

that she did not violate a work rule; or that she was engaged in

conduct similar to that of a person outside of the protected

class, and that the disciplinary measures enforced against her

were more severe than those enforced against other persons who

engaged in similar conduct. In fact, Petitioner received less

severe discipline than others who violated Respondent's work

rules.

104. Petitioner's claim that her 2007 performance

evaluation was based upon her race or gender is similarly

without a factual or legal basis. A low performance rating is

not an adverse action. Rabinovitz v. Pena , 89 F.3d 482, 488

(7th Cir. 1996); Meredith v. Beech Aircraft Corp. , 18 F.3d 890,

896 (10th Cir. 1994); Anderson v. UPS , 248 Fed. Appx. 97, 98

(11th Cir. 2007). An "employee's subjective view of the

significance and adversity of the employer's action is not

controlling; the employment action must be materially adverse as

viewed by a reasonable person under the circumstances." Davis

v. Town of Lake Park , 245 F.3d 1232, 1239 (11th Cir. 2001).

Although Petitioner received the lowest overall rating among the

six engineers, Cobble, another African-American female, received

the highest ranking among the engineers. Additionally, even if

Petitioner could state a prima facie case that she was given a

low evaluation because of her race or sex, Respondent has

articulated several legitimate non-discriminatory reasons for

Petitioner's 2007 performance evaluation. Petitioner cannot

demonstrate that these reasons are pretextual. Her performance

evaluation was based upon a group decision of managers who

attended the team meeting where the forced rankings were made.

The quality engineers were ranked according to multiple job

related categories involving job knowledge, results, continuous

improvement, change agent, digital quotation, teamwork, and

interpersonal skills. From their numerical ratings, Kassulke

calculated a composite number. A bell curve was utilized to

calculate the overall score.

105. Testimony from her co-employees and managers proved

that Petitioner did not always get along with her co-workers,

took an argumentative approach on multiple occasions with co-

employees and supervisors, and had problems with following

instructions from her supervisors on some occasions. The

evaluation was legitimate and non-discriminatory and not a

pretext for race or sex discrimination.

106. Petitioner's claim that she suffered adverse

employment actions as retaliation for having filed a complaint

with the EEOC is similarly without merit. In order to establish

a prima facie case of retaliation under Title VII, Petitioner

must show that: 1) she engaged an activity protected under

Title VII; 2) she suffered a materially adverse employment

action; and 3) there was a causal connection between the

protected activity and the adverse employment action.

Burlington Northern v. White , 548 U.S. 53 (2006). Petitioner

contends that after she filed her charge of discrimination with

the EEOC, she was retaliated against in that her quality

engineer job duties were changed to working on the dock to stock

program and her desk location was shifted with Cobble to work in

what she referred to as a "cage." The evidence at hearing was

that Harris, the site leader at the time of the filing of

Petitioner's EEOC charge, was unaware she had filed a complaint.

There was no evidence produced linking the filing of the EEOC

complaint with the realignment of job duties by Harris. To

establish a causal connection in a retaliation case, the

Petitioner must show that the decision maker, in this case

Harris, was aware of the "protected expression" (the claim of

discrimination made to the EEOC). Bass v. Board of County

Commissioners , 256 F.3d 1095, 1119 (11th Cir. 2001).

107. Even if Harris was aware that Petitioner had filed a

complaint with the EEOC or engaged in protected activity under

Title VII or the Florida Commission on Human Relations,

Respondent articulated legitimate, non-discriminatory reasons

for realigning the job duties of the quality engineers,

including Petitioner.

108. Petitioner engaged in several conversations with

Harris about the realignment and how better to perform her

duties in the dock to stock program. The "cage" complained

about by Petitioner was nothing more than an area secured to

protect the inventory. Petitioner was given a desk and all the

appropriate equipment expected for a quality engineer to perform

her duties. No causal connection between the realignment or the

designation of Petitioner to a particular area to perform her

duties and the filing of charges of discrimination were made.

Moreover, Petitioner's claims of retaliation must be dismissed

as untimely filed. The initial charge of discrimination on the

basis of race or sex was filed on May 16, 2007. The retaliation

claim was not asserted until the time of hearing, November 19

through 21, 2008, more than 365 days from the alleged violation.

Therefore, Petitioner's claim of retaliation must fail as

untimely. Gonima v. Manatee County School Board , 2007 U.S.

Dist. LEXIS 30155 at 13-14 (M.D. Fla. Apr. 24, 2007).

109. Petitioner did not produce any evidence at hearing

that she was denied attendance at the Xetron lunch or a monetary

bonus associated with that lunch on the basis of her race or

sex, a claim she asserted prior to the hearing. Therefore,

these claims must be dismissed.

110. The evidence produced at hearing failed to prove, by

a preponderance of the evidence, that Petitioner suffered

discrimination in her employment on the basis of her race or

sex. Respondent articulated legitimate, non-discriminatory

reasons for its actions and decisions regarding Petitioner. The

greater weight of the evidence clearly supports that Respondent

did not commit an unlawful employment practice.

111. Based upon the evidence and testimony offered at

hearing, Respondent is not found to have committed an unlawful

employment practice as alleged by Petitioner in her Petition for

Relief. Therefore, her Petition should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 3rd day of June, 2009, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 3rd day of June, 2009.

COPIES FURNISHED :

Marty Denis, Esquire

Barlow, Kobata & Denis

525 West Monroe Street, Suite 2360

Chicago, Illinois 60661

Bruce A. Minnick, Esquire

The Minnick Law Firm

Post Office Box 15588

Tallahassee, Florida 32317-5588

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.