08-001747 Camika S. Jerido vs. Pss World Medical Status: Closed Recommended Order on Thursday, August 21, 2008.

Summary: Petitioner did not establish a prima facie case of race discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAMIKA S. JERIDO, )

)

Petitioner, )

)

vs. ) Case No. 08-1747

)

PPS WORLD MEDICAL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on July 1, 2008, via

video-conferencing in Jacksonville and Tallahassee, Florida,

before the Division of Administrative Hearings by its designated

Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Camika S. Jerido, pro se

3344 Hunt Street

Jacksonville, Florida 32254

For Respondent: Timothy B. Strong, Esquire

Fowler White Boggs Banker, P.A.

50 North Laura Street, Suite 2200

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Complaint of Discrimination

filed by Petitioner on October 5, 2007.

PRELIMINARY STATEMENT

On October 5, 2007, Petitioner, Camika S. Jerido, filed an

Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR) which alleged that

Respondent, PPS World Medical, violated Section 760.10, Florida

Statutes, by discriminating against her on the basis of race.

The Employment Complaint of Discrimination alleged that

Petitioner was subject to disparate treatment and denied

promotion. Petitioner identified the two employees of

Respondent who discriminated against her as Crystal Marx and

Renee Placette.

The allegations were investigated and on March 26, 2008,

FCHR issued its Determination: No Cause and a Notice of

Determination: No Cause. A Petition for Relief was filed by

Petitioner on April 8, 2008.

FCHR transmitted the case to the Division of Administrative

Hearings on or about April 10, 2008. A Notice of Hearing was

issued setting the case for formal hearing on July 1, 2008. The

hearing proceeded as scheduled.

At hearing, Petitioner testified on her own behalf.

Petitioner offered Exhibits numbered 1 through 16. Petitioner’s

Exhibits numbered 2 through 16 were admitted into evidence;

however, Exhibits numbered 4 and 14 were admitted with the

limitation that only the contents of the documents, not the

handwritten notes, were admitted in evidence. Petitioner’s

Exhibit numbered 1 was rejected. Respondent presented the

testimony of Crystal Marx, Larmeka Alexander, Patricia Barnard,

Sheila Renee Placette, and Ann Christante. Respondent’s Exhibit

numbered 3 was admitted into evidence.

A one-volume Transcript was filed on July 15, 2008.

Petitioner timely filed a post-hearing letter and Respondent

timely filed a Proposed Recommended Order. Respondent filed a

Motion to Strike Post-hearing Letter by Camika S. Jerido. 1/

Petitioner filed a response in opposition to the Motion. Upon

consideration, Respondent’s Motion to Strike is granted.

FINDINGS OF FACT

1. Petitioner is an African-American female who was hired

by Respondent as a temporary employee on January 17, 2005. She

continued to be employed by Respondent until she resigned her

position on November 7, 2007.

2. Respondent, PPS World Medical (PPS), is an employer

within the meaning of the Florida Civil Rights Act. PPS is a

distributor of medical supplies from manufacturers to

physicians’ offices.

3. Crystal Marx interviewed Petitioner and hired her as a

temporary employee in January 2005. Petitioner worked for

several months as a temporary employee, and her performance was

very good.

4. Ms. Marx recommended to Renee Placette that Petitioner

be hired as a regular, full-time employee. Ms. Placette had an

opportunity to observe Petitioner’s performance as a temporary

employee. Ms. Placette made the final decision to hire

Petitioner in a full-time position in May 2006 as a supply chain

expediter. Ms. Marx and Ms. Placette are Caucasian females.

5. After three months of employment, Ms. Marx decided to

conduct a 90-day performance review of Petitioner. It was not

standard procedure in the department where Petitioner worked to

receive a 90-day review. However, Ms. Marx made the decision to

conduct the review to let Petitioner know about some concerns so

Petitioner would have an opportunity to make improvements before

her annual review.

6. In a meeting to discuss the 90-day review, Ms. Marx

addressed the following issues with Petitioner: work that was

not being completed correctly which resulted in Ms. Marx's

receiving e-mails concerning mistakes Petitioner was making;

issues Petitioner was having with her coworkers; and

Petitioner’s practice of skipping lunch and leaving an hour

early without prior approval.

7. The score received by Petitioner on her 90-day review

did not affect Petitioner’s compensation in any way.

8. When initially hired, Ms. Marx was Petitioner’s direct

supervisor. At some point in time, Patricia Barnard was brought

in as another layer of supervision. Ms. Barnard worked for

Ms. Marx.

9. For a period of time, Petitioner e-mailed Ms. Barnard

when she went to, and returned from, her 15-minute break. This

issue initially arose when several people asked Ms. Barnard

where Petitioner was when she was away on her break.

Ms. Barnard discussed this with Petitioner.

10. Petitioner then suggested that she e-mail Ms. Barnard

when she left on her break and upon her return. Ms. Barnard did

not require Petitioner to do this. When Petitioner stopped

sending these e-mails, Ms. Barnard did not instruct Petitioner

to resume sending the e-mails or take any action regarding the

e-mails.

11. During a period of time when Petitioner was on medical

leave, two accounts were reassigned to other employees while she

was away. One of the accounts was assigned to another employee,

Tracy Hundley, who is African-American. After that, Ms. Barnard

and Ms. Marx took over the account for a while, later assigning

it to Tara Nelson, another African-American employee. In any

event, Petitioner did not receive any extra pay when she handled

those accounts, and did not receive any cut in pay when these

accounts were reassigned to others.

12. On November 17, 2006, Petitioner received a Documented

Verbal Warning for failure to properly notify management of her

absence. On August 15, 2007, Petitioner received a Final

Written Warning for unprofessional and inappropriate behavior

towards an employee relations representative.

13. On May 8, 2007, Ms. Barnard completed a job

performance annual review of Petitioner. On her annual review,

Petitioner received a score of 80, which is an average score.

Ms. Marx approved the review as prepared by Ms. Barnard.

Allegations of failure to promote

14. Petitioner applied for the position of “WM Supply

Chain Procurement Specialist” in November 2006.

15. Petitioner again applied for the Procurement

Specialist position in May 2007. Petitioner received an e-mail

from Ms. Placette advising her that three people were hired with

“a lot of buying experience.”

16. In July 2007, Petitioner applied for the position of

IT Governance Process Analyst. She received a letter from the

IT Governance Process Manager of PSS which informed her that she

was not selected for the position.

17. There is nothing in the record establishing the

qualifications required for these positions, whether Petitioner

met these qualifications, or even whether these positions could

be considered as promotions. Further, no competent evidence was

presented as to the identity, qualifications, or race of the

persons who were hired into these positions.

Other allegations

18. Petitioner also alleged that she was paid less then

what had been promised, $11.54 an hour, in her letter offering

employment. Petitioner contends that she was instead paid one

cent an hour less, i.e. , $11.53 per hour. The official pay stub

reflects her rate of pay to have been $11.54 per hour.

19. Further, Petitioner alleged that she was, at some

point, given a new wireless headset which was replaced by a used

one that she described as “yucky.”

20. Employees who work in “confirmation” received wireless

headsets because those employees needed to be able to go to the

fax machine and the printer while on the telephone with a

person, and did not need to be able to go to the fax machine or

the printer as often while on the telephone.

21. Petitioner resigned her position on November 2, 2007.

At the time she resigned, she informed her co-workers that she

owned her own t-shirt business and resigned to run her own

company full time. At hearing, Petitioner asserted that she

resigned because there was a “different atmosphere,” that she

was stressed, and could not work there anymore.

22. There was no competent evidence presented that

establishes or even suggests that any employment action taken by

Respondent toward Petitioner was based on race.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat.

24. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discriminate against an individual on the basis of

race.

25. In discrimination cases alleging disparate treatment,

the Petitioner generally bears the burden of proof established

by the United States Supreme Court in McDonnell Douglas v.

Green , 411 U.S. 792 (1973), and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981). 2/ Under this well

established model of proof, the complainant bears the initial

burden of establishing a prima facie case of discrimination.

When the charging party, i.e. , Petitioner, is able to make out a

prima facie case, the burden to go forward shifts to the

employer to articulate a legitimate, non-discriminatory

explanation for the employment action. See Department of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)

(court discusses shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion, and need only persuade the finder of fact that the

decision was non-discriminatory. Id. ; Alexander v. Fulton

County, Georgia , 207 F.3d 1303 (11th Cir. 2000). The employee

must then come forward with specific evidence demonstrating that

the reasons given by the employer are a pretext for

discrimination. "The employee must satisfy this burden by

showing directly that a discriminatory reason more likely than

not motivated the decision, or indirectly by showing that the

proffered reason for the employment decision is not worthy of

belief." Department of Corrections v. Chandler , supra at 1186;

Alexander v. Fulton County, Georgia , supra . Petitioner has not

met this burden.

26. To establish a prima facie case regarding Petitioner’s

allegation that Respondent failed to promote her because of her

race, Petitioner must prove that: (1) she is a member of a

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

promotion; (3) she was rejected despite her qualifications; and

(4) equally or less qualified employees who are not members of

the protected class were promoted. See Alexander v. Fulton

County , supra at 1339 (11th Cir. 2000); Taylor v. Runyon , 175 F.

3d 861, 866 (11th Cir. 1999); Wu v. Thomas , 847 F. 2d 1480, 1483

(11th Cir. 1988).

27. Petitioner meets the first element in that she is

African-American. However, there is no competent evidence that

the positions she applied for were indeed promotions, that she

met the job qualifications, or that she was rejected despite

those qualifications. Even if the positions applied for by

Petitioner were promotions, there is no evidence that those

persons who received those jobs were equally or less qualified

or that they were not members of the protected class.

Accordingly, Petitioner did not establish a prima facie case of

race discrimination in regard to her allegations that Respondent

failed to promote her because of her race.

28. To establish an adverse employment action in a failure

to promote case, Petitioner must be able to show that the

position she desired had a greater wage or salary, a more

distinguishable title, or significantly more responsibilities.

Weston-Brown v. Bank of America Corp ., 2006 U.S. App. LEXIS 318

(11th Cir. 2006) quoting Johnson v. Fulton Concrete Co. , 330 F.

Supp. 2d 1330, 1339 (N.D. Ga. 2004).

29. There is no evidence in the record that the positions

for which Petitioner applied had a greater wage or salary, a

more distinguishable title, or significantly greater

responsibilities.

30. To establish a prima facie case of race discrimination

based on disparate treatment, Petitioner must prove that (1) she

is a member of a protected class; (2) she was subject to an

adverse employment action; (3) her employer treated similarly

situated employees, who were not members of the protected class,

more favorably; and (4) she was qualified for the job or benefit

at issue. See McDonnell , supra ; Gillis v. Georgia Department of

Corrections , 400 F. 3d 883 (11th Cir. 2005).

31. As for Petitioner’s disparate treatment allegations,

( i.e. , that she received one cent per hour less than promised,

that she received a used wireless headset, and other matters

discussed above), there is insufficient evidence to establish

that these matters rise to the level of adverse employment

action. To be actionable, the employment action must be

materially adverse as viewed by a reasonable person in the

circumstances, not by the employee’s subjective view. The

adverse action must be material, that is, more than a de minimus

inconvenience or alteration of responsibilities. Weston-Brown

v. Bank of America , supra ; citing Davis v. Town of Lake Park,

245 F.3d 1232, 1239 (11th Cir. 2001) . “Not all conduct by an

employer negatively affecting an employee constitutes adverse

employment action.” Id. at 1238.

32. Applying the McDonnell analysis, Petitioner did not

meet her burden of establishing a prima facie case of disparate

treatment in that these actions do not rise to the level of an

adverse employment action.

33. To the extent that Petitioner’s assertion that she

resigned due to stress could be construed to be constructive

discharge, Petitioner must show that the working conditions were

so difficult or unreasonable as to compel a reasonable person to

resign. Hill v. Winn-Dixie Stores, Inc. , 934 F.2d 1518, 1527

(11th Cir. 1991). In order to show constructive discharge,

Petitioner must show a high degree of deterioration in her

working conditions, approaching the level of “intolerable.”

Wardwell v. School Board of Palm Beach County, Florida , 786

F.2d 1554, 1559 (11th Cir. 1986). The evidence was not

sufficient to establish that Petitioner was constructively

discharged.

34. In summary, Petitioner has failed to carry her burden

of proof that Respondent engaged in unlawful racial

discrimination toward her.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 21st day of August, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 21st day of August, 2008.

ENDNOTES

1/ Petitioner attached several documents to her post-hearing

letter. However, these attachments, with the exception of a

copy of Respondent’s Motion for Extension of Time, are in the

nature of late-filed exhibits and, therefore, cannot be

considered in formulating these findings of fact.

§ 120.57(1)(j), Fla. Stat.

2/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Brand v.

Florida Power Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA

1994).

COPIES FURNISHED :

Camika S. Jerido

3344 Hunt Street

Jacksonville, Florida 32254

Timothy B. Strong, Esquire

Fowler White Boggs Banker, P.A.

50 North Laura Street, Suite 2200

Jacksonville, Florida 32202

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

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.