09-000464 Joann Marchelle Brooks vs. Csx Transportation Status: Closed Recommended Order on Friday, November 13, 2009.

Summary: Respondent did not discriminate against Petitioner based on her age and race when it denied her a promotion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOANN MARCHELLE BROOKS, )

)

Petitioner, )

)

vs. ) Case No. 09-0464

)

CSX TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on August 20,

2009, by video teleconference, with hearing sites located in

Tallahassee, Florida, and Jacksonville, Florida, before

Suzanne F. Hood, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Emmanuel Roy, Esquire

26 Court Street, Suite 1503

Brooklyn, New York 11242

For Respondent: Scott S. Cairns, Esquire

Nancy A. Beyer Benton, Esquire

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice by discriminating against Petitioner based

on her race and/or age when it denied her a promotion.

PRELIMINARY STATEMENT

On July 3, 2008, Petitioner JoAnn Marchelle Brooks

(Petitioner) filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (FCHR). The

complaint alleged that Respondent CSX Transportation, Inc.

(CSXT) discriminated against Petitioner based on her race and

age by failing to promote her to the position of Manager of

Manpower Administration in the Human Resources Department.

On December 19, 2008, FCHR issued a Determination: No

Cause. According to FCHR's determination, there was no

reasonable cause to believe that an unlawful employment practice

had occurred.

On January 22, 2009, Petitioner filed a Petition for Relief

with FCHR. In the petition, Petitioner alleged that CSXT failed

to promote her to several positions between February 2006 and

July 2007. FCHR referred this matter to the Division of

Administrative Hearings on January 27, 2009.

The undersigned issued a Notice of Hearing dated

February 9, 2009. The notice scheduled the hearing for April 16

and 17, 2009.

On February 20, 2009, CSXT filed a Motion to Dismiss

Certain Claims as Untimely or Outside the Scope of the Charge or

the Investigation of the Charge. Petitioner did not file a

response to the motion. On March 6, 2009, the undersigned

issued an Order Dismissing Certain Claims.

On April 3, 2009, Petitioner filed a Request for

Continuance. CSXT filed a response in opposition to the request

that same day. An order dated April 6, 2009, denied a

continuance of the hearing.

Between April 3, 2009, and April 7, 2009, CSXT filed seven

motions to quash subpoena of its employees. An order dated

April 8, 2009, granted the motions.

On April 8, 2009, CSXT filed a Motion to Compel Deposition

of Petitioner. Due to the shortness of time before the final

hearing, the undersigned issued an Order Granting Motion to

Compel on April 8, 2009.

On April 9, 2009, Petitioner retained counsel. Said

counsel immediately filed a Motion for Extension of Time. After

a telephone conference on April 13, 2009, the undersigned issued

an Order Granting Continuance and Re-scheduling Hearing for

May 13, 2009.

On May 5, 2009, CSXT filed a Motion to Continue the May 13,

2009, hearing. An Order Granting Continuance and Re-scheduling

Hearing was issued on May 7, 2009. The Order re-scheduled the

hearing for August 20, 2009.

On May 18, 2009, CSXT filed a Motion to Quash Subpoena Ad

Testificandum. An order dated June 2, 2009, granted the motion.

On August 14, 2009, CSXT filed a Motion to Dismiss Petition

for Relief, or Alternatively, Motion to Preclude Petitioner from

Calling Witnesses or Offering Evidence at the August 20, 2009,

Final Hearing. The motion was denied in part and granted in

part on the record when the hearing commenced.

During the hearing, Petitioner testified on her own behalf.

Petitioner offered three exhibits, P1-P3 (also identified as

R14, R13, and R9, respectively) that were accepted as evidence.

CSXT presented the testimony of four witnesses. CSXT

offered Respondent's Exhibit Nos. R1, R5, R10, R11, R12, R17,

R19, R20, R21, R22, R24, R26, R27, R28, R30, R36, and R41, that

were accepted as evidence.

The court reporter filed the Transcript on September 10,

2009.

On September 16, 2009, Petitioner requested an extension of

time to file a proposed recommended order due to the

hospitalization of her attorney. On September 17, 2009, CSXT

filed a response, indicating that it did not object to an

extension for a specific period of time. On September 18, 2009,

the undersigned issued an Order Granting Extension of Time.

On October 21, 2009, CSXT timely filed its Proposed

Recommended Order. Petitioner filed its Proposed Recommended

Order on October 23, 2009. Unless otherwise indicated, all

references to the Florida Statutes are to the 2007

codifications.

FINDINGS OF FACT

1. Petitioner is an African-American female who has worked

for CSXT for over 30 years. She began her employment with CSXT

on May 19, 1977, as a secretary in CSXT’s Baltimore Division.

In 1992, Petitioner transferred to CSXT’s Jacksonville Division.

2. During her employment with CSXT, Petitioner held

various positions. In 2004, Petitioner transferred to the

position of Manpower Support Clerk, a union position, and worked

in the Personnel Attendance Central Services (“PACS”) Group 1 /

under the directorship of Edward H. Pettit. Petitioner held

this position during the time period at issue in this

proceeding.

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

Manager Manpower Administration, a management position. The job

posting for this position provided that the selected candidate

would be responsible for managing all PACS processes, as well as

the day-to-day activities of the PACS staff. The job posting

also provided that the selected candidate must have, inter alia ,

“functional/technical” competencies, including extensive

knowledge of CSXT’s mainframe systems such as TSO and Focus, as

well as various PC programs.

4. Petitioner, as well as fellow applicants Stephanie

Howard, Anthony Avena, and Glenn Shelton, met the minimum

qualifications for the position and were each interviewed on

July 10, 2007. The interview panel consisted of the following

CSXT employees: (1) Jenna Svela, the Recruiter for the Manager

Manpower Administration position; (2) Gary Gambill, Director

Human Resources Information Systems-Workforce Analytics;

(3) Mr. Pettit, Director Manpower Administration and Information

Management; and (4) Lucy Bafford, Human Resources

Representative.

5. At the time Ms. Howard applied for the position of

Manager Manpower Administration, she held the position of a

Senior Manpower Support Representative. As a Senior Manpower

Support Representative, Ms. Howard supervised two Manpower

Support Clerks and was responsible for generating regularly

weekly and monthly reports using Focus, Microsoft Excel, and

Access programs. In addition to her Bachelor of Science in

management, Ms. Howard had also obtained an Associate’s degree

in computer programming and applications in 1998. Ms. Howard is

Asian-American and younger than Petitioner.

6. The interview panel asked each of the applicants the

same seven questions. Six out of the seven questions were

standard interview questions that were pulled from a bank of

interview questions maintained by CSXT. The remaining interview

question, namely, question three, was added by Mr. Pettit, the

hiring manager, to assess each candidate’s technical abilities

within the PACS system. As noted above, the job posting for the

Manager Manpower Position provided that the selected candidate

must have “functional/technical” competencies.

7. For each interview that was conducted, the individual

members of the interview panel completed an interview evaluation

form in which he or she assigned a score of 1 through 4 to the

answers provided by the candidate to each of the questions. The

scoring was assigned as follows: (1) a score of one indicated

two indicated that the candidate “almost meets requirements”;

(3) a score of three indicated that the candidate “meets

requirements”; and (4) a score of four indicated that the

candidate “exceeds requirements.” In addition to assigning a

score, the individual members also provided an explanation on

the interview evaluation form as to why a particular score was

assigned.

8. The interview panel found that Petitioner met the

requirements for question one, almost met the requirements for

questions two, six, and seven, and did not meet the requirements

for questions four and five. In comparison, the interview panel

determined that Ms. Howard exceeded the requirements for

questions one, two, four, and five and met the requirements for

questions six and seven. Thus, Ms. Howard received a higher

score than Petitioner on each of these questions.

9. As noted above, question three was added to assess each

candidate’s technical abilities within the PACS system. For

this portion of the interview, each candidate was asked to log

into the PACS system and accomplish the following functions:

(1) add a new location in PACS; (2) change a bad ID number;

(3) disqualify an employee’s bid; (4) change an employee’s

seniority date; and (5) manipulate a prepared Excel spreadsheet

to produce a pivot table and bar graph, as well as format the

prepared Excel spreadsheet for printing.

10. PACS clerks have access to these functions and, in

fact, perform these tasks from time to time. There is no

persuasive evidence that Mr. Pettit designed question three to

give Ms. Howard or any other candidate a competitive advantage

over Petitioner who was not familiar with the functions.

11. The interview panel found that Petitioner did not meet

the requirements of question three. Notably, Petitioner was

only able to complete one out of the five functions. In

comparison, the interview panel determined that Ms. Howard met

the requirements for question three. Unlike Petitioner,

Ms. Howard completed each of the five functions.

12. Overall, the panel found that Ms. Howard would be a

good fit for the position of Manager Manpower Administration.

The decision was based on her qualifications, supervisory

experience, technical and communication skills, and leadership

abilities.

13. On the other hand, the panel found Petitioner to be

ill prepared for the interview. Specifically, the panel

concluded that Petitioner failed to effectively communicate how

her skills, abilities, and experience prepared her to assume the

Manager Manpower Administration position. In fact, several

members of the panel noted that Petitioner’s responses were

difficult to follow and that Petitioner failed to provide

appropriate examples in support of her responses. In addition,

the panel found Petitioner’s technical skills to be

insufficient.

14. Based on the foregoing, Respondent offered and

Ms. Howard accepted the position of Manager Manpower

Administration. The greater weight of the evidence indicates

that neither Petitioner's race nor her age played any role in

the decision-making process.

15. During the hearing, Petitioner acknowledged that she

did not have any facts that would indicate that the panel’s

decision not to promote her was based on her age or race.

Moreover, she verified that Ms. Svela, Mr. Gambill, and

Ms. Bafford had never done or said anything to her that would

indicate that they were biased against her based on her race or

age. Petitioner also confirmed that Mr. Pettit had never made

any statement suggesting that he was biased against her based on

her race.

16. Mr. Pettit never told Petitioner that she did not need

a union-protected position due to her age and tenure with the

company. Instead, Mr. Pettit merely informed Petitioner that,

given her 30 years of service with CSXT, she did not need to

obtain a protected position to avoid being displaced.

17. There is no persuasive evidence that Mr. Pettit had

influence with the individuals involved in the hiring process.

He did not try to drive the panel’s selection towards Ms. Howard

or away from Petitioner.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

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

(2009).

19. The Florida Civil Rights Act (“FCRA”), Sections 760.01

through 760.11, Florida Statutes, makes it unlawful for an

employer to discriminate against an employee because of race or

age. See § 760.10(1), Fla. Stat. The FCRA was patterned after

and federal case law interpreting Title VII and the ADEA is

applicable to claims arising under the FCRA. See Wilbur v.

Corr. Servs. Corp. , 393 F.3d 1192, 1195 n. 1 (11th Cir. 2004)

(Title VII); Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1

(Fla. 1st DCA 1996) (Title VII and the ADEA).

20. A charging party can establish a prima facie case of

discrimination under Title VII and the ADEA by one of three

methods: (a) by presenting direct evidence of discrimination;

(b) by presenting statistical proof of a pattern of

discrimination; or (c) by presenting circumstantial evidence to

prove discriminatory intent, using the McDonnell Douglas

framework. See McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 (1973); Holifield v. Reno , 115 F.3d 1555, 1561 (11th Cir.

1997).

21. Petitioner has not presented statistical evidence of

discrimination. In addition, Petitioner has not presented any

statement that would rise to the level of direct evidence.

22. Direct evidence of discrimination is evidence that, if

believed, would prove the existence of a fact [in issue]

“without inference or presumption.” See Carter v. City of

Miami , 870 F.2d 578, 581-82 (11th Cir. 1989); Burrell v. Board

of Trustees of Ga. Military College , 125 F.3d 1390, 1393 (11th

Cir. 1997). In other words, the evidence “must indicate that

the complained-of employment decision was motivated by the

decision-maker's ageism or [racism].” See Damon v. Fleming

Supermarkets, Inc. , 196 F.3d 1354, 1358-59 (11th Cir. 1999).

23. The Eleventh Circuit has repeatedly held that “only

the most blatant remarks, whose intent could be nothing other

than to discriminate on the basis of age [or race]" constitute

direct evidence of discrimination. See Carter , 870 F.2d at 582;

Earley v. Champion Int’l Corp. , 907 F.2d 1077, 1081 (11th Cir.

1990); Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir.

1999).

24. In this case, no member of the interview panel made

any statement to Petitioner indicating that they were biased

against her because of her race. Mr. Pettit did not make a

statement about Petitioner's age or long-term employment tenure

in relation to the position at issue in this case. “[R]emarks

by non-decisionmakers or remarks unrelated to the decision-

making process itself are not direct evidence of

discrimination.” See Standard v. A.B.E.L. Servs., Inc. , 161

F.3d 1318, 1330 (11th Cir. 1998).

25. Petitioner has not presented any statistical evidence

or direct evidence of discrimination. Therefore, Petitioner

must rely on the McDonnell Douglas framework to establish a

prima facie case of race and age discrimination.

26. To establish a claim of race or age discrimination

involving a failure to promote claim, Petitioner must show that:

(a) she is a member of a protected group; (b) that she was

qualified for and applied for the promotion; (c) that she was

rejected; and (d) that other equally or less qualified employees

who were not members of the protected classes were promoted.

See Barron v. Federal Reserve Bank of Atlanta , 129 Fed. Appx.

512, 516 (11th Cir. 2005) (race); Crawford v. Johnson , 133 Fed.

Appx. 674, 675 (11th Cir. 2005) (age).

27. Petitioner has failed to establish the last prong of

the prima facie case for discriminatory failure to promote

because Ms. Howard was more qualified for the position of

Management Manpower Administration. Petitioner did not perform

as well as Ms. Howard during the panel interview. Specifically,

Petitioner received lower ratings than Ms. Howard on her

responses to each of the questions posed by the panel. Of

particular note, while Ms. Howard was able to complete each of

the technical functions required by question three, Petitioner

only completed one function.

28. Moreover, Ms. Howard was more qualified than

Petitioner for the Manager Manpower Administration position in

other respects. Unlike Petitioner, Ms. Howard held the position

of Senior Manpower Support Representative and had experience

supervising two Manpower Support Clerks. In addition,

Ms. Howard’s technical background was superior to Petitioner's.

Ms. Howard obtained an Associate’s degree in computer

programming and applications in 1998. Moreover, as a Senior

Manpower Support Representative, Ms. Howard was already

responsible for generating regularly weekly and monthly reports

using Focus, Microsoft Excel, and Access programs. Thus, at the

time Ms. Howard applied for the Manager Manpower Administration

position, she was already familiar with these programs.

29. By showing that Ms. Howard was more qualified for the

position of Manager Manpower Administration than Petitioner,

CSXT has established a legitimate, non-discriminatory reason for

not promoting Petitioner. Petitioner has not offered any

evidence demonstrating that the proffered legitimate, non-

discriminatory reason is a pretext for discrimination.

30. The analysis of pretext is focused on the employer’s

and not the employee’s beliefs. See Holifield , 115 F.3d at

1565. While the panel’s conclusion that Ms. Howard outperformed

Petitioner during their respective interviews is subjective, the

“employment decisions may legitimately be based on subjective

criteria as long as the criteria are capable of objective

evaluation and are stated with a sufficient degree of

particularity.” See EEOC v. Joe’s Stone Crab, Inc. , 220 F.3d

1263, 1280 n. 17 (11th Cir. 2000).

31. In the instant case, CSXT conducted a structured panel

interview in which each candidate was asked identical questions.

The individual panel members then assigned a score to the

answers given by each candidate and provided an explanation for

each score on an interview evaluation form. Each of the panel

members’ scores was taken into consideration when the decision

was made to hire Ms. Howard. Through these interview evaluation

forms, the panel members provided clear and specific

explanations as to how they arrived at their subjective

conclusions. See Lee v. Miami-Dade Police Dep’t , No. 04-22261-

CIV, 2005 WL 2456011, at *8 (S.D. Fla. Aug. 12, 2005)

(concluding that an employer is “entitled to select eligible

candidates for promotions by relying on the candidates’

interview scores and the ranking system chosen by [the

employer]).”

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 13th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 13th day of November, 2009.

ENDNOTE

1 / The PACS system is a management system that “keeps track of

seniority rosters, positions, bids and bumps to positions,

assignments, work histories, and attendance” for union

employees. (Hearing Transcript, p. 172 l. 11-17).

COPIES FURNISHED :

Emmanuel Roy, Esquire

26 Court Street, Suite 1503

Brooklyn, New York 11242

Nancy A. Beyer Benton, Esquire

McGuireWoods, LLP

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

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.