10-009511 Jessica A. Lamarre vs. The Richman Group Status: Closed Recommended Order on Wednesday, April 6, 2011.

Summary: Respondent's excuses for terminating Petitioner are pretextual for a discriminatory discharge. Petitioner's work was professional and competent; she was replaced by a less experienced caucasian.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSICA A. LAMARRE , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9511

)

THE RICHMAN GROUP , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a he aring was conducted in this case

before J. D. Parrish, a duly - designated administrative law judge

of the Division of Administrative Hearings, on December 16, 17,

and 20, 2010, in Brevard County, Florida.

APPEARANCES

For Petitioner: John M. Finnigan, Esq uire

Finnigan Law Firm

1700 Maitland Avenue

Maitland, Florida 32751

For Respondent: Thomas A. Groendyke, Esquire

Douberley & Cicero

1000 Sawgrass Corporate Parkway

Suite 590

Sunrise, Florida 33323

STATEMENT OF THE ISSUE S

Whether Respondent, Richman Property Services, Inc.

(Respondent), committed an unlawful employment practice as

alleged in the Amended Petition for Relief filed with t he

Florida Commission on Human Relations (FCHR) , and, if so, what

relief should Petitioner, Jessica A. Lamarre (Petitioner), be

granted.

PRELIMINARY STATEMENT

On October 8, 2010, the FCHR transmitted PetitionerÓs

Amended Petition for Relief to the Divisio n of Administrative

Hearings (DOAH) for formal proceedings. Petitioner claimed that

Respondent discriminated against her on account of her race

(Black). More specifically, Petitioner maintained that she was

wrongfully terminated from her employment and r eplaced with a

person who had less experience , but who was Caucasian.

Respondent asserted it acted appropriately, and that a factual

basis supported the decision to terminate Petitioner.

Respondent maintained that PetitionerÓs race was inconsequential

to the decision.

At the hearing, Petitioner testified on her own behalf and

presented testimony from Patricia Card, RespondentÓs former

employee who worked with Petitioner. Respondent presented

testimony from Heather Garden, Gilda Fernandez, Judy Roberts,

C hristy Starr, Marlene Williams, James Dollard, and Marie

Lauture. Exhibits received in evidence are included in the

record being returned to FCHR.

A transcript of the proceeding has not been filed. The

parties were granted leave until January 18, 2011, to file

Proposed Recommended Orders. Both parties timely submitted

orders that have been considered in the preparation of this

Recommended O rder.

FINDINGS OF FACT

1. Petitioner is an African - American , who denotes her race

as Black. At all times material to the allegations of this

case, Petitioner was employed by Respondent in Brevard County,

Florida.

2. Respondent is a property management company doing

business in Florida. Respondent manages an apartment complex

identified in this record as Manatee C ove Apartments (Manatee

Cove) located in Melbourne, Florida.

3. In November of 2008, RespondentÓs regional manager,

Gilda Fernandez, interviewed Petitioner for the job of property

manager for Manatee Cove. Petitioner had several years of

experience as a property manager in South Florida and was

interested in the position at Manatee Cove.

4. Although Heather Garden, RespondentÓs Senior Vice

President, normally interviewed prospective property managers,

her schedule did not allow her to personally inte rview

Petitioner. Instead, Ms. Garden interviewed Petitioner by

telephone. At the time of the telephone interview, Ms. Garden

did not know PetitionerÓs race.

5. Although Petitioner had hoped to give her employer at

the time more notice, Respondent requi red that Petitioner begin

her duties at Manatee Cove early. Instead of starting

December 1, 2008, Petitioner agreed to begin work at Manatee

Cove in November 2008. Before Petitioner started, Ms. Fernandez

told Petitioner that the regional manager for Ma natee Cove would

be another supervisor, Marlene Williams.

6. Ms. Williams was a newly hired regional manager for

Respondent , who did not participate in the hiring of Petitioner.

From the outset, Ms. Williams and Petitioner did not have a

sound working re lationship.

7. Despite the fact that Ms. Williams initially advised

Ms. Fernandez that she liked Petitioner, the relationship

between Ms. Williams and Petitioner deteriorated over time.

8. At the time of PetitionerÓs hire, RespondentÓs employee

handbook required training and mentoring for new employees of

the company. Although Petitioner had several years of leasing

experience in similar apartment complexes, she was not fully

trained in the RespondentÓs way of doing business.

9. Respondent did not exh aust training procedures with

Petitioner , nor did they initially provide her with trained

support staff to help her tackle the problems at Manatee Cove.

Prior to PetitionerÓs arrival at Manatee Cove, the complex

experienced a low rate of occupancy that Re spondent asked

Petitioner to address. Additionally, Manatee Cove had a number

of delinquent leases that Respondent expected Petitioner to

resolve. To PetitionerÓs credit , both areas of concern were

addressed and improvements were made.

10. More critic al to the company, however, was an upcoming

audit that Manatee Cove faced. A third party was scheduled to

audit Manatee Cove for compliance with regulations related to

affordable income properties. Because Manatee Cove participated

in the program, Respon dent was required to maintain records

pertaining to the program guidelines.

11. Much of PetitionerÓs effort during her time at Manatee

Cove related to preparing for the audit. When the audit was

passed with flying colors, Petitioner was praised for her work.

12. After Ms. Williams became PetitionerÓs supervisor,

several issues with PetitionerÓs performance were identified by

Respondent. For example, Petitioner was required to open the

office at a certain time. When Petitioner worked late into the

n ight she failed, on a couple of occasions, to open the office

on time. RespondentÓs exaggeration of this alleged problem was

unwarranted.

13. Respondent also claimed that Petitioner did not submit

end - of - the - year invoices timely. Petitioner was timely with the

invoices. Any error in not timely filing invoices for the

security vendor was attributable to other employees.

14. Despite requests for additional training and

assistance, Respondent gave Petitioner only a cursory training

opportunity. In co ntrast, Respondent trained PetitionerÓs

successor, a Caucasian female, more thoroughly.

15. Further, the person Respondent allegedly sent to

assist Petitioner did little to actually help her. Instead, she

spent her time compiling minute details of how Pe titioner did

not do things the Respondent 's way.

16. At one point , when advised of the alleged problems at

Manatee Cove, Ms. Garden advised Ms. Williams to fire all of the

employees there. Curiously, only Petitioner was terminated.

17. On February 9, 20 09, Ms. Williams discharged

Petitioner without specifying grounds for the action. Later,

Ms. Williams claimed PetitionerÓs failure to timely pay invoices

was the basis for the action. To the contrary, Petitioner

timely presented for payment all invoices over which she had

control. The invoices that were unpaid were for a vendor (the

security company) , who was hired before Petitioner came on the

property , for whom the appropriate information had not been put

into the system , and for whom the Respondent fa iled or refused

to assist Petitioner input the appropriate data. Simply stated,

the failure to timely pay the security vendor was not

PetitionerÓs error.

18. Respondent replaced Petitioner with a less experienced

Caucasian female.

19. Petitioner was hir ed at a salary of $40,000 , with a

free apartment as additional compensation. When she was

terminated, Petitioner was advised to vacate her apartment at

Manatee Cove.

20. Petitioner worked to improve the leasing productivity

at Manatee Cove. She was prof essional and experienced in her

job.

21. The women who conspired to terminate PetitionerÓs

employment with the company did so without considering the

positive contributions Petitioner made to the Manatee Cove

property.

22. Respondent did not have a s ound business reason for

terminating Petitioner. Instead, Respondent terminated

Petitioner because she did not fit the corporate image.

Ms. Williams and Ms. Garden wanted Petitioner to do everything

the Respondent 's way. When Petitioner showed success managing

the complex her way, trouble ensued.

23. Less than one percent of the over 300 employees

Ms. Garden supervises are Black managers. Ms. Garden did not

sit down with Petitioner to train her ; did not verify others had

appropriately trained her ; an d did not include Petitioner in

what could have been constructive conversations regarding

PetitionerÓs work. Instead, she and Ms. Williams along with

Ms. Christy Starr (PetitionerÓs eventual replacement) , spent

their time chronicling superficial errors a nd complaints against

Petitioner.

24. Petitioner had been employed less than a month when

RespondentÓs employees started writing negative comments

regarding PetitionerÓs work performance. Many of the comments

were generated during a time when Petitioner had little or no

help to run the office, and little or no training. All of the

negative comments started after Ms. Garden met Petitioner (and

obviously observed her ethnicity).

25. The table below demonstrates the time frame for

PetitionerÓs first mont h of employment with Respondent:

Date: Event:

November 2008 Petitioner interviewed for

job by Ms. Fernandez .

November 2008 Petitioner interviewed by

phone for job by Ms. Garden .

December 1, 2008 Date Petitioner was to start

job; per employment

agreement .

November 24, 2008 Date Petitioner started job

to accommodate Respondent;

Ms. Fernandez met with

Petitioner approximately 1 - 2

hours to get her started .

Early December 2008 Ms. Fernandez and Ms. Garden

visit Petitioner; Ms. Garden

meets her for first tim e in

person; Ms. Garden initially

likes Petitioner .

December 12, 2008 Petitioner meets Ms. Williams

for first time; Petitioner

expresses need for help;

Ms. Williams tells Ms.

Fernandez she likes

Petitioner .

After December 12, 2008 Ms. Williams e - mails

Ms. Fernandez to state she

has issues with Petitioner .

Mid December 2008 Respondent tells Petitioner

to get invoices in to be paid

by end - of - year .

Mid December to late Petitioner asks for

December 2008 assistance with invoices;

specifically with regard t o

security vendor for whom

paperwork incomplete .

26. During the first month, Petitioner worked the property

without great assistance from the Respondent. The following

chart depicts the remainder of PetitionerÓs employment with the

company:

On or about January 6, Ms. Card hired to be

2009 PetitionerÓs assistant .

Early January, shortly Ms. Card sent for ÐtrainingÑ

after she was hired at another property managed

by Respondent; training

turned out to be a session to

allow RespondentÓs employees

to critici ze PetitionerÓs

work .

January 14, 2009 Ms. Garden wrote to express

disappointment that

Petitioner had not reached an

occupancy goal despite

improvement .

January 15, 2009 Ms. Garden complains that

Petitioner does not answer

e - mail quickly enough .

Januar y 19 - 21, 2009 Ms. Starr sent to Manatee

Cove to assist; instead does

little and produces a report

critical of Petitioner .

January 21, 2009 Ms. Garden advises

Ms. Williams should look for

whole new staff for Manatee

Cove .

On or about January 21, Ms. Williams suggests Ms.

2009 Garden consider Ms. Starr for

PetitionerÓs job .

January 26, 2009 Ms. Williams issues a

disciplinary report to

Petitioner; report allegedly

written in December 2008 , but

Ms. Williams claimed she

could not print it until this

date .

J anuary 26, 2009 Petitioner given a copy of

the job description for

manager .

January 30, 2009 Petitioner handles the audit

conducted by third party and

passes without any violations

or issues .

Subsequent to audit Petitioner praised for good

work on audit .

Early February 2009 Ms. Williams discovers

security company not paid

before new year .

February 9, 2009 Ms. Williams fires

Petitioner .

27. On February 10, 2009, Ms. Starr replaced Petitioner as

manager at Manatee Cove.

28. Petitioner has been unemp loyed since her termination

from Manatee Cove. Although qualified, Petitioner has not

actively pursued job opportunities outside the Central Florida

market. Instead, Petitioner enrolled as a full - time student.

29. Petitioner filed a Complaint of Discrim ination on or

about December 2, 2009. Subsequently, Petitioner retained

counsel and filed the instant administrative petition on or

about October 8, 2010.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties t o and the subject matter of these

proceedings. §§ 120.57(1) and 760.11, Fla. Stat. (2009).

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

codified in s ections 760.01 t hrough 760.11, Florida Statutes .

"The Act, as amended, was [generally] patterne d after Title VII

of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000,

et seq. , as well as the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 623. Federal case law interpreting

[provisions of] Title VII and the ADEA is [therefore] applic able

to cases [involving counterpart provisions of] the Florida Act."

Fla . St . Univ . v. Sondel , 685 So. 2d 923, 925 (Fla. 1st DCA

1996); see also Joshua v. City of Gainesville , 768 So. 2d 432,

435 (Fla. 2000)("The [Act's] stated purpose and statutory

const ruction directive are modeled after Title VII of the Civil

Rights Act of 1964.").

32. The Act makes certain acts prohibited "unlawful

employment practices," including those described in

s ection 760.10, which provides:

(1) It is an unlawful employment

practice for an employer:

(a) To discharge or to fail or refuse

to hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adverse ly affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

33. The Act gives the FCHR the authority to issue an order

prohibiting the practice and providin g affirmative relief from

the effects of the practice, including back pay, if it finds

following an administrative hearing that an unlawful employment

practice has occurred. See § 760.11, Fla. Stat . To obtain

relief from the FCHR, a person who claims to have been the

victim of an "unlawful employment practice" must , "within 365

days of the alleged violation," file a complaint ("contain[ing]

a short and plain statement of the facts describing the

violation and the relief sought") with the FCHR. § 760.11(1 ),

Fla. Stat . It is concluded , Petitioner filed a complaint within

the statutory time limitation.

34. Petitioner's complaint alleged that she was subjected

to discrimination based upon her race. Petitioner established

she is a member of a protected clas s of minorities. Petitioner

is Black.

35. Secondly, Petitioner established she was terminated

from her employment with Respondent.

36. Additionally, Petitioner proved she was qualified for

the job from which she was terminated , and replaced with a less

qualified Caucasian female.

37. Petitioner has the burden of proving the allegations

asserted. "Discriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v. Hamrick ,

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

38. "Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption." See Wilson v. B/E Aero., Inc. , 376

F.3d 1079, 1086 (11th Cir. 2004)("Direct evidence is 'evidence,

that, if believed, proves [the] existence of [a] fact without

inference or presumption.'"). "If the [complainant] offers

direct evidence and the trier of fact accepts that evidence,

then the [complainant] has proven discrimination." Maynard v.

Bd . of Regents , 342 F.3d 1281, 1289 (11th Cir. 2003). In this

case, the Petitioner established that the termination was not

supported by a legitimate business decision. The only inference

that can be drawn from the facts of this case verifies that

Respondent used Petiti onerÓs business expertise as long as it

favored them (to get through the audit) , then replaced her with

a less qualified Caucasian employee. Thus, Petitioner

established a prima facie case of discrimination.

39. Victims of discrimination may be "permitt ed to

establish their cases through inferential and circumstantial

proof," Petitioner presented credible testimony from both

Ms. Card and Mr. Dollard, RespondentÓs former employees who

spent more time at Manatee Cove with Petitioner than any of

Respondent Ós witnesses, to establish she was thorough,

professional, and efficient. If PetitionerÓs conduct was as

represented by these witnesses, what was the basis for

RespondentÓs decision to fire her? The inference of

discrimination is the obvious answer. See Kline v. Tenn . Valley

Auth . 128 F.3d 337, 348 (6th Cir. 1997).

40. Because Petitioner established a prima facie case of

discrimination, the burden of proof in this cause shifted to the

Respondent to articulate a legitimate, non - discriminatory reason

for its action. In this case, Respondent failed to do so. If

an employer successfully articulates a reason for its action,

then the burden shifts back to the complainant to establish that

the proffered reason was a pretext for the unlawful

discrimination. See Malu v. City of Gainesville , 270 Fed. Appx.

945; 2008 U.S. App. LEXIS 6775 (11th Cir. 2008). In this case,

the persuasive evidence established that Respondent did not have

grounds for terminating Petitioner. Each of the grounds that

Respondent allege d supported the action were constructed from

insignificant complaints. The only substantial allegation (that

Petitioner failed to timely remit payment on a vendor invoice),

was attributable to error committed by another employee.

41. Petitioner did not exert aggressive effort to obtain

employment subsequent to her job loss. She should have pursued

all job leads to any venue in order to obtain employment.

Instead, Petitioner became a full - time student. In order to

claim back pay, Petitioner was require d to mitigate damages as a

result of her wrongful termination. Petitioner was required to

make a meaningful, good - faith effort to secure employment. In

this context , Petitioner failed. Petitioner applied for only a

few jobs , and most were within the gre ater Orlando area. Just

as she had relocated from South Florida to Brevard County to

obtain the manager job with Respondent, Petitioner was required

to look more broadly for employment.

42. The purpose of relief in a discrimination case , such

as this i s to recreate the conditions and relationships that

would have been had there been no unlawful discrimination; that

is to say, make the party whole. See United States v. City of

Miami , 195 F.3d 1292 (11 th Cir. 1999). Nevertheless, such party

must mitigat e damages through reasonably diligent efforts to

seek employment that is substantially equivalent. See Lathem v.

Dep ' t of Child . & Youth Servs . , 172 F.3d 786 (11 th Cir. 1999).

In this case, Petitioner did not make serious efforts to obtain

substantially equivalent employment , and , thereby , mitigate her

loss of income. Further, once she became a full - time student,

Petitioner effectively opted for a potentially more successful

future that would be based upon her academic standing.

Accordingly, an award of back pay must be limited to no more

than six months.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the F lorida Commission on Human

Relations issue a final order finding cause for an unlawful

emplo yment practice as alleged by Petitioner , and awarding

Petitioner no more than six months back pay.

DONE AND ENTER ED this 6 th day of April , 2011 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Ju dge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6 th day of April , 2011 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Thomas A. Groendyke, Esquire

Douberley & Cicero

1000 Sawgrass Corporate Parkway, Suite 590

Sunrise, Florida 33323

John M. Finnigan, Esquire

Finnigan Law Firm

1700 Maitland Avenue

Maitland, Florida 32751

Larry K ranert, General Counsel

Florida Commission on Human Relations

2009 Apalachaee Parkway, Suite 100

Tallahassee, Florida 32301

NO TICE 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.