13-002711 Bashawn Brooks vs. Suntrust Bank Status: Closed Recommended Order on Tuesday, March 4, 2014.

Summary: Petitioner did not prove by a preponderance of the evidence that Respondent discriminated against her on account of her race in denying her a promotion. Petitioner did not prove that Respondent's non-discriminatory reasons were pretext.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BASHAWN BROOKS ,

Petitioner ,

vs. Case No. 13 - 2711

SUNTRUST BANK ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on Septemb er 27,

2013, and November 7, 2013, in Ocala, Florida, before Suzanne

Van Wyk, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Bashawn Brooks, pro se

87 Pine Course

Ocala, Florida 34472

For Respondent: David A. Young, Esquire

Fisher and Phillips, LLP

200 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner was subject to an unlawful employment

pra ctice by Respondent, SunTrust Bank, on account of her race, in

violation of section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On April 26, 2012, Petitioner, Bashawn Brooks, filed a

complaint of discrimination with the Florida Commission on Human

Rel ations (FCHR) which alleged that Respondent, SunTrust Bank

(Respondent), violated section 760.10, Florida Statutes, by

discriminating against her on the basis of her race. The

complaint of discrimination alleges that Petitioner was denied

promotion on two separate occasions on the basis of her race.

On July 1, 2013, the FCHR issued a Determination: No Cause

and a Notice of Determination: No Cause, by which the FCHR

determined that reasonable cause did not exist to believe that

an unlawful employment prac tice had occurred. On July 17, 2013,

Petitioner filed a Petition for Relief with the FCHR. The

P etition alleges that Petitioner was denied promotion on three

separate occasions on the basis of her race. The Petition was

transmitted to the Division of Ad ministrative Hearings to

conduct a final hearing.

The final hearing was set for September 27, 2013, and

commenced as scheduled. The hearing was not concluded on

September 27, 2013, but was recommenced and concluded on

November 7, 2013.

At the final hearin g, Petitioner testified on her own

behalf, and presented the testimony of Brandie Stalnaker,

PetitionerÓs former coworker; Staff Sergeant Sheadrick Brooks,

PetitionerÓs husband; and Patricia Nix, BB&T Branch Manager.

Petitioner's Exhibits 1A through 1I, 2 through 5, and 7 through

10, were received into evidence. Respondent presented the

testimony of Debra Evans and Brooks Hoffman. Respondent's

Exhibits 1 through 18, 24 through 34, 36 through 41, 43, and 44

were received into evidence. RespondentÓs Exhibi t 45 was

received for demonstrative purposes only.

Volume I of the Transcript was filed on October 30, 2013,

and Volume II was filed on December 16, 2013. The parties

jointly requested an extension of time to file their post - hearing

submissions, which was granted, and which likewise extended the

20 - day deadline for the undersigned to issue the recommendation

after post - hearing submissions. The parties timely filed their

Proposed Recommended Orders on January 10, 2014, which have been

considered in the pre paration of this Recommended Order.

FINDING S OF FACT

1. Petitioner, who was at all times relevant to this

matter an employee of SunTrust Bank, is African - American.

2. SunTrust Bank is an ÐemployerÑ within the meaning of

chapter 760.02, Florida Statutes (2011). 1 /

3. Petitioner began working for SunTrust Bank at the Lady

Lake Branch in Lake County in July 2010 as a Teller 2.

Petitioner reported to Branch Manager, Evelyn Williams.

4. On March 31, 2011, Ms. Williams completed PetitionerÓs

ye arly evaluation and gave Petitioner an overall Ðfully

successfulÑ rating of 3.

5. On her 2010 - 2011 evaluation , Ms. Williams raised a

concern under ÐRelationships and Teamwork,Ñ one of the SunTrust

ÐCore BehaviorsÑ on which all employees are evaluated.

6. Ms. Williams noted, ÐBashawn is a team player.

Sometimes personal issues get brought into the workplace between

teammates. Need to work on keeping business and personal issues

separate.Ñ

7. On June 16, 2011, Petitioner transferred to the Golden

Hills b ranch in Ocala as a Teller 2. At that time, the Golden

Hills branch manager was Roberta Haluska.

8. Roughly two months later, in August 2011, Petitioner was

promoted to the position of Teller 3.

9. In October 2011, r oughly two months after Petitioner w as

promoted to Teller 3, Ms. Haluska was terminated by SunTrust,

along with the assistant branch manager and a personal banker.

10. In November 2011, Debra Evans became the Golden Hills

branch manager.

11. Petitioner alleges that she was denied three pro motions

during her tenure at the Golden Hills branch due to

discrimination against her on the basis of her race by Ms. Evans

and the Area Manager, Michelle Stone.

Golden Hills Client Service Specialist

12. On March 16, 2012, Petitioner applied for the pos ition

of Client Service Specialist (CSS) at Golden Hills.

13. The CSS was a new position approved by SunTrust in

February 2012. The position was designed to be cross - trained on

both the teller side and the platform side of the bank. The

platform side in cludes opening new accounts and providing

financial services and products.

14. According to the CSS Job Summary, the Ð[p]rimary focus

is assisting with client transaction and service needs with

additional activities related to sales opportunities, based on

the needs of the branch.Ñ An employee in this position was

expected to Ð[c]ommit to advancing knowledge of sales techniques

and product knowledge to better serve personal and business

clients.Ñ

15 . Petitioner met the eligibility requirements to post for

another position within SunTrust: (1) employment with SunTrust

for at least one year; (2) employ ment in current position for at

least one year; and (3) a Ðmeets minimal standardsÑ rating of 2

or better on the employeeÓs most recent evaluation.

16 . Petitioner met the basic qualifications for the

position of CSS: (1) h igh school diploma or equivalent; (2)

m inimu m six months Ó experience as a SunTrust teller; (3) b asic

level of knowledge and/or skills related to the financial

services industr y; (4) b asic math and numeric sequencing

aptitude; and (5) w illing and able to follow instructions and

work under established guidelines.

17 . Petitioner was not interviewed for the CSS position.

18 . Ms. Evans hired Sarojini Runsewa, an Asian female, as

C lient Service Specialist with a start date of April 23, 2012.

19. Petitioner testified that she was more qualified than

the new CSS because Petitioner was asked to and did train

Ms. Runsewa. Petitioner offered the testimony of Ms. Stalnaker

that Petition er trained both the new CSS and the new Teller

Coordinator.

20. PetitionerÓs position is not supported by competent,

substantial evidence. The CSS was expected to know both sides

of the banking business Î the teller side and the platform side.

Petition er admitted that she would have had to be trained on the

platform side in order to perform the CSS duties. Clearly,

Petitioner could not have trained Ms. Runsewa to perform duties

of which Petitioner had no knowledge.

21. The record supports a finding t hat Petitioner helped

familiarize Ms. Runsewa with some of the procedures of the teller

line.

Golden Hills Teller Coordinator

22 . On March 27, 2012, the Golden Hills T eller C oordinator,

Shireen Rahman, resigned without notice.

2 3 . The position of T eller C oordinator performs both

operational and management functions. According to the SunTrust

job summary, the Teller Coordinator spends Ð[a]pproximately 50 -

75% of time [] on client transactional activities and remaining

time [] on operations as well as coac hing and development.Ñ

2 4 . For approximately one month, between the date

Ms. Rahman left and a new Teller Coordinator was hired,

Petitioner performed the operational functions of the Teller

Coordinator. For example, Petitioner had control of the cash

vau lt and helped reconcile teller boards. Petitioner did not

handle management issues, such as ÐcoachingÑ other tellers on

SunTrust core behaviors or resolving disputes between tellers.

2 5 . SunTrust advertised the Teller Coordinator position for

the Golden Hills branch, but Petitioner did not apply.

2 6 . Petitioner had access to the SunTrust Internet site on

which job openings are advertised internally.

2 7 . On or about April 10, 2012, Petitioner observed

applicants in the bank lobby and discovered Ms. Evans was

interviewing candidates for the Teller Coordinator position.

Petitioner asked Ms. Evans why she was not chosen for the

position. Petitioner testified that Ms. Evans called her Ða bad

apple.Ñ Ms. Evans denies having made that statement.

2 8 . Petitio ner argues that, although she did not apply for

the position, Ms. Evans could have, and should have, promoted

Petitioner to the Teller Coordinator position, especially since

Petitioner was performing the Teller Coordinator duties.

2 9 . Petitioner clearly r esents the fact that Ms. Evans did

not ask Petitioner to apply for the Teller Coordinator position.

30 . Ms. Evans hired Sandra Cunha, a white female, as the

Teller Coordinator, with a start date of May 1, 2012.

Executive Park Teller Lead

31 . On or about March 29, 2012, Petitioner applied for a

Teller Lead position at the Executive Park branch in Ocala.

Kendra Scottie was the manager of the Executive Park branch.

32 . Ms. Scottie interviewed Petitioner for the Teller Lead

position on April 9, 2012, durin g PetitionerÓs lunch hour.

3 3 . Petitioner met the minimum requirements for the Teller

Lead position.

3 4 . Petitioner received no word about the Teller lead

position for at least a month.

3 5 . Petitioner filed her Complaint of Discrimination with

FCHR on A pril 26, 2012.

3 6 . The Executive Park Teller Lead position was cancelled

on May 3, 2012.

3 7 . SunTrust cancelled the Teller Lead position due to an

internal reorganization known as ÐRole Clarity.Ñ No one was

hired as Teller Lead at Executive Park.

3 8 . As a result of ÐRole Clarity,Ñ the Golden Hills branch

Teller Coordinator position was eliminated, and the Executive

Park branch was assigned a Teller Coordinator 1 position.

Ms. Cunha, Teller Coordinator 1 at Golden Hills , was notified by

letter dated Ju ne 5, 2012, that the position she currently held

no longer existed and that her Ðnew comparable jobÑ at SunTrust

was as Teller Coordinator 1 at the Executive Park branch. The

letter gave Ms. Cunha until June 8, 2012, to ÐacknowledgeÑ her

new role. Ms. Cu nha accepted her new role and transferred to

Executive Park.

3 9 . On May 16, 2012, Petitioner transferred to the

Fruitland Park branch as a Client Service Specialist.

Golden Hills Branch Staffing

40 . When Ms. Evans came to the Golden Hills location, she

stepped into management of a SunTrust branch in trouble. The

branch was understaffed, having just lost its manager, assistant

manager, and a financial services representative. Two branch

employees were out on Family Medical Leave, and Ms. Rahman, the

Tel ler Coordinator, left abruptly in March.

41 . Brandie Stalnaker worked as a Teller 2 at the branch

from January 2012, through March 2013. She testified, credibly,

that the work environment was stressful due to short - staffing and

customer satisfaction iss ues.

42 . Petitioner sent an email to the SunTrust Area Manager,

Michelle Stone, to ÐinformÑ Ms. Stone the branch was short -

staffed and needed additional employees. Although the exact date

of the email was not identified, Petitioner testified that she

sen t the email prior to applying for either the CSS or Teller

Coordinator position at Golden Hills.

4 3 . Ms. Stone is Ms. EvansÓ superior, and had oversight of

all branches in her service area.

4 4 . On April 20, 2012, Ms. Evans sent an email to her team

anno uncing that the branch was finally fully staffed.

Golden Hills Service Excellence

4 5 . Ms. Evans was also faced with low service excellence

scores for the Golden Hills branch.

4 6 . SunTrust contracts with a third - party polling

organization to conduct ran dom telephone surveys of clients and

solicit feedback on the service provided by its employees.

4 7 . Clients who recently interacted with a branch teller

are asked to rate , on a scale of one to ten, certain teller

attributes (e.g., was knowledgeable, made you feel they

appreciate your business), as well as teller - targeted behaviors

(i.e., provided you with all the information you needed).

Clients are also asked to rate the branchÓs overall operations

(e.g., satisfaction with wait time, convenient hours of

operation, appearance neat and clean).

4 8 . SunTrust monitors the polling results and maintains a

ÐTeammate Feedback ReportÑ on each teller. The Feedback Report

shows the tellerÓs Year - to - Date, Quarter - to - Date, and Month - to -

Date ratings on teller attribut es and targeted behaviors.

4 9 . Tellers are expected to maintain a Ðrolling tenÑ

service excellence score of no less than 80. The Ðrolling tenÑ

is the average of the tellerÓs most recent 12 service excellence

scores discounting both the highest and lowest score. A score of

less than 80 may subject the teller to discipline.

50 . On March 26, 2012, Ms. Evans sent the following email

to her employees:

Subject: Humble yourself to every client /

CLIENT FIRST / OUR SCORES STINK & are

unacceptable!! I expect this [sic] to see a

change in this right away!!!!!!!

We are one team. I donÓt care who gets a bad

shop. ItÓs your peer accountability to fix

it!!! GREAT ACTIVITIES YIELD GREAT RESULTS.

We are not even halfway there)))))))

PetitionerÓs Serv ice Excellence Scores

51 . PetitionerÓs February 2012 Feedback Report shows the

following teller attribute scores: YTD - 75, QTD Î 75, MTD Î

66.7 .

52 . PetitionerÓs March 2012 Feedback Report shows the

following teller attribute scores: YTD Î 66.7, QTD Î 66.7, MTD Î

50.

SunTrust Attendance Policy

5 3 . SunTrust maintains a strict attendance policy.

Absences, late arrivals, and early departures are considered

ÐoccurrencesÑ which may result in disciplinary action.

5 4 . Employees may receive approval from th eir supervisor

for absences, late arrivals, or early departures at least 24

hours in advance. Failure to obtain supervisory approval will

result in the absence, late arrival, or early departure being

counted as an occurrence. However, even if the supervi sor pre -

approves an absence, late arrival, or early departure, the

supervisor retains the discretion to count it as an occurrence.

5 5 . An employee with four occurrences within a three - month

period, or seven occurrences within a 12 - month period, is subject

to a verbal warning. An employee with five occurrences within a

three - month period, or eight occurrences within a 12 - month

period, is subject to a written warning.

PetitionerÓs Attendance

5 6 . Petitioner had five occurrences in the three - month

per iod between February and April 2012. Petitioner had 11

occurrences during the 12 - month period between May 2011 and

April 2012.

5 7 . Petitioner argues that some of the absences, late

arrivals, or early departures on those dates do not constitute

occur rences because she has doctorsÓ notes.

5 8 . The SunTrust Attendance and Punctuality Policy does not

provide an exception for doctor appointments or sick leave. The

policy clearly states as follows:

Each time an employee takes off work, even

for a le gitimate illness, the employeeÓs

manager will record an occurrence for the

absence (unless Òprotected leaveÓ). Except

for extreme extenuating circumstances,

unexpected absences, late arrivals, or early

departures will count as occurrences under

this polic y, regardless of whether employees

contacted their supervisor or whether they

receive pay for the time away from work.

5 9 . Further, Petitioner argues that some of the occurrences

are necessary to pick up or otherwise care for her child when her

military s pouse is unable to get away.

60 . The Attendance Policy provides no exception for child -

care issues.

Disciplinary Policies/Forms

61 . SunTrust maintains a progressive disciplinary policy

known as the ÐCorrective Discipline Process.Ñ The first step in

th e process is a verbal counseling, followed by written warning,

probation, final warning, and termination.

62 . A verbal counseling involves a conversation between the

employee and manager in which the performance deficiency is

identified and they reach ag reement on steps to be taken to

correct the deficiency. A verbal counseling is documented by the

manager as a reference if further action is needed. A

ÐCorrective Action Plan , Ñ or CAP, may be used in conjunction with

a verbal counseling to document perfo rmance deficiency and steps

to correct said deficiency.

6 3 . A written warning is designed to put an employee on

official notice that if performance work habits, behavior, or

policy/procedural compliance fail to meet standards or

expectations, his or her e mployment is at risk.

6 4 . Managers are also expected to engage in ÐcoachingÑ of

employees throughout the workday, both to encourage behaviors

that enhance SunTrust performance and correct behaviors which do

not.

6 5 . Managers have a number of tools desi gned to assist in

the coaching process. An ÐIn - the - ActionÑ coaching log is a form

used to track specific actions taken by the supervisor to

encourage improvement in employee performance Î a place to record

the supervisorÓs notes based on his or her observ ations. The

coaching logs are maintained behind the teller line and are

available for review by all employees.

6 6 . A ÐMonthly Coaching PlannerÑ is used to document a

supervisorÓs coaching session with an employee, agree to goals,

and commit to follow - up actions.

6 7 . An ÐInBalance Development PlanÑ is designed to help a

supervisor create a development plan for an employee. It is to

be used not solely to improve weaknesses, but also to provide

opportunities to enhance employeeÓs strengths.

Coaching and Disciplinary Action

6 8 . Respondent introduced an Ð In - the - Action Ñ c oaching l og

maintained by Ms. Evans documenting various issues and behaviors

on which she coached Petitioner. The log is three pages long.

The first entry is dated January 15, 2012. N one of the other

entries is dated.

6 9 . The log documents a variety of PetitionerÓs successes,

such as her mastery of referring clients in the teller line to

other services offered by the branch. One entry notes Ðteller

line responsible for 5. Bashawn To p Referrer!Ñ Another entry

states Petitioner is a role model for other tellers to follow on

referrals. One entry commends PetitionerÓs ÐperfectÑ phone voice

as a positive ongoing behavior.

70 . The log also notes PetitionerÓs negative behaviors and

attri butes. Seven separate entries document PetitionerÓs need to

change her tone with her teammates, refrain from using negative

language with teammates, and treat others with respect. Other

entries note issues with clients, such as a reminder to call

clients by their names, rather than pet names; to watch her tone

with clients, show empathy, and change negative language (e.g.,

ÐI canÓt do thatÑ) to positive language (e.g., ÐWhat I can do for

you is . . .Ñ ). Two entries note attendance issues.

71 . Peti tioner maintains that the coaching log is

manufactured evidence to support a pretext for Ms. EvansÓ failure

to promote her. Petitioner points to the fact that the log

entries are not dated as evidence that they are fabricated.

72 . PetitionerÓs argum ent is not supported by competent,

substantial evidence. Petitioner first testified that she had

never been coached on any of the behaviors listed in the log.

However, on cross - examination Petitioner admitted that at various

times during Ms. EvansÓ tenur e, Ms. Evans had spoken to her about

using proper body language with clients, working as a team, and

using positive words with her teammates. Petitioner specifically

recalled Ms. Evans telling her to use ÐI canÑ rather than ÐI

canÓtÑ and stated ÐI love th at note [Ms. Evans] gave to me. Not

to say I canÓt. I actually use that now.Ñ 2 /

7 3 . Petitioner denied that Ms. Evans coached her about

using pet names for clients, but admitted that she did use pet

names for some clients with whom she had develope d a rapport.

She further admitted that such behavior was unprofessional.

7 4 . Ms. EvansÓ testimony corroborated her observations

documented in the coaching log and is accepted as credible.

7 5 . The ÐIn - the - ActionÑ coaching log is accepted as

cre dible evidence of the strengths and weakness in PetitionerÓs

job performance observed by her manager.

7 6 . On January 15, 2012, Ms. Evans conducted a Ðmystery

shopÑ of PetitionerÓs performance on the teller line. In a

mystery shop, a teammate or supe rvisor listens in on an

employeeÓs interaction with a client and completes a checklist on

whether the service met the expectations for that position.

7 7 . The checklist indicates, and Ms. Evans testified, that

Petitioner used appropriate language to g reet the client,

acknowledge their presence, and value their time. She smiled,

made eye contact, and stood while processing the transaction.

7 8 . The checklist indicates, and Ms. Evans testified, that

Petitioner did not use appropriate language to le t the client

know their business was appreciated and to ask if there was

anything else she could do to help the client.

7 9 . On or about January 15, 2012, Ms. Evans completed a

monthly coaching planner for Petitioner. The planner is not

dated.

80 . There are three entries on the planner. The first is

with regard to the January 15 mystery shop. Ms. Evans noted that

the interaction with the client was good, but that Petitioner

needed to do more. The goal is for the client to say ÐNo youÓve

done enough.Ñ

81 . The second entry is with regard to PetitionerÓs

referrals. Ms. Evans notes Petitioner is the branch referral

leader.

82 . The last entry is with regard to service excellence and

notes that PetitionerÓs service excellence scores are

inconsis tent.

8 3 . Overall, Ms. Evans noted on the form PetitionerÓs

success is in referrals, while her obstacle is the need to go

above good client service and Ðwow the client every time.Ñ

8 4 . Petitioner objected to introduction of the monthly

coaching planner and insisted it was fabricated. Petitioner

highlighted the fact that the planner was neither dated nor

signed as evidence of its lack of authenticity. Petitioner

presented the testimony of Ms. Nix, her branch manager at

Fruitland Park, who state d that the standard SunTrust practice is

for both the employee and the manager to sign the form, give a

copy to the employee, and put a copy in the employeeÓs file.

8 5 . The form itself has no signature lines or any marking

indicating where the manager or employee would sign the form.

8 6 . Ms. Nix has no personal knowledge of how this

particular form was completed by Ms. Evans or how Ms. Evans

manages this particular branch.

8 7 . The three entries on the form are consistent with

Ms. EvansÓ observations of Petitioner during the mystery shop and

as recorded on the coaching log. Ms. EvansÓ testimony at the

final hearing corroborated her notes on the coaching log. The

monthly coaching log is accepted as credible evidence of

PetitionerÓs strengths and weaknes ses on the teller line observed

by her manager.

8 8 . Ms. Evans completed an ÐInBalance Development PlanÑ for

Petitioner sometime in mid - February 2012. Ms. Evans rated

Petitioner a two out of five on the SunTrust competency ÐPersonal

LeadershipÑ and select ed this as the competency on which

Petitioner should focus.

8 9 . Among the behaviors which define ÐPersonal LeadershipÑ

are the following:

• Says what needs to be said in a tactful

manner, engages in straight talk.

• Provides direct, complete and actionable

positive and corrective feedback to

others.

90 . Ms. Evans listed as development steps for Petitioner to

Ð think before speaking,Ñ Ðaccept and respond to authority

figures , Ñ and Ðsay what needs to be said in a tactful manner.Ñ

She further directed Petiti oner to work on adaptability, which

includes Ðlooking at the positive side.Ñ The development plan

requires Petitioner to take specific training courses and Ðshare

takeaways by 02/20/12.Ñ

91 . Petitioner objected to the introduction of the

Ð InBalance Devel opment Plan Ñ and claimed that she had not

previously received the document or signed for it. However,

Ms. Evans testified, credibly, that Ð InBalance Development Plans Ñ

do not have to be signed by the employee.

92 . On March 15, 2012, Ms. Evans conducted P etitionerÓs

2011 - 2012 evaluation. Ms. Evans rated Petitioner four out of

five in the category of ÐDrive for Results.Ñ Ms. Evans rated

Petitioner two out of five in the category of ÐAdaptability.Ñ

9 3 . The behaviors listed within the competency of

ÐAdapt abilityÑ are the following:

• Resilient under pressure.

• Responds evenly to difficult people and

situations.

• Maintains composure and professionalism.

• Bounces back from difficulties quickly.

• Displays appropriate level of patience,

rarely shows frustration, t emper.

• Works well in ambiguous situations.

9 4 . In her written evaluation, Ms. Evans raised concerns

with PetitionerÓs relationships and teamwork. Ms. Evans

testified that her concerns were with PetitionerÓs tone with

other teammates, and explained that P etitioner needed to Ðthink

before [she] speak[s].Ñ

9 5 . On the sections of the evaluation which were completed

by Petitioner, she described herself as Ðvery competitiveÑ and

having Ða need to winÑ and Ðbe number 1.Ñ With respect to

teamwork, Petitioner w rote:

Team work is very important to me. Without

my team there is no me. IÓm always as a team

player helping educate other team members; so

they can clearly understand what is need

[sic] and wanted of them to help reach there

[sic] goals.

9 6 . Petiti oner received an overall Ðfully successfulÑ

rating of three on her 2011 - 2012 evaluation. Petitioner signed

her evaluation on March 15, 2012 , and did not object to its

authenticity or introduction.

9 7 . On May 1, 2012, Ms. Evans approached Petitioner to

in form her that Ms. Evans needed some time with her the following

day to present two Corrective Action Plans (CAPs) Î one for

attendance and one for her service excellence scores.

9 8 . Petitioner argued with Ms. Evans that her absences did

not constitute oc currences. Ms. Evans printed out a copy of the

SunTrust attendance policy and gave it to Petitioner on the spot.

9 9 . With regard to her service excellence score, Petitioner

retorted that her score w as only two points away from the minimum

of 80.

100 . P etitioner also made more than a passing reference to

the likelihood of her receiving the CSS position at the Fruitland

Park branch where she had interviewed earlier that day.

101 . Ms. Evans characterized PetitionerÓs responses as

hostile and somewhat insu bordinate. Despite PetitionerÓs

testimony to the contrary, Ms. EvansÓ testimony regarding

PetitionerÓs tone and demeanor at this meeting is accepted as

credible.

102 . Following her conversation with Petitioner, Ms. Evans

prepared an email to the area man ager, Michelle Stone, relating

some details of her conversation with Petitioner and requesting

Ms. StoneÓs presence the following day to present the two CAPs to

Petitioner.

10 3 . On May 2, 2013, Ms. Evans and Ms. Stone met with

Petitioner and delivered bot h CAPs. The CAP for violations of

the Attendance policy documents five occurrences during the most

recent rolling three months and 12 occurrences during the most

recent rolling 12 months. Altogether, the CAP documents seven

absences, two tardies, and fiv e early departures in the last 12

months. The CAP for service excellence scores documents

PetitionerÓs failure to maintain an average score of 80 or better

on the most recent rolling 10 surveys.

10 4 . Ms. Evans, Ms. Stone , and Petitioner all three signed

and dated the CAPs on May 2, 2012. Petitioner wrote in

parenthesis after her signature on both CAPs ÐNot in agreement.Ñ

10 5 . In keeping with the SunTrust Disciplinary Policy,

Petitioner was given until May 11, 2012 , to create an Action Plan

to identify s teps to correct the behaviors documented by her

supervisor.

10 6 . Petitioner prepared and submitted to Ms. Evans her

Action Plan on May 2, 2012, the same day as the meeting.

PetitionerÓs Action Plan begins as follows:

My action plan for this occurrenceÓ s [sic] is

to continue to keep my teammates in mind

according to any preventable occurrence that

I have not had .

10 7 . The first sentence is flippant, at best.

10 8 . The ÐAction PlanÑ contains no actions, just a series

of excuses for her attendance issues , including the necessity to

pick up her child when her military husband is unable to, how

much she has paid in late pickup fees, that she has no family in

town to help, and her ignorance that excused absences are

occurrences.

10 9 . Both Ms. Evans and Peti tioner testified that they got

along well when Ms. Evans first became Golden Hills manager. It

is not clear whether a particular incident changed the

relationship, such as PetitionerÓs email to Ms. EvanÓs area

manager to complain that the branch was under staffed. What is

clear is that the workplace was highly stressful, Ms. Evans

could not rely upon Petitioner Ós regular attendance , which was

critical in a short - staff situation; Petitioner resented that

Ms. Evans did not promote her to Teller Lead when Ms. Rahman

abruptly left; and Petitioner was not tactful in dealing with her

teammates she viewed as being less - qualified. 3 / Even

Ms. Stalnaker, who testified on PetitionerÓs behalf, commented

that ÐBashawn was opinionated, but I mean, you just had to know

h ow to take her . . . . Ñ 4 /

CONCLUSIONS OF LAW

1 10 . Sections 120.569 and 120.57(1), Florida Statutes

(2013) , grant the Division of Administrative Hearings

jurisdiction over the subject matter of this proceeding and of

the parties.

Discrimination

111. Se ction 760.10 provides, in pertinent part:

(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.

1 12 . Petitioner maintains that SunTrust, particularly

Ms. Evans and Ms. Stone, discriminated against her o n account of

her race.

1 1 3 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as placed on

its federal prototype.Ñ Brand v. Florida Power Corp. , 633 So.

2d 504, 509 (Fla. 1st DCA 1994); see also Valenzuela v.

GlobeGround N . Am . , LLC , 18 So. 3d 17 (Fla. 3d DCA 2009); Fla.

State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla.

Dep't of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991).

1 1 4 . Petitioner has the burden of proving by a

preponderance of the evidence that SunTrust committed an unlawful

employment practice. See St. Louis v. Fla. Int'l Univ. , 60

So. 3d 4 55 (Fla. 3rd DCA 2011); Fla. Dep't of Transp. v. J.W.C.

Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

11 5 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v.

GlobeGround N . Am . , LLC , 18 So. 3d at 22.

11 6 . Di rect evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1 997). Courts have held that ÐÒonly the most

blatant remarks, whose intent could be nothing other than to

discriminate . . . Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla. , 196

F.3d 1354, 1358 - 59 (11th Cir. 1999 ) (citations omitted).

11 7 . The record of this proceeding contains no direct

evidence of any racial bias on the part of SunTrust at any level.

11 8 . In the absence of any direct or statistical evidence

of discriminatory intent, Petitioner must rely on cir cumstantial

evidence of such intent. In McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973), and as refined in Texas Dep artment of

C o m muni ty Aff airs v. Burdine , 450 U.S. 248 (1981) and St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993), the United St ates

Supreme Court established the procedure for determining whether

employment discrimination has occurred when employees rely upon

circumstantial evidence of discriminatory intent.

11 9 . Under McDonnell Douglas , Petitioner has the initial

burden of estab lishing a prima facie case of unlawful

discrimination. In the context of a promotional hiring decision,

Ðto establish a prima facie case of discriminatory failure to

promote, a plaintiff must prove: (1) that s he is a member of a

protected class; (2) that s he was qualified for and applied for

the promotion; (3) that s he was rejected; and (4) that other

equally or less qualified employees who were not members of the

protected class were promoted.Ñ Denney v. City of Albany , 247

F.3d 1172, 1183 (11th Cir. 2 001) (citing Combs v. Plantation

Patterns , 106 F.3d 1519, 1539 n.11 (11th Cir. 1997)).

1 20 . If Petitioner is able to prove her prima facie case by

a preponderance of the evidence, the burden shifts to SunTrust to

articulate a legitimate, non - discriminator y reason for its

employment decision. Texas DepÓt of Cmty. Aff. v. Burdine ,

450 U.S. at 255; DepÓt of Corr. v. Chandler , 582 So. 2d 1183

(Fla. 1st DCA 1991). An employer has the burden of production,

not persuasion, to demonstrate to the finder of fact t hat the

decision was non - discriminatory. DepÓt of Corr . v. Chandler ,

supra . This burden of production is Ð exceedingly light. Ñ

Holifield v. Reno , 115 F.3d 1555, 1564 (11th Cir. 1997); Turnes

v. Amsouth Bank , N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994).

1 21 . If the employer produces evidence that the decision

was non - discriminatory, then the complainant must establish that

the proffered reason was not the true reason but merely a pretext

for discrimination. St. Mary's Honor Center v. Hicks , 509 U.S.

at 516 - 518. In order to satisfy this final step of the process,

Petitioner must Ð show[] 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 wort hy of belief. Ñ DepÓt of Corr. v. Chandler , 582 So. 2d at

1186 (citing Tex. Dep't of Cmty . Aff. v. Burdine , 450 U.S. at

252 - 256). The demonstration of pretext Ð merges with the

plaintiff's ultimate burden of showing that the defendant

intentionally discrim inated against the plaintiff. Ñ Holifield v.

Reno , 115 F.3d at 1565. (citations omitted) .

1 22 . The law is not concerned with whether an employment

decision is fair or reasonable, but only with whether it was

motivated by unlawful discriminatory intent. In a proceeding

under the Civil Rights Act, Ð[w]e are not in the business of

adjudging whether employment decisions are prudent or fair.

Instead, our sole concern is whether unlawful discriminatory

animus motivates a challenged employment decision.Ñ Da mon v.

Fleming Supermarkets of Fla. , 196 F.3d at 1361. As set forth by

the Eleventh Circuit Court of Appeals, Ð[t]he 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.Ñ Nix v. WLCY Radio/Rahall

Commc'ns , 738 F.2d 1181, 1187 (11th Cir. 1984). Moreover,

Ð[t]he employer's stated legitimate reason . . . does not have

to be a reason that the judge or jurors would act on or

approve .Ñ Dep't of Corr . v. Chandler , 582 So. 2d at 1187.

Promotion (1) - Golden Hills CSS

Prima Facie Case

1 2 3 . Petitioner established a prima facie case of

discrimination with regard to her application for the CSS

position at Golden Hills: (1) Petitioner is African - American,

thus a member of a protected class; (2) Petitioner met the

minimum requirements and applied for the CSS position; (3)

Petitioner was neither interviewed nor selected for the position;

and (4) SunTrust hired a person outside of the protect ed class

for the CSS position.

1 2 4 . Having proven a prima facie case of discrimination,

the burden shift ed to SunTrust to proffer a legitimate non -

discriminatory reason for its action, which at this stage is a

burden of production, not a burden of persuas ion. Holland v.

Washington Homes , Inc. , 487 F.3d 208, 214 (4th Cir. 2007).

12 5 . SunTrust met its burden by producing credible, clear,

and convincing testimony and evidence that Petitioner was not

selected for the CSS position due to her attitude, tone wi th her

teammates, and service excellence scores. Petitioner applied for

the position on March 16, 2012, when the branch was under - staffed

and struggling with low service excellence scores. Ms. Evans had

been managing the branch roughly four months and wa s fighting an

uphill battle to fully staff the branch with the right employees

for each open position, while motivating her stressed team to

improve service excellence scores.

12 6 . Ms. Evans completed PetitionerÓs performance

evaluation just prior to Pet itionerÓs application for the CSS

position. The evaluation is fair and balanced, noting

PetitionerÓs strength in referrals, as well as her lack of tact

and air of superiority with respect to her fellow employees. The

record is clear that Petitioner was o penly critical of her

teammates. It is not a stretch to understand why a manager would

not promote an employee whose mantra is ÐWithout my team there is

no me.Ñ It is also not a stretch to understand why a manager

would not promote an employee who had go ne over her head and

complained to the area manager about the branch staffing.

12 7 . Although SunTrustÓs burden to refute Petitioner's

prima facie case was light, the evidence showing the reasons for

its personnel decision to be legitimate and non - discrimi natory

was overwhelming.

Pretext

12 8 . SunTrust having produc ed evidence of a legitimate

non - discriminatory reason for not promoting Petitioner to CSS ,

the burden shifted back to Petitioner to prove by a

preponderance of the evidence that SunTrustÓs stated reasons

were a pretext for discrimination. To do this, Petitioner would

have to Ðprove Ò both that the reason was false, and that

discrimination was the real reason Ó for the challenged conduct.Ñ

Jiminez v. Mary Washington Coll. , 57 F.3d 369, 378 (4th Cir .

1995) (citing St. Mary's Honor Center v. Hicks , 509 U.S. at 515)).

12 9 . As applied to a hiring decision,

[ t ] he case law establishes that a plaintiff

cannot prove pretext merely by asserting

that he was better qualified. Wilson v.

B/E Aerospace , Inc. , 3 76 F.3d 1079, 1090

(11th Cir. 2004); Dancy - Pratt v. Sch. Bd.

of Miami Dade Cnty. , No. 00 - 1382, 2001 U.S.

Dist. LEXIS 24521, 2001 WL

1922063, *7 (S.D. Fla. Dec. 13, 2001);

see also Cofield v. Goldkist, Inc. , 267 F.3d

1264, 1269 (11th Cir. 2001) (holding th at

qualifications must be so superior that a

reasonable fact - finder would conclude reason

given for hiring another was pretextual);

Deines v. Texas Dep't of Protective &

Regulatory Servs. , 164 F.3d 277, 280 - 81 (5th

Cir. 1999) (holding that "disparities in

qualifications must be of such weight and

significance that no reasonable person, in

the exercise of impartial judgment, could

have chosen the candidate selected over the

plaintiff for the job in question").

City of Miami v. Hervis , 65 So. 3d 1110, 1120 ( Fla. 3d DCA

2011).

1 30 . Petitioner posited that she was more qualified than

Ms. Runsewa, the applicant hired for the CSS position. However,

PetitionerÓs position was not supported by competent,

substantial evidence. Petitioner helped familiarize Ms. Run sewa

with some of the procedures of the teller line. Petitioner may

have considered this ÐtrainingÑ but management did not.

Further, it is insufficient to establish that Petitioner was

more qualified for the CSS position than Ms. Runsewa.

1 3 1 . Petition er did not meet her burden to prove by a

preponderance of the evidence that SunTrustÓs stated reasons for

not promoting Petitioner to CSS were not its true reasons, but

were a pretext for discrimination.

Promotion (2) - Golden Hills Teller Coordinator

1 3 2 . Petitioner did not establish a prima facie case of

discrimination for failure to be promoted to the position of

Teller Coordinator upon the resignation of Ms. Rahman. One of

the basic elements of a prima facie case is that the candidate

applied for the position. Petitioner admitted that she never

applied for the Golden Hills Teller Coordinator position.

Promotion (3) - Executive Park Teller Lead

13 3 . Petitioner did not establish a prima facie case of

discrimination for failure to hire her for the posi tion of

Executive Park branch Teller Lead. One of the basic elements to

establish a prima facie case is that the employer hired someone

outside the protected class. In the case at hand, SunTrust

eliminated the position of Teller Lead at Executive Park. No

person of any class was hired for the position.

Conclusion

13 4 . SunTrust put forth persuasive evidence that

Petitioner was denied promotion to Client Service Specialist

based upon her tone and attitude, as well as her service

excellence scores , not bas ed on her race .

13 5 . Section 760.10 is designed to eliminate workplace

discrimination, but it is Ðnot designed to strip employers of

discretion when making legitimate, necessary personnel

decisions. Ñ See Holland v. Washington Homes , Inc. , 487 F.3d at

220 . Because Petitioner failed to put forth any credible

evidence that SunTrust had some discriminatory reason for its

personnel decisions, h er petition must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, SunTrust,

did not commit any unlawful employment practice as to

Petitioner, Bashawn Brooks, and dismissing the Petition for

Relief filed in FCHR N o. 2012 - 01607.

DONE AND ENTERED this 4th day of March , 2014 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

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 H earings

this 4th day of March , 2014 .

ENDNOTES

1/ Except as otherwise noted herein, reference to the Florida

Statutes is to the 2011 version, which was in effect when the

alleged acts of discrimination occurred.

2 / T.199:3 - 5

3 / T.51:22 - 23

4 / PetitionerÓs superior attitude pervaded the final hearing.

She insisted upon standing to deliver her testimony and cross -

examination of witnesses in a small conference room in which all

others, including the undersigned, remained seated around the

conference table. Petitioner reminded witnesses, on mor e than

one occasion, that they were Ðunder oathÑ during cross -

examination.

COPIES FURNISHED :

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

Bashawn Lasalle Brooks

87 Pine Course

Ocala, Florida 34472

Caryn Shaw, Esquire

Fisher and Phillips LLP

200 South Orange Avenue , Suite 1100

Orlando, Florida 32801

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Talla hassee, 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

wi ll issue the Final Order in this case.