FAYE LLOYD, Complainant

GARETH STEVENS INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed June 18, 2004
lloydfa . rsd : 125 : 9   

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The complainant, Faye Lloyd, was employed by the respondent as a telemarketer from December 3, 1997, until November 19, 2001, when the respondent terminated her employment. The ALJ concluded that Lloyd failed to prove that there was probable cause to believe that the respondent violated the WFEA by discriminating against her because of her age in her terms and conditions of employment, compensation or by terminating her employment, and therefore dismissed her complaint. The commission agrees.

On appeal Lloyd complains that prior to the hearing the respondent's counsel filed a document with the ALJ that involved litigation between the respondent and another employee and the decision made by the ALJ in that case. Lloyd acknowledges that the ALJ stated that there was "no purpose in doing anything with the document," but asserts that the ALJ could very well have been influenced, to her detriment, by the document. Further, Lloyd asserts that she did not receive a copy of the document from the respondent's counsel, and therefore had no opportunity to rebut its contents.

Lloyd's assertions fail. As acknowledged by Lloyd herself, the ALJ indicated that the document involving litigation between the respondent and another employee was not relevant for purposes of her case. Lloyd has not identified any reason for the commission to believe that the ALJ considered this document despite indicating its lack of relevance to Lloyd's case. Lloyd has not shown that there was any reason for her to have an opportunity to rebut the contents of the respondent's document.

Lloyd did not file her witness and exhibit list with the respondent until late afternoon on the Friday before the Monday morning hearing. The respondent's counsel moved to exclude Lloyd's witnesses from testifying, stating that she was unable to go through their personnel files and that it prejudiced the respondent's opportunity to prepare for those individuals. The ALJ granted the respondent's motion to exclude the complainant's witnesses. Lloyd asserts that the respondent's counsel misled the ALJ into excluding all of her witnesses. Lloyd asserts that the respondent's counsel was thoroughly familiar with the personnel files of two of her witnesses, as she had cross-examined both of them and deposed one of them in the prior litigation between the respondent and another employee. However, even assuming that the respondent's counsel had had some familiarity with the personnel files of two of Lloyd's potential witnesses by virtue of an earlier case, counsel was still entitled to an opportunity to prepare for the testimony of those individuals as it might relate to Lloyd's case. The respondent had no opportunity to do so. The respondent's counsel stated that Lloyd's witness list was faxed to her at 4 p.m. on Friday and that the respondent closed its offices at 5 p.m. on Friday. Moreover, Lloyd has not explained what the nature of the testimony of these witnesses would have been, or how it would have assisted her case.

Next, Lloyd states that at the hearing she described an incident in which she accompanied a co-worker who anticipated a disciplinary inquiry into department manager, Ebbie Cole Monroe's office, and that Monroe "treated her with contempt" and demanded that she leave the office. Lloyd states that Monroe stated to the co-worker, "You can't have her [Lloyd] in here. She's got to leave. This is my office. Get her out of here." Lloyd complains that the ALJ cut her off saying "Forget it" when she tried to explain that the Weingarten Rule had been extended to nonunion work settings, and apparently, that the ALJ failed to recognize that the Weingarten Rule has been extended to nonunion work settings. The Weingarten Rule, as asserted by Lloyd, does relate to the right of employees in unionized and nonunionized workplaces to request the presence of a co-worker in an investigatory interview which the employee reasonably believes could result in disciplinary action. Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095, cert. denied, 536 U.S. 904 (2002). However, Lloyd's reference to the Weingarten Rule and relation of the incident in which Monroe demanded that she leave the office failed to provide any evidence of discriminatory treatment because of her age.

Lloyd argues, however, that the respondent's treatment of a younger employee, Otis Walker, compared to the treatment that she received provided evidence of age discrimination. Specifically, Lloyd argues that Walker was always given time and attention by Monroe, while Monroe would turn away from her with the words, "I don't want to hear it." However, Lloyd offered only her conclusory opinion about Monroe's actions. Lloyd presented no concrete basis for reason to believe that this related to her age.

Lloyd further argues that Walker was given permission to sell books in two of the company's divisions, including a division which included higher priced books where an employee would receive larger commission, while that same division was removed from her purview, limiting her sales to only the lower priced books. Additionally, she argues that Walker was given productive active accounts that he did not recruit himself, whereas she had productive active accounts she had recruited removed. However, Lloyd admitted that Walker worked in a different division than she. Further, Lloyd admitted that she never complained that Monroe had taken accounts away from her. Moreover, Lloyd admitted that she had no concrete evidence of any employee under age 40 who received more favorable treatment than she with regard to their production goals.

Lloyd also argues that she had 400 useless "old bone" accounts dumped into her database, which took a great deal of time and attention to clean out. However, Lloyd admitted that she did not know that she was the only person to receive these "old bone" accounts and that employees under age 40 could have gotten these accounts. Lloyd also asserts that Walker was a loud and disruptive influence in the call center. However, Lloyd admits that she never complained to management about this.

Finally, Lloyd argues that all of the above was used to distract her so that Monroe could terminate her employment for not meeting her production goals. However, Lloyd had had problems with production prior to the time Monroe commenced employment with the respondent. In Lloyd's July 1998 performance evaluation she was rated as "Needs Improve." in quantity of work and knowledge of work. In Lloyd's July 1999 performance evaluation, while not rated as "Needs Improve." in any category, it was noted that her phone time needed improvement in terms of volume. Finally, also prior to Monroe's employment, by letter dated July 31, 2000, the respondent had requested that she commit to a work schedule so that her sales would increase.

cc: Attorney Brenda S. Kasper

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uploaded 2004/06/21