STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONA SANDERS, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2265

) (FCHR NO. 26-79) G & B PRODUCTS/BATES FILE COMPANY, )

)

Respondent, )

)

vs. )

)

NORMAN A. JACKSON, Executive ) Director, Florida Commission on ) Human Relations, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer James E. Bradwell, held a public hearing in this case on May 9, 1980, in Punta Gorda, Florida. Following the close of the hearing, the parties were afforded leave to submit proposed findings to the undersigned. The parties submitted Proposed Findings of Fact and Memoranda, the last of which were received on July 3, 1980, and were considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Morris W. Milton, Esquire

Post Office Box 13517

St. Petersburg, Florida 33733

For Respondent: Robert Jackson McGill, Esquire

245 North Tamiami Trail, Suite A Venice, Florida 33595

For Intervenor: Aurelio Durana, Esquire

Florida Commission on Human Relations 2562 Executive Center Circe East Montgomery Building, Suite 100 Tallahassee, Florida 32301

ISSUE

The issue posed for decision herein is whether or not the Respondent, G & B Products/Bates File Company, unlawfully discriminated against Petitioner, Leona Sanders, a black female, in violation of Title VII of the Civil Rights Act of

1964, as amended, by unlawfully failing to consider her for employment based on her race.

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record complied herein, I make the following:

FINDINGS OF FACT

1. The parties stipulated that the Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Petitioner timely filed her complaint and Petition for Relief with the Florida Commission on Human Relations. Chapter 9D-9.08, Florida Administrative Code, and Section 120.57(1), Florida Statutes.

   
   

2. The Petitioner, Leona Sanders, is a black female who filed an application for employment with the Respondent, G & B Products/Bates File Company, for a factory worker's job on July 13, 1978. 1/ The Respondent, having employed fifteen (15) employees for each working day in each of twenty

   (20) or more calendar weeks during times material herein, is an employer within the meaning of the Human Rights Act. Petitioner satisfied Respondent's listed requirements for the position of factory worker and sought factory employment based on the advice of her doctor. Petitioner was unable to obtain a personal interview from Respondent when her application was originally filed inasmuch as Respondent's Personnel Director and Executive Secretary, Dorothy Russell (Director), was then on vacation. Petitioner was informed by a Personnel employee that she would be scheduled for an interview when the Director returned from vacation on July 17. Petitioner, after having waited until Wednesday, July 19, without receiving a call from Respondent, called the Director, since in her opinion the Director would not be granting her request for an interview without some prodding on her (Petitioner's) part.

   
   

3. Petitioner was unable to schedule an interview with the Director on the following day, Thursday, July 20, at which time she was told by the Director that a full complement of employees had been hired. The Director assured Petitioner that she would be called during the following week should any vacancies occur. Petitioner was assured that in any event she would be notified if she would be hired by July 25.

   
   

4. During the interview, Petitioner expressed a desire in being considered for work on the first and second shift inasmuch as she had four children who ranged in ages from ten to sixteen. However, she advised the Director that she would accept a position on any shift. From the date of the interview, July 20, through August 7, Petitioner was not called or otherwise notified of any vacancies for factory workers by Respondent. While reading the employment section of the classified ads in the local newspaper on August 7, Petitioner noted an advertisement by Respondent's Personnel Office for factory workers. Upon reading the ad for the factory workers, Petitioner immediately visited Respondent's factory and reported to the Personnel Office in hopes of being employed. Petitioner was again told by Respondent's Personnel Director that a full complement of workers had been hired but that she would be notified should any vacancies occur. Respondent hired sixteen non-black females as factory workers during the period July 15 through August 23. All of the sixteen newly hired employees made application for employment after Petitioner, i.e., July 15.

   
   

5. Respondent, in completing the final phase of its heavy seasonal hirings, hired its first black factory worker on approximately August 28, 1978.

   Petitioner has suffered from hypertension in the past. As stated, she was encouraged to seek factory work by her physician. Petitioner has an automobile to commute from her home to Respondent's factory if offered a position.

   Petitioner passed a test designed to measure dexterity and aptitude. Results of the tests were provided to the Personnel Director. Petitioner has sought, and continues to seek, employment from neighboring employers. The list of employers she has applied to for employment includes St. Joseph Medical Center, The News Press, R. L. Polk & Company, and all local nursing homes. Petitioner's interim earnings during times material amount to $968.16.

   
   

   RESPONDENT'S DEFENSE

   
   

6. Respondent's Personnel Director testified that the number of applicants greatly outnumbered the available factory worker positions. Director Russell considered Petitioner better suited for employment at a hospital, nursing home or for clerical work and suggested that she seek employment in those areas. According to Director Russell, Petitioner displayed a poor attitude during the interview since she attempted to dictate the hours that she was willing to work and she concluded that Petitioner would not work out satisfactorily in the factory based on her expressions as to the hours and positions for which she wanted to be considered for employment.

   
   

   FINDINGS AND CONCLUSIONS

   
   

7. The Florida Commission on Human Relations, a Section 706 deferral agency for the United States Equal Employment Opportunity Commission, administers the Human Rights Act of 1977, as amended. The intent of the Human Rights Act of 1977 (Act) is to eradicate employment discrimination based on certain protective classifications, including race. Chapter 23.167(1)(a), Florida Statutes (1979). Respondent is an employer subject to the guides of the Act.

   
   

8. Respondent, as an employer, has an established affirmative action policy and employee selection plan which guides it in its search of employees on an equal opportunity basis. Respondent also has a policy of attempting to hire those employees with children to work on the first shift. (Testimony of Director Russell.)

   
   

9. During the months of July and August, Respondent repeatedly placed ads for employees in the local newspaper. Petitioner, during this period, repeatedly sought employment at Respondent's factory, as well as with other employers. As reflected by all the available criteria required by Respondent for its selection of employees.

   
   

10. Despite Petitioner's continuing efforts to be selected for employment with Respondent, she was repeatedly told that a full complement of employees had been selected. On the other hand, Respondent continued to advertise for factory employees. Given the above factors which reveal that Petitioner satisfied the eligibility criteria for employment selection as required by Respondent; Petitioner's continued efforts to be selected for employment with Respondent; Respondent's continued search for employees by the placing of ads in the local newspaper and the rejection to Petitioner based on the claim that the full employee complement had been selected, leads to the inescapable conclusion that the Petitioner was unlawfully discriminated against by Respondent in violation of Section 23.167(1)(a) and (b), Florida Statutes (1979). I shall so recommend. 2/

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes; Chapters 23.161 through 23.167, Florida Statutes (1979), and Rule Chapters 9D and 28-5, Florida Administrative Code.

    
    

12. The parties were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

13. The authority of the Intervenor, Florida Commission on Human Relations, is derived from Chapter 23, Florida Statutes, and Rule Chapters 9D-1 through 9D-9, Florida Administrative Code.

    
    

14. Respondent, Bates File Company, is a successor employer and is responsible for liabilities incurred by Respondent G & B Products.

    
    

15. Petitioner is a person within the meaning of Section 23.162(5), Florida Statutes (1979).

    
    

16. Petitioner is a black person.

    
    

17. Respondent is an employer within the meaning of Section 23.162(6), Florida Statutes (1979).

    
    

18. The Complaint and Petition for Relief herein were timely filed. Chapter 23.167(1), Florida Statutes (179), and Rules 9D-9.01, 9D-9.08 and 9D- 9.08(4), Florida Administrative Code.

    
    

19. During times material herein, Dorothy Russell, Respondent's Personnel Director and Executive Secretary, has been an agent, acting within the scope of her duties.

    
    

20. Respondent's refusal to employ Petitioner, while continuously hiring equally or less qualified non-black females over Petitioner, amounted to an unlawful employment practice in violation of Section 23.167(1)(a) and (b), Florida Statutes (1979). 3/

    
    

21. Petitioner suffered a loss of wages by Respondent's unlawful refusal to employ her while it continued to hire and advertised to hire non-black females.

    
    

22. Respondent has not articulated a legitimate, nondiscriminatory reason for its failure to employ Petitioner.

    
    

23. Respondent's articulated affirmative defense is considered merely pretext when consideration is given to the other factors adduced during the hearing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law and in order to effectuate the purposes of the Florida Human Rights Act of 1977, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter an order requiring Respondent, G & B Products/Bates File Company, to:

1. Cease and desist from discriminatorily denying or limiting Petitioner's employment opportunities.

   
   

2. Take the following affirmative action which will effectuate the policies of the Florida Human Rights Act of 1977, as amended:

   
   

   1. Make Petitioner whole by:

      
      

      1. Reimbursing Petitioner for the difference in wages between what Petitioner would have earned as a factory worker and what she earned in other employment from July 13, 1978, plus interest until Petitioner is offered employment by Respondent as a factory worker. Back pay is to be computed in accordance with Schedule "A" attached here.

         
         

      2. Offer to Petitioner the next available factory worker position on the first shift.

      
      

   2. Post, for a period of sixty (60) days, in Respondent's facilities in places where notices to employees are usually posted, copies furnished by the Commission to the effect that Respondent will not discriminate because of race in affording equal employment opportunities and terms and conditions of employment to all its applicants and employees.

      
      

3. Report to the Commission, within thirty (30) days of the Commission's order, steps taken by it respecting the fulfillment of the above conditions.

RECOMMENDED this 22nd day of August 1980, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1980.

ENDNOTES

1/ Unless otherwise indicated, all date are in 1978.

2/ The parties stipulated that the amount of pay Petitioner would have earned had she been employed by Respondent from the date of application from July 13, 1978, to date, less interest is as set forth in accordance with Schedule "A" which is attached hereto and is made a part hereof.

3/ Respondent's defenses as set forth herein were considered and rejected for reasons set forth herein above in the Findings and Conclusions sections of this Recommended Order.

COPIES FURNISHED:

Morris W. Milton, Esquire Post Office Box 13517 1327 Ninth Street South

St. Petersburg, Florida 33733

Robert Jackson McGill, Esquire Suite A, 245 North Tamiami Trail Venice, Florida 33595

Aurelio Durana, Esquire Assistant General Counsel

Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301

SCHEDULE "A"

The parties stipulated that if Petitioner had been offered employment by Respondent on July 13, 1978, her rate of pay less appropriate deductions would have been as follows:

1. 40 hours per week at $2.65 from July 13, 1978, until December 31, 1978.

2. 40 hours per week at $3.00 per hour for the entire calendar year of 1979.

3. 40 hours per week at $3.20 per hour for all calendar weeks in 1980 until Petitioner is offered first shift employment by Respondent.

4. From the gross back pay figures resulting from the addition of items 1,

   2 and 3, subtract $968.16 earned by Petitioner.

5. From the amount of back pay computed in accordance with steps 1-3, subtract legal deductions for social security and federal income tax withholding.

6. Add interest of 6 percent per annum to the amount of net back pay (items 1-3 minus items 5-6).

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE FLORIDA COMMISSION ON HUMAN RELATIONS

LEONA SANDERS,

Petitioner,

v. DOAH CASE NO. 79-2265

FCHR CASE NO. 026-79 G & B PRODUCTS/BATES FILE FCHR ORDER NO. 810002 COMPANY,

Respondent,

NORMAN A. JACKSON, Executive Director, Florida Commission on Human Relations,

Intervenor.

/

FINAL ORDER

The following Commissioners participated in the disposition of this matter: Commissioner Reese Marshall, Commission Chair

Commissioner Gabriel Cazares Commissioner Marjorie Hart Commissioner Robert Joyce Commissioner Robert Billingslea Commissioner Thomas H. Poole, Sr. Commissioner Melvin L. Levitt Commissioner William Wynn

APPEARANCES: DOUGLAS MULLIGAN, ESQUIRE

and MORRIS W. MILTON, ESQUIRE

Post Office Box 13517

St. Petersburg, Florida 33733

ROBERT JACKSON MCGILL, ESQUIRE

245 North Tamiami Trail Suite A

Venice, Florida 33595

AURELIO DURANA, ESQUIRE

2562 Executive Center Circle, East Suite 100 - Montgomery Building Tallahassee, Florida 32301

I.

Preliminary Matters

On August 21, 1978, Petitioner, a black female, filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission (EEOC) alleging that G & B Products, Inc., unlawfully discriminated against her on the basis of her race (black) in violation of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. Section 2000e, et. seq.). Pursuant to Section 706(c) of the Civil Rights Act, the EEOC deferred the charge to the Commission, which accepted jurisdiction in accordance with the Human Rights Act of 1977, as amended (Part IX, Chapter 23, Florida Statutes). Petitioner alleged in her charge (complaint) that the discriminatory act occurred on or about August 7, 1978.

Pursuant to the requirements of Part IX, Chapter 23, F.S. (then Part II Chapter 13, F.S.) and Rule 9D-9.03, Florida Administrative Code, the allegations contained in the complaint were investigated by this Commission's Office of Field Services. As required by the Rules of the Commission, an investigatory report was prepared and submitted to the Executive Director. On September 10, 1979, the Executive Director issued a Determination: Cause, pursuant to Rule 9D-9.04 F.A.C., which concluded that the investigation revealed reasonable cause

to believe that an unlawful employment practice had occurred in violation of the Human Rights Act of 1977.

Subsequent to the issuance of the Determination, efforts were made to conciliate the dispute. Upon failure of the conciliation attempts, the Petitioner filed a petition for relief, as provided by Rule 9D-9.05(3), F.A.C. The petition was duly referred to the Division of Administrative Hearings for assignment of a Hearing Officer, pursuant to Rule 9D-9.06(2), F.A.C. and Chapter 120, F.S.

After due notice a hearing was held in this matter on May 9, 1980, at Punta Gorda, Florida, before James E. Bradwell, Hearing Officer.

II.

Findings and Conclusions

The Hearing Officer entered his Recommended Order in this cause on August 22, 1980. A copy of the Recommended Order is fully set forth as an appendix to this Order.

On August 27, 1980, Respondent filed its exceptions to the Recommended Order and a Request for Oral Argument. On September 11, 1980, Intervenor filed its Exceptions and Brief in support of its exceptions. Thereafter, on September 18, 1980, Intervenor filed a Response to Respondent's Exceptions.

The hearing to consider the Recommended Order and the exceptions and briefs of the parties was held on October,31, 1980, at Tallahassee, Florida.

Having considered the complete record of the proceedings, and having considered the exceptions, briefs and oral arguments of the parties, and having bean otherwise fully advised in the premises, the Commission finds that the Hearing Officer's Findings of Fact and Conclusions of Law are supported by competent substantial evidence of record.

ACCORDINGLY, the Hearing Officer's Recommended Order is adopted in its entirety, except as modified hereinbelow, as the final action of this

Commission. Those portions of the exceptions of the parties not incorporated in this Order are deemed unnecessary, irrelevant or unwarranted in law or fact, and are hereby rejected.

At the hearing, before the Hearing Officer, the Petitioner moved the admission of the Executive Director's Determination: Cause. (TR-49).

Intervenor joined in offering the Determination into evidence. The Hearing Officer ruled that the Determination would be received into evidence with its weight and relevancy to be determined. The document was not received as a public record exception to the hearsay rule, but the Hearing Officer noted that after receiving post-hearing briefs of the parties, that he would make a finding on this issue. (TR-53). No finding on this issue was made by the Hearing Officer in his Recommended Order. The Commission concludes that the Hearing Officer's failure to receive the Determination into evidence under the public records exception to the hearsay rule (Sec. 90.803(8), F.S.) was erroneous. In reaching this conclusion we adhere to the decision reached by the Commission in the seminal case of Hargis v. Leon County School Board, Order No. 800010, issued May 28, 1980 (Fla. Admin. Law Reports, pg. 957-A, July 28, 1980).

Having considered all of the foregoing, it is therefore, ORDERED:

1. Respondent shall forthwith cease and desist from discriminatorily denying or limiting Petitioner's employment opportunities.

   
   

2. Respondent shall take the following affirmative actions which will effectuate the policies of the Florida Human Rights Act of 1977, as amended:

   
   

   1. Make Petitioner whole, by:

      1. Reimbursing Petitioner for the differences in wages between what Petitioner would have earned as a factory worker and what she earned in other employment from July 13, 1978, plus interest until Petitioner is offered employment by Respondent as a factory worker. Back pay is to be computed in accordance with Schedule "A" attached to the Hearing Officer's Order.

      2. Offer to Petitioner the next available factory worker position on the first shift.

         
         

   2. Post, for a period of sixty (60) days, in Respondent's facilities where notices to employees are usually posted, copies of notices furnished by the Commission to the effect that Respondent will not discriminate because of race in affording equal employment opportunities and terms and conditions of employment to all its applicants and employees.

   
   

3. Report to the Commission, within thirty (30) days of this Order, steps taken by it respecting the fulfillment of the above conditions.

It is so Ordered this 13th day of January, 1981. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

REESE MARSHALL, Commission Chair Commissioner Robert Billingslea Commissioner Cynthia Moore Chestnut Commissioner Melvin Levitt Commissioner Elvira Dopico Commissioner Marjorie Hart Commissioner Robert Joyce

FILED this 19th day of January, 1981 at Tallahassee, Florida.

BY:

Acting Clerk of the Commission Florida Commission on Human Relations

Copies Furnished:

DOUGLAS MULLIGAN ESQUIRE and MORRIS W. MILTON, ESQUIRE

Attorneys for Petitioner (C.M.#83520)

ROBERT JACKSON MCGILL, ESQUIRE, Attorney for Respondent (C.M.83319)

AURELIO DURANA ESQUIRE, Attorney for Intervenor ALL COMMISSIONERS

Docket for Case No: 79-002265

Orders for Case No: 79-002265