STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this cause on May 5, 6, and 7, 1980, in Vero Beach, Florida.

APPEARANCES

For Petitioners: Daniel M. Kilbride, Jr., Esquire

Post Office Box 2427

Vera Beach, Florida 32960

Julius L. Williams, Esquire Post Office Box 2969

918 Lucerne Terrace

Orlando, Florida 32802

For Intervenor: Marva A. Davis, Esquire

Assistant General Counsel

Florida Commission on Human Relations 2562 Executive Center Circle East Tallahassee, Florida 32301

For Respondent: Charles F. Henley, Jr., Esquire and

Michael G. Tanner, Esquire 1034 Riverside Avenue

Jacksonville, Florida 32204 ISSUES PRESENTED

Whether Respondent violated Section 23.167, Florida Statutes (1979), by engaging in three discriminatory employment practices against Petitioners on account of their sex: (1) Unequal pay and reclassification of females as General Painters; (2) Unequal lay- off policy and hours; and (3) Unequal wages; and if so, what affirmative relief should be granted by the Florida Commission on Human Relations.

CONCLUSIONS AND RECOMMENDATION

Respondent is guilty of violating Section 23.167, Florida Statutes (1979), by engaging in discriminatory employment practices (1) and (2) above; and not guilty of (3) Affirmative relief, in the nature of compensatory damages, should be granted Petitioners.

Background

On August 3, September 25, and October 10, 1978, Petitioners Jennie Cilyard ("Ms. CILYARD") , Anne Pyle ("Ms. Pyle") and Diane Williams ("NS. WILLIAMS"), respectively, filed separate complaints with Intervenor, Norman A. Jackson, Executive Director, Florida Commission on Human Relations " COMMISSION") These complaints accused Respondent Oceanspray Cranberries, Inc., ("OCEANSPRAY") of engaging in several unlawful employment practices which discriminated against them on the basis of sex.

In September, 1979, after investigation, the COMMISSION found "reasonable cause" to believe that the complained of unlawful employment practices had occurred. After the parties conciliation efforts were unsuccessful, the COMMISSION issued its Notice of Failure of Conciliation in November, 1979.

In December, 1979, the three female Petitioners filed separate petitions for relief with the COMMISSION, alleging sexual discrimination b OCEANSPRAY and relying upon the COMMISSION' s "reasonable cause" determination. These three petitions were consolidated for hearing, and the COMMISSION's motion to intervene as a party was granted.

Two weeks before final hearing, Petitioners filed a notion to certify this cause as a class action, consisting of all past,

present, and future female employees of OCEANSPRAY. Ruling was reserved pending final hearing, and the parties were required to limit evidence relating to the class action allegations to those matters encompassed by COMMISSION Rule 9D-9. 08(6)(a) through (d), Florida Administrative Code.

At final hearing, Petitioners testified in their own behalf, and called Lealan Herbert Childs, farmer OCEANSPRAY plant superintendent, and Marcy Calfee, COMMISSION investigator, as their witnesses. They also offered Petitioners' Exhibits 1/ 1 through 13, each of which was received into evidence. The COMMISSION offered Intervenor's Exhibits 1/ 1 through 3, each of which was also received into evidence.

At the conclusion of the Petitioners' case-in-chief, OCEANSPRAY moved to dismiss that part of the petitions incorporating charges contained in paragraphs D, E, and G of the COMMISSION's reasonable cause" determination, on the ground that no evidence had been offered to support such charges. The motion was granted, as to paragraphs D and E, and denied as to paragraph G.

Respondent OCEANSPRAY called as its witnesses George Russell Hill, OCEANSPRAY production superintendent, Elaine Rinker, former OCEANSPRAY scale and evaporator operator, and Katherine L. Hughes, OCEANSPRAY evaporator operator.

At their request, the parties were granted forty-five (45) days from filing of the transcript to submit past-hearing proposed findings of fact and conclusions of law. Petitioners and Respondent timely filed their post-hearing filings on August 18, 1980. The parties agreed that the time period for submittal of the Recommended Order would commence at that time.

FINDINGS OF FACT

Upon consideration of the evidence presented, including the demeanor and credibility of the witnesses, the following facts are determined:

[NATURE OF OCEANSPRAY'S CITRUS PROCESSING PLANT OPERATIONS]

1. OCEANSPRAY owns and operates a citrus concentrate processing plant in Vero Beach, Florida. The plant processes grapefruit received from local growers into grapefruit concentrate which is stored and later transported elsewhere for further processing, distribution, and sale to the public. During 1978, the plant also produced livestock feed as a by-product of the citrus concentrate process. (Testimony of Childs, Henly.)

2. The business operates on a seasonal basis. Ordinarily, the plant begins processing operations in October or November, when the first grapefruit begin to arrive. As the grapefruit season progresses and fruit becomes more plentiful, additional shifts are added and more employees hired. Finally, as the growing season ends and grapefruit becomes less available, the cycle reverses itself: the number of shifts are reduced, and employees are laid off. The fruit processing season normally ends in June or July. Since fruit processing machinery will not be operated again until the next October or November, machine operators are ordinarily laid-off. The only employees that ordinarily remain employed, on a year-round basis, are mechanics, security guards, janitors, And certain key personnel of the company. (Testimony of Childs, Henly, Calfee.)

   I.

   
   

   [UNEQUAL PAY AND RECLASSIFICATION OF FEMALES AS GENERAL PAINTERS]

   
   

3. Instead of laying-off all machine operators at the close of the fruit processing season in July, 1978, OCEANSPRAY retained several seasonal employees during the summer off-season. These employees, with their seasonal and summer job classifications, and salaries are indicated below: E

   
   

   Males:	Job Classification	Hourly Salary	Job Classification	Hourly Salary
   Willie Billie	Alford Production Leadman Norsworthy Assistant	4.35 3.85	Extractor Operator Assistant	4.35 3.05
   	Extractor Operator		Extractor Operator
   Floyd Brennan Ramp Driver Johnny Norsworthy Extractor		4.45 4.10	Ramp Driver Extractor	4.45 4.10
   Operator Don Thompson Limer		3.65	Operator Limer	3.65
   Richard Oliver Dryer Operator 4.10			Dryer Operator	4.10
   Ann Pyle Taste Evapo- 4.10 rotor Operator			General Painter	3.65	2/
   Jennie Gilyard Waste Heat 4.10			General Painter	3.65	2/

   EMPLOYEE SEASONAL SUMMER

   
   

   Women:

   
   

   Evaporator Operator

   4.10	General	Painter	3.65	2/
   4.10	General	Painter	3.65	2/
   3.25	General	Painter	3.65	2/
   4.10	General	Pointer	3.65	2/

   Elaine Rinker Waste Heat

   Evaporator Operator

   Katherine Hughes

   Waste Heat Evaporator Operator

   Veronica McCarty

   Outside Grader Ruby Simpson Waste Heat

   Evaporator Operator

   
   

   (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.)

   
   

4. At OCEANSPRAY, hourly employees are paid salaries in accordance with job classifications established by the company. During the summer of 1978, the six (6) seasonal male employees retained their seasonal job classifications and salaries; the females did not. The six (6) females were placed in a new classification established by the company--General Painter--and paid a salary of $3.65 an hour. 2 For five (5) of the six (6) females, this represented a cut in pay from their seasonal salaries. (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.)

   
   

5. Although the six (6) male employees retained their seasonal job classifications and salaries, their work duties during the summer of 1978 did not conform to their job classification. Alford, classified as Production Leadman, worked as a painter; B. Norsworthy, classified as Assistant Extractor Operator, worked as a painter; Brennan, classified as Ramp Driver, worked as a mechanic; J. Norsworthy, classified as an Extractor Operator, worked as a painter; Thompson, classified as a Limer, worked as a Spray Field Attendant; Oliver, classified as Dryer Operator, worked as a mechanic. In contrast, the six (6) female employees were reclassified as General Painters, and painted walls, buildings, and plant equipment. (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.)

   
   

6. The three (3) male employees who worked primarily as painters during the summer--Alford, D. Norsworthy, and J. Norsworthy (for only part of the summer) --painted loading bins and elevators outside the buildings using a scaffold 25-30 feet high. The scaffold, consisting of one-inch pipe, required assembly, had no hand-rails, and was not very steady. The six

   (6) females painted bins, machinery, and walls inside the plant and at ground level. Vern Dost, the Cold Room Operator, frequently performed similar inside painting after completing his primary work as Cold Room Operator. When he performed such painting, he was paid his regular Cold Room Operator salary--

   $4.00 an hour. Alford and the Norsworthys also performed inside painting, similar to that performed by the females, when rain interfered with their outside scaffold painting. (Testimony of Childs, Hill, Gilyard, Pyle.)

   
   

7. When several female painters, including Ms. Gilyard, complained that their salaries were less than those paid the male painters, the plant manager told them that if they wanted to paint on the scaffold, they would get the same rate as the men,

   i.e. their seasonal salaries. This offer was refused by Ms. Gilyard; it was not extended to Ms. Pyle. The only difference between the painting performed by the females, and the scaffold painters was the increased danger associated with painting at 25-

   30 foot elevations. However, no separate job classification was established for scaffold painting. (Testimony of Childs, Hill, Gilyard, Pyle.)

   
   

8. Alford and 13. Norsworthy, the primary scaffold painters, were initially retained for summer employment "to do whatever . . . we (management) wanted them to do" (Tr. 150) The job that was later assigned them, and which ultimately took most of their time, was the painting of the bin posts. (Testimony of Childs.)

   
   

9. When Ms. Gilyard and Ms. Pyle initially sought summer employment, OCEANSPRAY did not inform them that they could retain their seasonal salaries if they were willing to paint from scaffolds. (Testimony of Pyle, Gilyard.)

   
   

10. OCEANSPRAY's actions in cutting the salaries of five

    (5) of six (6) female summer workers, and continuing the male employees at their seasonal salaries prompted the company's accountant/bookkeeper to send to the plant manager a memorandum containing the following excerpt:

    
    

    [it] doesn't seem fair that women went to painter and Billy Norsworthy,

    Richard Oliver and Don Thompson stayed at their season rate. What do they get ad- justed to?" (Tr. 425.)

    
    

    (Testimony of Calfee.)

    
    

11. Between July 30, 1978, and September 3, 1978, Ms. Gilyard worked 247 hours for OCEANSPRAY as a General Painter at

    $3.65 an hour. After receiving a rate adjustment on September 10, 1978, she was paid $3.85 an hour from September 4, 1978, for

    287.5 hours, extending through October 21, 1978. If her seasonal salary of $4.10 had been paid during this period, she would have received an additional $183.03. In like fashion, Ms. Pyle

    worked 135.5 hours at $3.65 an hour as a General Painter at OCEANSPRAY from July 30, 1978, through September 3, 1978. From September 4 through October 21, 1978, she was paid $3.85 an hour for 335.5 hours. If she had been paid during this time at her seasonal salary of $4.10 an hour, she would have received an additional $144.86. (P.E. 4.)

    
    

    II.

    
    

    [UNEQUAL LAYOFF POLICY AND HOURS]

    
    

12. From May through July, 1978, as grapefruit became less available, OCEANSPRAY reduced its-three fruit processing shifts to one, and laid off certain seasonal employees. On some days, no fruit would arrive, and fruit processing employees would perform other work, such as maintenance and cleanup. On other days, grapefruit concentrate would be reprocessed for subsequent shipment. Such reprocessing consisted of dumping juice from barrels, then blending and rebarreling it. A forklift is used to pick up the barrels and place them on rollers, where they are conveyed into a tilt mechanism. The barrels are then strapped or chained and, by hydraulic mechanism, are tilted and dumped. One person would normally operate the forklift, while others would perform the other related tasks. This reprocessing of grapefruit concentrate is of medium physical difficulty, and not beyond the physical capabilities of female employees. (Testimony of Childs, Gilyard.)

    
    

13. During this three-month slump period, George Dest, the plant manager, decided which employees would be laid off and which would remain. His selections were ordinarily based on seniority. However, he departed from this policy by retaining "key people" to work during reprocessing days. "Key people" were those employees holding two principle jobs in fruit processing-- evaporator operators, extractor operators, lab technicians, and dryer operators for the feedmill. Such "key people" were retained on full employment during fruit reprocessing days. Although Ms. Pyle and Ms. Gilyard were Evaporator Operators and considered "key people", they were not retained for employment on reprocessing days. OCEANSPRAY asserts that the reason for their exclusion is that neither was qualified to operate a forklift.

It is true that no female employees during this period of 1978

were qualified to operate a forklift. (Testimony of Childs, Gilyard, Pyle, Hill, Rinker, Hughes, Williams.) Ms. Pyle and Ms. Gilyard were not called in for reprocessing work because of OCEANSPRAY's plant manager's decision to "keep the guys because .

. . they would be dumping barrels." (Tr. 137.) While the manager did not mention Ms. Pyle and Ms. Gilyard by name, he told his subordinate: "Let the girls be off and bring guys in." (Tr. 138.)(Testimony of Childs.)

14.. OCEANSPRAY's weekly pay records for the weeks of April

9 through July 16, 1978, indicate that the average weekly number of hours worked by male employees consistently exceeded the average weekly hours worked by females. (Testimony of Calfee;

P.E. 5, 12.)

1. Ms. WILLIAMS admits that she was selected not to work on certain days during the shipping period based on her seniority. (Testimony of Williams.]

   
   

2. After July 1, 1978, due to their exclusion from fruit reprocessing Ms. Pyle and Ms. Gilyard worked less weekly hours than the average number worked by male employees. If they had worked hours equivalent to the average number worked by male employees, Ms. Pyle would have received an additional $27.68, and Ms. Gilyard, an additional $22.55. (Testimony of Calfee;

   P.E. 4.)

   
   

   III. [UNEQUAL WAGES]

3. During 1978, out of a workforce of 150 employees (100 males, 50 females), OCEANSPRAY paid three male employees at a rate in excess of the rate corresponding with their official job classifications:

   
   

   Employee	Official Job Classification	Rate for Job Classification	Pay Rate Received
   Floyd Brennan	Ramp Driver	$3.75	$4.45
   Bill Ware	lead Mechanic	4.85	5.40
   Willie Alford	Extractor Operator	4.10	4.30

   
   

   No female employees at OCEANSPRAY were paid, in like fashion, amounts in excess of the rates warranted by their job classifications. (Testimony of Calfee, Hill; P.E. 2, 3, 4.)

   
   

4. However, in two of the three cases listed above, the employees received pay which was justified by new or additional assigned duties. Brennan discharged the duties of a Fruit Leadman, in addition to those of a Ramp Driver. Indeed, "Rec. leadman" is noted on Brennan's payroll record. In the case of Alford, he was promoted to Production Leadman in June of 1978. His new and different responsibilities were assumed due to the vacancy in the Production department caused by the promotion of Hill to Production Supervisor. (Testimony of Hill; P.E. 2, 4, 9.)

5. In the remaining case, Ware was promoted to Lead Mechanic in July of 1978--with a job classification pay rate of

   $4.85 an hour. However, he was paid the proposed higher future rate for that classification--$5.40 two months before its effective date. This admitted overpayment was caused by OCEANSPRAY's inadvertent error. (Testimony of Hill.)

   
   

6. Numerically equivalent treatment of OCEANSPRAY's male and female employees--with a work force of two males to one female--would allow two males and one female to receive pay in excess of their official job classifications. In this case, OCEANSPRAY's slight disparity in treatment of males and females is not statistically significant and is insufficient to establish a prima facie claim of discrimination, or disparate treatment. Numerically equivalent treatment, for all practical purposes, would be achieved if only one additional female, or one less male employee, had received pay in excess of their official job classifications; such equivalency would preclude a bona fide disparate treatment claim. (Testimony of Hill, Calfee.)

   IV.

   
   

   [AS TO MOTION FOR CLASS CERTIFICATION]

   
   

7. No evidence was presented which establishes that OCEANSPRAY's alleged unlawful employment practices continued beyond the summer of 1978. The Human Rights Act does not apply to employment practices which occurred prior to its effective date-- July 1, 1978. Thus, the time period within which the membership of potential classes must vest is limited. There are two potential classes of female employees which are indicated by the evidence: (1) seasonal female employees who were classified as General Painters for the summer of 1978, and whose pay was reduced, accordingly; (2) "key" seasonal female employees who were laid-off and not employed for fruit Concentrate reprocessing work during July, 1978. The Potential membership of these two classes is not so numerous that joinder of all members would have been impractical. (Testimony of Childs; P.E. 11, I.E. 1, 2, 3.)

   
   

   CONCLUSIONS OF LAW

   
   

8. Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1979).

   
   

9. Unlawful Employment Practice. Section 23.167, Florida Statutes (1979), of the "Human Rights Act of 1977" makes it an unlawful employment practice for an employer:

   "(a) To . . . discriminate against any indi- vidual with respect to compensation, terms, [or] conditions . . . of employment, because of such individual's . . . sex . .

   
   

   "(b) To limit, segregate, or classify em- ployees . . . in any which would deprive or tend to deprive any individual of employ- ment opportunities, or adversely affect any individual's status as an employee, because of such individual's . . . sex . .

   
   

10. Construction of Human Rights Act of 1977. The Human Rights Act of 1977, under which this case arises, is similar to and patterned after Title VII of the Federal Civil Rights Act of 1964 as amended. 42 U.S.C. 2000e-2(a). Thus, the Human Rights Act will take on the same construction given the Federal Act by the Federal courts, unless such construction conflicts with the policy of the Florida Legislature. See Pasco County School Board

    v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977).

    
    

11. Title VII of the Federal Act prohibits employer discrimination against an employee based upon, among other things, such individual's sex. One method of establishing a violation is to show, by comparable evidence, that an employer treated one individual less favorably than another on account of sex; proof of discriminatory motivation is critical in such disparate treatment cases. See Furnoo Constr. Corp. v. Waters,

    438 U.S. 567 (1978) International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-3.36 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

    
    

12. The standards and allocation of burden of proof governing the disposition of disparate treatment cases were enunciated by the United States Supreme Court in McDonnell, supra.

    
    

13. Application of those standards to this case requires the Petitioners to establish a prima facie case of sexual discrimination by showing: (1) that they are females; (2) that they were qualified for the jobs, pay, or condition of employment; (3) that despite their qualifications, they were rejected; and (4) that males received the job, pay, or more favorable condition of employment. Id. at 802. An inference of discrimination having been raised, International Brotherhood of Teamsters, supra, at 358, the burden then shifts to OCEANSPRAY to articulate a legitimate nondiscriminatory reason for its employment decision. McDonnell, supra, at 1824. Once such a

    non-discriminatory reason has been articulated, the Petitioners

    must show that the proffered reason is merely a pretext or cover- up for discrimination. McDonnell, supra, at 1826; Furnco, supra, at 578.

    
    

14. OCEANSPRAY is an employer within the meaning of and subject to the Human Rights Act; it is accused of three separate employment practices motivated by sexual discrimination. Each will be separately addressed below.

    
    

15. Unequal Pay and Reclassification of Females as General Painters. The Petitioners have sustained the burden of proof announced in McDonnell, supra, and established that OCEANSPRAY engaged in an unlawful employment practice, as alleged, in violation of Section 23.167(b), Florida Statutes (1979). The evidence shows that Petitioners are females and were the only qualified seasonal employees who were reclassified for summer employment and whose pay was cut. Male seasonal employees, who were carried over into summer employment, performed various jobs unrelated to their seasonal job classifications; however, they continued to be paid in accordance with those seasonal job classifications, and received no cut in pay. It was OCEANSPRAY's prerogative to pay its summer employees in accordance with their seasonal job classifications, and not the actual work performed; but once such a practice is established, it must be uniformly applied to its employees, without regard to sex. OCEANSPRAY's justification for its disparate treatment of Petitioners and male employees--that male off scaffold painters were paid more because of hazardous duty--is pretextual and inadequate. The pay of the male off-scaffold painters varied according to their seasonal job classifications, and did not relate to the nature of the work or the danger associated with it. The evidence supports a conclusion that OCEANSPRAY's action in reclassifying only females, including Petitioners, for summer employment masked and concealed a discriminatory purpose--to pay female summer employees less than similarly situated males. The effect was to deprive Petitioners of employment opportunities which were accorded male seasonal employees. As compensatory damages, OCEANSPRAY should pay Ms. Gilyard and Ms. Pyle One Hundred

    Eighty-three Dollars and three cents ($183.03) and One Hundred

    Forty-four Dollars and eighty-six cents ($144.86), respectively. No evidence was offered to support an award of reasonable attorneys' fees.

    
    

16. OCEANSPIY's Layoff Policv: Unequal Hours. Here, Petitioners likewise sustained their burden of proof and established that OCEANSPRAY engaged in an unlawful employment practice in violation of Section 23. 167(a) , Florida Statutes (1979) . Unlike other "key" seasonal employees, who were male, Ms. Pyle and Ms. Gilyard were laid off and not employed for fruit concentrate reprocessing work during the close of the 1978

    season. OCEANSPEAY's justification--that such work entailed operation of a forklift, which neither Petitioner was trained to operate--is pretextual and masks a discriminatory purpose: to grant males more favorable work conditions, i.e., hours and pay than Petitioners. The fact that one forklift operator may have been necessary does not support OCEANSPRAY's categorical rejection of otherwise qualified female "key" employees from other fruit reprocessing duties. By so rejecting Ms. Pyle and Ms. Gilyard, OCEANSPRAY discriminated with respect to compensation, terms, and conditions of employment on the basis of sex. As compensatory damages, OCEANSPRAY should pay to Ms.

    Gilyard and Ms. Pyle Twenty Seven Dollars and sixty-eight cents ($27.68), and Twenty-two Dollars and fifty-five cents ($22.55), respectively. Petitioners are limited to damages suffered after July 1, 1978, since the Human Rights Act became effective on that date, and cannot be retroactively applied.

    
    

17. Unequal Wages. Petitioners failed to establish that OCEANSPRAY's action in paying three male employees in excess of their job classifications, without according like treatment to Petitioners, was motivated by a discriminatory purpose and violated Section 23.167(a), Florida Statutes (1979). Even assuming a prima facie case was presented, OCEANSPRAY adequately articulated a non-discriminatory purpose for its actions and Petitioners failed to show that such stated purpose was prtextua1; the slight statistical disparity relied upon by Petitioners is simply insufficient to establish pretext. It is concluded, therefore, that OCEANSPRAY is not guilty of this Charge.

    
    

18. Petitioners' Motion for a Class Certification should be and is hereby denied. The membership of the two potential classes indicated by Petitioners' evidence is not so numerous as to render impractical the joinder of all members. An essential prerequisite to class certification has therefore not been satisfied. Section 9D-9.08 (6) , Florida Administrative Code.

    
    

19. Both petitioners and Respondent have submitted proposed findings of fact in this proceeding. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations find that OCEANSPRAY engaged in unlawful employment practices and grant Petitioners affirmative relief, as described above.

DONE AND ORDERED this 7th day of October, 1980, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ Petitioner's and Intervenor's Exhibits will be abbreviated as "P.E. " and "I.E. ," respectively.

2/ Adjusted to 3.95 on September 10, 1978

COPIES FURNISHED:

Daniel N. Kilbride, Jr., Esquire Post Office Box 242

Vero Beach, Florida 329

Julius L. Williams, Esquire Post Office Box 2969

918 Lucerne Terrace

Orlando, Florida 32802

Marva A. Davis, Esquire Assistant General Counsel Florida Commission on

Human Relations

2562 Executive Center Circle East Tallahassee, Florida 32301

Charles F. Henley, Jr., Esquire and

Michael G. Tanner, Esquire 1034 Riverside Avenue

Jacksonville, Florida 32204

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

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

JENNIE GILYARD, ANNE PYLE, and DIANE WILLIAMS,

Petitioner,

Respondent. 80-150

and 80-151

Order NO. 810001

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

Intervenor.

/

The following Commissioners participated in the disposition of this matter:

Commissioner Reese Marshall, Chairperson Commissioner Gabriel Cazares Commissioner Marjorie Hart

Commissioner Betty S. Holzendorf Commissioner Robert Joyce Commissioner Thomas H. Poole, Sr. Commissioner William Wynn Commissioner Melvin L. Levitt

APPEARANCES: DANIEL M. KILBRIDE JR., ESQUIRE

Post Office Box 2427, Vero Beach, Florida 32960 and

JULIUS L. WILLIAMS, ESQUIRE

Post Office Box 2969, Orlando, Florida 32802,

for Petitioners.

MARVA A. DAVIS, ESQUIRE

Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301,

for Intervenor.

CHARLES F. HENLEY, JR., ESQUIRE

1034 Riverside Avenue

Jacksonville, Florida 32204, for Respondent.

FINAL ORDER I.

Preliminary Matters

On August 3, September 25, and October 10, 1978, Petitioners Jennie Gilyard, Anne Pyle and Diane Williams, respectively, filed separate complaints with this Commission, pursuant to the Human Rights Act of 1977, Part IX, Chapter 23, Florida Statutes (1979). The complainants alleged that the Respondent, Oceanspray Cranberries, Inc. had unlawfully discriminated against the Petitioners on the basis of their sex (female). The alleged discriminatory acts occurred during the 180 days preceding the filing of the complaints.

Pursuant to the requirements of Part IX, Chapter 23, Florida Statutes (them Part II, Chapter 13) and Rule 9D-9.03, Florida Administrative Code, an investigation of the allegations of discrimination was conducted by the Commission's Office of Field Services. The Office of Field Services prepared an investigatory report containing its findings and recommendations. The report was submitted to the Executive Director, and pursuant to Rule 9D- 9.04, Florida Administrative Code, on August 31, 1979, the Executive Director issued a Determination: Cause. This Determination concluded that the investigation revealed reasonable cause to believe that unlawful employment practices had occurred in violation of the Human Rights Act of 1977.

Subsequent efforts to conciliate the disputes were unsuccessful and in December 1979, the Petitioners filed separate petitions for relief, as provided in Rule 9D-9.05(3), Florida Administrative Code. Thereafter, pursuant to Commission Rules, the petitions were referred to the Division of Administrative Hearings for assignment of a Hearing Officer.

After due notice, a hearing was held on the consolidated petitions at Vero Beach, Florida on May 5, 6, and 7, 1980, before

R. L. Caleen, Jr., Hearing Officer, pursuant to the provisions of

Chapter 120, Florida Statutes, and Chapter 9D-8, Florida Administrative Code.

II.

The Hearing Officer entered his Recommended Order on October 7, 1980. (A copy of the Recommended Order is fully set forth as an appendix to this Order). Subsequent to the issuance of the Recommended Order the parties filed their exceptions to the Hearing Officer's Recommended Order. On December 12, 1980, at Jacksonville, Florida, the oral argument was held to consider the Recommended Order and the exceptions thereto.

Having considered the Recommended Order, the exceptions, briefs and oral arguments of the parties, and having been 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 hereby adopted in its entirety as the final action of this Commission, with the exception that the Commission finds that it is empowered by Section 23.167(13), Florida Statutes (1979), to award reasonable attorney's fees in cases such as this, where unlawful employment practices have occurred and appropriate affirmative relief is awarded.

However at the December 12, 1980, oral argument in this cause, the Commissioners had not been furnished copies of affidavits and legal memoranda in support of Petitioners request for an award of reasonable attorney's fees. Therefore, action upon said request was deferred pending receipt by the Commission of Petitioners' affidavits and memoranda and Respondent's response thereto. Upon receipt of the required pleadings, the issue of an award of reasonable attorney's fees will be acted upon by the Commission pursuant to due and proper notice to the parties.

Compensatory damages awarded to the Petitioners by this Order shall be paid by Respondant not later than 30 days from the date that this Order is filed with the Clerk of the Commission.

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

By: REESE MARSHALL, Commission Chairperson Commissioner Gabriel Cazares Commissioner Marjorie Hart Commissioner Betty S. Holzendorf Commissioner Robert Joyce

Commissioner Thomas H. Poole, Sr. Commissioner William Wynn Commissioner Melvin L. Levitt

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

By: Acting Clerk of the Commission

Florida Commission on Human Relations

Copies Furnished:

Daniel M. Kilbride, Esquire, Attorney for Petitioner (C.M. 483521)

Jullius L. Williams, Esquire, Attorney for Petitioner (C.M. 483522)

Charles F. Henley, Esquire, Attorney for Respondent (C.M. 483323) Marva A. Davis, Esquire, Attorney for Intervenor (C.M. 483524) All Commissioners

Docket for Case No: 80-000149

Orders for Case No: 80-000149