vs. ) CASE NO. 82-2526
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 3 December 1982 and 16 February 1983, at Clearwater, Florida.
For Petitioner: Joseph T. Barron, Jr., Esquire
For Respondent: E. John Dinkel, III, Esquire
By letter submitted November 24, 1981, Robert Owens alleged that he was discriminated against by his employer, Upper Pinellas Association for Retarded Citizens (UPARC), Respondent, on grounds of marital status when fired from his job as Horticulture Instructor effective January 22, 1982. Following investigation by the Office of Community Relations, City of Clearwater, Florida, a determination was made that evidence exists to support the Charging Party's (Owens) burden of proving Respondent's alleged nondiscriminatory motive was pretextual. Respondent requested a formal administrative hearing to contest this determination, and this hearing followed.
The hearing commenced on 3 December 1982, recessed and was reconvened and concluded on 16 February 1983. At the hearing Petitioner called nine witnesses, Respondent called two witnesses, and 13 exhibits were offered into evidence.
Objections to Exhibits 5 and 6 on grounds of relevancy were sustained. All other exhibits were admitted into evidence. It is noted that at the hearing UPARC Employee Handbooks were admitted as Exhibits 6(a), 6(b), and 6(c) and UPARC's definition of nepotism was admitted as Exhibit 7. Subsequently, the evaluation of Owens as Vocational Trainer-Horticulture was also marked "Exhibit 6" and the objection to its admissibility was sustained. A list of UPARC employees receiving a copy of UPARC Employee Handbook, Exhibit 6(c), was marked "Exhibit 7," as was UPARC's definition of nepotism. The latter exhibit is now marked "Exhibit 7(a)."
At the commencement of the hearing the parties stipulated that UPARC is an employer as defined in Clearwater Ordinance 1843. There was no dispute regarding the operative facts here involved.
Robert Owens was employed by UPARC from December, 1979, until his release on 13 December 1981. He was placed on leave with pay and was terminated
22 January 1982.
Roberta Egan commenced working at UPARC in October, 1980. Both Owens and Egan worked as Horticulture Instructors. In November, 1981, the Horticulture Department at UPARC consisted of one Landscape Supervisor, one Retail Sales Supervisor, one Assistant Salesperson, and two Horticulture Instructors.
Owens and Egan began dating around April, 1981, and on or about 16 November 1981, Owens posted a notice on the bulletin board at UPARC inviting UPARC employees to his wedding on November 20, 1981, to Roberta Egan. William Dean, supervisor of both Owens and Egan, heard about the notice, verified its existence, and, on 17 November 1981, talked to Owens about his pending marriage and the nepotism rule at UPARC. Owens admitted that Dean told him the nepotism rule might apply to him if he married someone also working at UPARC; however, Owens testified that Dean indicated he was unaware of the application of the nepotism rule and the final decision would be made by the Executive Director, James Leach. Following his discussion with Owens, Dean went to the Personnel Director to apprise him of the situation. The Personnel Director, Michael Thompson, discussed the nepotism rule with Owens on Thursday before he was married on Friday, November 20, 1981. Owens testified he recalled the discussion with Thompson occurred after the wedding, but he does not remember the date. In response to Owens' query that was it true he might lose his job if married to a fellow employee, Thompson told him that was his understanding of the nepotism rule and, in his opinion, one of them (Owens or Egan) would have to leave if they were married.
During the week beginning November 16, 1981, James Leach, the Executive Director at UPARC, was out of town on business. When he returned on Monday, November 23, 1981, following the Friday wedding of Owens and Egan, he learned of the marriage almost as soon as he arrived in his office, and further learned that Owens did not believe the nepotism rule applied to him. Leach sent for the newly married couple and explained to them the rule, the reasons therefor, and told them that one of them would have to resign. Owens was quite incensed with the determination that one of them would have to resign, and Leach agreed to extend their employment for sixty days to allow them more time to decide which would leave and find a new job. In letter to the Owenses dated November 23, 1981 (Exhibit 11), Leach confirmed the directions given at the meeting and advised that one of them must be gone by January 22, 1982. After a week or two passed with no indication either of the Owenses would resign, Leach, on 11 December 1981, held a meeting with the Owenses to inquire if they had made a decision regarding who would resign and learned that neither would submit a resignation. He then placed Petitioner on administrative leave until January 22, 1982, at which time Owens was terminated.
Leach offered to help Owens find other work and, in fact, lined up a job as a Horticulture Instructor for Petitioner with Pinellas Association for Retarded Children (PARC). PARC is a nonprofit charitable organization similar to Respondent. Petitioner did not go to PARC to inquire about the job Leach had
told him was available, ostensibly because it was located on the other side of town from where Respondent lived, and he would have a longer commute to and from that job than from UPARC.
UPARC is a community-based, nonprofit organization set up to train mentally retarded children and adults. UPARC employs approximately 85 people and serves some 220 clients daily. About 60 percent of its funds are derived from government sources and the remainder from fund-raising activities. Its public image and the trust engendered thereby is vital to its success.
As Horticulture Instructors, the Owenses worked with the same clients and often assisted each other in preparing evaluations. Robert Owens delivered products outside UPARC two days per week, during which time his wife had charge of his clients. Although Owens testified that there were other qualified Horticulture Instructors in the department, the Owenses were the only ones so designated.
One policy at UPARC is that two people from the same department cannot take leave at the same time. Furthermore, as the only two Horticulture Instructors in the five- or seven-man department (Owen testified there were seven in that department), the absence of both at the same time would deprive the facility of the ability to provide training for some 22 clients.
The nepotism rule at UPARC prior to October, 1979, forbade related persons to work at UPARC. During the period October, 1979, to July, 1981, this policy was modified to permit the employment of relatives if approved by the Executive Director. During this period, on two occasions, a man and a woman employed at UPARC married each other and were allowed to remain at UPARC. Both of these couples presented difficulties. In one case disciplinary action taken against the wife led to a degradation of the husband's performance and both subsequently left UPARC. In the other case the wife's disagreements with her supervisor led to her resignation and to the husband orally tendering his resignation when his wife's demands were not met. After this wife resigned the husband withdrew his resignation and is still working at UPARC.
Leach described the work at UPARC, dealing with mentally retarded clients, to be very stressful. If both husband and wife suffer these stresses at work, there is less likelihood of relief at home from these stresses than there would be if the stressed partner comes home to a partner who is not subject to similar stresses. He attributes some of the problems encountered by the two married couples working at UPARC in early 1980 to these stresses.
Leach became Executive Director while the modified nepotism rule was in effect. After his experience with the two couples noted in paragraph 9 above, he concluded there should be no exception to the rule against married couples working at UPARC and instituted the move to change the nepotism rule back to what it was before October, 1979. This change became effective in July, 1981, and the rule in effect when Owens and Egan married states: "Immediate relatives of UPARC employees will not be eligible for employment."
On 17 July 1981 before the UPARC Employee Handbook containing changes from the previous Handbook was printed, all employees were called together in order to explain the changes in the new Employee Handbook, which included the change to the nepotism rule. Exhibit 8 contains the minutes of the staff meeting at which these changes were explained to all employees. Exhibit 9 contains the signatures of Bobbie Egan and Robert Owens indicating they were present at the July 17, 1981, staff meeting. When the Employee Handbook was
printed, copies were given to all employees. Petitioner never contended to be unaware of the nepotism policy. He did not think it applied to one already working at UPARC who married a fellow employee. Both Robert Owens and Roberta Egan Owens acknowledged that they were aware of the nepotism rule before they got married, knew the rule placed one of their jobs at UPARC in jeopardy, but concluded the rule did not explicitly cover them.
Most of the employees at UPARC are married, as is the person who replaced Petitioner when he was fired.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 9B-18 of the City of Clearwater Ordinance 1843 provides in pertinent part:
It shall be an unlawful discriminatory practice:
For an employer, because of the race, creed, color, national origin, sex, age, handicap, or marital status, to refuse to hire or employ or to bar or to discharge from employment such individual in compensation or in terms, conditions, or privileges of employment.
In a discrimination case the petitioner has the initial burden of establishing a prima facie case of discrimination. If petitioner succeeds in proving the prima facie case, the burden shifts to the respondent to articulate some legitimate reason for the petitioner's rejection. Should the respondent carry this burden, petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089, 1903 (1981).
In the instant case Petitioner was fired because he married a fellow employee. This fact establishes a prima facie case so as to shift the burden to Respondent to show its nepotism policy to be a legitimate reason for firing Petitioner. In Manhattan Pizza Hut v. New York Human Rights Appeal Board, 51 NY2d 506 (CANY 1980), an employee was fired after marrying the manager of the Pizza Hut at which she worked. Following her marriage to the manager, the company rule against nepotism was not enforced for some four years when a new area manager decided to enforce the company's no-relatives policy which forbade an employee from working under the supervision of a relative. In a claim of discrimination on marital grounds, the commission and the lower court sustained the claim of the charging party that she was discriminated against because of marital status. The Court of Appeals, at p. 963, after noting that
. . .our task is not complicated by any evidence that the company's policy, though facially neutral, results in discrimination because of a disparate impact on a particular group of persons (cases omitted). . .
in reversing the lower court held "the plain and ordinary meaning of 'marital status' is the social condition enjoyed by an individual by reason of his or her having participated or failed to participate in a marriage." After finding no intent in the statute barring marital status discrimination to ban legitimate antinepotism practices, the court noted at p. 964:
The point becomes especially clear when we regard the benefits which their supporters see in antinepotism rules. As they put it, the thrust of such practices is to avoid favoritism, be it actual or apparent or conscious or unconscious, when two close relatives work together, all the more so in a supervisor-supervisee capacity. Possibilities for conflict in such circumstances of course come readily to mind: e.g. evaluation of a supervisee's performance, exercise of discretion in enforcing work rules, allocation of work assignments, settlement of disputes among employees, recommendations for promotion.
Similarly, in Harper v. TransWorld Airlines, 9 F.E.P. Cases 105 (USDC
Mo. 1974) the court sustained the firing of an employee who married a fellow employee in the same department. The company policy allowed employment for two or more persons in the same family; however, if such persons are to be employed in the same region or department, prior written approval must be obtained from the department or division head. In sustaining the dismissal of an employee who married the fellow employee in the same department, the court noted at p. 106:
number of opportunities for potential conflicts exist when relatives are employed in the same department or office. Since the Reservations department operates around the clock 365 days a year, employees are always concerned with what shift they might be assigned to, as well as what days off they might be allotted. Accordingly, if a husband and wife were employed within the same department, they would naturally attempt to arrange similar working schedules and, if they were unable to do so because of company needs, this might have an adverse effect upon their performance or cause inconvenience to the company in attempting to accommodate their requests. Illness or death in the family similarly could result in two absences with the resulting doubled problems to the defendant rather than one absence.
Finally, the close proximity in which employees worked in the Reservations department might prove distracting because it afforded ample opportunity to discuss personal matters and other family problems.
As noted above once the petitioner establishes a prima facie case, the burden shifts to the respondent to articulate a legitimate reason for petitioner's firing. This, Respondent has done. Here, there was no evidence that UPARC's policy, though facially neutral, results in a discrimination because of a disparate impact on a particular group of persons. No evidence was presented that Respondent discriminated against Petitioner because of his marital status per se, only as regards to Petitioner marrying a fellow employee. More than adequate evidence was presented to rebut the Petitioner's prima facie case of marital discrimination by showing the work to be stressful and the problems to be expected when a married couple work in the same department. Although Respondent presented competent and substantial evidence that good cause existed for firing Petitioner, Respondent does not have this burden. It is sufficient that Respondent's evidence raise a genuine issue of fact as to whether it discriminated against Petitioner. To accomplish this, the Respondent must clearly set forth, through the introduction of admissible evidence, the reasons for Petitioner's firing. Burdine, supra, at p. 1091.
In a discrimination case the burden is on the petitioner to prove by a preponderance of the evidence that the decision to fire him was not motivated by discriminatory motives. This burden is not satisfied by proof creating an equipoise. Florida Department of Health and Rehabilitative Services vs. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974). Once Respondent rebutted Petitioner's prima facie case, no additional evidence was presented by Petitioner to show the legitimate reasons offered by Respondent were not his true reasons, but were a pretext for discrimination.
From the foregoing it is concluded that Petitioner was terminated from his employment at UPARC for violating the antinepotism rule of UPARC which forbids related parties to work at UPARC, and no evidence was submitted from which a determination can be made that Petitioner was unlawfully discriminated against by reason of marital status. It is therefore
RECOMMENDED that the claim of Robert Owens that he was unlawfully discriminated against by UPARC because of his marital status be dismissed.
ENTERED this 11th day of March, 1983, at Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1983.
Joseph T. Barron, Jr., Esquire Post Office Box 6801 Clearwater, Florida 33518
E. John Dinkel, III, Esquire Post Office Box 1531
Ms. Lucille Williams City Clerk
