STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE R. NEAL, )

)

Petitioner, )

)

vs. ) CASE NO. 83-110

) FLORIDA GAME AND FRESH WATER ) FISH COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in West Palm Beach, Florida, on May 19, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Scott William Katz, Esquire

3959 Lake Worth Road

Lake Worth, Florida 33461

For Respondent: G. Kenneth Gilleland, Esquire

620 South Meridian Street Tallahassee, Florida 32301

This matter arose on Petitioner's claim that he was unlawfully discharged from employment with Respondent because of his marital status, in violation of Section 23.167, Florida Statutes (F.S.). Petitioner was notified of his discharge on January 5, 1979, and filed his complaint of discrimination with the Florida Commission on Human Relations on January 11, 1979. Four years later, on January 12, 1983, this complaint was referred to the Division of Administrative Hearings by the Florida Commission on Human Relations. There was no explanation for this delay.

The parties submitted proposed findings of fact and conclusions of law which have been adopted or otherwise incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. On October 1, 1978, Respondent initiated its Young Adult Conservation Corps program (YACC) at its Everglades Youth Camp. This facility is located in Palm Beach County on the J. W. Corbett Wildlife Management Area. It has traditionally served as a summer camp for children ages 8 through 14.

   
   

2. The YACC was an experimental program funded by the Federal Government and was intended to train hard-core unemployed young people, ages 16 to 23. The

   enrollees in the program were required to live at the camp, which is located in a remote and isolated area.

   
   

3. Petitioner was hired on a temporary basis to serve as a "houseparent." In this capacity, Petitioner was assigned responsibility for the enrollees conduct after the work day. He was to provide guidance during the evening hours and insure that enrollees observed the nightly curfew.

   
   

4. Respondent received unconfirmed reports that Petitioner was fraternizing with a female enrollee and warned him that such conduct as unacceptable by letter dated December 7, 1978. Petitioner, who was single and about the same age as the enrollees, was not successful in maintaining the degree of enrollee discipline sought by Respondent.

   
   

5. Because Petitioner's difficulty in maintaining the desired atmosphere resulted, in part, from his youth and marital status, Respondent determined that he should be replaced by an older, married couple. This was essentially a policy decision. However, Respondent had also decided to fire Petitioner because of his increasingly poor attitude toward his job and his inability to control the enrollees.

   
   

6. By memorandum dated January 5, 1979, Respondent advised Petitioner that he was discharged based on the policy decision to fill houseparent positions with married couples. No reference was made to Respondent's performance in this memorandum.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 23.167, F.S. provides in part:

   
   

   1. It is an unlawful employment practice for an employer:

      1. 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. Notwithstanding any other provision of this section, it is not an unlawful employment practice under this part for an employer, employment agency, labor organization, or joint labor management committee to:

            1. Take or fail to take any action on the basis of religion, sex, national origin, age, handicap, or marital status in those certain instances in which religion, sex, national origin, age, absence of a particular handicap, or marital status is a bona fide occupational qualification reasonably necessary

         for the performance of the particular

         employment to which such action or inaction is related.

         
         

8. The above provisions prohibit the discharge of an employee because of his marital status unless such status is a genuine employment qualification. Here, Respondent was discharged for a combination of reasons which do not offend the above provisions.

   
   

9. Petitioner did not foresee that a young, single adult might be unable to control other young adults in a "houseparent" role. Respondent had traditionally employed such persons with good results in its summer camp program for children, and did not initially perceive the changed circumstances. Thus, the need for older, married houseparents was a bona fide occupational qualification which existed from the outset.

   
   

10. Respondent's evidence established that Petitioner's job performance prior to his discharge was unsatisfactory. Petitioner did not attend the hearing and introduced no rebuttal evidence on this issue.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding Respondent not guilty of an unlawful employment practice as charged in these proceedings.

DONE AND ENTERED this 28th day of June, 1983, at Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983.

COPIES FURNISHED:

Scott William Katz, Esquire 3959 Lake Worth Road

Lake Worth, Florida 33461

G. Kenneth Gilleland, Esquire 620 South Meridian Street Tallahassee, Florida 32301

Colonel Robert M. Brantly Executive Director

Game and Fresh Water Fish Commission

Farris Bryant Building 620 South Meridian Street

Tallahassee, Florida 32301

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

Docket for Case No: 83-000110

Orders for Case No: 83-000110