STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUDREY OWENS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3522

)

SANTA ROSA DATSUN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Milton, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on January 27, 1987. The petitioner appeared on her own behalf. Respondent, but not petitioner, has filed a proposed recommended order, although detailed fact findings were not proposed.

Respondent appeared Allen W. Lindsay, Jr. through counsel: Post Office Box 586

Milton, Florida 32572

In response to petitioner's complaint of sexual harassment, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "DETERMINATION: NO CAUSE" dated July 17, 1986. Petitioner then filed a petition for relief from an unlawful employment practice, pursuant to Rule 22T-9.08(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1986 Supp.).

Incorporated by reference in the petition for relief were the allegations of the original complaint, including one that "George Brewer, Service Manager, made sexual advances and propositions to me. He said if I wanted to advance in the company and make more money I would have to give him a blow job." The petition for relief can be construed as a claim that respondent's termination of petitioner's employment was discriminatory.

ISSUE

Whether respondent discriminated against petitioner on account of her gender in terminating her employment?

FINDINGS OF FACT

1. Petitioner Audrey Owens began work in January of 1985 or thereabouts as the "service writer" at what was then Santa Rosa Datsun, an automobile dealership in or near Milton. Until she was fired in April of the same year, she had the job of dealing with customers who brought cars to be serviced. She wrote up what needed to be done, then gave the job to a mechanic to do. Several

   mechanics worked at the dealership, but on commission. By allocating work among them, the service writer determined what their income would be.

   
   

2. A number of mechanics did not feel that she distributed the work equitably. This was no secret to parts and service manager George O. Brewer, the service writer's immediate supervisor; he saw a mechanic nearly burst into tears on account of it. He had complaints from numerous employees and from some customers about Ms. Owens behavior toward them.

   
   

3. He also felt she should not wear blue jeans to work, and asked her to dress more formally. She persisted in wearing attire she was repeatedly told was inappropriate.

   
   

4. In addition to the unresolved issue of dress, other frictions marred the relationship between Ms. Owens and Mr. Brewer. She pouted when he "gave her guidance," and failed to follow various instructions. Once he declined her request to install a rubber mat to stand on behind the counter on which she wrote service orders, and she responded that she would go over Mr. Brewer's head to George R. Kearney, who owned the dealership. It was in that context that Mr. Brewer told her he would fire her if she went to Mr. Kearney. All the while, the mechanics dissatisfaction and resentment grew.

   
   

5. Eventually Mr. Brewer did fire her, giving her only a day's notice. She threw a pen at him.

   
   

6. At hearing, Ms. Owens made various false and sensational charges against Mr. Brewer, although she did not testify that her termination was for failure to bestow sexual favors. She said she was fired when she asked Mr. Brewer why he had made a fool of her by yelling at her rudely, telling her to ask a mechanic to install seat belts in a Toyota truck.

   
   

7. Jean Rubbards, petitioner's predecessor as service writer," left the job to spend more time with her son, when the child's father died. Mrs. Rubbards and Andrea Penten, who succeeded petitioner as service writer, testified that Mr. Brewer was demanding but fair, a good person to work for, and that their relationships with him lacked sexual overtones.

   
   

8. When Mr. Brewer's supervisor, Mr. Kearney, bade Ms. Owens farewell, she did not report that she had been harassed sexually.

   
   

9. In addition to Messrs. Brewer and Kearney, seven employees who worked at the dealership contemporaneously with Ms. Owens testified at the hearing, although at least one had since left for another job. Not one of them ever received any indication at the time that anybody at work had ever harassed her sexually.

   
   

   CONCLUSIONS OF LAW

   
   

10. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1985), to "discharge...any individual...because of such individual's race, color...[or] sex." Section 760.10(1)(a), Florida Statutes (1985).

    
    

11. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in

    this area. The question in a case in which sex discrimination is alleged to have motivated a discharge is whether a member of the opposite sex would have been discharged in the same circumstances. It was incumbent on petitioner herein to demonstrate that the legitimate, nondiscriminatatory justification respondent articulated for her discharge was pretextual only. This she failed to do. She was "discharged for a series of incidents, not related to her sex, which were reasonable grounds for her discharge." Ammons v. Zia Co., 448 F.2d 117, 120 (10th Cir. 1971). See generally Donaldson v. Pillsbury Co., 406

    F.Supp. 1210 (D. Minn. 1976) rev'd 554 F.2d 825 (8th Cir. 1977) cert. den. 434

    U.S. 856 (1977).

    
    

12. Part of petitioner's employer's dissatisfaction derived from her unwillingness to comply with a dress code which, of course, differed from what was required of male employees. But the cases hold that differential dress or grooming codes do not constitute unlawful sex discrimination, at least if the gender- based differences bear a reasonable relationship to contemporary community standards. See Lanigan v. Bartlett and Co. Grain, 466 F.Supp. 1358 (W.D. Mo. 1979)(woman employee's discharge for wearing pants suit upheld). Compare Fountain v. Safeway Stores, 555 F.2d 753 (9th Cir. 1977)(male employee's discharge for failure to wear tie upheld) with Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C. 1973) aff'd in rel. part 567 F.2d 429 (D.C. Cir. 1976) cert. den. 434 U.S. 1086 (1978)(women cabin attendants cannot be required to wear contact lenses when men attendants are free to wear eyeglasses). See generally Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th Cir. 1975).

    
    

13. The petitioner also failed to prove how many employees respondent has, or that respondent had at least 15 employees "for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." Section 760.02(6), Florida Statutes (1985). Since this failure of proof is fatal to the Commission's jurisdiction, Regency Towers Owners Ass'n, Inc. v. Pettigrew, 436 So.2d 266 (1st DCA 1983) rev. den. 444 So.2d 417 (Fla. 1984), petitioner failed to show that the Commission could have afforded relief, even if she had been entitled to relief.

It is, accordingly, RECOMMENDED:

That the Florida Commission on Human Relations dismiss the petition for relief.

DONE AND ENTERED this 23rd day of February, 1987, at Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1987.

COPIES FURNISHED:

Allen W. Lindsay, Jr., Esquire Post Office Box 586

Milton, Florida 32572

Ms. Audrey Owens Post Office Box 206

Bagdad, Florida 32530

Donald A. Griffin, Executive Director Commission of Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 86-003522

Orders for Case No: 86-003522