Judges: DONALD D. CONN
Agency: Contract Hearings
Latest Update: Sep. 06, 1988
Summary: Petitioner established that the respondent has unlawfully discriminated against petitioner based upon gender. Damages were back wages.
88-2594.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LORI BAXTER, )
Petitioner, )
)
vs. ) CASE NO. 88-2594
)
HEAVENLY BODIES II, )
)
Respondent. )
)
RECOMMENDED ORDER
The final hearing in this case was held on August 24, 1988, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The Petitioner, Lori Baxter, was present and represented herself, but the Respondent, Heavenly Bodies II, was not represented.
This case arose on a charge of sexual discrimination filed before the City of Clearwater, Office of Community Relations, by Petitioner against Respondent. The Petitioner testified at the hearing, and also called Elizabeth Moore, a former coworker, as a witness. No transcript or posthearing filings were submitted.
FINDINGS OF FACT
Petitioner was employed at Respondent as a bartender from May, 1987 until October 29, 1987, when she was terminated.
On October 29, 1987, she was terminated by Scott McGregor, owner of Respondent, due solely to the fact that she was pregnant at the time.
Petitioner was nine and one-half weeks pregnant when she was terminated. She had told her employer when she became pregnant, and he had told her she could keep her job as long as she wanted, and even into her ninth month of pregnancy.
On the day Petitioner was fired, McGregor referred to her pregnancy and indicated her condition was not consistent with the name of his business, "Heavenly Bodies".
Petitioner's gross hourly wage was $4.50, and she regularly worked six days a week, seven and one-half hours a day, for a total of 45 hours a week. She attempted to find other work as a bartender after she was terminated, but could not find employment because of her pregnancy. She remains unemployed to date. However, her current unemployed status appears to result from her decision to stay home with her baby.
Due to her termination based solely on her pregnancy, Petitioner was discriminated against by Respondent based on sex.
Respondent has suffered damages in the amount of $4,455.00 due to lost wages. This amount is computed from her hourly wage for a period of 22 weeks, which covers the period of time from her termination at nine and one-half weeks to the end of her eighth month of pregnancy. No award is made for the period after her baby was born since she has voluntarily remained home with her baby, and has not sought employment during this time.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.65(9), Florida Statutes; Pinellas County Ordinance 84-10.
The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). Since the Petitioner offered credible testimony at hearing, which was confirmed by the testimony of her former coworker, Elizabeth Moore, that she was terminated solely due to her pregnancy, she has sustained her initial burden of establishing a prima facie case. The Respondent was not present and was not represented. Therefore, the evidence offered by Petitioner is unrebutted. Although an employer has an opportunity in a case involving a claim of discrimination to establish a legitimate basis for the action taken, Respondent did not offer any evidence in this regard. Section 1 of the City of Clearwater Ordinance Number 1959 provides that a finding of adverse inference may be made against Respondent under the facts of this case, because neither evidence, nor any explanation which would explain the absence of such evidence, was presented.
The Florida Supreme Court has invalidated a local ordinance which empowered a local administrative agency to award damages as compensation for humiliation and embarrassment to victims of racial discrimination, because such a grant of authority to local agencies violates constitutional provisions which mandate a separation of powers and secure the right to trial by jury. Broward County v. La Rosa, 505 So.2d 422 (Fla. 1987). However, in its opinion, the Supreme Court specifically recognized the "significant distinction between administrative awards of quantifiable damages for such items as back rent or back wages and awards for such nonquantifiable damages as pain and suffering or humiliation and embarrassment." La Rosa, supra at 424, n.5. In this case, the damages sought are actual damages for lost wages resulting from the discriminatory action, and therefore, the La Rosa case is distinguishable since it dealt only with nonquantifiable damages for humiliation and embarrassment, which the Supreme Court indicated were significantly distinguishable from an award of back wages.
Pinellas County Ordinance 84-10 authorizes the award of actual damages which were caused by a violation of that Ordinance. In determining the correct measure of actual damages under Ordinance 84-10, precedents under the Federal Title VII are persuasive and instructive. Under Title VII, back pay is recoverable as actual damages resulting from an employment discharge, and gross pay is used to calculate actual damages under Title VII. Patzer v. Board of Regents, 763 F.2d 851 (7th Cir. 1985); Rimedio v. Revlon, Inc., 528 F.Supp. 1380 (D.C. Ohio 1982); Thurber v. Jack Reilly's, Inc., 521 F.Supp. 238 (D.C. Mass. 1981), aff'd 717 F.2d 633 (1st Cir. 1983). See also Fickes, et al. v. United Water Consultants and Radar Corporation, DOAH Case Nos. 87-2605, 87-2606, 87- 2607, filed November 6, 1987. The award recommended in this case constitutes actual damages, calculated using Petitioner's gross hourly wage, and results from Respondent's unlawful discrimination against Petitioner based upon sex.
RECOMMENDATION
Based upon the foregoing, it is recommended that the City of Clearwater, Community Relations Board, enter a Final Order finding that Respondent has unlawfully discriminated against Petitioner based upon sex, and awarding Petitioner $4,455.00 in actual damages for back wages as a result of such discrimination.
DONE AND ENTERED this 6th day of September, 1988 in Tallahassee, Florida.
DONALD D. CONN
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 6th day of September, 1988.
COPIES FURNISHED:
Lori Baxter
3054-G Beecher Drive, East Palm Harbor, Florida 34683
Scott McGregor, Owner Heavenly Bodies II 3323 U.S. 19 North
Clearwater, Florida 34619
Ronald M. McElrath
Office of Community Relations Post Office Box 4748 Clearwater, Florida 34618
Miles Lance, Esquire Post Office Box 4748
Clearwater, Florida 34618
Docket for Case No: 88-002594
Orders for Case No: 88-002594
| Issue Date |
Document |
Summary |
|
Sep. 06, 1988 |
Recommended Order
|
Petitioner established that the respondent has unlawfully discriminated against petitioner based upon gender. Damages were back wages.
|
