STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4661

)

BUILDERS SQUARE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on December 13, 1988. The Division of Administrative Hearings received the hearing transcript on December 29, 1988. The attached appendix addresses respondent's findings of fact, filed January 26, 1989.

Petitioner appeared on her own behalf. Respondent appeared through counsel:

Shavan M. Giffen

3100 West Big Beaver Road Troy, Michigan 48084

In response to petitioner's complaint that respondent discriminated against her on account of her race in terminating her employment, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "DETERMINATION: CAUSE" dated May 19, 1988.

These proceedings arise on the form petition for relief from an unlawful employment practice petitioner filed, pursuant to Rule 22T-9.008(1), Florida Administrative Code. In accordance with Section 120.57(1)(b)3., Florida Statutes (1987), the FCHR transmitted the petition to the Division of Administrative Hearings, which received it on September 20, 1988.

ISSUE

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

FINDINGS OF FACT

1. On May 2, 1985, even before Builders Square, Inc., opened Store No. 1423 at 1412 West Fairfield Drive in Pensacola, Sharon Jackson, an African American woman, started work, putting price tags on merchandise. When the doors opened, on May 22, 1985, she began as a "ticket checker." Stationed by an exit, she punched customers' invoices, once she determined the invoice accurately reflected the merchandise the customer proposed to leave the store with. She continued in this capacity until her employment ended.

2. Builders Square, Inc., hired Ms. Jackson as a "Part Time Non Regular," Respondent's Exhibit No. 1, cashier at an hourly rate of $3.50. On June 7, 1985, she became a regular or permanent part-time employee and received a raise to $4.00 an hour. Respondent's Exhibit No. 2. Effective July 1, 1985, she became a full-time employee, and was reclassified: she went from "CASH I 423628 [to] TKTCMZ 423628." Respondent's Exhibit No. 3. Her wages rose again, on October 21, 1985, this time to $4.50 an hour. Respondent's Exhibit No. 4.

   
   

3. In December of 1985, because "sales were not at budget that particular week," (T.56) a pre-Christmas reduction in the work force was decided upon. Denny Dennis, the store manager, and Roger Hittinger, assistant store manager, both white men, "went through the store and looked at areas where [they] could eliminate some employees." (T.44) They decided to abolish one of two ticket checker positions, and to terminate Sharon Jackson's employment. On Friday, December 13, 1985, they informed her she no longer had a job, as of the close of business.

   
   

4. Cynthia Priaulx, a white woman, held the only other ticket checker position on December 13, 1985. Ms. Priaulx began work for Builders Square, Inc., on May 13, 1985, as a full-time, permanent salesperson at an hourly rate of $4.75. Respondent's Exhibit No. 9. On August 12, 1985, she became a ticket checker, but her status did not change otherwise, and her wages remained the same.

   
   

5. Susan D. Kirkland, another white woman, began working for Builders Square, Inc., as a "Part Time Non Regular," Respondent's Exhibit No. 11, cashier at an hourly rate of $3.50, just as petitioner Jackson had done, although she started some 20 days after Ms. Jackson. Effective July 1, 1985, Susan Kirkland became a regular or permanent part-time employee and received a raise to $4.00 an hour, Respondent's Exhibit No. 12, changes that had occurred, in Ms. Jackson's case, 23 days earlier. Also on July 1, 1985, Ms. Kirkland, like Ms. Jackson, was reclassified: she, too, went from "CASH I 423628 [to] TKTCKR 423628." Respondent's Exhibit No. 12. Effective October 23, 1985, however, she was reclassified from "TKTCKR 423628 [to] CASH 1 423628." Respondent's Exhibit No. 13. Ms. Kirkland had not attained full-time status as of December 13, 1985, as far as the record reveals.

   
   

6. Even after October 22, 1985, when ticket checker positions were reduced to two, Ms. Kirkland, who generally worked evenings, sometimes filled in as a ticket checker as did, occasionally, the store managers as well. Even though she did not always work as a cashier, Ms. Kirkland was paid as a cashier after October 22, 1985, and for that reason, missed out on the raise to $4.50 an hour that Ms. Jackson received.

   
   

7. The personnel action notice filled out when Builders Square, Inc., discharged Ms. Jackson indicated her eligibility for rehire. Respondent's Exhibit No. 6. Tim Bolt, like Ms. Jackson an African American who was terminated on December 13, 1985, was in fact rehired in 1986. On November 22, 1988, respondent offered to rehire petitioner full-time on unspecified terms, Respondent's Exhibit No. 5, but petitioner declined.

   
   

8. She was unwilling to give up her present job at Women's Home, where she has worked 40 hours a week at $3.50 an hour since June 10, 1987. (T.26) On March 11, 1987, she began working at Women's Home for $3.35 an hour, 32 hours a week. Since her employment there she has had "sick leave and insurance." (T.27) The job at Women's Home is the first she has held since working for Builders

   Square, Inc. For three or four months or maybe for as long as 26 weeks after she lost her job, she received weekly unemployment compensation in the amount of

   $66.

   
   

9. Three of the seven employees who lost their jobs on December 13, 1985, were African Americans. Respondent's Exhibit No. 7. T. 53. Of the three, only Ms. Jackson did not work as a "regular employee." Two of the white employees who lost their jobs in mid-December had worked as regular employees longer than any of the African Americans whose jobs ended. Respondent's Exhibit No. 7.

   
   

10. Sixteen of the 84 employees at Builders Square's Store No. 1423 on December 15, 1985, were African American. Of these, three had attained regular employee status later than Ms. Jackson did. Fourteen white employees and a Filipino who still had jobs after Ms. Jackson was discharged attained regular employee status after she did. Respondent's Exhibit No. 8.

    
    

    CONCLUSIONS OF LAW

    
    

11. 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 (1987) to discriminate on the basis of race in discharging employees. Respondent Builders Square, Inc., is an employer within the meaning of the statute.

    
    

12. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1987), federal cases decided under Title VII have been looked to in order to flesh out Florida's Human Rights Act of 1977. See Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986). Because petitioner alleges race discrimination, the procedures laid down in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089,

    67 L.Ed.2d 207 (1981); Furnco Construction Co. v. Waters, 438 U.S. 567 (1978); and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) are looked to. Petitioner Jackson, like plaintiffs in Title VII actions, must "bear the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 685 F.2d 1355, 1359 (11th Cir. 1982).

    
    

13. In order to make out a prima facie case of race discrimination, Ms.

    Jackson need only prove

    
    

    1. [s]he is a member of a protected class;

    2. [s]he was qualified for the job from which [s]he was discharged; (3) [s]he was discharged; and (4) the employer assigned a non-member of the protected class to do the same work. Marks v. Prattco, Inc., 607 F.2d 1153, 1155 (5th Cir. 1979); Hubbard v. United Press International, 330 N.W.2d 428, 442 (Minn. 1983).

       
       

       Because she proved the elements of a prima facie case, it was incumbent on Builders Square, Inc., to articulate a legitimate, nondiscriminatory reason for terminating Ms. Jackson's employment. See Arnold v. Burger Queen Systems, 509 So.2d 958 (Fla. 2d DCA 1987).

14. To this end, Builders Square, Inc., adduced testimony that management decided on a reduction in force, including elimination of a ticket checker's position, because a week's sales trailed projections, a proposition petitioner did not contest. Respondent's witnesses testified that they fired petitioner only because she had less seniority as a full-time employee than the other ticket checker. Even though Cynthia Priaulx began working for Builders Square, Inc., eleven days after Ms. Jackson did, she attained regular or permanent status 24 days before Ms. Jackson did. Since Builders Square, Inc., raised a "genuine issue of fact as to whether it discriminated against" her, Ms. Jackson had the burden to prove that reliance on Ms. Priaulx' seniority as a full-time employee was pretextual.

    
    

15. This she seemed disinclined to do, and did not do successfully. The thrust of her case, which she presented pro se, was that Susan Kirkland was a de facto ticket checker and the logical employee for management to let go, if someone's job had to end. But the evidence did not demonstrate that transferring Ms. Kirkland to a cashier's position on October 22, 1985, was a ruse to save her job. Ms. Jackson, who did not work the same hours as Ms. Kirkland, did not establish that Ms. Kirkland continued working regularly as a ticket checker after she was reclassified as a cashier. Indeed, the only immediate effect the evidence showed was that Ms. Kirkland missed out on a raise that Ms. Jackson, who remained a ticket checker, received.

    
    

16. Because petitioner has failed to prove that respondent terminated her employment on account of her race, it is

RECOMMENDED:

That the Florida Commission on Human Relations deny Sharon Jackson's petition for relief from an unlawful employment practice.

DONE and ENTERED this 21st day of February, 1989, in Tallahassee, Leon County, 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 21st day of February, 1989.

APPENDIX

Respondent's proposed findings of fact Nos. 1, 2, and 4 through 16 have been adopted, in substance, insofar as material.

With respect to Respondent's proposed finding of fact No. 3, the transfer was effective July 1, 1985.

With respect to respondent's proposed finding of fact No. 17, two not three white discharges had longer tenure as regular employees.

In light of the disposition, respondent's proposed findings of fact Nos.

18, 19 and 20 are immaterial.

With respect to respondent's proposed findings of fact Nos. 21 and 22, petitioner did not prove otherwise.

COPIES FURNISHED:

Shavan M. Giffen

3100 West Big Beaver Road Troy, Michigan 48084

Sharon Jackson

200 Hickory Street #107 Pensacola, Florida 32501

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Margaret Agerton, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 88-004661

Orders for Case No: 88-004661