STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WENCESLAO LUGO PALERMO, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5689

)

KUPPENHEIMER MANUFACTURING )

COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on February 15, 1989, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Wenceslao Lugo Palermo, pro se

7505 Armstrong Road

Lockhart, Florida 32810

For Respondent: Richard D. Pease

590 West Highway 436

Altamonte Springs, Florida 32714 BACKGROUND

On March 14, 1988, Petitioner filed a Charge of Discrimination against Respondent. Petitioner alleged that Respondent had discharged him from employment on March 7, 1988, due to discrimination based on national origin and religion. Petitioner alleged that he was Hispanic and a member of the Pentecostal church.

On October 25, 1988, the Florida Commission on Human Relations entered a Notice of Determination: No Cause. On November 14, 1989, Petitioner filed a Petition for Relief. He alleged that he had been fired due to his inability to work on Sundays and his membership in the Pentecostal church. The Petition omitted any mention of discrimination due to Petitioner's Hispanic national origin.

At the hearing, Petitioner, who speaks little English, introduced as his translator Efrain Gemaz, who resides with Petitioner. Mr. Gemaz was duly administered the translator's oath. Petitioner called himself as his sole witness. After being duly qualified as a representative of Respondent, Mr.

Pease called himself as the sole witness for Respondent. Neither party offered into evidence any exhibits.

Following the hearing, Respondent filed a proposed recommended order.

Treatment accorded Respondent's proposed findings of fact is detailed in the Appendix.

FINDINGS OF FACT

1. Petitioner was employed by Respondent from January, 1986, until March 7, 1988. Petitioner worked as a tailor and performed alterations at Respondent's store located in Altamonte Springs.

   
   

2. In the latter half of 1987, Mr. Pease became the manager of the Altamonte Springs store and thus became Petitioner's supervisor. As had the prior manager, Mr. Pease and Petitioner worked out a schedule that did not require Petitioner to work in violation of his religious principles.

   
   

3. However, relations between Petitioner and Mr. Pease were not good. Shortly after becoming manager, for independent business reasons, Mr. Pease decided to reduce the amount of fitting done in the store. The effect of this decision was to reduce the amount of work available for Petitioner.

   
   

4. At about this time, Petitioner suffered an accident unrelated to employment. The accident resulted in an extended absence from work.

   
   

5. Petitioner received his physician's approval to return to work on February 16, 1988, but failed to do so. Without prior notice, Petitioner showed up at the store on March 7, 1988, and informed Mr. Pease that Petitioner was ready to return to work.

   
   

6. Mr. Pease told Petitioner that the work schedule had already been arranged for the week. Mr. Pease told Petitioner that the only days he could work were Saturday, March 12, and Sunday, March 13.

   
   

7. Petitioner told Mr. Pease that he could not work Sundays due to his religious beliefs. Mr. Pease reiterated that no other time was available that week.

   
   

8. Petitioner told Mr. Pease that Petitioner understood that he was being fired. Mr. Pease told him that he was not being fired; rather, he was quitting if he left Respondent's employment. Two days later, Petitioner filed for unemployment compensation benefits. He never reported to work with Respondent again.

   
   

9. Consistent with his Petition for Relief, Petitioner offered no evidence of discrimination due to national origin. Nothing in the record suggests the existence of any such discrimination.

   
   

10. Petitioner has also failed to prove the existence of any religious discrimination. There is no evidence that Mr. Pease refused to try to accommodate Petitioner's religious beliefs with respect to work schedules after the weekend of March 12-13. The only evidence is that when Petitioner suddenly reported to work, the only days immediately available were the weekend days. The record does not even disclose whether Mr. Pease linked the two days, so as to prevent Petitioner from working the Saturday without working the Sunday.

    There is nothing in the record suggesting that Mr. Pease told Petitioner that if he failed to work the coming Sunday, he would lose his job. In sum, Petitioner has left it entirely to conjecture whether Mr. Pease would have failed to make

    reasonable accommodation for the religious beliefs of Petitioner. In fact, Mr. Pease was never presented with that opportunity.

    
    

11. In addition, Petitioner has produced no evidence that Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. There is no evidence of the number of employees working for Respondent at the relevant time.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings lacks jurisdiction over the parties and the subject matter because there was no showing that Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Absent proof that Respondent employed at least 15 employees in Florida during the relevant time period, there is no basis to consider whether Respondent violated the provisions of Sections 760.01-760.10, Florida Statutes.

    
    

13. It is an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual with respect to employment because of such individual's religion or national origin. Section 760.10(1)(a), Florida Statutes. It is an unlawful employment practice for an employer to limit, segregate, or classify employees in any way that would deprive any individual of employment opportunities or adversely affect his status as an employee because of his religion or national origin. Section 760.10(1)(b), Florida Statutes.

    
    

14. The provisions of Chapter 760 are analogous to those of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e et seq. Cases interpreting Title VII are therefore applicable to Chapter 760. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

    
    

15. There were no pleadings or proof concerning discrimination based on national origin. The case involves solely the question whether Petitioner suffered unlawful employment discrimination because of his religion.

    
    

16. The above-cited Florida statutory law is modelled on federal statutory law. However, the federal statutory law was amended in 1972 to

    
    

    illuminate the meaning of religious discrimination under the statute.

    It provides that "[t]he term

    `religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

    
    

    Ansonia Board of Education v. Philbrook, U.S. , 107 S. Ct. 367, 369 n.1 (1986)

    
    

17. As noted above, the addition was intended to illuminate, rather than change, existing law. As such, the 1972 addition to federal statutory law, as well as ensuing decisional law, ought to be considered in construing Florida law in this regard.

18. In the Ansonia Board of Education case, the Supreme Court noted that it has not adopted the proof scheme adopted in other Title VII contexts. In these cases, the plaintiff must prove a prima facie case of discrimination, then the defendant has the burden to produce evidence of some legitimate, nondiscriminatory reason for the action or failure to act, and the plaintiff finally has the burden to produce evidence that the legitimate business reasons were merely pretextual. Id. at 371. The Court declined to apply such a proof scheme to the case of religious discrimination before it. Instead, it proceeded to the question whether the employer's proposed accommodation of the religious practices of the employee comported with the statutory mandate.

    
    

19. The Court held that the employer is required to offer any reasonable accommodation that it chooses. Once having done so, the employer is not required to prove that alternative reasonable accommodations suggested by the employee would have imposed an undue hardship upon the employer. Id. at 372.

    
    

20. In the present case, even ignoring the jurisdictional deficiency, there is no evidence that Respondent did not reasonably accommodate Petitioner's religious beliefs. After a long and partly unexplained absence, Petitioner showed up for work without advance notice. Mr. Pease offered him the only days available. As far as can be ascertained from the record, Petitioner bases his case upon the fact that Respondent offered him a Sunday to work. Absent evidence of some requirement that Petitioner work on a Sunday in order to keep his job or generally avoid problems with his employer, there is no evidence of employment discrimination.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed.

ENTERED this 2nd day of May, 1989, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5689

Treatment Accorded Respondent's Proposed Findings 1-3. Adopted in substance.

4-5. (first sentence) Adopted.

5. (second sentence) Rejected as irrelevant. 6-10. Adopted. s

11. Rejected as irrelevant.

COPIES FURNISHED:

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Dana Baird, Esq.

General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Margaret Agerton, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Weceslao Lugo Palermo 7505 Armstrong Road

Lockhart, FL 32810

Richard D. Pease

590 West Highway 436 Altamonte Springs, FL 32714

Docket for Case No: 88-005689

Orders for Case No: 88-005689