STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATRICIA W. DUKES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5595

) RUSHLAKE HOTELS U.S.A., INC., )

d/b/a DELTA HOTEL )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case took place on December 26, 1989, in Orlando, Florida, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Latricia W. Dukes, pro se

4189 Tatum Street

Orlando, FL 32811 For Respondent: none

STATEMENT OF THE ISSUES

The issue in this case is whether Respondent is guilty of discriminating in employment against Petitioner on the basis of her race.

PRELIMINARY STATEMENT

By Charge of Discrimination dated October 12, 1988, Petitioner alleged that Respondent had discriminated against her in employment on the basis of race. On September 1, 1989, the Florida Commission on Human Relations entered a Notice of Determination: No Cause.

By Petition for Relief filed September 29, 1989, Petitioner alleged that Respondent hired a white woman to replace Respondent, who is black, as an inspectress at a hotel. The Petition for Relief alleges that Respondent offered to retain Petitioner after the white woman was hired, but only as a maid.

Respondent did not respond to the Petition for Relief.

No transcript was filed. Because Petitioner had indicated a desire to order a transcript at the conclusion of the hearing, the undersigned entered an Order To Show Cause on March 2, 1990, requesting information concerning whether a transcript had been ordered and, if not, giving the parties a deadline by which to file proposed recommended orders. Petitioner telephoned the

undersigned and indicated that she would not be ordering a transcript or filing a proposed recommended order.

FINDINGS OF FACT

1. Respondent hired Petitioner, who is black, as an inspectress on April 11, 1988. An inspectress supervises the work of maids, who are responsible for cleaning the hotel rooms.

   
   

2. On July 3, 1988, the housekeeper, Mr. Douglas Knight, who supervised Petitioner, informed her that, due to an excess of personnel, she was no longer needed as an inspectress. He offered her a position as a maid. The record does not reveal whether the change in duties would have resulted in less pay.

   
   

3. Petitioner apparently declined the position. When she did so, Respondent terminated her.

   
   

4. Although Respondent had received no warnings concerning unsatisfactory job performance, the work of the maids had clearly been unsatisfactory up to the time of her offered reassignment.

   
   

5. The white woman who allegedly replaced Petitioner as an inspectress was Mrs. Triplett, who was married to the head maintenance manager of the hotel. Shortly after losing her job elsewhere, she was hired by Respondent around June 9, 1988, to replace the assistant housekeeper, who was on maternity leave until July 6, 1988. Mrs. Triplett was reassigned to the position of inspectress around June 18, 1988, and later promoted to housekeeper about two weeks after Petitioner's departure.

   
   

6. Mr. Knight, who hired Mrs. Triplett, was friends with Mr. Triplett and later terminated for inefficiency in performing his work.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

   
   

8. It is an unlawful employment practice for an employer to discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such person's race. Section 760.10(1)(a), Florida Statutes.

   
   

9. The Florida Commission on Human Relations is vested with jurisdiction to enforce the law prohibiting employment practices involving unlawful discrimination. Section 760.06(5), Florida Statutes.

   
   

10. 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).

    
    

11. Petitioner has the burden of proving a prima facie case of discrimination. If she does so, an inference of discrimination arises, which the employer may rebut by showing that its actions were for legitimate nondiscriminatory reasons. If the employer does so, Petitioner must prove that the offered reasons are pretextual. Texas Department of Community Affairs v. Burdine, 450 U.S. 792, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

12. The Supreme Court recently reviewed the requirements of a prima facie case of discriminatory promotion. The Court stated:

    
    

    petitioner need only prove by a preponderance of the evidence that she applied for and was qualified for an available position, that she was rejected, and that after she was rejected respondent either continued to seek applicants for the position, or . . . filled the position with a white employee.

    
    

    Patterson v. McLean Credit Union, U.S. , , 109 S. Ct. 2363, 2378 (1989).

    
    

13. In this case, Petitioner failed to prove a prima facie case of discrimination. Mrs. Triplett was reassigned to the position of inspectress about two weeks prior to the request that Petitioner take a demotion from that position to maid. It is conceivable that the reassignment of Mrs. Triplett two weeks in advance of Petitioner's demotion was an anticipatory replacement. However, this theory is rebutted by the promotion of Mrs. Triplett to housekeeper two weeks after Petitioner's departure. It appears from the evidence that Petitioner was not replaced by Mrs. Triplett. Petitioner has therefore failed to prove a prima facie case of discrimination because she has failed to show that she was replaced by a white person, rather than replaced by another black person or, as appears more likely on the present facts, replaced by no one at all.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief.

DONE and ORDERED this 16th day of March, 1989, in Tallahassee, Florida.

ROBERT D. 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 16th day of March, 1989.

COPIES FURNISHED:

Donald A. Griffin Executive Director

Commission on Human Relations

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

Dana Baird General Counsel

Commission Human Relations

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

Margaret Jones Clerk

Commission on Human Relations

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

Latricia W. Dukes 4189 Tatum Street

Orlando, FL 32811 Gale Brandy

Ramada Main Gate Resort 2950 Reedy Creek Boulevard Kissimmee, FL 32741

Docket for Case No: 89-005595

Orders for Case No: 89-005595