STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA HART, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5133

) SEARS ROEBUCK & COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on April 23, 1991, in Orlando, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Heather Morcroft

2431 Aloma Avenue, Suite 285 Winter Park, Florida 32791

For Respondent: William E. Curphey

Parker, Johnson, McGuire & Michaud

1300 Barnett Plaza

201 South Orange Avenue Orlando, Florida 32801

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent denied Petitioner employment opportunities in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

This case began on March 22, 1989, when the Petitioner, Sandra Hart, filed a charge of discrimination against the Respondent, Sears Roebuck & Company.

That complaint alleged that the Respondent had retaliated against the Petitioner because she had filed a prior EEOC sex discrimination charge against the employer. More specifically, Petitioner alleged that others, who had been trained by Petitioner and who held less seniority than Petitioner, were granted full-time employment positions while Petitioner was denied same.

On May 10, 1990, the Executive Director of the Florida Commission on Human Relations (Commission) issued a determination of no cause regarding Petitioner's complaint. Thereafter, on July 2, 1990, following Petitioner's request for redetermination, the Commission issued a notice of redetermination: no cause and

the parties were notified accordingly. On August 6, 1990, the Petitioner filed a petition for relief and requested further review of the alleged unlawful employment practices. The case was forwarded to the Division of Administrative Hearings for formal proceedings on August 15, 1990.

At the hearing, the Petitioner testified in her own behalf. The Respondent presented the testimony of Jerry Miller, receiving supervisor for the Respondent's facility; and Milton Maupin, manager of the Respondent's Orlando retail distribution center. Respondent's exhibits numbered 1, 2, 4, 7, 9, and

10 were admitted into evidence.

At the conclusion of the hearing the parties were advised that they would have ten days from the filing of the transcript within which to file their proposed recommended orders. The original transcript was not filed but was, for reasons unknown, delivered to the counsel for Respondent on or about May 3, 1991. When the undersigned received information of that delivery, a letter was directed to the parties on June 17, 1991, to request that proposed recommended orders be filed on or before July 3, 1991. On July 3, 1991, Respondent filed its proposed recommended order together with the original transcript. On that date the Petitioner filed a letter requesting additional time to prepare a proposed recommended order in order to have the benefit of the transcript. That request was granted by order entered July 16, 1991. The Petitioner then timely filed a proposed recommended order. Specific rulings on the proposed findings of fact filed in this case are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. Petitioner was employed by the Respondent as a part-time employee on or about March 10, 1981. At the time of her employment Petitioner executed a statement acknowledging that the Respondent did not guarantee weeks or hours of employment and that her employment was dependent, in part, upon the demands of the business.

   
   

2. Petitioner's job title throughout her employment with Respondent was "warehouse worker." At all times material to this case, Petitioner was assigned to the Orlando distributing center that serves as a warehouse for items shipped to and for Respondent's retail system.

   
   

3. During her employment with Respondent, Petitioner received acceptable work evaluations but was not elevated to full-time employment status when job openings occurred.

   
   

4. For the first year of her employment, Respondent utilized an employee review form which rated Petitioner on a scale of 1 to 7; the lower number indicated unsatisfactory, the higher number indicated distinguished performance. For that review period, Petitioner received all 4s on her review. The 4 rating evidenced that Petitioner's performance had been consistently good and had met the requirements of the job to which she was assigned.

   
   

5. For the review period ending April 1, 1985, the Petitioner received four 4s and one 3. The 3 rating was in the category "working relations" and found her performance to be fair. The 3 rating indicated that for the period reviewed Petitioner's performance was generally satisfactory, but sometimes fell below an acceptable level.

6. Later in 1985, the Petitioner filed an EEOC complaint against the Respondent and alleged that the company had treated her unfairly on account of her sex. Petitioner did not prevail on that complaint.

   
   

7. The Petitioner's employee performance review issued on June 10, 1986, the next evaluation after her EEOC complaint, evaluated her performance at all 3s with one 4 in the category of job knowledge. Petitioner did not challenge this review and did not, at that time, allege that the less favorable review had been issued by the company in retaliation for the EEOC complaint.

   
   

8. Subsequent to the 1986 review, Respondent's evaluation form was amended to compute an employee's performance on a scale of 1 to 5 with 1 being the unacceptable end of the scale and 5 indicating distinguished performance. For the review period ending April 12, 1988, Petitioner received all 3s which established that her overall performance again met the employer's expectations.

   
   

9. Throughout her tenure with the Respondent, Petitioner sought to increase her work hours. Petitioner complained to the company that work assignments were given unfairly. In June, 1987, Mr. Maupin, manager of the center, issued a notice regarding a change in the scheduling practices for part- time employees.

   
   

10. That notice advised employees that the length of service with the company would no longer be the determining factor in assigning part-time hours. The notice provided: "Other factors such as performance, availability when needed and work experience (such as driving skills) will also be considered when determining who will be scheduled."

    
    

11. Petitioner continued to be scheduled for work and, in 1988, received the second highest number of hours worked for the center's part-time employees.

    
    

12. Petitioner did not receive full-time employment with the Respondent. Two employees who had not worked in the warehouse as long as Petitioner were placed in full-time positions. Petitioner did not offer evidence as to the qualifications of those individuals to perform the work requested of them. The employment history of the individuals chosen by the employer, together with the training, skills and aptitudes of such individuals are all unknown.

    
    

13. Petitioner's assertion that she had performed the work in the past and, therefore, was the better qualified to receive the full-time job has not been deemed credible or, in itself, sufficient to prove affirmatively that others chosen by the employer were less worthy of the jobs for which they were selected.

    
    

14. To the contrary, the Respondent posted full-time job openings and allowed interested parties to apply for same and be reviewed for employment based upon individual merit.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

16. Section 760.10, Florida Statutes, provides, in pertinent part:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compen- sation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          * * *

          (7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organi- zation to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

          
          

17. In employment cases where an individual alleges disparate treatment constituting an unlawful employment practice, such individual has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. Once the initial burden of establishing discrimination is met, the burden shifts to the employer to articulate some legitimate, nondiscriminatory, basis for the treatment afforded the employee. The employer must state a reason that is clear, reasonably specific, and worthy of credence. If the employer meets that burden, then the employee must show that the proffered reason for the employment or business decision was a pretext for the discriminatory act. If the discriminatory motive is more likely than the proffered business reason for the action complained of, the employee demonstrating such discrimination by a preponderance of the evidence is entitled to prevail.

    
    

18. Similarly, in cases involving allegations of retaliation, the employee bears the initial burden of establishing that the complained of conduct resulted because of the employee's prior assertion of protected rights. If the employer articulates legitimate business reasons for its decisions which are not pretextual, the conduct is not retaliatory and, therefore, would not constitute an unlawful employment practice under Section 760.10, Florida Statutes.

    
    

19. In the case at hand the Petitioner has failed to establish that she was denied full-time employment or fixed hours of part-time employment because of a prior assertion of a protected right. The fact that Petitioner filed an EEOC complaint in 1985 and in 1989 was denied full-time employment does not establish retaliation. Petitioner did not establish that she was entitled to the full-time job, did not show that others who received the jobs were

unqualified for the tasks, or that Respondent improperly favored others over her. Petitioner's testimony as to her own superior qualification for the positions has not been deemed credible.

RECOMMENDATION

Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim against this Respondent as Petitioner has failed to establish that the employer discriminated against her in retaliation for a prior assertion of discrimination.

RECOMMENDED this 13th day of August, 1991, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5133

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 through 3 are accepted.

2. Paragraph 4 is rejected as contrary to the weight of credible evidence or irrelevant.

3. Paragraph 5 is rejected as irrelevant the petition filed in this cause does not allege Petitioner was unfairly disciplined.

4. Paragraph 6 is accepted.

5. The first sentence of paragraph 7 is accepted. The balance of the paragraph is rejected as argument, hearsay not corroborated by direct evidence, or contrary to the weight of credible evidence.

6. Paragraph 8 is rejected as irrelevant; it is undisputed that Petitioner perceived a bias against her, the evidence in this case does not, however, establish that such bias did exist. An employer's assessment that an employee has a poor attitude does not, of itself, lead to the conclusion that employer will, consequently, unlawfully discriminate against that employee.

7. The first sentence of paragraph 9 is accepted. The balance of the paragraph is rejected as hearsay unsupported by direct evidence presented in this case or unsupported by the weight of credible evidence.

8. Paragraph 10 is rejected as unsupported by direct evidence presented in this case.

9. Paragraph 11 is rejected as contrary to the weight of the credible evidence.

10. Paragraph 12 is rejected as contrary to the weight of the credible evidence.

11. Paragraph 13 is rejected as irrelevant or contrary to the weight of credible evidence.

12. Paragraph 14 is accepted.

13. Paragraph 15 is rejected as contrary to the weight of the credible evidence.

14. Paragraph 16 is rejected as speculative, not supported by the evidence in this case.

15. Paragraph 17 is accepted.

16. Paragraph 18 is accepted.

17. Paragraph 19 is accepted to the extent that the record reflects Petitioner retained an attorney to represent her; otherwise rejected as irrelevant or not supported by the record.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraphs 1 through 9 are accepted.

2. With regard to paragraph 10, it is accepted that all of Petitioner's annual evaluations rated her work as acceptable.

3. Paragraph 11 is rejected as inaccurate or contrary to the weight of the evidence. While Petitioner's reviews remained substantially the same, the forms and evaluation system did change. Important was that Petitioner's work was always deemed acceptable.

4. With regard to paragraph 12, it is accepted that Petitioner worked forty days within the period described. Otherwise rejected as not supported by the record in this case.

5. Paragraph 13 is accepted.

6. Paragraph 14 is accepted but incompletely refers only to the delivery job; Petitioner had expressed an interest in two other jobs available.

7. Paragraph 15 is rejected as contrary to the weight of the credible evidence or an incomplete statement of fact. Petitioner did seek full-time employment with the Respondent.

COPIES FURNISHED:

Heather Morcroft 2431 Aloma Avenue

Suite 285

Winter Park, Florida 32791

William E. Curphey Parker, Johnson, McGuire

& Michaud

1300 Barnett Plaza

201 South Orange Avenue Orlando, Florida 32801

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones, Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Ronald M. McElrath Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005133

Orders for Case No: 90-005133