STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLGA HUGHES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2762

) SIRGANY INTERNATIONAL OF ) ORLANDO, INC. d/b/a )

LANDSIDE #150, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 18, 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: Olga Hughes, pro se

106 Orienta Drive

Altamonte Springs, Florida 32701

For Respondent: J. Mark Johnston

HOGG, ALLEN, NORTON & BLUE, P.A.

201 South Orange Avenue Barnett Plaza Suite 740 Orlando, Florida 32801

STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner was not hired for a position with the Respondent in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

On or about April 10, 1990, the Petitioner, Olga Hughes, filed a charge of discrimination against the Respondent, Sirgany International of Orlando, Inc. d/b/a Landside #150, and alleged that the Respondent had wrongly failed to hire Petitioner and had discriminated against her on account of her age. Following its investigation of the claim, the Florida Commission on Human Relations (Commission) entered a determination of no cause on March 14, 1991. Thereafter, on May 7, 1991, the Commission forwarded the petition to the Division of Administrative Hearings for formal proceedings.

At the hearing, the Petitioner testified in her own behalf. The Respondent presented the testimony of the following witnesses: Lena Chan, a cashier and sales associate employed by the Respondent; Pamela Smith, a store manager

employed by the Respondent; Deanna Clements, a store manager employed by the Respondent; and Thomas L. Wright, Respondent's resident manager. Respondent's exhibit numbered 1 was admitted into evidence.

A transcript of the proceedings has not been filed. After the hearing, the parties were granted ten days within which to file proposed recommended orders. To date, the Petitioner has not filed same. The proposed recommended order filed by the Respondent has been considered in the preparation of this order.

Specific rulings on the proposed findings of fact 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. On or about November 2, 1989, Petitioner executed a pre-employment application with the Respondent and sought full-time work as a cashier. That application indicated Petitioner was over 18 years of age but did not otherwise state her age.

   
   

2. In late November, 1989, Deanna Clements telephoned the Petitioner's home to arrange for an employment interview. Since Petitioner was unavailable, Ms. Clements left a message for Petitioner to telephone the store to schedule an appointment.

   
   

3. The next day, Petitioner went to the store (without having scheduled an appointment) and asked to see Ms. Clements who was not available. Ms. Chan, the store attendant, advised Petitioner that she could come back to see when she could be scheduled. Whereupon Petitioner left the store.

   
   

4. Approximately thirty minutes later, Petitioner returned to the store and again asked to see Ms. Clements. Again, Ms. Chan advised Petitioner that Ms. Clements was not available at that time. Petitioner then elected to wait for an opportunity to see Ms. Clements and began to circulate among the store's customers.

   
   

5. It was then that Petitioner claimed she observed a male customer attempting to shoplift a key chain. Petitioner confronted the customer who was upset by the accusation. The customer went to the counter where Ms. Chan was located and emptied his pockets to verify that he had taken nothing.

   
   

6. When Petitioner came into the store a third time and Ms. Chan again informed her that Ms. Clements was not available to interview her, Petitioner became upset, made several derogatory comments to Ms. Chan, tore up an application and threw it at Ms. Chan.

   
   

7. Some days later, Pamela Smith (then employed as a personnel assistant) telephoned Petitioner to arrange a job interview. Ms. Smith was unaware of the activities that are described in paragraphs 2 through 6 and scheduled an appointment for the next day to interview Petitioner.

   
   

8. Ms. Smith interviewed Petitioner and found her less than attentive to the requirements of the job. For her part, Petitioner was anxious to have full- time employment and did not consider the demands of the position beyond her capabilities.

9. Following the interview, Ms. Chan observed Petitioner leaving the premises and advised Ms. Clements and Mr. Wright of the incidents that had occurred earlier. Upon being advised of those matters, Mr. Wright told Ms. Smith to remove Petitioner's application from those to be considered. When those directions were given Mr. Wright did not know Petitioner's age.

   
   

10. Petitioner was not hired by the Respondent because she exhibited poor judgment in challenging the store's customer and in berating Ms. Chan.

    
    

11. Respondent is an employer within the statutory definition set forth in Chapter 760, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Petitioner has failed to establish a prima facie case of age discrimination. Respondent's hiring practices prohibit discrimination based on age. Mr. Wright did not know Petitioner's age when he told Ms. Smith to disregard her application. Petitioner has not shown she was qualified for the position sought or that Respondent filled the vacancy with a younger, less qualified person. In this case, the employer did not hire Petitioner based upon her conduct with the store's customer and her insulting demeanor toward Ms. Chan. Customer service such as that required in a cashier position demands that a potential employee exhibit a courteous demeanor.

    
    

14. Even if Petitioner had established a prima facie case of discrimination, Respondent has articulated non discriminatory reasons why it did not hire the Petitioner. Again, Petitioner's demeanor during the incidents with Ms. Chan give rise to serious doubt as to whether Petitioner would have dealt with the public in an appropriate manner.

RECOMMENDATION

Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination against the Respondent.

RECOMMENDED this 17th day of October, 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 17th day of October, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2762

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

None submitted.

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

1. Paragraphs 1 through 18 are accepted.

COPIES FURNISHED:

Olga Hughes

106 Orienta Drive

Altamonte Springs, Florida 32701

J. Mark Johnston

HOGG, ALLEN, NORTON & BLUE, P.A.

201 South Orange Avenue Barnett Plaza Suite 740 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

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: 91-002762

Orders for Case No: 91-002762