STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH RUBEIS, )

)

Petitioner, )

vs. ) CASE NO. 92-0356

) FRSA SERVICES CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on July 21, 1992, 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: Reno Rubeis, Qualified Representative

4350 Wyndcliff Circle

Orlando, Florida 32817

For Respondent: Susan McKenna

Garwood & McKenna, P.A.

322 East Pine Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

This case began on November 8, 1989, when the Petitioner, Elizabeth Rubeis, filed a charge of discrimination against the Respondent, FRSA Services Corporation (FRSA), that alleged discrimination on the basis of Petitioner's sex. More specifically, the charge alleged that Respondent had discriminated against Petitioner because of her pregnancy and the impact that condition had on the Respondent's ability to procure or change insurance companies.

On July 8, 1991, the Florida Commission on Human Relations filed a notice of determination that found no cause in this case. Following a request for review of that decision, a notice of redetermination was filed on September 19, 1991, that again found no cause.

Thereafter, the Petitioner filed a petition for relief that alleged discrimination on account of sex, and submitted the case for formal hearing. The cause was forwarded to the Division of Administrative Hearings for formal proceedings on January 16, 1992.

To accommodate the Petitioner's work schedule, the hearing in this case was continued and scheduled for July 10, 1992. During a conference call conducted on July 6, 1992, the Respondent requested a continuance and the matter was ultimately rescheduled for July 21, 1992.

Prior to the hearing, the Petitioner's husband, Reno Rubeis, requested information regarding whether or not he could represent his wife's interests at the hearing. The pertinent rule related to qualifications for being a qualified representative was forwarded to Mr. Rubeis together with the Division pamphlet entitled Representing Yourself at DOAH Hearings. At the outset of the hearing, after being sworn and representing that he had reviewed the rules and was authorized to represent his wife, Mr. Rubeis was accepted as a qualified representative in this case. Respondent did not oppose that request.

At the hearing, Petitioner presented exhibits numbered 1 through 4 which, without objection, were received into evidence. Petitioner's exhibit 5 has not been received but has been proffered for the record. Petitioner's exhibit 5 is a sixteen page document that Mr. Rubeis represented to be his wife's written complaint outlining the circumstances of her termination of employment with FRSA. Respondent objected to the admissibility of Petitioner's 5 on the grounds of hearsay as Mrs. Rubeis, the Petitioner, was not present to testify.

According to Mr. Rubeis, Petitioner elected to not attend the hearing.

Respondent's exhibits numbered 1 through 9 were admitted into evidence. No testimony was taken, but Mr. Rubeis offered an oral summary of the case at the conclusion of which the Respondent made an ore tenus motion for a summary recommended order of dismissal. Ruling on that request was reserved to allow the parties an opportunity to file a proposed recommended order.

After the hearing, neither party filed a proposed recommended order. A transcript of the proceeding has not been filed.

FINDINGS OF FACT

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

1. At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed.

   
   

2. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category.

   
   

3. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA.

   
   

4. At the time of her termination, Petitioner was pregnant.

   
   

   CONCLUSIONS OF LAW

   
   

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

6. In this case, Petitioner bears the burden of proof to establish that her termination from employment was an unlawful employment practice. If Petitioner can establish a prima facie violation of Section 760.10, Florida Statutes, then the burden of proof shifts to the Respondent who must articulate and substantiate legitimate, nondiscriminatory reasons for the actions complained of and, if it does so, the Petitioner must show that such articulated reasons are pretextual.

7. Section 760.10, Florida Statutes, provides, in pertinent part: Unlawful employment practices; remedies;

   construction.

   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 compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

      2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

      * * *

      (4) It is an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of race, color, religion, sex, national origin, age, handicap, or marital status in admission to, or employment in, any program established to provide apprenticeship or other training.

      * * *

      (10) Any person aggrieved by a violation of this section may file a complaint with the commission within 180 days of the alleged violation, naming the employer, employment agency, labor organization, or joint labor- management committee, or, in the case of an alleged violation of subsection (5), the person, responsible for the violation and describing the violation. The commission, a commissioner, or the Attorney General may in like manner file such a complaint.

8. In the case at issue, the Petitioner has failed to meet the burden of proof to establish a violation of Section 760.10, Florida Statutes. First, the Petitioner has not met the technical requirements to show a violation of the statute, e.g. that the Respondent is an "employer" within the definition of same. Secondly, the Petitioner has not offered testimony to support her claim that the Respondent discriminated against her on account of her sex. The record in this case is devoid of any evidence to support the allegation that Petitioner's employment was terminated because she was female or pregnant.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent.

DONE and ENTERED this 4th day of September, 1992, 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

COPIES FURNISHED:

Elizabeth Rubeis Reno Rubeis

4350 Wyndcliff Circle

Orlando, Florida 32817

Susan McKenna

Garwood & McKenna, P.A.

322 East Pine Street Orlando, Florida 32801

Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992.

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones, Clerk Human Relations Commission

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: 92-000356

Orders for Case No: 92-000356