STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEGGY J. THORNTON, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0321

) AFFILIATED OF FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Tampa, Florida, on November 30, 1993, and, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings. By the agreement of the parties, a brief rebuttal examination of Mr. Rinehart was conducted on December 6, 1993, with the parties, witness, and court reporter at the Tampa office of counsel for Respondent and the hearing officer participating by telephone in Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Peggy J. Thornton, pro se

6802 North Branch Avenue Tampa, Florida 33604

For Respondent: W. Reynolds Allen

Kevin O'Toole Hogg Allen

324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of sex discrimination in employment.

PRELIMINARY STATEMENT

By Charge of Discrimination dated April 30, 1992, Petitioner alleged that she had been terminated from her employment with Respondent as a result of sex discrimination. On December 8, 1992, the Florida Commission on Human Relations entered a Determination: No Cause.

On December 30, 1992, Petitioner filed a Petition for Relief concerning the same matter. Respondent never filed a responsive pleading, including an answer.

At the final hearing, Petitioner sought to amend her petition to allege discrimination based on age and race--white. The oral motion was denied.

Respondent sought to dismiss the petition on the grounds that it failed to identify the type of discrimination. The oral motion was denied. Respondent filed a Motion to Quash Subpoena, which was granted at the conclusion of the hearing.

At the hearing, Petitioner called six witnesses and offered into evidence three exhibits. Respondent called four witnesses and offered into evidence five exhibits. All exhibits were admitted.

Neither party ordered a transcript. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. Respondent is an employer within the meaning of the relevant statute. Respondent is a wholesale food cooperative, which pools the wholesale purchasing power of numerous independent grocers. Respondent purchases goods from manufacturers and then sells them to the grocers, which are members of Respondent. The grocers offer the goods for sale at retail.

   
   

2. Respondent also operates as a wholly owned subsidiary an insurance agency, which sells insurance to members and nonmembers. Although independent from the wholesale food operation, the insurance operation is housed in the same Tampa office building/warehouse complex as is the wholesale food operation.

   
   

3. On June 19, 1991, Respondent hired Petitioner to work in the wholesale food operation. She was hired as an executive secretary or assistant to Gary Rinehart, who is the Vice President of the wholesale food operation. Petitioner had applied to work in the insurance operation, but was offered only the job in wholesale food.

   
   

4. From the start, Petitioner told Mr. Rinehart that she wanted to move into insurance at the first opportunity. Mr. Rinehart had no objections as long as he was not left short- handed.

   
   

5. Petitioner's primary responsibilities in wholesale food was to support the salespersons who travelled in the field assisting member-grocers with purchasing and displaying products. When the salespersons needed assistance while they were on the road, they would call Petitioner, who, from the Tampa office, would coordinate the efforts to solve a member's problems or get information or product to a member. Petitioner's ready availability was an important element of her job performance.

   
   

6. Petitioner's immediate predecessor had quit after she had married another employee of Respondent. However, the evidence fails to establish that Respondent maintained a policy of requiring female employees who married another employee to leave upon their marriage. In any event, nothing surrounding the circumstances of the departure of Petitioner's predecessor suggests that her termination had anything to do with dating, which presumably preceded the marriage for some period of time.

   
   

7. Mr. Rinehart discouraged dating among employees. When he first announced to his group that he had hired Petitioner, someone--presumably a travelling salesman--asked if she were married. Mr. Rinehart responded by telling his group that he did not like his employees to date each other.

8. When Petitioner first began work, she did an excellent job, although she quickly developed a problem leaving work early and arriving late. She also failed to take a shorthand class that Mr. Rinehart had asked her to take, as Respondent's expense, since she joined Respondent.

   
   

9. By the end of 1991, Petitioner evidently felt underchallenged by her assignment and had lost her enthusiasm for working in the wholesale food operation. Mr. Rinehart was receiving numerous complaints about Petitioner not being at her desk when needed, being on personal calls during working hours, and not relaying messages. She was also not doing her clerical tasks, like typing, accurately.

   
   

10. Mr. Rinehart spoke with Petitioner about her work- related problems, but no improvement was seen until, in mid- December, 1991, Petitioner secured Mr. Rinehart's permission to seek a transfer into the insurance operation. Before the transfer was made, Petitioner had assisted in the preparation for an insurance seminar in Orlando sponsored by Respondent in late 1991 and had also begun attending the Monday morning meetings of the insurance sales staff.

    
    

11. By mid-January, 1992, Petitioner had discussed with Harry Britton the possibility of her transfer into insurance. Mr. Britton is the general agent for Respondent's insurance agency and also serves as the Director of Human Relations.

    
    

12. In February, 1992, Mr. Britton informed Petitioner that she could transfer into insurance if it was acceptable to Mr. Rinehart. Mr. Rinehart agreed, as long as Petitioner trained her replacement. She did and, at an undisclosed point in the month, transferred to the insurance operation.

    
    

13. Petitioner's timing was unfortunate, assuming that she would have preferred her prior secretarial job to none at all. When Petitioner joined Respondent, it was still struggling to recover from the loss of the business of Kroger, which, when it withdrew from Florida, had accounted for over half of Respondent's gross sales. Respondent's performance had been poor for sometime, and it had already sold buildings, equipment, and leases in order to cut its expenses.

    
    

14. Before taxes, on a consolidated basis, Respondent had the following earnings/(losses) for fiscal years ending 1987 through 1992, respectively:

    $482,000, $289,000, ($1,275,000), ($1,909,795), ($398,489), and ($1,503,543).

    The insurance operations accounted for the following earnings/(losses) for fiscal years ending 1988 through 1992, respectively: ($18,417), ($8207),

    $18,180, and $1810.

    
    

15. In early 1992, Respondent confronted the facts that it had lost over

    $2.5 million over the past five years, was in the process of losing $1.5

    million--the largest loss in Respondent's history--in 1992, and had already sold various assets. Additionally, it was entering the slow spring wholesaling season. Respondent's top management decided to make a reduction in force.

    
    

16. The decision to make layoffs was made and communicated to Messrs. Rinehart and Britton around February 10-13, 1992. The decision had been discussed for about two months previously. The record does not disclose exactly when Petitioner transferred to insurance, but it appears to have been in early February, 1992.

17. On February 22, 1992, Mr. Britton informed Petitioner that she would be laid off. Seven other employees were laid off at the same time, including others in the insurance operation.

    
    

18. Layoffs were generally based on seniority with Respondent or in a particular department, and the layoff of Petitioner was consistent with this policy. Mr. Rinehart laid off four persons in his department. Although all of them hadmore experience than did Petitioner, her replacement as executive secretary, who had less experience with Respondent than did Petitioner, was not laid off.

    
    

19. Unlike others laid off, Petitioner was given an indefinite period of time to look for work while remaining on Respondent's payroll and as much time off the job as she needed while she looked for work outside the office.

    
    

20. Mr. Britton gave Petitioner special treatment because he wanted her to remain parttime. He offered her a parttime job in insurance at the meeting at which he informed her she was being laid off and again several times over the ensuing months. She refused each offer of parttime employment. After some difficulty, Mr. Britton eventually filled Petitioner's former position with a parttime person.

    
    

21. On March 13, 1992, Petitioner announced that she did not want to remain employed by Respondent any longer, even under the special circumstances outlined above. She quit and Respondent paid her through March 20, 1992.

    
    

22. Since the last quarter of 1991, Petitioner had been dating another employee of Respondent. This situation was known to Messrs. Rinehart and Britton. Although Mr. Rinehart was not reluctant to discourage employees from dating, there is no indication in the record that he took any action against Petitioner for dating an employee. The man whom Petitioner dated has also dated other employees of Respondent, evidently without adverse consequences to himself or the other employees, and remains employed with Respondent.

    
    

23. More importantly, Mr. Britton, who laid off Petitioner, did not share Mr. Rinehart's concerns about dating among employees. Petitioner asked Mr. Britton at least twice if he had any problems with her dating an employee, and he replied that he did not. The record does not indicate that he took any action against Petitioner for dating an employee.

    
    

24. Respondent had a legitimate, nonpretextual reason for laying off Petitioner--or, more precisely, converting Petitioner's position from fulltime to parttime. The reason was economics. Additionally, Petitioner had been a marginal employee in the wholesale food operation, so it is hard to interpret her untimely transfer to insurance as part of a conspiracy to rid Respondent of her for reasons of gender. If Respondent were discriminatorily focusing on the female employee of a male- female dating duo, it is not apparent from the record how Respondent would have addressed its "problem" by retaining Petitioner in parttime employment.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

26. Section 760.10(1)(a) provides that it is an unlawful employment practice "[t]o 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 . .

    . sex . . . or marital status."

    
    

27. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Petitioner must establish by a preponderance of the evidence a prima facie case of sex discrimination. Petitioner did so. She is female. She was dating a male employee of Respondent. She, not the male employee, was laid off.

    
    

28. Under McDonnell Douglas, Respondent must provide an explanation or else suffer the consequence of a prima facie case. Here, Respondent rebutted the prima facie case by proving that the layoff was motivated by economics, not sex discrimination, and that Petitioner was not targeted for termination because she had been dating a male employee.

    
    

29. Petitioner has failed to prove that the reason proffered by Respondent for her layoff was pretextual or, in any event, as required by St. Mary's Honor Center v. Hicks, U.S. , 113 S. Ct. 2742 (1993), that Respondent intentionally discriminated against her on the basis of sex.

    
    

30. The gravamen of Petitioner's claim is sex discrimination based on the fact that she was laid off because she was dating a male employee. There is simply no direct evidence of sex discrimination, nor is there any reasonable basis, given Respondent's economic performance and Petitioner's marginal work performance, for inferring sex discrimination in her transfer and immediate layoff.

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.

ENTERED on December 20, 1993, 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 on December 20, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-321

Rulings on Petitioner's Proposed Findings 1, 4, 6, 8: rejected as subordinate.

2-3, 5, 7, 10: rejected as recitation of testimony and subordinate.

1. (additional evidence): stricken as outside the record.

2. (first): adopted.

9 (second): rejected as legal argument.

Rulings on Respondent's Proposed Findings

1-3, 13-15, 17-18, 20-26, 30-39: adopted or adopted in substance. 4: rejected as legal argument and recitation of testimony.

5-7, 9, 11-12, 16 (except for fact that Petitioner approached Messrs. Rinehart and Britton): rejected as subordinate.

8: rejected as repetitious and recitation of testimony. 10, 27-29: rejected as recitation of testimony.

19: rejected as unsupported by the appropriate weight of the evidence. 40-43: rejected as irrelevant.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Peggy J. Thornton, pro se 6802 North Branch Avenue Tampa, Florida 33604

W. Reynolds Allen Kevin O'Toole Hogg Allen

324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606

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: 93-000321

Orders for Case No: 93-000321