STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS CIANCIOLA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4639

) UNITED ARTISTS THEATRE CIRCUIT, ) INC., d/b/a UNITED ARTISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designed Hearing Officer of the Division of Administrative Hearings, on February 2-3, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Brion Blackwelder, Esquire

Nova Civil Law Clinic 3305 College Avenue

Fort Lauderdale, Florida 33314

For Respondent: Victor J. Maya, Esquire

Elarbee, Thompson & Trapnell 800 Peachtree-Cain Tower

229 Peachtree Street, Northeast Atlanta, Georgia 30303

STATEMENT OF THE ISSUE

The issue for determination at final hearing was whether Respondent discriminated against Petitioner based on his handicap (HIV-Positive) in violation of the Florida Human Rights Act.

PRELIMINARY STATEMENT

On or about March 4, 1993, Louis Cianciola (Petitioner) filed a discrimination charge with the Florida Commission on Human Relations (Commission) against United Artists Theatre Circuit, Inc., d/b/a United Artists (Respondent). In essence, Petitioner alleged that, because of his handicap (HIV-Positive), he was not re-employed with Respondent even though he was told by Respondent's representatives that he would be.

After an investigation by the Commission, on July 16, 1993, it issued a notice of no cause determination. The Commission determined that Petitioner had not shown a prima facie violation of Florida's Human Rights Act of 1992 and that Respondent had shown legitimate nondiscriminatory reasons for its action complained of. Consequently, the Commission determined that there was no

reasonable cause to believe that Respondent discriminated against Petitioner. On August 13, 1993, Petitioner filed a petition for relief with the Commission. By notice dated August 19, 1993, Respondent was notified of the petition and of its requirement to file an answer.

On August 20, 1993, this matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a formal hearing. On September 8, 1993, Respondent filed its answer with the Division, in essence denying that it discriminated against Petitioner. A formal hearing was scheduled on February 2-3, 1994, pursuant to notice.

At the hearing, Petitioner testified on his own behalf and entered four exhibits into evidence. Respondent presented the testimony of two witnesses and entered four exhibits into evidence.

A transcript of the formal hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the conclusion of the hearing. Subsequently, the parties requested and were granted an extension of time to file the post-hearing submissions. The parties submitted proposed findings of fact and conclusions of law which are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Louis Cianciola (Petitioner) had been employed with United Artists Theatre Circuit, Inc., d/b/a United Artists (Respondent) in various capacities for approximately eight years, beginning in February 1984 in New York. Over the eight years, Petitioner had worked in every position from ticket-taker to theater manager.

   
   

2. In 1985, Petitioner assisted in the opening of a theater as the assistant manager and later became a theater manager in that same year.

   
   

3. Petitioner remained in New York, working as a theater manager, until 1990 when he relocated to Florida in Respondent's South Florida District. Prior to moving to Florida, Petitioner worked at several of Respondent's theaters at his request or his superiors, transferring whenever and wherever he was needed. In his transfers from theater to theater, no job application was required; a telephone call would suffice. Either he would telephone the division manager or general manager, or vice versa, and the move would be worked out over the telephone.

   
   

4. When Petitioner wanted to move to Florida, the procedure for moving did not vary. He telephoned the division manager who telephoned a supervisor in Florida.

   
   

5. Petitioner wanted to move to Florida because he was working very long hours as a theater manager in New York and he believed that, if he moved to one of Respondent's theaters in Florida, he would work shorter hours.

   
   

6. After relocating to Florida in 1990, Petitioner continued as a theater manager and was transferred from theater to theater, as needed.

   
   

7. Around May 1991, Petitioner discovered that he was HIV-Positive, and on separate occasions, informed Respondent's general manager for the southeast region, Christopher Potash, and its district manager for south Florida, Antonio Maldonado, of his illness. 1/ Not being well informed about his illness,

   Petitioner was fearful that he would become immediately ill; and consequently, he informed Potash and Maldonado immediately so they could be prepared.

   
   

8. When Petitioner was in New York, he had met Potash in 1985, but Potash was not a general manager at that time. On a working basis, Petitioner saw Potash at least quarterly when Potash inspected the theaters. He also interacted with Potash at least weekly on a social basis. As to Maldonado, Petitioner met him in 1991 when Maldonado came to Florida and interacted with him on a working basis at least once monthly at theater managers' meetings and talking with him every Monday to obtain movie schedules.

   
   

9. When Petitioner told Potash and Maldonado about his illness, neither Potash nor Maldonado related this knowledge to each other or to anyone else, including staff. However, Petitioner also told his assistant manager.

   
   

10. As district manager of South Florida, Maldonado hired and supervised the theater managers. He considered Petitioner to be a very good theater manager and had had no problems with him. He had no reason to believe that Petitioner would not continue to be an exemplary employee.

    
    

11. However, in or about January or February 1992, Petitioner's sparkling performance began to decline. The outward appearance of the theater managed by Petitioner began to deteriorate. Also, because his illness was causing him not to feel well, Petitioner began to request more and more leave time to cover his arriving late or leaving early. In spite of Petitioner's actions, both Potash and Maldonado continued their support of Petitioner in an effort to accomodate his needs.

    
    

12. In or around July 1992, a little over a year after Petitioner informed Potash and Maldonado of his illness, a shortage in funds (approximately $800) for Petitioner's theater was discovered. Petitioner admitted using the money to purchase medicine for his illness. Maldonado discussed the shortage and Petitioner's HIV status with Potash. It was decided that the matter would be dealt with by Maldonado counseling Petitioner.

    
    

13. In July 1992, the stress of the job and the long hours of work (from

    50 to 60 hours a week) had gotten the better of Petitioner. Even though he was experiencing problems, Petitioner did not request assistance from Maldonado. However, his illness dictated that he slow down.

    
    

14. Finally, around mid-July, Petitioner decided that he could not continue his duties and responsibilities as a theater manger. Here, the parties differ as to whether Petitioner terminated his employment as contended by Respondent or whether he took a leave of absence as contended by Petitioner. Petitioner testified that he informed Potash that he wanted to return to New York and work there and that Potash told him to take two weeks vacation and he (Potash) would see what he could do to get him a position in New York.

    Maldonado testified that Petitioner told him that he was leaving Respondent's employment and that the assistant theater manager would be taking over his duties and responsibilities. Both Potash and Maldonado deny that Petitioner was on a leave of absence. In support of its contention, Respondent completed a personnel action form showing Petitioner's termination date as of July 30, 1992. The testimony of Potash and Maldonado is determined to be credible and, therefore, Petitioner is found to have terminated his employment with Respondent.

15. In September 1992, Petitioner returned to the south Florida area. He contacted Potash and requested Potash to assist him in again obtaining employment with Respondent. Potash told him that he would help and that he foresaw no problem. Petitioner also contacted Maldonado who informed Petitioner that no theater manager positions were then available, but also agreed to help him.

    
    

16. The hiring practice of Respondent was that the general manager hires the district manager, the district manager hires the theater manager, and the theater manager hires people to work in the theaters. Theater manager and assistant theater manager positions are full-time; all others subordinate to assistant theater manager are part-time. Consistent with this practice, the general manager does not question who the district manager hires as theater manager and the district manager does not question who the theater manager hires as subordinate staff; neither does one instruct or direct the other who to hire. Additionally, Respondent promotes from within first. Petitioner knew of this practice and was a participant prior to leaving Florida, and this practice was still followed when he returned to Florida.

    
    

17. Also, related to filling positions prior to Petitioner leaving for New York, when help was needed in a theater at which Petitioner worked, a help wanted sign was posted at the particular theater and the vacancy was spread by word-of-mouth. However, for the last year that Petitioner was employed with Respondent, theater manager positions were posted on the employee's board.

    
    

18. As a hybrid to Respondent's usual hiring practice, when Petitioner was in New York, Potash had heard about an auditor's position and contacted Petitioner to inform him of the position. Potash agreed to forward Petitioner's resume to the appropriate person and speak favorable about him, which he (Potash) did. But, Petitioner did not get the position. This isolated instance is not found to be contrary to Respondent's practice, since Potash did not instruct or direct anyone to hire Petitioner.

    
    

19. Because Petitioner expected Potash and Maldonado to find a position for him in Florida, he did not complete any employment applications with Respondent for any position or personally contact any of the theater managers regarding available positions.

    
    

20. At first Petitioner talked to Maldonado and Potash about getting a theater manager position, but later included any and all positions in the theater business at or below the theater manager position.

    
    

21. Finally, toward the end of October 1992, Potash informed Petitioner about a ticket-taker position. Petitioner indicated that he wanted the position. However, the theater manager did not hire Petitioner.

    
    

22. Maldonado contacted approximately six of his theater managers, and all of them refused to hire or consider Petitioner for employment. At least one theater manager informed Maldonado that Petitioner would not be hired because that manager believed that Petitioner knew too much about the theater business and would be out to get that manager's job. Maldonado informed Petitioner that none of the theater managers that he contacted would hire him and what that one manager had related to him. Petitioner did not indicate that he believed the one manager was discriminating against him. Since he did not interfere with the hiring by theater managers, Maldonado would not interfere in Petitioner's situation or any situation in which a theater manager would not hire Petitioner. 2/

23. In Respondent's south Florida district, there were 14 theater managers. During the time period that Petitioner was seeking a position with Respondent, there were no vacant theater manager positions. However, three transfers occurred: one theater manager transferred to replace Petitioner when he left in July 1992; in September 1992 another theater manager transferred from a theater destroyed by Hurricane Andrew; and in July 1992 an assistant manager was promoted to manager and replaced the theater manager who replaced Petitioner. As was the case with other positions with Respondent, Petitioner did not complete an employment application for any theater manager positions.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

25. It is undisputed that United Artists Theatre Circuit, Inc., d/b/a United Artists (Respondent) is an employer within the meaning of Subsections 760.02(7) and 760.10(1), Florida Statutes.

    
    

26. 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 compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex,

          national origin, age, handicap, or marital status.

          
          

27. Section 760.50, Florida Statutes, pertains to, inter alia, discrimination on the basis of human immunodeficiency virus (HIV) and provides in pertinent part:

    
    

    (2) Any person with or perceived as having acquired immune deficiency syndrome, acquired immune deficiency syndrome related complex, or human immunodeficiency virus shall have every protection made available to handicapped persons.

    
    

    Accordingly, inasmuch as handicapped persons are protected against employment discrimination by Florida's Human Rights Act of 1977, as amended, persons with HIV enjoy the same protection thereunder. It is, therefore, an unlawful employment practice for an employer to refuse to hire a person because that person is HIV-Positive.

    
    

28. The ultimate burden of persuasion that the Respondent intentionally discriminated against Petitioner remains at all times with Petitioner. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

29. The initial burden is upon Petitioner to establish a prima facie case of discrimination by showing: (1) that he belongs to the protected group, (2) that he was qualified and applied for a job for which Respondent was seeking applicants, (3) that, despite his qualifications, he was rejected, and (4) that a person with similar qualifications, who is not a member of the protected group, was instead hired for the position. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 688 (1973).

    
    

30. To present a prima facie case, Petitioner must present facts which "raise an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Burdine, supra. The prima facie case serves to "eliminate the most common nondiscriminatory reasons" for Petitioner's disparate treatment. Burdine, supra, citing Teamsters v. United States, 431 U.S. 324, 358 and n.44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

    
    

31. In the case sub judice, Petitioner has met his initial burden of establishing a prima facie case of discrimination. Petitioner has shown that he is a member of the protected group due to being HIV-Positive; that, even though he did not complete an application for any positions, Respondent's regional manager, district manager and theater managers were well aware that Petitioner wanted a position with Respondent; that he was qualified for a theater manager position and any position below theater manager; that he was not hired for any position; and that other persons who were not known or suspected of being HIV- Positive were hired.

    
    

32. Once Petitioner meets his initial burden, the burden then shifts to Respondent to articulate a legitimate, nondiscriminatory reason for its action. Respondent need only articulate, not prove, such a reason. Thereafter, if Respondent carries this burden, Petitioner is then required to prove, by a preponderance of evidence, that the reasons offered by Respondent were pretextual. McDonnell Douglas, supra; and Burdine, supra.

    
    

33. Respondent has articulated and substantiated (even though it was not required to do so to meet its burden) legitimate, nondiscriminatory reasons for its actions, and Petitioner has presented no persuasive evidence that the articulated reasons are a pretext for discrimination because of his condition of being HIV-Positive.

    
    

34. Respondent's hiring practice is to promote from within first and Petitioner, as a former employee, was well aware of this practice and was a participant and recipient. Respondent followed this practice in Petitioner's situation. Furthermore, Respondent's practice includes theater managers having control over who they hire without any interference from the district manager and the district manager having control over who is hired as theater manager without any interference from the regional manager. Petitioner was also aware of this practice as being a former theater manger with Respondent. Moreover, Petitioner failed to show that any of the theater managers knew or had reason to suspect that he was HIV-Positive. Therefore, Petitioner has not shown that they were doing something other than following Respondent's established employment practice of promoting or hiring from within first and managers having control over who they promote or hire.

35. Even though the district manager knew that Petitioner was HIV- Positive, Petitioner has also failed to show that the district manager discriminated against him by using this knowledge to not hire him as a theater manager. The evidence shows that the district manager continued with Respondent's practice of promoting from within first.

    
    

36. Moreover, just as Petitioner can use past conduct of an employer in showing discrimination (McDonnell Douglas, supra; and Burdine, supra), past conduct can also be used to support nondiscrimination. The actions of Respondent's regional manager and district manager, prior to Petitioner's separation of employment, show that for approximately one year after Petitioner informed them that he was HIV-Positive, they supported and did what they could to help Petitioner. Their past actions support their position of not having discriminated against Petitioner.

    
    

37. Since Petitioner has not met his ultimate burden of persuasion and shown that Respondent discriminated against him, there is no need to determine damages, if any.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final

order DISMISSING the Petition for Relief filed herein.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of July 1994.

ERROL H. POWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of July 1994.

ENDNOTES

1/ Petitioner informed Potash and Maldonado separately.

2/ However, if a person is terminated from Respondent's employment for cause and a theater manager wishes to rehire the person, Maldonado's approval must be obtained before the person is rehired.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

1. Partially accepted in Findings of Fact 1 and 2.

2. Rejected as unnecessary for the determination of the issues herein.

3. Partially accepted in Finding of Fact 7.

4. Partially accepted in Finding of Fact 13.

5. Partially accepted in Finding of Fact 14.

6. Partially accepted in Finding of Fact 18.

7 and 9. Rejected as contrary to the weight of the evidence, or not supported by the more credible evidence.

8. Partially accepted in Finding of Fact 15.

10. Partially accepted in Findings of Fact 20 and 21.

11-13. Rejected as contrary to the weight of the evidence, or not supported by the more credible evidence.

1. Discussed in Preliminary Statement.

2. Rejected as not a finding of fact.

Respondent's Proposed Findings of Fact

1. Partially accepted in Finding of Fact 1.

2. Partially accepted in Finding of Fact 6.

3, 11, 34, 35, 39, 40, 54, 58, 59 and 61. Rejected as unnecessary for, or irrelevant to the determination of the issues herein.

4, 5 and 10. Partially accepted in Findings of Fact 7 and 8.

1. Partially accepted in Findings of Fact 10 and 23.

2. Partially accepted in Findings of Fact 10 and 16.

8, 12-14, 16, 17, 49, 56, 57 and 62. Partially accepted in Finding of Fact

16.

9. Partially accepted in Findings of Fact 16 and 22.

15. Partially accepted in Finding of Fact 10.

18-21. Partially accepted in Findings of Fact 7 and 9.

22. Partially accepted in Findings of Fact 10 and 11. 23-26, 38, 53 and 60. Rejected as argument.

1. Partially accepted in Findings of Fact 7 and 14.

2. Partially accepted in Finding of Fact 14.

29, 30, 32 and 33. Partially accepted in Finding of Fact 15.

31. Partially accepted in Finding of Fact 23.

1. Partially accepted in Findings of Fact 19 and 23.

2. Partially accepted in Finding of Fact 17.

41 and 42. Discussed in Preliminary Statement.

43. Partially accepted in Finding of Fact 20.

44-47. Partially accepted in Finding of Fact 22.

48. Partially accepted in Findings of Fact 9 and 12.

50-52. Partially accepted in Findings of Fact 19 and 23.

55. Rejected as contrary to the weight of the evidence, or not supported

by the more credible evidence.

1. Partially accepted in Findings of Fact 15 and 16.

2. Partially accepted in Findings of Fact 16 and 20.

NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the more credible evidence, argument, or conclusions of law.

COPIES FURNISHED:

Brion Blackwelder, Esquire Nova Civil Law Clinic

3305 College Avenue

Fort Lauderdale, Florida 33314

Victor J. Maya, Esquire Elarbee, Thompson & Trapnell Peachtree-Cain Tower

229 Peachtree Street, N.E. Atlanta, Georgia 30303

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32302-4149

Dana Baird General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32302-4149

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: 93-004639

Orders for Case No: 93-004639