STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRENE Y. MURRAY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1862

)

CITY OF TALLAHASSEE, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to Notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on September 20, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Marie Mattox, Esquire

1333 North Adams Street Tallahassee, Florida 32303

For Respondent: Maribel N. Nicholson-Choice, Esquire

City Hall, Second Floor

300 South Adams Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Respondent committed an unlawful employment practice in adopting a dress code prohibiting an employee from wearing a hat.

PRELIMINARY STATEMENT

This case concerns a complaint alleging race discrimination which was filed by Irene Y. Murray on October 6, 1993, with the Florida Commission on Human Relations (FCHR) against the City of Tallahassee's TalTran Office. The alleged discrimination arose from Respondent's dress code policy which prohibited Cashiers/Information Clerks of TalTran from wearing hats or caps while performing their duties.

FCHR filed a Notice of Determination: No Cause on February 28, 1994. The Petitioner filed a Petition for Relief on April 1, 1994, which alleged race discrimination.

The Petition was transmitted to the Division of Administrative Hearings on April 6, 1994. On April 12, 1994, an Initial Order was issued and the parties filed a Joint Response to the Initial Order on May 2, 1994. A Notice of Hearing and Order was issued on May 5, 1994, initially scheduling this matter for an administrative hearing on June 22, 1994. The Petitioner filed a Motion to

continue on May 26, 1994. An Order Granting Continuance and Amended Notice was issued on June 7, 1994, rescheduling this matter for a hearing which was held on September 20, 1994.

The Respondent filed a Motion in Limine in this matter on September 19, 1994, which was resolved by the Hearing Officer prior to the hearing regarding this matter.

Petitioner testified and called her co-workers, Sandra F., Smiley, LaVerne Thomas, and Sheryl B. Williams Whaley as witnesses in her case-in-chief.

Respondent called TalTran employees Alphonso Menendez (Supervisor of Transit Services); Joel Furney (Supervisor of Transit Services); April Hall (former Administrative Specialist I); Maria Streety and Ardelia Kelly (Information Transportation Clerk/Cashier). There were no posthearing motions filed in this action.

Both parties filed proposed findings which were read and considered. The Appendix to this order states which of the findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. Petitioner, Irene Y. Murray, is an African American female.

   
   

2. Petitioner has been employed with the City of Tallahassee for approximately five years in the position of Information Clerk/Cashier with TalTran, the City of Tallahassee's bus service.

   
   

3. There are both uniformed and non-uniformed employees of TalTran. All of the bus drivers, mechanics and maintenance employees are in uniform. Information Clerk/Cashiers are not uniformed employees. There are approximately

   20 to 30 employees who do not wear a uniform within the employ of TalTran.

   
   

4. Petitioner regularly works in three separate locations. She works at

   C.K. Steele Plaza where she sells bus tickets, makes change and passes along information to the public.

   
   

5. Petitioner also works in the administrative offices of TalTran on Appleyard Drive in two different offices. She works one full week at Steele Plaza then a week at each office at the administrative headquarters.

   
   

6. When Petitioner works in the primary administrative office she is a receptionist and interacts with the public.

   
   

7. Two black females, one Hispanic female and two white males were employed as Clerk/Cashiers at the time the dress code was adopted, and performed duties identical or similar to those performed by the Petitioner.

   
   

8. At the administrative offices, there were several secretaries, administrators and planners who had varying degrees of contact with the public. These employees included white and black employees.

   
   

9. In July, 1993, April Hall, a white female, was the direct supervisor of the Information Clerks/Cashiers including Irene Murray. Ms. Hall's immediate supervisor was Alfonzo Menendez, a black male. For approximately eight to twelve months prior to July, 1993, Ms. Hall and Mr. Menendez noticed a decline in the appearance of the Information Clerks/Cashiers.

10. At that time, both Mr. Menendez and Ms. Hall observed Clerk/Cashiers wearing shorts, sweat pants, warm up suits and sandals to work at Steele Plaza and the administrative offices. Menendez and Hall felt that there was a need to improve the appearance of the Information Clerks/Cashiers. Neither Hall nor Menendez mentioned complaints about hats, and Hall had no complaints about Petitioner's wearing of hats, caps, and head wraps.

    
    

11. On or about July, 1993, Mr. Menendez instructed April Hall to draft a dress code applicable to the Information Clerks/Cashiers. The policy drafted by April Hall in July, 1993, prohibited the wearing of the attire described above in the workplace by Information Clerks/Cashiers. It also prohibited the wearing of hats.

    
    

12. Petitioner was concerned about prohibition of hats in the workplace, and asked Mr. Menendez why hats were prohibited after July, 1993. She never received a meaningful explanation from Al Menendez or April Hall as to why hats were prohibited in the workplace after July, 1993.

13 Petitioner went to Mr. Menendez's supervisor, Bob Chamberlin, to determine why she was not allowed to wear hats, and was informed by Mr. Chamberlin that "everyone" had to give up something and that her hats had been chosen as the item of clothing that Petitioner would be prohibited from wearing.

1. The dress policy of July, 1993, only affected the Information Clerks/Cashiers and did not apply to other administrative employees who did not wear uniforms.

   
   

2. Irene Murray was the only person actually affected by the "no hat" prohibition because she was the only Information Clerk/Cashier who wore hats, caps, or head wraps.

   
   

3. After the "no hat" policy was passed, Petitioner was reprimanded for wearing an ethnic type turban. It was made clear to Petitioner in the reprimand which she received that the City of Tallahassee was prohibiting not only the wearing of regular hats, but also African-American headdress.

   
   

4. Sandra Smiley, an executive secretary with TalTran for seven years, testified that she became aware of the dress policy which changed the dress code for the Information Clerks/Cashiers when it was implemented in July, 1993. Ms. Smiley believed that the policy was implemented solely to affect Irene Murray. Ms. Smiley did not see any business reason for prohibiting the wearing of hats by a person in Irene Murray's position, and had never heard complaints about Ms. Murray's hats and turbans.

   
   

5. Cheryl Williams Whaley, who had been with the City of Tallahassee for twelve years and with TalTran for three years, testified. The dress code of July, 1993, only affected the Information Clerks/Cashiers. Ms. Whaley saw no business reasons for the policy prohibiting hats. Ms. Whaley believed that the policy was instituted particularly to target Irene Murray.

   
   

6. LaVerne Thomas, a Secretary III with TalTran for five years, saw no legitimate reasons for the dress code of July, 1993. Prior to the passage of the dress code, Ms. Thomas had never heard any complaints about Irene Murray's headdress. Ms. Thomas believed that the no hat provision was intended to impact Irene Murray because she was the only clerk/cashier who wore hats.

7. Prior to the date that the dress code was passed in July, 1993, no one had ever informed Irene Murray that her hats were inappropriate in the workplace.

   
   

8. After Petitioner questioned the policy, Respondent amended the July, 1993 policy. The City of Tallahassee compromised and permitted employees to wear head bands and scarves, but not hats or a covering which covered the entire top of the head. See Petitioner's Exhibit No. 5, a memo dated September 17, 1993.

   
   

9. Petitioner has not been discharged, demoted, or experienced any loss of pay due to the adoption of the dress code; however, she has received a reprimand and since then has been afraid not to comply with the policy.

   
   

10. Maria Streety is a Hispanic female who is employed as a part-time Information Clerk/Cashier. Following adoption of the dress policy, Ms. Streety ceased wearing sweat suits, stretch pants, tights with oversized T-shirts, and sandals while performing her employment duties.

    
    

11. Ardelia Kelly is an African American female who is employed as a part- time Information Clerk/Cashier.

    
    

12. The dress policy applies to part-time Information Clerks/Cashiers. Ms. Streety and Ms. Kelly do not wear "caps" or "hats" while working because they understand such would violate the dress policy.

    
    

13. The dress policy applicable to Clerks/Cashiers was facially neutral regarding employee's sex or ethnic background.

    
    

14. Petitioner understood that the dress policy applied only to Clerks/Cashiers.

    
    

15. Ms. Whaley understood that the dress policy applied only to Clerks/Cashiers.

    
    

16. Ms. Smiley understood that the dress policy applied to only Clerks/Cashiers.

    
    

17. LaVerne Thomas felt affected by the dress code policy, although she is not an Information Clerk/Cashier. Ms. Thomas stopped wearing her African American-styled cap because the policy indicated a preference of the employer.

    
    

18. Clerks/Cashiers have extensive contact with the public at Steele Plaza, and have about the same amount of contact with the public as the secretaries and planners while working at the administrative offices.

    
    

19. Petitioner occasionally wears her "coat" and "scarf" the "entire [work] day" for comfort during the winter particularly while working at Steel Plaza.

    
    

20. Petitioner's choice of the hats, caps, and head wraps, which she wears for comfort during cold weather, reflects her African American heritage and culture.

    
    

21. One of Petitioner's "hobbies" or "crafts" is designing African American-styled head wraps and clothes for herself and for fashion shows.

22. Petitioner wears "native head dress" more frequently than other employees as a "traditional" and "cultural expression."

    
    

23. A piece of plexiglass was provided to Clerk/Cashiers to place in the "pass through" in the windows of the information/ ticket booths at Steele Plaza prior to the winter of 1993 in order to close the hole in booth to drafts. This did not eliminate the impact of cold weather on the Clerks/Cashiers.

    
    

24. Petitioner is better able to comfortably perform her job duties at Steele Plaza wearing a hat, cap, or head wrap.

    
    

25. Petitioner's practice of covering her head with hats, caps, and head wraps is not based on religious beliefs or practice.

    
    

26. Respondent's dress policy related to the personal appearance of employees.

    
    

27. Respondent's dress policy does not bar employment opportunities otherwise available to African Americans.

    
    

28. Most of the TalTran bus riders are black.

    
    

29. Although April Hall drafted the dress policy, she did so at the direction of Menendez, a black male, who is her supervisor.

    
    

30. Ms. Hall liked Petitioner's hats and did not find them objectionable or a detriment to the performance of Petitioner's duties.

    
    

31. Mr. Menendez prohibited the wearing of hats because he felt they were inappropriate for wear in the office. There was no explanation why the policy was applied only to Clerk/Cashiers and not to all office workers. There was no explanation why the policy was applicable to Clerk/Cashiers when at Steele Plaza where wearing hats made performing job duties more comfortable.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

    
    

33. The City of Tallahassee is an "employer" as defined by Chapter 760, Florida Statutes, and employed more than 15 employees each work day for more than 20 calendar weeks. Petitioner is a black female employed by the Respondent, City of Tallahassee.

    
    

34. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of the individual's race or sex. The Florida Act is modeled upon Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, as amended by the Civil Rights Act of 1991. As such, the federal cases have been considered by the Florida courts as persuasive in applying the Florida law.

    
    

35. The Petitioner has the burden of proof throughout the proceedings. See McDonell Douglass Corp. vs. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs vs. Burdine, 450 U.S. 258 (1981). Once a prima facie case of discrimination is established by Petitioner, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. The

    Petitioner must then prove by a preponderance of the evidence that the reasons articulated by the employer are a pretext for discrimination. See Burdine, above.

    
    

36. To establish a prima facie case, the Petitioner must prove she is the member of a protected class, and that Respondent has engaged in some practice which is discriminatory. Practices covered by the Act include refusing to hire, firing, or otherwise discriminating against any individual with respect to his or her compensation, terms, conditions, or privileges of employment because of, in this case, race or sex. [Emphasis Supplied] This generates the first issue in this case, to wit, whether the establishment of a dress code prohibiting employees from wearing hats at work is a term or condition of employment under the act.

    
    

37. Many cases hold that the establishment of dress and appearance standards for employees and application of the codes differently between males and females is not discriminatory under Title VII. Criteria which establish standards for employee appearance and the application of standards to employees of difference sexes which relate to the appearance and grooming of the employees in a different manner have been declared prerogatives of the employer. Postal regulations requiring clerks to wear ties which were not applied to female employees were found not to state a claim, as was prohibiting male postal employees from wearing an earring. These cases uniformly hold that Title VII does not prohibit an employer from making decisions based upon factors such as dress, and even cosmetics and grooming factors, where they were uniformly applied to males and females, whites and blacks, etc.

    
    

38. An exception to these cases is when the employee is prohibited from wearing an item of apparel which (1) is related to the employee's ability to comfortably perform his or her job, and (2) which other employees, who are similarly situated, are permitted to wear. The classic case is the obese postal employee who was prohibited from wearing shorts while delivering mail in hot weather, while others were permitted to wear shorts. It was held that this raised a complaint over a term or condition of employment.

    
    

39. Respondent argues that provision of a plexiglass shield to cover a hole in the clerk/cashiers' booths at Steele Plaza eliminates the problem with working in the cold, and negates wearing of hats as a issue of comfort in performing the job. This is contrary to credible evidence that the plexiglass shield helps, but does not eliminate the problem of cold. The "comfort" test is met; however, the inquiry must turn to whether similarly situated personnel were permitted to wear hats, caps, or head wraps.

    
    

40. The policy was applicable to all Clerk/Cashiers; however, it was not applicable to secretaries and planners who worked in the office. According to the actual author of the regulation, Mr. Menendez, the prohibition was intended to eliminate wearing of hats in the administrative offices; however, the policy was only applicable to Clerk/Cashiers and not to the secretaries and planners, who also wore hats in the office. Factually, the prohibition was not applied to similarly situated employees of the employer. The fact that they had a different job title is immaterial, they all worked in the same office, and they all interacted with the public. The prohibition regarding hats effected a term or condition of employment.

    
    

41. Petitioner's case is based upon the premise that the rule was adopted specifically to prohibit her from wearing afro-centric hats and headwear at work, and, therefore, it is discriminatory. (It is not claimed that

    Petitioner's wear of such head covers has a religious basis, but that it is a personal preference.) Within the group of Clerk/Cashiers, which included black males and females and white and Hispanic males and females, the prohibition was uniform. Although secretaries and planner were not subject to the regulation, there was a significant number of black females who worked in the office and were permitted to wear hats, caps, and head covers. Therefore, even if the prohibition effected a term or condition of employment, it was instituted by a black male, and was applied uniformly to all Clerks/Cashiers without regard to sex or race. Those employees who were similarly situated and who were permitted to wear hats included both white and black, male and female employees.

    
    

42. In conclusion, although this case involves a rule which lacks a rationale basis for promulgation and which is equally bizarre in its application, it lacks the necessary element of discrimination upon a racial or gender basis, as indicated above.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Petitioner's Complaint be dismissed.

DONE and ENTERED this 15th day of November, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN

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 15th day of November, 1994.

APPENDIX

Petitioner's Recommended Order Findings

Paragraph 1 Paragraphs 2, 4

Paragraph 2 Paragraph 5

Paragraph 3 Paragraph 6

Paragraph 4 Paragraph 3

Paragraph 5 Paragraph 8

Paragraph 6 Subsumed in Paragraph 32

Paragraph 7 Paragraph 7

Paragraph 8 Paragraph 10

Paragraph 9 Subsumed in Paragraph 14

Paragraph 10 Paragraph 9

Paragraph 11 Paragraph 10

Paragraphs 12 - 15 Paragraphs 10, 11

Paragraph 16 Paragraph 11

Paragraphs 17, 18 Paragraph 12

Paragraph 19 Paragraphs 14, 15

Paragraph 20 Subsumed in Paragraph 12

Paragraph 21 Rejected as contrary to best evidence Paragraph 22 Paragraph 16

Paragraph 23 Paragraph 13

Paragraph 24 Paragraph 17

Paragraph 25 Paragraph 18

Paragraph 26 Paragraph 19

Paragraph 27 Paragraphs 28, 21

Respondent's Recommended Order Findings

Paragraph 1 Paragraph 1

Paragraph 2 Subsumed in Paragraph 2

Paragraph 3 Paragraph 22

Paragraphs 4, 5 Subsumed in Paragraph 16

Paragraphs 6, 7 Subsumed in Paragraphs 9, 10

Paragraph 8 Paragraph 12

Paragraph 9 Subsumed in Paragraph 7

Paragraph 10 Paragraph 23

Paragraph 11 Paragraph 24

Paragraph 12 Paragraph 25

Paragraph 13 Subsumed in Paragraphs 12, 13

Paragraphs 14, 15, 16 Subsumed in Paragraph 27

Paragraph 17 Paragraph 26

Paragraphs 18, 19 Paragraph 22

Paragraph 20 Irrelevant

Paragraph 21 Subsumed in Paragraphs 17-26

Paragraph 23 Paragraph 28

Paragraph 24 Paragraph 29

Paragraph 25 Subsumed in Paragraph 19

Paragraph 26 Subsumed in Paragraph 25

Paragraph 27 Contrary to best evidence

Paragraph 28 Subsumed in Paragraph 31

Paragraph 29 Paragraph 30

Paragraphs 30-34 Paragraphs 33-36

Paragraphs 35, 41 Paragraph 38

Paragraph 36 Paragraph 39

Paragraphs 37, 38, 39 Contrary to best evidence

Paragraph 40 Paragraph 40

Paragraph 42 Subsumed in Paragraph 38

Paragraph 43 Contrary to best evidence

COPIES FURNISHED:

Marie Mattox, Esquire 1333 North Adams Street Tallahassee, FL 32303

Maribel N. Nicholson-Choice, Esquire City Hall, Second Floor

300 South Adams Street Tallahassee, FL 32301

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

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. 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: 94-001862

Orders for Case No: 94-001862