STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FITZGERALD WESLEY, )

)

Petitioner, )

)

vs. ) Case No. 95-3223

)

SUNSHINE - JR. FOOD STORES, )

INC., NO. 322, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice by Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings, on January 22, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Fitzgerald Wesley, pro se

Post Office Box 212 Lloyd, Florida 32227

For Respondent: David S. Cornelius

Human Resources Manager

E-Z Serve Convenience Stores, Inc. Post Office Box 922021

Houston, Texas 77292-2021 STATEMENT OF THE ISSUE

Whether the Respondent’s predecessor engaged in discriminatory employment practices by retaliation against Petitioner by discharging him, and giving him poor employment references thereafter because of a claim of discrimination

Petitioner had filed with the Human Relations Commission alleging racial discrimination in denying Petitioner a promotion.

PRELIMINARY STATEMENT

The Petitioner filed a Petition for Relief with the Human Relations commission on June 23, 1995. This claim was forwarded to the Division of Administrative Hearings to conduct a hearing upon the allegations. The assigned Administrative Law Judge entered an order giving the Petitioner the opportunity to clarify how the instant claim differed from a previous claim made by the Petitioner. The Petitioner responded that his first claim was based upon his being denied a promotion and that his second claim was based upon retaliation after he was discharged from employment by giving him a poor employment reference. The assigned Administrative Law Judge determined that the commission lacked jurisdiction to redress retaliation after employment was terminated, and relinquished jurisdiction to the Commission to enter a final order of dismissal.

On October 19, 1997, the Commission remanded the case to the Division for the purpose of conducting a formal hearing on the issue of retaliation after discharge on the basis of Robinson vs. Shell Oil Company, 117 S. Ct. 843 (1997), in which the U.S. Supreme Court found that the provision relating to retaliation applied to persons who were no longer employed by the employer retaliating against them.

The parties were contacted, and the date for a formal hearing set and noticed. Notice was provided as required by the applicable rules to Petitioner and to E-Z Serve which had

purchased Sunshine Jr. Food Stores. The case was heard as noticed; however, the undersigned was re-assigned to hear the case to facilitate scheduling within the Division.

On the day of hearing, the Respondent’s representative was not present at the commencement of the hearing. A call was made to see if there was some problem, and it was determined that E-Z Serve had received notice but had not made arrangements for representation at the hearing. Its representative was permitted to participate via telephonic conferencing, and the hearing proceeded.

At the hearing, Petitioner presented the testimony of Kimberly Littman and testified in his own behalf. The Respondent cross examined the Petitioner and his witness, but did not present any testimonial evidence. The Respondent was permitted to file as late-filed exhibits any documents which it felt were relevant, subject to the objection of Petitioner. The Respondent filed a post-hearing pleading to which it attached 12 exhibits marked REX 1-12. The Petitioner did not file any objections to the Respondent’s late-filed exhibits; however, most of them related to and were relevant to the issue of the prior cases filed by Petitioner.

Subsequent to the hearing, no transcript was ordered, and the parties filed their proposed findings in the form of letters which were read and considered.

FINDINGS OF FACT

1. The Petitioner is Fitzgerald Wesley, a black male.

   
   

2. The E-Z Serve is a corporation employing more than 15 employees which purchased Sunshine Jr. Food Stores, which was a corporation also employing more than 15 employees. E-Z Serve admits having assumed liability for Sunshine’s actions.

3. Petitioner was employed by Respondent at Store 322 as an Assistant Manager, and was discharged by the Respondent on or about September 23, 1993. Petitioner performed a range of services for Respondent in store number 322 and was being trained to handle the responsibilities of managing this store.

4. When the store’s manager left, Petitioner thought he would be considered for the promotional opportunity; however, he was not promoted to the opening which was filled by a white male. Feeling he had been discriminated against, the Petitioner filed a Charge of Discrimination with the Commission on Human Relations raising the issue of racial discrimination in denying him the promotion. This case was forwarded to the Division of Administrative Hearings, Case No. 93-5059, and was ultimately closed for failure to prosecute.

5. On or about September 23, 1993, the new manager of Store 322, Greg Grubbs, discharged the Petitioner without stating a reason for the action.1 The Petitioner applied for a similar position at a Suwannee Swifty convenience store down the street from Store 322. This store was managed by Kimberly Littman.

6. Ms. Littman testified at the hearing. She was manager of the Suwannee Swifty store at which Petitioner applied for employment. Because of his prior experience, Ms. Littman was interested in hiring him. She contacted Greg Grubbs, who was the manager of Store 322 and the person who had discharged Petitioner.

7. Ms. Littman asked Mr. Grubbs about the Petitioner’s work history. Mr. Grubbs advised Ms. Littman that Petitioner was a hard worker and did his job well, but Mr. Grubbs stated that Petitioner was prejudiced against customers. Ms. Littman concluded that Mr. Grubbs meant the Petitioner was prejudiced against White customers because the Petitioner was Black. Mr. Grubbs said he would not re-hire the Petitioner because he was prejudiced against customers.

8. Notwithstanding the negative comment of Mr. Grubbs, Ms. Littman hired the Petitioner who went to work for her within three days of his discharge by Respondent. Petitioner’s wage was slightly lower; however, Petitioner did not have exact information regarding his wage loss.

9. Petitioner represented himself and presented no evidence regarding his costs in presenting his case.

10. Petitioner presented no evidence of mental anguish.

    
    

11. Petitioner referenced other positions for which he applied; however, he did not present evidence that other potential employers had spoken with Mr. Grubbs.

12. Petitioner eventually left the employment of Suwannee Swifty after being robbed two times.

13. The Petitioner filed a Charge of Discrimination with the Commission of Human Relations on March 28, 1994, based upon retaliation. In was investigated and a “no cause” determination was made.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes (Supp. 1996.

15. The burden of proof in this case is upon the Petitioner.

16. Section 760.10(7), Florida Statutes, provides in part:

    
    

    It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge . . . under this section.

    
    

17. The Commission on Human Relations has looked to the Federal Law interpreting Title VII in applying similar provisions of the Florida law. To prove a prima facie case of retaliation under Title VII, the Petitioner must show that (1) he participated in a statutorily protected activity, (2) he received an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse action.

18. In this case, the Petitioner showed that he had filed at least one claim with the Commission on Human Relations. He also showed that he was discharged without a reason being stated, and that Mr. Grubbs gave a potential new employer negative information regarding his employment record. This information was closely associated in time with Petitioner’s filing with the commission. See Shirley vs. Chrysler First, Inc., 970 F.2d 39 at 42 (5th Cir. 1992).

19. The Petitioner makes a prima facie case. The Respondent does not present facts supporting Mr. Grubbs’ decidedly negative comments about Petitioner. There was no competent evidence presented of problems with Petitioner’s work much less that he was prejudiced towards customers. The Respondent did not present a rebuttal to Petitioner’s prima facie case.

20. The Respondent points out accurately that Mr. Grubbs’ comments did not prevent his employment by Ms. Littman and the Petitioner presented no evidence of economic or other injury.

21. In sum, Petitioner demonstrated that the Respondent committed a practice prohibited by Section 760.10(7), Florida Statutes. Petitioner did not demonstrate that he suffered any specific financial or other injury. The record shows that Petitioner was rehired within three days and made close to the same wage which was near the minimum wage rate. The record does not indicate any other injury. Because the discharge had already

occurred and the circumstances surrounding it are not at issue, re-instatement and back pay are not appropriate remedies.

RECOMMENDATION

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

RECOMMENDED:

That the Commission on Human Relations enter a final order finding that the Respondent engaged in retaliation against the Petitioner and direct the Respondent to take action to prevent any re-occurrence of this conduct with other employees; however, in the absence of any demonstrated injury or costs of litigation, the Petitioner not be awarded any damages or costs.

DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998.

ENDNOTE

1/ No issues relating to the Petitioner’s discharge are presented in this case.

COPIES FURNISHED:

Fitzgerald Wesley Post Office Box 212 Lloyd, Florida 32227

David S. Cornelius Human Resources Manager

E-Z Serve Convenience Stores, Inc. Post Office Box 922021

Houston, Texas 77292-2021

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

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-003223

Orders for Case No: 95-003223