STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY DOLINGER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5381

) SHAKER LAKES APARTMENT COMPANY )

d/b/a Seasons of Tampa, Limited, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 1, 1996, a formal administrative hearing was held in this case. It was held before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings by televideo. (The hearing officer was in a specially- equipped hearing room in Tallahassee, and the other hearing participants were in a specially-equipped hearing room in Tampa, Florida. The two hearing rooms were connected by televideo.)

APPEARANCES

For Petitioner: David E. Davis, Esquire

620 East Twiggs Street, Suite 305

Tampa, Florida 33602-3929 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the Florida Commission on Human Relations should grant the Petition for Relief alleging that the Respondent discriminated against the Petitioner on the basis of his marital status, in violation of Section 760.10, Fla. Stat. (1995).

PRELIMINARY STATEMENT

On or about October 11, 1993, the Petitioner filed with the Florida Commission on Human Relations (FCHR) a Charge of Discrimination accusing the Respondent of discrimination on the basis of marital status. It was given FCHR Case No. 93-2371. After investigating, the FCHR determined on September 1, 1995, that there was "reasonable cause to believe that an unlawful employment practice" had occurred.

On October 2, 1995, the Petitioner filed a Petition for Relief, which was referred to the Division of Administrative Hearings (DOAH) on November 8, 1995, and was given DOAH Case No. 95-5381. Final hearing initially was scheduled for February 20, 1996, in Tampa, Florida, but on the Petitioner's motion it was continued to May 1, 1996. The day before the scheduled hearing, arrangements were initiated to convert it to a televideo hearing.

The Respondent did not appear at final hearing. The Petitioner and his wife testified, and Petitioner's Exhibits 1 through 7 were admitted in evidence.

At the conclusion of the evidence, the Petitioner was given ten days in which to file his exhibits and proposed recommended order. On May 20, 1996, the Petitioner filed documents entitled: Proposed Final Order, with exhibits attached; Affidavit of Petitioner's Damages; Affidavit of Plaintiff's Attorney's Fees; and Certificate of Costs. (The exhibits included those admitted in evidence together with other documents. One of the documents seems to include both Petitioner's Exhibit 1 and Petitioner's Exhibit 2.)

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 95-5381.

FINDINGS OF FACT

1. The Respondent, Shaker Lakes Apartments Company d/b/a Seasons of Tampa, Limited, is a property management company whose principal place of business is in Cuyahoga County, Ohio. The Respondent owns real property or conducts business in Florida and has 15 or more employees.

   
   

2. The Petitioner, Jerry Dolinger, was hired by the Respondent on or about August 14, 1989, as a maintenance supervisor at a starting pay of $12,000 a year.

   
   

3. On or about May 1, 1991, the Petitioner was promoted to district manager at an annual salary of $20,541.57 ($395.03 per week), plus hospitalization benefits and the use of a company car. By the end of 1992, the Petitioner was demoted to maintenance supervisor, but his salary and benefits remained the same.

   
   

4. The Petitioner's wife, Karen Dolinger, also was employed by the Respondent, as property manager for Seasons of Tampa, Limited. On or about April 1, 1993, the Petitioner's wife resigned due to disputes with and conduct of the Respondent's vice-president of operations, Jacqueline McCullough. Upon her resignation, she distributed a letter to all residents of the apartment complex giving the residents information concerning the change in property management and the names, addresses and telephone numbers of the Respondent's management personnel in Ohio.

   
   

5. The Respondent did not wish to have the names, addresses and telephone numbers of the Respondent's management personnel in Ohio given to the tenants at Seasons of Tampa. The Respondent wished to have those individuals remain unknown to the tenants so all tenant complaints and similar issues would have to be resolved locally through the property manager and district manager.

   
   

6. On or about April 2, 1993, Jacquelyn McCullough telephoned the Petitioner and asked whether he had any knowledge of his wife's letter to the tenants. The Petitioner denied any knowledge and in fact had no such knowledge. She asked if the Petitioner also intended to resign, and the Petitioner answered that he did not.

   
   

7. Later on April 2, 1993, the Respondent terminated the Petitioner's employment. One of the reasons given for the termination--an alleged temporary staff reduction--was a pretext. (Within days of the Petitioner's termination,

   the Respondent hired someone to take the Petitioner's place as maintenance supervisor.) The other reason--alleged insubordination and disloyalty--was based on the Respondent's belief that the Petitioner knew about and participated in the letter to the tenants. But the only basis for this belief was the Petitioner's marital status. Since there was no evidence to support the Respondent's belief, the basis of the Petitioner's termination was his marital status.

   
   

8. The Petitioner was unable to find reemployment until approximately June 11, 1993. However, his new employment was at a salary of only $17,000 a year, a reduction of $68.11 a week. The Petitioner suffered this reduction in salary until November 5, 1993, when he obtain employment at a salary higher than what he earned with the Respondent, together with hospitalization benefits and the use of a company car, for a total of salary loss during this period of

   $1,430.31.

   
   

9. The Petitioner's loss of use of the Respondent's company car from April

   2 through November 5, 1993, cost him monetary damages of $295 a month for replacement transportation, or approximately $2,100. (The Affidavit of Petitioner's damages incorrectly multiplies the monthly expense by 31 weeks, resulting in an incorrect alleged total loss of $9,145.)

   
   

10. In order to redeem the second mortgage on the Petitioner's home, which went into default as a result of the loss of the Petitioner's salary, the Petitioner and his wife had to refinance, at a cost of $2,033.02.

    
    

11. The Petitioner also claims damages due to the loss of life and health and hospitalization insurance from April 2 through November 5, 1993. But the Petitioner's testimony was that he could not afford to replace those insurance coverages, and there was not evidence that he suffered any out-of-pocket uninsured expenses that would have been covered by them.

    
    

12. The Petitioner also claims damages for the loss of $3,775 worth of personal items sold to pay necessary living expenses for the period from April 2 through November 5, 1993. But those sums already are accounted for in loss of salary and would result in a double recovery if added to the loss of salary.

    
    

13. Based on the Affidavit of Plaintiff's Attorney's Fees, a reasonable attorney fee in this case is $6,492.50.

    
    

14. Based on the Certificate of Costs, reasonable costs to be taxed to the Respondent in this case is $178.42.

    
    

    CONCLUSIONS OF LAW

    
    

15. Section 760.10(1), Fla. Stat. (1995), makes it unlawful to discriminate against an individual with respect to terms, conditions or privileges of employment because of the individual's marital status. For purposes of this statute, the term "marital status" has been interpreted "broadly to include one's relationship to one's spouse, rather than narrowly to include only the fact that one is married, single, divorced or widowed." Final Order, Owens v. Upper Pinellas Ass'n for Retarded Citizens, 8 F.A.L.R. 438, 440 (FCHR 1985), aff'd without opinion, 495 So.2d 754 (Fla. 2d DCA 1986).

    
    

16. In a case such as this, the Petitioner initially has the burden to at least prove a prima facie case of illegal discrimination. If a prima facie case is proven, the burden shifts to the Respondent to articulate legitimate

    nondiscriminatory reasons for the alleged adverse action taken against the Petitioner. Then the burden returns to the Petitioner to prove that the articulated reasons are a mere pretext for intentional discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089,

    1093, 67 L.Ed.2d 207 (1981).

    
    

17. It is concluded that, in this case the Petitioner proved a prima facie case of discrimination on the basis of his marital status. It is concluded that the facts of this case are more like Owens (employee was fired under employer's anti-nepotism policy after marrying another employee) than like National Industries, Inc., v. Comm'n on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988) (employer fired wife to keep her husband, a former employee fired for sexual harassment, rudeness, obscene language, threats and potential violence against other employees, away from those employees).

    
    

18. Although the Respondent did not appear or present a defense, there was evidence that the Respondent articulated two allegedly legitimate nondiscriminatory reasons for the adverse action taken against the Petitioner. However, the evidence was that one of those reasons (the alleged temporary staff reduction) was a mere pretext for intentional discrimination and that, under the facts of this case, the other (the alleged insubordination and disloyalty) actually was not a legitimate nondiscriminatory reason but rather supported the Petitioner's contention that there was intentional discrimination on the basis of his marital status.

    
    

19. Under Section 760.11(6), Fla. Stat. (1995), the final order of the Florida Commission on Human Relations can not only prohibit the illegal practice but also provide "affirmative relief from the effects of the practice, including back pay." Reasonable attorney's fees may be allowed to the prevailing party "as part of the costs." Based on the findings in this case, the Respondent should be required to pay the Petitioner a total of $16,184.53 (which includes a reasonable attorney fee) as affirmative relief from the effects of the illegal practice.

    
    

20. Legal interest on court judgments is governed by Section 55.03, Florida Statutes. Prior to January 1, 1995, legal interest on court judgments was 12 percent; from January 1, 1995, through December 31, 1995, it was 8 percent; since January 1, 1996, it has been 10 percent.

RECOMMENDATION

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

1. finding the Respondent guilty of illegal discrimination on the basis of the Petitioner's marital status; and (2) requiring that the Respondent pay the Petitioner a total of $9,692.03, together with legal interest from November 5, 1993, plus $6,492.50 as a reasonable attorney fee, together with legal interest from May 1, 1996, as affirmative relief from the effects of the illegal practice.

   DONE and ENTERED this 6th day of June, 1996, in Tallahassee, Florida.

   
   

   
   

   J. LAWRENCE JOHNSTON, 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 6th day of June, 1996.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5381

   
   

   To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the Petitioner's proposed findings of fact:

   
   

   1. Conclusion of law.

2.-5. Accepted and incorporated to the extent not conclusion of law, subordinate or unnecessary.

1. Accepted and incorporated.

2. Accepted but subordinate and unnecessary.

3. Annual salary rejected as inconsistent with the Affidavit of Petitioner's Damages; otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

9.-10. Accepted but subordinate and unnecessary. 11.-15. Accepted and incorporated.

16. Accepted but subordinate and unnecessary.

17.-23. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Amount of loss rejected as not proven by the evidence; "mental anguish, loss of dignity, and other intangible injuries" rejected as not relevant in this proceeding; otherwise, accepted and incorporated.

2. Accepted and incorporated.

COPIES FURNISHED:

David E. Davis, Esquire

620 E. Twiggs Street, Suite 305

Tampa, Florida 33602-3929

Jacqueline McCullough Vice President

Shaker Lakes Apartments Company 1422 Euclid Avenue, Suite 1146

Cleveland, Ohio 44115-1951

Sharon Moultry, Clerk Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Florida Commission on Human Relations 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 consult with the Florida Commission on Human Relations concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 95-005381

Orders for Case No: 95-005381