STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALERIE A. ROBERTS,

Petitioner,

vs.

MILL-IT STRIPING, INC.,

Respondent.

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) Case No. 00-1796

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RECOMMENDED ORDER

On November 28, 2000, a formal administrative hearing was held in this case in Orlando, Florida, before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Valerie A. Roberts, pro se

Post Office Box 543 Maitland, Florida 32751

For Respondent: Edward T. Quinn, pro se

as former Vice President Mill-It Stripping, Inc.

107 Shore Drive Longwood, Florida 32779

STATEMENT OF THE ISSUES

Whether Petitioner was wrongfully terminated from her position as a payroll clerk with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner timely filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission) on July 19, 1995. Following an investigation by the Commission, a Determination: No Cause was issued by the Commission on February 4, 2000. Petitioner timely filed a Petition for Relief on March 10, 2000. Thereafter, on April 26, 2000, this matter was transmitted to the Division of Administrative Hearings for hearing. Following discovery, and a continuance granted at the request of Petitioner, the hearing was held on November 28, 2000.

At the hearing, Petitioner testified in her own behalf, offered the testimony of one witness, and offered four exhibits in evidence. Respondent offered the testimony of one witness and entered four exhibits in evidence. The proceedings were recorded but not transcribed. Neither party filed proposed findings of fact or conclusions of law prior to the issuance of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Prior to November 1994, Petitioner was employed by Markings and Equipment Corporation, first as a receptionist,

   later as a payroll clerk for several years. She had a good working relationship with management and staff.

2. In November 1994, Edward T. Quinn and two other investors purchased the assets of Markings and Equipment Co. and established a new corporation named Mill-it Striping, Inc., a Florida corporation.

3. On November 7, 1994, Mill-It Striping began operations.

   
   

   Edward T. Quinn was named Vice-President and Chief Operating Officer.

4. Petitioner and one other person were retained as office staff. Other employees of the former owner were retained as field workers in their same positions.

5. Petitioner and the other employees were retained on a 90-day probationary period. All employees were required to complete application forms for the new company. The organization of the company was revamped and operating policies were changed.

6. Petitioner and Quinn became embroiled in disputes over policy and procedures on a nearly daily basis. Quinn's management style was gruff and unprofessional. Foul language was directed toward Petitioner's work by Quinn on a regular basis.

7. There was insufficient evidence to prove that Quinn's derogatory remarks of a social nature were directed toward Petitioner.

8. On December 5, 1994, Petitioner was terminated from her position as a payroll clerk.

9. Quinn alleged that Petitioner was terminated because of her poor work performance and reporting to work late on more than one occasion while on probation.

10. Petitioner, who is an African-American female, was replaced in her position by a Caucasian female.

11. Respondent's company presently has been administratively dissolved, as of September 24, 1999.

12. There is no evidence that the corporation is active, is a subsidiary to another company, or that it has any remaining assets.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsections 120.569 and 120.57(1), Florida Statutes.

14. Petitioner contends that she was unlawfully discharged by Respondent because it discriminated against her due to her race. Petitioner relies on the Florida Civil Rights Act of 1992, Section 760.10, et seq., Florida Statutes (1994). The

    Civil Rights Act prohibits certain specified unlawful employment practices and provides remedies for such violations.

15. That statute provides, in pertinent part, as follows:

    
    

    760.01 PURPOSES, CONSTRUCTION; TITLE

    
    

    * * *

    
    

    1. The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the State freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health and general welfare, and to promote the interests, rights, and privileges of individuals within the state.

       
       

    2. The Florida Civil Rights Act of 1992 shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.

    
    

    * * *

    
    

    760.10 UNLAWFUL EMPLOYMENT PRACTICES.

    
    

    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.

    
    

16. The Florida Civil Rights Act is patterned after Title VII of the Civil Rights Act of 1964, 52 U.S.C. Section 2000e-2. School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st

    DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA, 1991).

17. In Department of Corrections v. Chandler, 581 So. 2d 1183 (Fla. 1st DCA 1991), the court analyzed the types of claims under the Florida Civil Rights Act. In that case, the court noted as follows:

    Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, . . ., by showing disparate treatment, and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination, however, as to the latter, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. (Citations omitted) Id. at 1821 n. 2.

18. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:

    1. Petitioner is a member of a protected class;

    2. The employee is qualified to remain in her position;

    3. The employee was subject to an adverse employment decision (Petitioner was terminated);

    4. The position was filled by a white person; and

    5. There must be shown by the evidence that there is a casual connection with a. and c. Canino v. EEOC, 707 F.2d 468, 32 FEP Cases

       139 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

       
       

19. Proving a prima facie case serves to eliminate the

    
    

    most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See Teamsters v. U.S., 431 U.S. 324, 358, and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a

    business setting. Furnco Construction Corp. v. Waters, 438 U.S.

    
    

    567, 576 (1978).

    
    

20. Once a plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, 450 U.S. 248 at 257 (1981).

The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-

255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

1. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to Petitioner, who must prove that the reason offered by the employer for its decision is not the true reason but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that

   the replacement was more qualified than Petitioner. Texas

   
   

   Department of Community Affairs v. Burdine, at 257-8.

   
   

2. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that Respondent intentionally discriminated against Petitioner remains at all

   times with Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, 509 U.S., 502, 113 S. Ct. 2742

   (1993).

   
   

3. In the case sub judice, Petitioner has established that she is an African-American female and a member of a protected class. Petitioner made an initial showing that she was qualified to remain in the position as a payroll clerk. Petitioner has also established that she was subjected to an adverse employment decision (she was terminated) and the position was filled by a white person. Therefore, Petitioner met her initial burden of proof on the issue of race discrimination.

4. The sequence of presentation of evidence then required Respondent to come forward and "articulate" valid, nondiscriminatory reasons for the resulting termination of Petitioner's employment. Respondent has done so.

5. While Petitioner is a minority who was terminated from her position, Respondent testified that she was not performing in her position to its legitimate expectations and requirements.

6. In addition, Petitioner failed to provide any evidence of other non-protected employees similarly situated with comparable work performances who were not terminated.

7. While the actions of Quinn in disparaging her work performance were unwarranted and inappropriate, Petitioner did not come forward with any evidence to prove that the reason offered by Respondent for its reason to terminate her was not the true reason, but was merely a pretext.

8. Petitioner at all times relevant to this action, has failed to prove that Respondent intentionally discriminated against her for any of the reasons specified within the meaning of the Florida Civil Rights Act.

9. Harsh treatment in the workplace is not evidence that Quinn or any other supervisor of Respondent made the decision to terminate her based upon her race. Nix vs. WLCY Radio, 738

F.2d 1183, reh. Denied 747 F.2d 710 (11th Cir. 1984).

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 Petitioner's Petition for Relief with prejudice.

DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2000.

COPIES FURNISHED:

Azizi M. Coleman, Acting Agency Clerk Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303-4149

Edward T. Quinn

as former Vice President Mill-It Stripping, Inc.

107 Shore Drive Longwood, Florida 32779

Valerie A. Roberts Post Office Box 543

Maitland, Florida 32751

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

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: 00-001796

Orders for Case No: 00-001796