STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINA D. MCGILL,

Petitioner,

vs.

THE MOORINGS RESTAURANT,

Respondent.

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) Case No. 00-2659

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RECOMMENDED ORDER PURSUANT TO REMAND

A Recommended Order in this case was entered on October 20, 2000, finding that Petitioner had failed to present evidence demonstrating a prima facie case of age discrimination pursuant to Chapter 760, Florida Statutes. Nevertheless, on March 19, 2001, the Florida Commission on Human Relations entered an order finding that Respondent committed an unlawful employment practice and remanding the case to the undersigned Administrative Law Judge for a determination of appropriate

relief.

APPEARANCES

For Petitioner: Christina McGill, pro se

7680 West Highway 90

Apartment 158

Pensacola, Florida 32561 For Respondent: No appearance

STATEMENT OF THE ISSUE

What is the appropriate relief to which Petitioner is entitled?

PRELIMINARY STATEMENT

No additional findings are necessary in order to calculate an appropriate remedy. At the October 6, 2000, hearing, Petitioner was offered the opportunity to provide documentary evidence as to the amount of wages obtained in other employment. Petitioner was unable to produce documentary evidence which would be helpful in this regard. Consequently, her unrebutted testimony as to the amount she was paid while employed with Respondent, and the amount and period she received unemployment insurance payments, and the amount and period she received wages from other employers, form the basis for determining the amount of damages.

From February 1998 until June 30, 1998, Petitioner's testimony indicated that she was drawing unemployment compensation while

she was also working at Beale's Outlet. In calculating damages, the weekly salary figure supplied for Beale's is used, rather than the unemployment compensation figure, because the most likely scenario is that she ceased drawing unemployment compensation once she commenced employment at Beale's.

Petitioner's testimony was vague as to actual dates of employment, so when Petitioner indicated she was employed in a

particular month, damage calculations were made as if she worked

the entire month.

CALCULATION OF DAMAGES

1. Petitioner was earning $300 per week when employed by Respondent. She was terminated on October 11, 1997.

2. From October 11, 1997, until January 31, 1998, she received $108 per week unemployment compensation. For this period her damages are $192 per week. This period encompassed

   16 weeks which amounts to lost wages in the amount of $3,072.

   
   

3. From February 1, 1998, until February 28, 1999, she received $128 per week while employed at Beale's Outlet in Gulf Breeze, Florida. For this period her damages are $172 per week for a total of 56 weeks. This amounts to $9,632.

4. From March 1, 1999, until August 31, 2000, she received

   
   

   $250 per week while employed at Allan Davis Souvenirs. For this period her damages are $50 per week for a total of 78.4 weeks.

   This amounts to $3,920.

   
   

5. From September 2000 until October 6, 2000, she was unemployed. For this period her damages are $300 per week for a period of 5 weeks. This amounts to $1,500.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

7. Subsection 760.11(6), Florida Statutes, provides that upon a determination that an unlawful employment practice has occurred, the administrative law judge, ". . . shall issue an appropriate recommended order in accordance with chapter 120 prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay."

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is,

RECOMMENDED:

That a final order be entered requiring Respondent to rehire Petitioner in the position she last held at a pay rate of

$300 per week, or higher, awarding Petitioner damages in the amount of $18,124 plus interest at the statutory rate, and awarding Petitioner back pay at the rate of $300 per week from October 6, 2000, until she is rehired. The back pay award should be reduced by the amount of any weekly rate earned elsewhere subsequent to October 6, 2000. It is further recommended that the final order prohibit Respondent from engaging in age discrimination.

DONE AND ENTERED this 28th day of March, 2001, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

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 28th day of March, 2001.

COPIES FURNISHED:

Christina D. McGill 7680 West Highway 90

Apartment 158

Pensacola, Florida 32561

The Moorings Restaurant

655 Pensacola Beach Boulevard Pensacola Beach, Florida 32561

Azizi M. Coleman, Clerk

Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel 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 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: 00-002659

Orders for Case No: 00-002659