STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNISE RAINES,

Petitioner,

vs.

AMERICAN PIONEER TITLE INSURANCE COMPANY,

Respondent.

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) Case No. 04-4319

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on June 7, 2005, in Sanford, Florida.

APPEARANCES

For Petitioner: Dennise Raines, pro se

1165 West 16th Street, Apartment B Sanford, Florida 32771

For Respondent: Andrew G. Wedmore, Esquire

Jill Schwartz & Associates

180 North Park Avenue, Suite 200 Winter Park, Florida 32789-7401

STATEMENT OF THE ISSUE

Whether Respondent, American Pioneer Title Insurance Company, discriminated against Petitioner, Dennise Raines, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2002).

PRELIMINARY STATEMENT

On November 24, 2004, the Florida Commission on Human Relations received a Petition for Relief from Petitioner claiming that Respondent was guilty of discriminating against her. On December 1, 2004, the Petition for Relief was received by the Division of Administrative Hearings. On the same day, an Initial Order was forwarded to both parties.

On December 14, 2004, the case was scheduled for final hearing in Sanford, Florida, on January 7, 2005. On January 3, 2005, Respondent requested a continuance. The case was rescheduled for March 16, 2005. On March 16, 2005, both parties and the undersigned appeared as scheduled. However, the court reporter did not appear; as a result, the final hearing was rescheduled for June 7, 2005.

The case was presented as rescheduled on June 7, 2005.

Petitioner presented two witnesses: herself and Billy Raines. Respondent presented two witnesses: Kathy Bowes and Elmer David Johnson, Jr. Respondent offered eight exhibits which were received into evidence as Respondent's Exhibits 1 through 8.

The hearing Transcript was filed with the Division of Administrative Hearings on August 10, 2005. Each party filed a Proposed Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made:

1. Petitioner is an African-American female who worked for Respondent from 1999 until October 11, 2002, when her employment was terminated.

2. Respondent owns and operates a title insurance company and is subject to Chapter 760, Florida Statutes (2002).

3. Petitioner was first employed as a data entry operator.

   
   

   In January 2001, she was promoted to a research position and received a pay increase.

4. After an initial period of positive work performance and interaction with co-employees, Petitioner's attitude changed. Her work and relationships with co-workers deteriorated.

5. As a result, in July 2002, Ms. Kathy Bowles, who had hired and supervised Petitioner and who had recommended Petitioner's advancement, demoted Petitioner due to Petitioner's negative behavior toward co-employees which included addressing them with profanity and demonstrated disrespect toward her supervisors. Although Petitioner was demoted, her pay remained the same.

6. The July 2002 demotion is memorialized by an Employee Performance Enhancement Plan (Respondent's Exhibit 6).

7. Subsequent to her demotion, Petitioner requested that her work hours be adjusted to allow her to attend classes. This request was approved, and Petitioner's work hours were changed.

8. Thereafter, Petitioner's attendance and punctuality suffered. In September 2002, Petitioner was absent or late more than one-half of the work days; of these days, there were seven instances of tardiness. Petitioner was counseled regarding tardiness on September 27, 2002. Similarly-situated Caucasian employees, Mss. Beverly Dease and Linda Shapiro, had only been late for work one time between them for the entire year.

9. Petitioner was late for work twice during the first five work days of October. Following the second tardiness, on October 7, 2002, Ms. Bowles counseled Petitioner that an additional tardiness would result in her being discharged. On the third work day following counseling, Petitioner was absent from work.

10. Following this absence, Petitioner was discharged for her attitude, tardiness, and absenteeism. She was replaced by a Hispanic female.

11. Respondent has an extensive, well-conceived, Equal Employment Opportunity policy which prohibits unlawful discrimination. This policy is posted in the workplace and is distributed to every employee as a part of the Employee Handbook at the time he or she is employed. There are published

    procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Although she acknowledged awareness of the policy, Petitioner did not avail herself of it.

12. Ms. Bowles, Petitioner's supervisor, hired, promoted and then, demoted Petitioner. No evidence received supports Petitioner's contention that Ms. Bowles or any other employee of Respondent unlawfully discriminated against Petitioner.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat. (2005).

14. Subsection 760.10(1)(a), Florida Statutes (2002), provides that it is an unlawful employment practice for an

    employer:

    
    

    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.

    
    

15. Florida courts have determined that federal discrimination law should be used as a guidance when construing provisions of Section 760.10, Florida Statutes (2002). Harper

    v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir.

    1998); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

16. The United States Supreme Court established, in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII, which is persuasive in the instant case, as reiterated and refined in the case of St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

17. This analysis illustrates that a petitioner has the burden of establishing, by a preponderance of evidence, a prima facie case of discrimination. If that prima facie case is established, the respondent must articulate a legitimate, non- discriminatory reason for the action taken. The burden then shifts back to the petitioner to go forward with evidence to demonstrate that the offered reason is merely a pretext for unlawful discrimination. The Supreme Court stated in Hicks, before finding discrimination in that case, that:

    [T]he factfinder must believe the plaintiff's explanation of intentional discrimination.

    
    

    509 U.S. at 519.

    
    

18. In the Hicks case, the Court stressed that even if the factfinder does not believe the proffered reason given by the employer, the burden still remains with the petitioner to

    demonstrate a discriminatory motive for the adverse employment action taken.

19. In order to establish a prima facie case, Petitioner must establish that she is a member of a protected class or group; that she is qualified for her position; that she was subjected to an adverse employment action; that she was treated less favorably or differently than similarly-situated persons outside her protected class; and that there is some causal connection between her membership in the protected class and the adverse employment action. McDonnell-Douglas Corporation v.

    Green, 411 U.S. 792 (1973); Canino v. U.S. E.E.O.C., 707 F.2d

    
    

    468 (11th Cir. 1983).

    
    

20. There is no dispute in this case that Petitioner is a member of a protected class or that she suffered an adverse employment action. She failed to show that she was treated dissimilarly than persons outside her protected class. She also failed to advance any factual basis for concluding that her discharge from employment was based on her race.

21. Petitioner has failed to advance a prima facie case.

Had she done so, the evidence presented by Respondent persuasively suggests that Petitioner's discharge was a result of her attitude, chronic tardiness, and absenteeism.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of law, it is

RECOMMENDED that Petitioner's Petition for Relief be dismissed.

DONE AND ENTERED this 15th day of September, 2005, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 15th day of September, 2005.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Dennise Raines

1165 West 16th Street, Apartment B Sanford, Florida 32771

Andrew G. Wedmore, Esquire Jill Schwartz & Associates

180 North Park Avenue, Suite 200 Winter Park, Florida 32789-7401

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 04-004319

Orders for Case No: 04-004319