STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUESLIN VINCENT,

Petitioner,

vs.

U-HAUL CO. OF, SOUTHERN ALABAMA,

Respondent.

)

)

)

)

) Case No. 04-4570

)

)

)

)

)

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above-styled case on April 15, 2005, by Stephen F. Dean, assigned Administrative Law Judge, of the Division of Administrative Hearings in Tallahassee, Florida.

APPEARANCES

For Petitioner: Gueslin Vincent, pro se

Post Office Box 20123 Tallahassee, Florida 32316

For Respondent: Jeremy P. Hertz, Esquire

For & Harrison LLP

300 South Orange Avenue, Suite 1300 Orlando, Florida 32801-3379

STATEMENT OF THE ISSUES

Whether the Respondent engaged in a discriminatory employment practice contrary to Chapter 760, Florida Statutes, by paying the Petitioner less that other similarly situated

employees and by discharging the Petitioner based upon the Petitioner's race, national origin age and disability?

PRELIMINARY STATEMENT

The Petitioner filed a Charge of Discrimination against the Respondent with the Florida Commission on Human Relations (FCHR) on or about June 27, 2004 alleging discrimination based upon his race, national origin, age and disability by paying him less money, turning the Petitioner down for two promotions, and terminating the Petitioner. Upon completion of its investigation, the FCHR made a determination of no cause, and notified the Petitioner of his right to a hearing on the matter. The Petitioner filed a Petitioner for Relief on December 20, 2004, and the matter was referred to the Division of Administrative Hearings. The matter was noticed for hearing, and heard as noticed on April 15, 2005.

The Petitioner appeared and testified in his own behalf.

The Respondent presented the testimony of Arthur Williams. Both parties stipulated to the bound volume of exhibits prepared by the Respondent, which were received and are numbered 1 through

1. The Respondent filed a Proposed Recommended Order, which was read and considered.

   FINDINGS OF FACT

   
   

   1. The Petitioner is a black male of Haitian extraction.

      
      

      His date of birth as given in his personnel records (Exhibit 7) is June 16, 1977.

   2. The Respondent is an employer within the statutory definition that engages in the rental of trailers, trucks, and moving supplies and sales and installation of equipment used in towing trailers.

   3. The Petitioner did not present any evidence regarding disability or age.

   4. The Petitioner was initially employed by the Respondent in 2002 as a customer service representative making $6.50/hour. Several month later, he received a raise to $7.00/hour, and before the end of the year, he received another raise to

      $7.50/hour. In the first half of 2003, the Petitioner was moved to the position of Assistant Moving Center Manager and his salary increased to $8.50/hour. In the fall, he received a raise to $9.25/hour and was given another raise to $11.50/hour before year's end.

   5. Testimony was received from Arthur Williams, who was the store manager and familiar with the operations of the company, although at the time of Petitioner's termination, he was new to the position and "in training." The pay for personnel employed by the Respondent is established nationwide

      and is based upon cost of living factors for an area. The wages paid to the Petitioner were slightly above the average for an area like Tallahassee, and reflected the Petitioner's hard work. His pay was in line with others doing similar work.

   6. The Petitioner alleged Clint Barrineau was paid more than he was paid. The evidence indicted that Barrineau had held in his career with the company, every position in its stores, including area manager. Barrineau had left the company for personal reasons, and upon his return in July 2003, was hired at

      $9.00/hour. Subsequently, he was promoted to the position of Hitch Professional at $11.50/hour. Notwithstanding Barrineau's prior experience, generally, it take less time for a person to be promoted as a hitch professional than as an assistant moving center manager reflecting hitch-related sales as an income center in the business. Both Barrineau and the Petitioner were making the same salary when the Petitioner was terminated.

   7. The Petitioner testified that he was denied promotion to store manager on two occasions. The Petitioner did not establish his qualifications for this position; however, evidence was received that the first person employed in that position was Henry Barnes a white male, and the second was Arthur Williams, a black male.

   8. Williams was brought in from outside the company; however, he had significant experience in retail sales management.

   9. The Petitioner's primary claim related to his discharge. The evidence presented indicated that on May 4, 2004, the Petitioner closed the store as the general manager on duty. As the manager on duty, it was his job to prepare the daily receipts for deposit in the bank, and retain a fixed amount for business operations on the next day. The Petitioner did this, and the bank deposit was made.

   10. On the following day, Arthur Williams, the store manager, arrived with Chuck Newell, the Field Relief Manager, who was helping to train Williams. The two men opened the store, which was duly locked, and Williams disarmed the alarm system. Williams opened the store safe, and counted the money. There was supposed to be $1000 kept in the safe for store operations. The count revealed only $800. Williams and Newell recounted and then search the safe and cash registers to ensure it had not been left in one of these places; however, the money was not present. Having assured themselves by checking and rechecking that the money was not present, they proceeded to open the store for business with the money on hand, and then check with the bank.

   11. They physically drove to the bank and checked the nightly deposit, which was correct, the deposit receipt having tallied with the money deposited.

   12. Williams and Newell returned to the store and called the alarm system center. This center is operated by U-Haul, and each authorized employee has his or her own code for disarming the alarm upon entering the store. If the code is not entered, or if the premise is broken into, the alarm goes off. The alarm center reported that there were no entries into the building after it was locked the previous night until Williams opened it o that morning. There was no evidence of the building being burgled.

   13. When the Petitioner reported to work on May 5, 2004, Williams confronted him about the missing money. The Petitioner did not have an explanation. As the manager closing the store, the Petitioner was solely and personally responsible for the deposit and for securing the money left on the premises. Although personnel were permitted to make up cash drawer shortages, the money in question was "store" money, and the amount involved was more significant that typical cash drawer shortages. Having determined that there was in fact a cash shortage and that the Petitioner was the person responsible for the accountability and security of the funds, Williams made the determination to discharge the Petitioner.

   14. Williams, although in training, was the sole individual responsible for the decision to discharge the Petitioner. As mentioned above, Williams is a black male.

   15. Williams testified further regarding other persons whom he had discharged. Ms. B. Heaulskamp was discharged for refusal to work her assigned schedule. Mr. Zak White, a white male, was discharged for a shortage in his cash drawer. Heaulskamp was provided a letter of termination; however, this was Williams' first termination, and he was advised it was company policy not to provide termination paperwork. He did not provide the Petitioner or White with such paperwork.

   16. Williams hired the Petitioner's replacement, William Westry, who was a black male. Williams has hired two Haitians since the Petitioner's termination, both of whom were still

       employed at the store.

       
       

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Chapter 760, Florida Statutes.

   18. The Petitioner alleged violations of Chapter 760, Florida Statutes, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. There was no evidence presented in support of

       Petitioner's claims of violation of the Age Discrimination and Americans with Disabilities Acts.

   19. The essence of the Petitioner's claims of employment discrimination related to alleged differentials in pay, failure to promote, and his termination allegedly based upon his race and country of origin. The Petitioner testified regarding these matters.

   20. To establish a prima facie case, the Petitioner must show that he is a member of a protected class, was subjected to an adverse employment action, his employer treated similarly situated employees outside his class more favorably, and, in the case of discharge, that he was replaced by someone outside the protected class. See McDonnell Douglas v. Green, 411 US 792 (1973) at 802.

   21. The Petitioner is a black Haitian. He showed he was in a protected class. He testified that he applied for two promotions to store manager. In the first instance, a white male was promoted to the position who had more time with the company, and in the second instance, a black male was promoted into the position who had extensive retail sales management experience. The Petitioner had worked for the company for less than one and a-half years before the first promotion opportunity, and less than two years before the second promotion opportunity. In the second instance, the promotion went to a

       person who was also in a protected class and who had significant and differentiating experience.

   22. The evidence showed that Clint Barrineau was paid for a short while more than the Petitioner; however, the evidence showed that Barrineau had been previously employed with the company, was very experienced in a range of jobs with the company to include being an area manager, and had considerable expertise in the area in which he was working as a "Hitch Pro," an expert in sales and installation of trailer hitch products that constitute a major costs center for the company. The record shows that the Petitioner was rapidly advanced and received pay increases that placed him at the same salary as Barrineau, who had much more experience in a variety of jobs with the company. Contrary to showing that the Petitioner was discriminated against, the evidence shows that he was rapidly promoted and given raises commensurate with his responsibilities.

   23. Ultimately, the Petitioner's complaint rests on his termination. The facts reveal that the Petitioner was the manager responsible for properly closing out the books and making the bank deposit for the store. In this context, he was responsible for the money deposited and retained on premises. There was a shortage in the petty cash maintained on the

       premises for which he was ultimately responsible. The person who made the decision and who terminated him was a black male.

   24. Evidence was presented that other white employees were discharged for similar conduct, one specifically for a cash shortage, not long after the Petitioner was discharged.

   25. In sum, the Respondent's evidence indicated that it had a non-discriminatory reason for discharging the Petitioner and for promoting the other employees. There was no showing that the Petitioner's salary was out of line with his experience and responsibilities. The burden fell upon the Petitioner to show that the reasons advanced for his discharge were pretextual. See Department of Community Affairs v. Burdine, 450

U.S. 248, 256 (1981). The Petitioner failed to carry this burden.

RECOMMENDATION

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

RECOMMENDED:

That Florida Commission on Human Relations enter its final order dismissing the Petitioner's claims.

DONE AND ENTERED this 26th day of May, 2005, in Tallahassee, Leon County, Florida.

S

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2005.

COPIES FURNISHED:

Gueslin Vincent

Post Office Box 20123 Tallahassee, Florida 32316

Jeremy P. Hertz, Esquire For & Harrison LLP

300 South Orange Avenue, Suite 1300 Orlando, Florida 32801-3379

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

Tallahassee, Florida 32301

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: 04-004570

Orders for Case No: 04-004570