Judges: K. N. AYERS
Agency: Commissions
Latest Update: Feb. 26, 1982
Summary: Petitioner failed to prove he was discharged because of his Mexican heritage.
81-1623.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN LOPEZ, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1623
) THE LEMON TREE INTERNATIONAL ) HEALTH SPA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 26 and 29 October 1981.
APPEARANCES
For Petitioner: Thomas A. Bustin, Esquire
City Attorney
City of Clearwater Post Office Box 4748
Clearwater, Florida 33518
For Respondent: Edward A. Turnbull, Esquire
404 Florida National Bank Building St. Petersburg, Florida 33701
In a Charge of Discrimination dated 5 March 1981, John Lopez, Charging Party (CP), alleges he was involuntarily terminated on 20 February 1981 from his job as an instructor at The Lemon Tree International Health Spa (Respondent) in Clearwater, Florida, because of his national origin (Spanish surname). As grounds for his claim of discrimination, Lopez alleges there are no minorities employed by Respondent; that his replacement, an Anglo-Saxon, had no prior experience in the field of physical fitness; that he was a reliable employee and that other employees who were not terminated missed a greater amount of time from work than he did. When confronted with the charge, Respondent denied any discrimination and contended that Lopez was terminated because of unsatisfactory work performance.
At the hearing on 26 October 1981 three witnesses, including CP, were called on behalf of CP, Respondent called five witnesses and one exhibit was admitted into evidence. At the continued hearing on 29 October 1981 Respondent called one witness who had been subpoenaed for 26 October. On 26 October this witness had called Respondent's attorney to advise that she had forgotten about the subpoena. At this time the parties were given the option of submitting her testimony by deposition as a late-filed exhibit or the Hearing Officer would reconvene the hearing for a short period on 29 October to receive this witness's
testimony. This witness was the individual who had terminated CP's employment with Respondent. Both parties opted for the latter choice.
At the conclusion of the 29 October hearing CP, through his attorney, advised that the whereabouts of another witness had recently been discovered and requested these proceedings remain open for the purpose of submitting that witness's deposition as a late-filed exhibit. Respondent's objection to this procedure was sustained.
FINDINGS OF FACT
John Lopez was employed as an instructor at The Lemon Tree International Health Spa, Clearwater, Florida, from November 4, 1980, until he was involuntarily terminated on February 20, 1981.
Lopez was hired by John Prevatt, the manager of the health spa who left some three weeks after CP was hired. Prevatt loaned CP a white smock to wear as part of the uniform prescribed for male instructors.
Prevatt was replaced as manager by Paula Peters who, during the first few weeks she was manager, was at the spa only part of two or three days each week. Diane McDaniel, who was a counsellor at the Clearwater spa, was acting manager when Paula Peters was absent.
During this period of time discipline and the enforcement of the uniform requirements for instructors were lax. McDaniel reminded CP he was supposed to wear a white smock but apparently did little else along these lines and CP did not purchase a smock.
Instructors were also required to learn the "tour," a prepared speech that was to be given to prospective clients being shown around the facilities by the instructors. CP never learned the "tour" verbatim and expressed his displeasure with parts of this "tour" to other instructors.
After being told several times by Paula Peters that he must wear a smock, CP purchased one in late December or early January. However, he never learned the "tour" although he was told he must learn the "tour" by Prevatt, McDaniel and Peters. Instructors escorting prospective members on tour were given a one or two percent commission of the membership fees of those escorted who joined the spa. Names of those escorted were written on the back of instructors' time sheets by the instructor. CP did not list the names of prospective members he took on tour on the back of his time sheets and he was never paid a commission for those who subsequently became members. CP was the only instructor who did not receive a commission. He was also the only one who did not place the names of those whom he took on tour on the back of his time sheets and the only instructor who acknowledged that he never really learned the "tour." Instructors were supposed to know the "tour" and follow the script to be eligible for the commission.
At the time Lopez was hired he had a second job as a bartender and was told by Prevatt that he could leave at 3:00 p.m. (instead of 4:00 p.m.) on Wednesdays, Thursdays and Fridays to go to the other job. The evidence was unclear whether this information was passed to Peters by either CP or Prevatt or if she concurred with this arrangement.
On several occasions Lopez was late reporting for work. He reported sick fewer days while he was employed than did some other instructors.
On at least one occasion when CP's presence was desired to take prospects on tour after 9:30 a.m., CP was not available as he was taking a shower, shaving, etc. Other employees contended that CP spent most of his time in the reception room rather than in the male side of the spa where he was supposed to be. CP was fired by Paula Peters on February 20, 1981.
Lopez testified that he was required to clean mirrors, glass and sweep up in the wet area and no other instructors were given similar chores. All of the employees called by Respondent testified that they performed these chores every day during slack periods as time permitted. The major shareholder of Respondent testified that continual cleaning of these spaces was essential to the operation of a successful health spa and was a chore demanded from all employees and that all instructors were required to wear the prescribed uniform. He further testified that considerable time had been spent developing the "tour" and that it was essential that all employees strictly follow the script prepared for the "tour" and not deviate therefrom.
No evidence was presented that anyone employed by Respondent ever referred to CP as a Mexican or that he was fired because of his national origin. Exhibit 1 indicates that Celia Diaz was employed by Respondent from January 7, 1980, until September 20, 1980, and that Betty Gomez was employed from June 21, 1980, until October 6, 1980.
Instructors are paid the minimum wage rate of $3.10 per hour and few remain for a long period of time. Some move up to receptionist and counsellor, but the increased salary is apparently not sufficient to keep even these in the spa employ for extended periods. Exhibit 1 indicates that the average time of employment for the eight listed thereon was slightly less than four months.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
City of Clearwater Ordinance No. 1843 establishes certain criteria to be followed in community relations within the city. Section 7B-18 provides in part:
It shall be an unlawful discriminatory practice:
For an employer, because of the race, creed, color, national origin, sex, age, handicap, or marital status, to refuse to hire or employ or to bar or to discharge from employment such individual in compensation or in terms, conditions, or privileges of employment.
In a case alleging discrimination, as in other civil actions, the party seeking redress has the initial burden of proceeding and the ultimate burden of proof to establish, by a preponderance of the evidence, that he is entitled to the relief sought. Balino v. Dept. of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Here, the charging party failed to sustain that burden. The only evidence presented in this regard was that CP testified he was of Mexican ancestry, that he was hired by the Respondent and that he was fired. The evidence contradicts CP's claim that he was the only
employee required to clean windows and mirrors. Although CP appeared to be the only instructor not given a commission on those he took on tour who joined the spa, the evidence was uncontradicted that CP never learned the "tour" verbatim or appeared interested in following the script for this "tour" and he did not list the names of those he escorted on tour on the back of his time sheets. No evidence was presented that this failure to pay CP commissions was related to the fact that his name was Lopez and, but for this, he would have been paid commissions. To the contrary, the evidence showed CP did not properly conduct the tour and did not list the names of those escorted on his time sheets.
Evidence presented by Respondent that CP was tardy reporting for work, that he spent a considerable portion of his time in the reception area, that he appeared for work not in the prescribed uniform and that he failed to learn and give the "tour" in accordance with the script provided is more than sufficient to rebut any inference that CP was fired because of his national origin.
From the foregoing, it is concluded that John Lopez has failed to prove, by a preponderance of the evidence, that he was fired by The Lemon Tree International Health Spa, Clearwater, Florida, on February 20, 1981, because of his national origin. It is, therefore,
RECOMMENDED that these charges be dismissed.
ENTERED this 13th day of November, 1981, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1981.
COPIES FURNISHED:
Thomas A. Bustin, Esquire City Attorney
City of Clearwater Post Office Box 4748
Clearwater, Florida 33518
Edward A. Turnbull, Esquire
404 Florida National Bank Building St. Petersburg, Florida 33701
Docket for Case No: 81-001623
Orders for Case No: 81-001623
