STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELA PORTERA, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 84-3498

) FCHR CASE NO. 83-0207

JAX LIQUORS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 25, March 14 and April 4, 1985, in Tallahassee, Florida. The issue for determination in this proceeding is whether respondent, Jax Liquors, Inc. committed an unlawful employment practice when it terminated petitioner from her employment as a lounge manager.

APPEARANCES

For Petitioner: Virginia Daire

118 North Gadsden Street Tallahassee, Florida 32301

For Respondent: Douglas W. Abruzzo, with

Donald L. Tucker, P.A.

Lewis State Bank Building, Suite 804 Tallahassee, Florida 32301

INTRODUCTION

In support of her position that she was unlawfully terminated from her employment because of her sex (female) and/or her marital status (married), petitioner testified in her own behalf and also presented the testimony of Dr. Jacquelin L. Simpson, accepted as an expert witness in the areas of home and family life and women in the workplace; Joyce Jernigan; Susan Wardlow; Robert Portera; Michael A. Roper, accepted as an expert witness in the field of accounting; James Miranda; Marilyn Morris; Ruth Sinclair; and Carla Adams.

Respondent presented the testimony of Angela Portera, James Miranda, James McGee, Carl Wilson, Patrick Madden, Sylvia Chapmon, Mary Jane Ridner Johnson, Thomas Thielen, John Robert Chern, Jr., and, by way of deposition, Sandy Cox and Audrey Cox.

Received into evidence were petitioner's Exhibits 1 - 5, 7 and 8;

respondent's Exhibits 1, 2, and 9 - 11; and Hearing Officer's Exhibits 1 - 12

and 14 - 22.

Subsequent to the hearing, the petitioner submitted a memorandum and the respondent submitted a proposed recommended order. To the extent that the proposed findings of fact contained in those documents are not incorporated in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issue in dispute or as constituting legal conclusions as opposed to factual findings.

FINDINGS OF FACT

1. Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to by the parties, the following relevant facts are found:

   
   

2. Prior to her employment with the respondent, petitioner had work experience in waitressing, bookkeeping, operating a wine and beer bar and operating a grocery store. At all times relevant to this proceeding, petitioner was married and had three children.

   
   

3. Respondent Jax Liquors, Inc. (Jax) owns and operates a retail liquor business which is' divided into package store operations and lounge operations. Though its lounges are generally located adjacent to a package store, each is a separate entity having its' own management structure. There are 35 package stores employing 198 males and 199 females, and 11 lounges with 135 employees,

   87 percent of which are female. While sales figures for the package stores range from $1.5 to $4 million per year, the lounges' sales figures are approximately $50,000 per year. Because of the greater volume of inventory, customers, employees and paper work, promotion of employees to the management level in the package stores takes a longer period of time. Employees in the lounges can move up from the position of cocktail waitress to assistant manager or manager in a short period of time because of the less demanding nature of the work. The employee turnover rate in the lounges is eight times higher than that of the package stores. Lounge employees tend to be younger and less settled and career-oriented than package store employees.

   
   

4. On or about February 22, 1982, petitioner was hired by Jax as a cocktail waitress at the Jax Lounge on the Apalachee Parkway in Tallahassee.

   She was trained as a cocktail waitress for approximately two weeks, and when the assistant manager was promoted to manager, petitioner began training as an assistant manager. During her months at the Apalachee Parkway lounge, petitioner was a good worker with no complaints or problems.

   
   

5. On or about March 24, 1982, petitioner was transferred to the Jax lounge on Thomasville Road in Tallahassee to serve as an assistant manager. On July 9, 1982, she was promoted to the position of manager at that lounge. One coworker, a cocktail waitress, described petitioner as a strict, but good manager with no scheduling, customer or staff complaints. Another coworker, who became the assistant manager when petitioner was promoted to manager, described petitioner as a hard worker but overbearing and bossy, with some scheduling problems and frequent tardiness. A similar description of petitioner was provided by the former manager of the Thomasville Road lounge. A frequent customer at the lounge described petitioner as competent and congenial with customers, and an energetic worker. Petitioner replenished the lounge supplies from the adjoining package store. The manager of the package store felt that she did not have a good understanding of the inventory and supplies she needed at the lounge.

6. On or about July 20, 1982, approximately two weeks after petitioner was promoted to the position of lounge manager, John Chern was promoted to the position of Tallahassee District Supervisor thereby becoming petitioner's direct supervisor. At about that same period of time, the Tallahassee lounges were not operating at a high enough profit and the District Manager instructed Chern to make certain changes in operation. Among the changes were the addition of personnel bartenders and cocktail waitresses, so as to provide better service to the lounge patrons. Mr. Chern told his supervisor, the District Manager, that he had run into problems with petitioner and had experienced difficulty in obtaining cooperation from her in implementing the new schedule. Mr. Chern had also heard complaints about petitioner from other employees of both the lounge and the adjoining package store regarding scheduling and her treatment of her employees'. He felt that her general overall performance as a lounge manager was "weak."

   
   

7. Petitioner admits that she felt and told Mr. Chern that she knew it would be difficult to work with him and that she knew if he became her supervisor, she would be fired. Petitioner felt that Mr. Chern was overly strict, and resented the fact that he would call her at home during her off- hours to discuss lounge business. John Chern has been employed with Jax Liquors since 1971, having started as a stock clerk.

   
   

8. On August 9, 1982, Mr. Chern discharged petitioner from her employment with Jax Liquors. In explaining the reason for her discharge, Mr. Chern made reference to "outside obligations, your husband and family..." or "family and other obligations." On the following day, Mr. Chern filled out a form explaining the reason for petitioner's discharge as "not right person to run lounge, poor attitude with customers, did not take supervision or work with employees." There were no written reprimands in petitioner's personnel file. While it is the policy of respondent to issue written reprimands for nonmanagerial employees, more is expected from an employee at the managerial level and written reprimands are not required.

   
   

9. After petitioner's termination, the assistant manager, a married female, was promoted to the position of lounge manager.

   
   

10. Petitioner presented raw data or "head counts" derived from the personnel files of respondent in an attempt to demonstrate that sex and/or marital status had an effect upon the likelihood of involuntary discharge. However, the chosen categories of persons (i.e., males -- without disclosure of their marital status, women with children -- without disclosure of their marital status) were not well-defined and were overlapping. In addition, no statistical analysis was applied and there is thus no statistical significance to these head counts or raw data. No inference can be raised from this data that either gender or marital status was a causative factor in any involuntary termination.

    
    

11. Applicants for employment at Jax Liquors are required to list their marital status, number of children, ages of children and who will care for the children. The purpose of these questions is to put the applicant on notice that the hours of employment are often unusual and are subject to sudden change. Lounge employees are also required to sign a form stating their agreement to be reassigned to any lounge and to work any position assigned at the rate of pay for that position. Respondent occasionally requires lounge employees to work at different lounges in different positions when the volume of business anticipated requires additional staffing. Lounge employees are generally able to make more money with a greater volume of customers.

    CONCLUSIONS OF LAW

    
    

12. It is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of that individual's sex or marital status. Section 760.10(1)(a), Florida Statutes (1983), formerly Section 23.167(1)(a), Florida Statutes 981). Respondent Jax Liquors, Inc. is an "employer" within the meaning of Section 760.02(6), Florida Statutes, and is liable for the actions of its agents.

    
    

13. In discrimination proceedings, the petitioner carries the initial burden of establishing a prima facie case of discrimination. If the petitioner succeeds in proving a prima facie case, the burden shifts to the respondent to articulate some legitimate, nondiscriminatory reason for its actions. Should the respondent carry this burden, the petitioner is then given the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the respondent were not its true reasons, but were merely a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed. 2d 207 (1981). A prima facie case of employment discrimination may he established by showing that the petitioner is a member of the protected class; the petitioner was qualified for the position held; despite being qualified, the petitioner was discharged; and the petitioner was replaced by a non-member of the protected class. McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973).

    
    

14. Here, petitioner failed to make a prima facie case that she was discharged from employment because she was a female or because she was married. Instead, the evidence demonstrates that some 87 percent of all respondent's lounge employees are female and that a large number of these females are carried. While petitioner probably possessed the technical skills to perform her duties as a lounge manager, the evidence demonstrates that she did have problems getting along with and taking directions from her supervisor. Her ability to get along with her employees is at least questionable. And, most importantly, petitioner was replaced as lounge manager with another married female. Petitioner failed to demonstrate that her discharge was motivated by the fact that she was a female or the fact that she was married.

    
    

15. Even if the evidence could be interpreted to establish a prima facie showing of discrimination, the respondent has articulated legitimate reasons for terminating petitioner. Respondent has demonstrated that the reasons for terminating her were based upon Mr. Chern's impression that she was uncooperative, that other employees complained about her and that, as a lounge manager, her performance was weak. Whether or not respondent's agent, Mr. Chern, misjudged petitioner or was mistaken in his impressions or observations of her performance is not the issue. It is sufficient that he believed that petitioner was uncooperative and was not an asset to the respondent's efforts to revitalize the lounge operations. Petitioner has failed to prove by a preponderance of the evidence that the legitimate reasons offered by the respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, supra. There is insufficient evidence in the record of this proceeding to demonstrate that the termination of petitioner was motivated by impermissible considerations of her gender or her marital status.

    
    

16. While Mr. Chern made reference to petitioner's outside obligations, husband and family when discussing her termination with her, this does not constitute "direct evidence" of discriminatory intent under the standard announced in Lee v. Russell County, 684 F.2d 769 (11th Cir, 1982). First, it

    is entirely likely that petitioner's husband and family were indeed the reasons for Mr. Chern's assessment that her performance as a lounge manager was weak.

    If this was the case, it is not because she happened to have a husband and children. It is because she allowed them or her feeling of responsibility toward them to interfere with her duties as a lounge manager. The interference could just as well have come from a boyfriend, a girlfriend, an elderly parent, another job, a hobby or a host of other possibilities. The fact that Mr. Chern said that he believed her weak performance was due to her outside obligations -- her husband and family, simply does not establish that he discriminated against her because she was a female, because she was married or because she had children.

    
    

17. The issue in this proceeding is not whether petitioner was wrongfully terminated from her employment with the respondent. An "at will" employee may be terminated for any reason, even one which may appear to be patently unfair, or for no articulated reason at all. DeMarco v. Publix Supermarkets Inc., 384 So.2d 1253 (Fla. 1980). The issue is whether her discharge was because of her sex and/or her marital status. Insufficient evidence was presented in this proceeding to demonstrate that petitioner's termination was motivated by either.

    
    

18. All motions previous made and not previously ruled upon are DENIED.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition for relief filed by Angela Portera against Jax Liquors, Inc. be DISMISSED.

Respectfully submitted and entered this 12th day of July, 1985 in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer 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 12th day of July, 1985.

COPIES FURNISHED:

Virginia Daire

118 N. Gadsden Street Tallahassee, Florida 32301

Douglas W. Abruzzo, with Donald L. Tucker, P.A. Suite 804

Lewis State Bank Building Tallahassee, Florida 32301

Donald A. Griffin Executive Director

Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Suzanne Oltman

Clerk of the Commission Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Docket for Case No: 84-003498

Orders for Case No: 84-003498