STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JO NEES, )

)

Petitioner, )

)

vs. ) Case No. 85-4269

)

DELCHAMPS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished the parties in this case by the undersigned on January 16, 1986, a hearing was held in this case before Arnold H. Pollock a Hearing Officer with the Division of Administrative Hearings in Destin, Florida on April 10, 1986. The issue for consideration was whether the Petitioner was improperly denied employment by the Respondent because of her age.

APPEARANCES

For Petitioner: Jo Nees, pro se

Box 89

Destin East Mobile Home Park Destin, Florida 32541

For Respondent: William C. Tidwell, Esquire

Post Office Box 123 Mobile, Alabama 36601

BACKGROUND INFORMATION

Petitioner filed a formal charge of discrimination based on age against the Respondent, Delchamps, Inc., on an EEO form 5 on April 14, 1985 alleging that Respondent failed to hire her and thereby discriminated against her on the basis of her age. On September 6, 1985, Clayton C. Rawlings, an investigations specialist with the Commission on Human Relations (CHR), submitted an investigatory report in which he concluded there was no reasonable cause to believe that the Respondent discriminated against the Petitioner because of her age. Thereafter, on November 25, 1985, the Executive Director of CHR entered a Determination of No Cause Notice which was sent by the CHR clerk

to the parties, including Petitioner, on November 26, 1985. Petitioner did not thereafter apply for a reconsideration but instead, on December 10, 1985, filed a formal Petition for Relief from an Unlawful Employment Practice based on this same alleged discriminatory action. The file was transmitted to the Division of Administrative Hearings on December 16, 1985, for the appointment of a Hearing Officer. The undersigned forwarded a Notice of Assignment and Order to the parties on December 31, 1985, giving them 10 days to respond with proposed hearing dates. On January 7, 1986, Petitioner called the undersigned indicating an inability to respond within the 10 day period. As a result, the undersigned granted an extension of time to respond to the Petitioner until January 19, 1986. On January 9, 1986, the undersigned received Respondent's answer admitting jurisdiction, but denying a discriminatory practice and on January 16, 1986, after coordination with Petitioner, the hearing was set for April 10, 1986, in Destin, Florida, which is Petitioner's home. The hearing was held as scheduled.

At the hearing, Petitioner testified in her own behalf.

Respondent presented the testimony of Dudley M. Owens, manager of the Respondent's Destin store where the alleged discrimination took place; Karl T. Few, assistant manager of the same store Katherine J. Guidas (nee Richardson), a cashier at the Destin store; and Vickie M. White, bakery and deli salesclerk at the Destin store. Neither party submitted documentary evidence.

Petitioner was granted leave to submit an affidavit from an absent witness, Mr. Emerson, subsequent to the hearing, conditioned on her furnishing a copy to the Respondent's counsel at the time the original was furnished to the undersigned. On April 25, 1986, Petitioner submitted a letter indicating she was unable to contact the witness in question and enclosing documentation previously considered by CHR's investigator at the informal hearing held herein. This information is considered only as a part of the file furnished by the CHR.

FINDINGS OF FACT

1. Petitioner, Jo Nees, is a 52 year old caucasian woman who appears to be her age. Ms. Nees first moved to Destin, Florida in or about April, 1982, and upon arrival in the area, submitted an application for employment to the Delchamps store which was accepted, but about which she never heard anything from store personnel.

   
   

2. Ms. Nees lives in the Destin East Mobile Home Park with Mr. Emerson, a gentleman with whom she has shared the mobile home for several years.

3. In January or February, 1985, Ms. Nees went to the Delchamps store in Destin, where, she alleges, she spoke with the store manager, Mr. Owens, and asked him for an application for employment. At this point, according to Ms. Nees, he refused, indicating he preferred people younger than Petitioner. She concluded from their discussion that he felt that due to the large number of customers during the crowded summer tourist season, she would not be able to keep up and used the term, she contends, "older people." As a result she became quite upset with Mr. Owens and after this colloquy, she paid for her groceries and left.

   
   

4. Ms. Nees contends that the conversation referenced above was overheard by the assistant manager, Mr. Few, and the cashier, Kathy Richardson. Though the cashier did not say anything at the time, she was present at the check-out counter where the conversation took place and must have heard it. The assistant manager, Mr. Few, in Ms. Nees' recollection, tried to smooth things over and calm her down.

   
   

5. At approximately 4:30 a.m. in November, 1985, just before Thanksgiving, Ms. Nees was again in the Delchamps store. Mr. Few, she contends, came up to her and spoke to her by name. However, as she was checking out a few moments later, and he was manning the cash register, he advised her that if she filed any sort of complaint against the company, he would not know her.

   
   

6. Ms. Nees continued to patronize the Delchamps store after the conversations with Mr. Owens because it is the only major supermarket in the area and she prefers to use it because of the quality of the product and the price. At no time has she been offered an application for employment by the store, nor has she been offered employment.

   
   

7. As of the hearing, Ms. Nees had a job at a convenience and package store in Destin where she has worked since May, 1985. At the time she applied for a position with Delchamps she had been unemployed since December, 1984, when she left her prior job as manager of a local motel because of poor wages. In May, 1985, she was earning $4.20 an hour on a 40-hour week.

   
   

8. Though complaining about the fact that she was not offered employment or even given an application in January, 1985, Petitioner is nonetheless satisfied that at that time, no employment was available at the Delchamps store. She contends, however, that they could have accepted her application and hired her even though she was not needed so that she would be available later on when the busy season came. At the time of the application, the period was one of low employment in the area. Ms. Nees has also filed a discrimination complaint against the

   neighboring Eckerd's Drug Store for failure to hire her, also on the basis of age.

   
   

9. At the hearing, Petitioner testified that she had applied to Delchamps only once, yet on cross examination it appears she applied once and requested an application a second time. The EEOC form 5 filed in April, 1985, reflects that she applied three times for a position at Delchamps. Ms. Nees explains that the information contained on the form 5, though it bears her signature, was given over the telephone to the clerk at the Commission office and that she only applied once and requested an application form a second time. Inasmuch as Ms. Nees' testimony indicates that she applied in January or February, it is quite possible that in recounting the story over the telephone, the clerk misunderstood her comment and put down that she applied in both January and February, 1985, and that Ms. Nees failed to catch the mistake when she signed the form. This is, however, de minimus.

   
   

10. What is more significant is the fact that none of the other parties involved identified by Ms. Nees, have any recollection of the situation being as she describes it. According to Mr. Owens, Ms. Nees at no time ever asked for an application, nor did he ever make to her the comments that she attributes to him. When he saw her at the investigation conducted by CHR, he recalled having seen her previously as a customer in the store, but at no time did she ever discuss employment with him, either alone or in the presence of Mr. Emerson, who, she claims, was a witness to the entire situation.

    
    

11. Delchamps' policy is to accept an application form from anyone who asks for it and keep it on file. When employees are needed, people from the filed applications are called and interviewed, and selections are made. It is not company policy to take on as full-time employees, people who have not worked within the company before. Instead, people are hired on a part- time basis and then promoted to full-time positions from part- time status when openings occur. During the winter months, Mr. Owens has a staff of between 70 and 75 people. During the tourist season, that figure increases up to 120.

    
    

12. Mr. Few, present at the discussion with Mr. Owens, does not recall any meeting between Nees and Owens and denies age discrimination. He agrees he saw her at the delicatessen counter early one morning as she alleges and greeted her. She seemed to be complaining to the counter clerk about Delchamps employment policy. When she got to the check-out counter he was manning, he offered her an application form in the hope it would put an end to the matter. She refused to accept it, however, and left after paying for her purchases.

13. Kathryn Guidas, the cashier at the time of the alleged conversation between Ms. Nees and Mr. Owens, recalls seeing Petitioner in the store numerous times as a customer, but did not hear any conversation between Petitioner and Mr. Owens regarding employment. In fact, she has never seen Petitioner and Mr. Owens together. She has been asked for application forms by customers from time to time. When this happens, she refers them to either the manager or his assistant. Petitioner has not, to the best of her knowledge, ever asked her for an application form. On one occasion, Mr. Emerson mentioned that he had filed an employment discrimination complaint against the company and expected to hear something soon, but made no mention of any discrimination complaint by Petitioner.

14. In her testimony at the prior inquiry, Ms. Nees identified Vicky White as an employee who was present at the conversation she claims to have had with Mr. Owens. Ms. White has worked in the Destin store as a clerk in the bakery and deli for approximately 10 years, but denies having ever seen Petitioner prior to the hearing. Neither does she know Mr. Emerson and she denies she has ever discussed company hiring policy with either Petitioner or Emerson. She has never been present at any conversation between Owens and Nees.

    
    

15. In light of the above, it is most likely that Ms. Nees did not ask for an application at all. It would have been unnecessary for Owens to deny her one in light of the policy when, if she was not wanted, she need not have been called in for an interview.

    
    

16. Ms. Nees would like to be compensated for the time she was improperly denied employment by Delchamps and would like to be offered a permanent job at the store. She is concerned, however, that if offered a job as a result of a settlement, she would be discharged shortly thereafter: a result that she does not desire. If she is to be hired, she would like to be assured that she can keep the job and not face layoff as retribution for her actions here. In her post hearing submission, she reiterates her desire for a settlement and a job because she is, apparently, no longer working at the convenience store and the Delchamps store is only two blocks from-her residence.

    
    

17. Based on all the evidence, considering the inherent probabilities and improbabilities of the testimony, it is obvious that Ms. Nees is anxious to be employed by Delchamps and/or to receive compensation from them. She has, however, scant evidence to establish that she was discriminated against because of her age. She admits that there were no openings at the time of her alleged conversation with Mr. Owens, and that she also filed a discrimination complaint against Eckerd' s, again knowing that no vacancies existed. When Ms. Nees was not hired, it was clearly for undisclosed reasons other than her age and there is no evidence of any discrimination by Respondent

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

19. Under the provisions of Section 760.10(1)(a), Florida Statutes, it is an unlawful employment practice for an employer:

    
    

    To discharge or to fail or to 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.

    
    

20. When an individual alleges he or she is subjected to disparate treatment in employment because of age, he or she has the burden to establish, prima facie, a case of discrimination by a preponderance of the evidence. Once a complainant has done so, the burden then shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the action complained of Texas Department of Commonwealth Affairs vs. Burdine, 101 S. Ct. 1089 (1981).

    
    

21. Here, Petitioner was in no way able to establish that the failure to hire her was because of her age. She spins a tale too difficult to believe. All of Respondent's witnesses denied the significant portions of her story and, even given the opportunity to submit confirming testimony subsequent to the hearing, she was unable to do so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Petition for Relief filed by Jo Nees be denied.

RECOMMENDED in Tallahassee, Florida this 9 day of May, 1986.

ARNOLD H. POLLOCK, 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 9th day of May, 1986.

COPIES FURNISHED:

Jo Nees Box 89

Destin East Mobile Home Park Destin, Florida 32541 William C. Tidwell, Esquire Post Office Box 123

Mobile, AL 36601

-

Donald A. Griffin, Executive Director

Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303

Docket for Case No: 85-004269

Orders for Case No: 85-004269