Judges: DIANE CLEAVINGER
Agency: Commissions
Latest Update: Jan. 17, 1989
Summary: Employment discrimination sex-after failure to establish prima facie case.
88-4063.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LINDA MAE KRUEGER, )
)
Petitioner, )
)
vs. ) CASE NO. 88-4063
)
ONE STOP OIL COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane Cleavinger, held a public hearing in the above-styled case on December 15, 1988, at Jacksonville, Florida.
APPEARANCES
For Petitioner: Linda Mae Krueger
Post Office Box 1201 Riverview, Florida 32569
For Respondent: William H. Andrews, Esquire
K. Lee Robinson, Esquire Post Office Box 40089 Jacksonville, Florida 32203
The issue in this case is whether Petitioner was discriminated against in employment on the basis of her sex. A Proposed recommended order has been submitted by Respondent and rulings on the proposed findings of fact are made in the appendix to this recommended order.
FINDINGS OF FACT
Petitioner Linda Mae Krueger, a white female, became a manager at One Stop Oil's Riverview, Florida, store on April 1, 1986.
Petitioner's first immediate supervisor was Mr. Tom McBeth, area supervisor for six stores. Mr. McBeth was replaced by Mr. John Richardson on January 26, 1987.
Upon becoming area supervisor, Mr. Richardson implemented certain changes in the manner in which all store managers under his supervision were to perform their duties. Petitioner disagreed with Mr. Richardson's changes and failed to follow some of Mr. Richardson's instructions regarding these changes. Petitioner developed a great deal of hostility towards Mr. Richardson and refused to accept the fact that the changes in operation were within Mr. Richardson's managerial capacity. The basis of Petitioner's claim of discrimination was Mr. Richardson's attempt to implement operational changes
which Petitioner disagreed with and which were clearly not sexually discriminatory in nature.
At the hearing, Ms. Krueger testified that she felt like she was treated unfairly by Mr. Richardson, but admitted that Mr. Richardson placed the same requirements on all other store managers.
Petitioner, in June of 1988, told Mr. Richardson that she was considering leaving employment during the beginning of July. Petitioner marked on her store's calendar that she was leaving employment on July 2, 1988.
Petitioner, on August 12, 1988, again gave verbal notice to One Stop Oil that she was separating employment with the company on August 27, 1988. At the time the Petitioner gave One Stop Oil this verbal notice of separation, Petitioner was planning to move with her family to North Carolina.
On August 17, 1988, Petitioner quit her position as store manager at One Stop Oil's Riverview store. She quit because of a pay dispute over the amount of her bonus check. Petitioner and her husband expected a larger check. When Petitioner's husband saw the actual amount of the check he called the Jacksonville office of Respondent and told them he was closing the store and they had "better get somebody down there." Petitioner and her husband then left the store. Respondent sent Mr. Richardson to the store. He called in Cheryl Chipman and began accounting for the store receipts. He discovered that $1,700 in deposits was missing. Petitioner had given the deposit money to her husband on the day the check dispute arose. Petitioner's husband could not adequately account for the missing money. 1/ Respondent obtained Petitioner's store keys from her without any discussion. The keys were voluntarily turned over by Petitioner. Petitioner never reported for work afterwards.
Petitioner's position was filled by Ms. Cheryl Chipman, a white female.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes (1987).
The Respondent, One Stop Oil, is an employer within the definition of the Florida Human Rights Act of 19877 ("the Act"), as amended. Sections 760.01- 760-.10, Florida Statutes (1987).
Petitioner filed a charge of discrimination with the Florida Commission on Human Relations on November 7, 1987, alleging discrimination based on sex.
Because of the similarity between the Act and Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. Sections 2000e-2000e17, the burden of proof in Title VII cases applies to cases brought under the Act. School Board of Leon County v. Hargis, 400 So.2d 103, 108 (Fla. 1st DCA 1981).
To demonstrate a prima facie case of sex discrimination, the Petitioner must prove by a preponderance of the evidence:
Petitioner was a member of a protected class;
Petitioner was qualified for the position held;
Petitioner was discharged and replaced by a person outside of the protected class; and
Other employees with equal or lesser qualifications who were outside of
the protected class were retained.
Perryman v. Johnson Products Company, Inc., 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973)
If petitioner successfully presents these four elements, the respondent employer may rebut by articulating legitimate, non-discriminatory reasons for terminating the Petitioner. Perryman, 698 F.2d at 1142.
Once a respondent employer has rebutted the petitioner's assertions by articulating the legitimate, non-discriminatory reason, the petitioner must show by a preponderance of evidence that discriminatory intent motivated the employer's alleged action. Id., citing, McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973).
Petitioner has utterly failed to present a prima facie case because she was not discharged from employment, but rather voluntarily quit her position at One Stop Oil.
Petitioner also has failed to present a prima facie case because she was replaced by Ms. Chipman, a female, who is a member of Petitioner's protected group.
Alternatively, even if Petitioner did not quit her job, One Stop Oil had a legitimate, non-discriminatory reason to terminate her because of her and her husband's telephoning One Stop and stating that they were closing the store during the middle of the workday because of a pay dispute, and that they had better get somebody down there to run the store, and then subsequently abandoning the store.
Petitioner has failed to show by a preponderance of evidence that discriminatory intent motivated Respondent's alleged action.
There is no evidence in the record of any discriminatory intent on the part of Respondent with regard to Petitioner's compensation, terms, conditions or privileges of employment because of her sex. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the petition against Respondent be dismissed.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1989.
DIANE CLEAVINGER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1050
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989.
ENDNOTE
1/ Petitioner did attempt to make a belated factual allegation related to her claim that early on in his employment Mr. Richardson suggested going to bed with him. The suggestion supposedly happened only once. However, this suggestion was not known to be tied to anything relating to the job. Moreover, Petitioner's demeanor, many prior inconsistent statements, and the very lateness of raising this fact after becoming aware of the requirements for a discrimination claim render Petitioner's testimony in this regard completely unbelievable.
APPENDIX
The facts contained in paragraphs l, 2, 3, 4, 5, 6 and 7 of Respondent's proposed recommended order are adopted in substance, in so far as material.
COPIES FURNISHED:
Ms. Linda Mae Krueger Post Office Box 1201 Riverview, Florida 32569
William H. Andrews, Esquire
K. Lee Robinson, Esquire Post Office Box 40089 Jacksonville, Florida 32203
Donald A. Griffin, Executive Director Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Dana Baird, Esquire General Counsel
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Margaret Agerton, Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Docket for Case No: 88-004063
Orders for Case No: 88-004063
