STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN GRAZIANO, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4662

)

SEA WORLD OF FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Formal hearing was held on December 13, 1988, in Kissimmee, Florida, before Mary Clark, Hearing Officer from the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: John Graziano

Apartment #231

9100 Meadowcreek Drive

Orlando, Florida 32821 (representing himself)

For Respondent: Harvey D. Rumeld, Esquire

Dow, Lohnes & Albertson

1255-23 Street North West, Suite 500

Washington, D.C. 20037-1194 Background and Procedural Matters

This proceeding arises from Petitioner's complaint, filed with the Florida Commission on Human Relations (FCHR), alleging that he was laid off because of his sex, male. After a finding of "no cause" by the agency, Mr. Graziano filed his petition for relief and Respondent answered.

At the hearing, Mr. Graziano testified in his own behalf and presented no other witnesses nor exhibits. Sea World likewise presented a single witness, Robert J. Vidler, Director of Horticulture, and twelve exhibits.

After hearing, Respondent submitted a statement including a narrative of the facts and brief discussion of the law. Respondent's version of the facts is materially adopted here.

ISSUE

The issue for determination is whether Sea World violated section 760.10, Florida Statutes by imposing stricter dress codes on males than on females and by laying off John Graziano because of his sex, male.

FINDINGS OF FACT

1. Sea World of Florida, Inc. (Sea World), is a theme park in Orlando, Florida, which provides marine life exhibits and shows to the public and conducts marine life research.

   
   

2. John Graziano was hired on March 11, 1986, as a gardener in the landscape department, which department is responsible for landscaping, planting and pest and rodent control in the park.

   
   

3. Sea World's landscape department has grooming standards for its employees. A memorandum from the President of Sea World referencing the standards in the employee handbook and urging a positive image, was posted on the employee's bulletin board. John Graziano was one of many employees who signed a form stating that he had received and read a copy of the dress and grooming standards.

   
   

4. In February 1987, Dan Trausch, the Vice-President in charge of the landscaping department noted that a lot of the landscape staff in the park were out of uniform. Bob Vidler, Director of Horticulture met with his supervisors and circulated a memo to all employees reminding them to wear hats and regulation belts. The company provided uniforms for the employees.

   
   

5. On March 20, 1987, John Graziano was given a written counselling report and was suspended for refusing to wear his hat. He had been orally warned at least three times prior to the suspension.

   
   

6. On March 27, 1987, John Graziano was written up again on a counselling report for his negative attitude and "resentment." He was placed on 30 days probation.

   
   

7. In July 1987, Bob Vidler was still having problems with his staff's compliance with grooming standards and he issued a memo, dated July 31st to all landscape employees:

   
   

   This is the final warning in relation

   to maintaining grooming standards. This includes hair, name tags, caps and visors. I do not want to be told by Administration that we are not adhering to the rules.

   PLEASE SIGN BELOW TO INDICATE YOU HAVE SEEN THIS.

   (Respondent's Exhibit 5)

   
   

   John Graziano claims that he never saw this memo, but included among the other purported signatures of the employees is a notation, "Graziano refused to sign."

   
   

8. On August 18, 1987, Graziano was given a written counseling report for failure to comply with grooming regulations, violation of company or department procedures, insubordination and failure to obey orders. The report was characterized as a "final warning" and Graziano was told if the behavior continued, he would be discharged.

   
   

9. During this time, Sea World's owner, Harcourt, Brace, Jovanovich (HBJ) was the target of an "unfriendly" corporate takeover attempt. All departments

   were under pressure to find ways to reduce costs. Bob Vidler submitted a series of recommendations for the landscaping department, including the reduction of payroll. He determined that $177,943.00 per year could be saved by reducing the permanent full-time staff by eight people and substituting seasonal temporary employees.

   
   

10. John Graziano was an obvious choice for layoff. In Vidler's view, he and several others were "deadwood," carried by the remaining employees. Vidler felt that Graziano was rebellious and did not like following the rules. He spent a lot of time standing around talking. Graziano was the only employee Vidler consistently observed without a hat and he was the only employee suspended for the infraction.

    
    

11. Graziano claims that the dress code policies were only enforced against males and that he was singled out for discipline and layoff because he was a male. He presented no evidence to support that claim. The individuals who made the layoff decisions are male; thirty-one out of thirty-nine landscape department employees are male; and five of the six temporary employees hired were male.

    
    

12. Sea World established that the action taken with regard to this employee was a legitimate business decision.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

14. Respondent is an "employer" as defined in Subsection 760.02(6), Florida Statutes, as "...any person employing 15 or more employees for each working day in each of 20 or more calendar weeks. "

    
    

15. Subsection 760.10(1)(b), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

16. Since Florida's employment discrimination statute is patterned on Title VII Of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, resort to federal court interpretations of that act is appropriate. School Board of Leon County

    v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

17. In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U. S. Supreme Court established the basic allocation of burden of proof in discrimination cases.

    
    

    Petitioner retains the burden of proof throughout the proceeding, although once a prima facie case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove that the reasons offered are not true, but rather a pretext for discrimination.

    
    

    The prima facie case "...raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.... Furnco Construction Co. v.

    Waters, 438 U.S. 567 (1978), cited in Burdine, supra.

18. Petitioner never established that prima facie case. The only fact he established was that he was terminated by Sea World. That alone fails to raise an inference of discrimination.

    
    

19. Assuming that he had made a prima facie case, the Respondent nonetheless articulated a legitimate nondiscriminatory business reason for its action: Petitioner's performance and failure to abide by the company's policy, and the company's need to reduce costs.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That Petitioner's Petition for Relief be DENIED.

DONE and ENTERED this 9th day of February, 1989, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Office

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1989.

COPIES FURNISHED:

John Graziano Apartment 231

9100 Meadowcreek Drive

Orlando, Florida 32821

Harvey D. Rumeld, Esquire Dow, Lohnes & Albertson

1255 - 23 Street N.W., Suite 500

Washington, D.C. 20037-1194

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, 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, FL 32399-1925

Docket for Case No: 88-004662

Orders for Case No: 88-004662