STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAE BOWDER, )

)

Petitioner, )

vs. ) CASE NO. 88-5283

)

EXPORTS, INC., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 15, 1989, in West Palm Beach, Florida.

For Petitioner: James McGlynn, Esquire

4633 10th Avenue North Lake Worth, Florida 33464

For Respondent: Kenneth L. Kellar, President

Exports, Inc.

Post Office Box 449 Blaine, Washington 98230

PRELIMINARY STATEMENT

Petitioner filed a complaint with the Florida Commission on Human Relations alleging that Respondent had committed an unlawful employment practice by discharging her based upon her marital status. The Commission determined that there was no reasonable cause to believe that an unlawful employment practice had occurred. Based upon that determination, Petitioner filed a Petition for Relief from an Unlawful Employment Practice, and that Petition was transmitted by the Commission to the Division of Administrative Hearings for the conduct of a formal hearing. Accordingly, the issues for determination herein are whether the Respondent has committed an unlawful employment practice against Petitioner and, if so, what relief should be granted, if any.

Petitioner presented the testimony of Mae Bushord, Daniel Zielke, and Wayne Evans. Petitioner Mae Bowder did not testify. Respondent presented the testimony of Laura Nardozza, Shirley White, and Kenneth L. Kellar. No exhibits were offered by either party.

Although both parties requested and were granted leave to file post-hearing proposed findings of fact in the form of proposed recommended orders, Respondent did not do so. Similarly, Petitioner filed a document generally in the form of an appellate brief. The three unnumbered paragraphs contained under the heading "Statement of the Facts" have not been adopted in this Recommended Order since they are not supported by the record in this cause in their entirety.

FINDINGS OF FACT

1. Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees.

   
   

2. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office.

   
   

3. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager.

   
   

4. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material."

   
   

5. Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again.

   
   

6. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager."

   
   

7. He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife.

   
   

8. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause.

   
   

9. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated

   policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs.

   Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining.

   
   

10. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her.

    
    

11. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era.

    
    

12. Kellar did not fire Mae Bowder.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties hereto and subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

14. The Human Rights Act of 1977, Sections 760.01-760.10, Florida Statutes, applies to any employer of 15 or more employees. Although Kenneth L. Kellar, President and sole stock holder of Exports, Inc., discussed the number of employees working for the company during his closing argument, no evidence was offered to show that Exports, Inc., employed 15 or more employees so as to be an "employer" within the meaning of the Human Rights Act of 1977.

    
    

15. Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer to discharge an individual because of that individual's marital status. Petitioner has failed to prove that Kellar discharged her because of her marital status. It is clear that he fired her on two prior occasions as office manager, and there is no suggestion in this record that the president of the company did not have the authority to oversee Frank Bowder's hiring and firing decisions. As to the last termination of employment, two people were present, Kenneth Kellar and Mae Bowder. Kellar denied firing Mae Bowder, and Mae Bowder did not testify. Accordingly, Kellar's testimony is uncontroverted. When Kellar talked to Frank Bowder about Frank reducing his hours, he never suggested to Frank that Frank would be fired or that Frank's salary would be cut. To the contrary, Kellar paid him a full salary until he died, and there is no evidence in this record that Frank continued to work until he died.

16. Similarly, Kellar told Mae Bowder that she should be staying home to take care of her husband. She asked him if she were being fired, and he told her she was not. What arrangements Kellar would have made with her regarding her duties or her salary will never be known because Mae Bowder became angry, began threatening other employees, and walked out "in a huff." Petitioner has failed to prove that Respondent fired her, or that she was fired due to her marital status.

    
    

17. Petitioner presented no evidence as to when she was hired by Exports, Inc., or when her employment with that company terminated. Petitioner offered no evidence as to her income as a result of her employment with that company. Petitioner offered no evidence as to any attorney's fees or costs incurred as a result of this proceeding. In short, Petitioner has failed to meet her burden of proof and has failed to prove that Exports, Inc., committed an unlawful employment practice.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause.

DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

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 26th day of May, 1989.

COPIES FURNISHED:

James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463

Kenneth L. Kellar President/Owner Exports, Inc.

Post Office Box 449 Blaine, WA 98230

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 Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 88-005283

Orders for Case No: 88-005283