STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALERIE MILLER-MOSKOWITZ, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3194

)

TOM JAMES COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on March 14, 1990, in Tampa, Florida.

APPEARANCES

For Petitioner: Valerie Miller-Moskowitz, pro se

710 Peachtree Street, Northeast Apartment 1208

Atlanta, Georgia 30308

For Respondent: Jeff Weintraub, Esquire

One Commerce Square, Suite 2650 Memphis, Tennesseev 38103

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race or sex.

PRELIMINARY STATEMENT

On February 2, 1988, Petitioner filed a charge of discrimination against Respondent alleging Respondent's termination of Petitioner's employment on the basis of sex and race.

On May 1, 1989, the Florida Commission on Human Relationsentered a Notice of Determination: No Cause. Thereafter, Petitioner filed a Petition for Relief with the Commission on June 1, 1989, alleging termination of her employment by Respondent on the basis of her race and her refusal to submit to sexual advances.

Subsequently, the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Respondent's answer, dated June 29, 1989, denied termination of Petitioner's employment on the basis of race or sex.

At the hearing, Petitioner presented the testimony of three witnesses, including herself, and four evidentiary exhibits, one of which was rejected. Respondent presented the testimony of one witness and one evidentiary exhibit.

No transcript of the hearing was provided by the parties. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner is Valerie Miller-Moskowitz. She was employed by Respondent from August 4, 1987 until termination of her employment on September 9, 1987.

   
   

2. Respondent is the Tom James Company, an interstate mail order clothing business based in Brentwood, Tennessee with an area sales office in Tampa, Florida. Respondent sells garments through its salespersons as opposed to operation of a retail store. These salespersons, including the office manager, are generally in the office only in the late afternoon in order to make telephonecalls and arrange appointments with customers for the following day. The manager of Respondent's Tampa office, with authority to fire, hire and impose disciplinary actions upon employees at all times pertinent to these proceedings, was Mark Dunphy.

   
   

3. Through a process of interviews, Petitioner became a finalist for Respondent's vacant position of "operations manager" in the Tampa office. In the final interview, Petitioner went to Dunphy's home where he and his wife observed Petitioner's operation of a personal computer.

   
   

4. Skill in the usage of the personal computer was important to Dunphy since he expected the new operations manager to prepare letters for mass mailing to potential customers through the use of a software program on the computer. The letters, extolling the company's products, would be mailed to potential customers after preparation by the operations manager.

   
   

5. Following completion of all interviews, including a psychological evaluation of Petitioner conducted over the telephone with Petitioner by an individual hired by Respondent for that purpose, Dunphy formally hired Petitioner. This occurred sometime around the first of August of 1987.

   
   

6. Petitioner's duties as operations manager consisted of being a "jack of all trades" with responsibility for typing, telephone answering and meeting with customers in the absence of salespersons in the office. She was also expected to operate the computer, now moved to the office from Dunphy's home, and to prepare mass mailings.

   
   

7. Petitioner initially reported for work on August 4, 1987. At the conclusion of Petitioner's first day on the job, Dunphy went by Petitioner's home at her request. Petitioner was upset as the result of a telephone call from her husband and talked with Dunphy regarding her martial problems. After some discussion, Dunphy, who was growing hungry, asked Petitioner to have a drink and dinner at a local Mexican restaurant. Petitioner consented. The two went to the restaurant, had dinner and continued to discuss their personal backgrounds and experiences. Petitioner, who is black, related her disappointment with her present separation from her husband, who is white. Dunphy is also white. At the conclusion of the dinner, both left for their respective homes in their separate automobiles.

8. As her employment progressed in the following days, Petitioner experienced some difficulty operating the personal computer at the office and called Dunphy's wife on several occasions for guidance in the effective use of the machine. While she managed accounting matters in the office quite well, Petitioner was unable at any time during her brief employment to produce mass mailing letters in a quantity sufficient to meet Dunphy's expectations.

   
   

9. Although he was becoming aware that Petitioner's computer skills were not as proficient as he desired, Dunphy continued an amicable relationship with Petitioner. On August 6, 1987, he again invited Petitioner to go out for drinks, but she refused. There were subsequent invitations from Dunphy during thenext week to go out for drinks, to go jogging, and to go dancing. Petitioner declined all these invitations from Dunphy.

   
   

10. Approximately two weeks after beginning her employment, Petitioner went to Jacksonville, Florida, for a job related training session sponsored by Respondent. Upon conclusion of the training session on or about August 14, 1987, she and Dunphy agreed in the course of a telephone conversation that Dunphy would meet her at the airport and give her a ride to her home. Dunphy complied and upon arriving at Petitioner's residence, Dunphy escorted her inside where he attempted to embrace and kiss her. Petitioner told him "you shouldn't do this to your wife." Dunphy did not attempt to press his affections further and left Petitioner's home.

    
    

11. One day during the next week, in the course of conversation, Petitioner told Dunphy that the day, August 18, 1987, was her birthday. Dunphy proceeded to give her a birthday card in which he inscribed the following:

    
    

    Happy B. Day Val- you inspire me with your attitude toward life, and what life throws at us from time to time. Your[sic] tough in your determination to make a success of your self even in tough personal times. I know you will help me in achieveing[sic] my goals while we are associated together. I know I will be helpful to you in achieveing[sic] your dreams & goals. --This good for one marguerita. Mark

    
    

12. In the ensuing days, Petitioner began to be late for work at various times, although Dunphy did not formally document this deterioration of Petitioner's attendance in any time records. Petitioner's car was burglarized during the week of August 24, 1987, and she took time from work to replace her driver's license, credit cards and other documents that were stolen from the vehicle. Dunphy became concerned about Petitioner's attendance at work and the two of them quarreled.

    
    

13. Petitioner's husband contacted her in the early part of September, 1987. He was ready to conclude their separation and needed her to come to New York and assist in his move to Florida.

    
    

14. Petitioner met with Dunphy on the morning of September 9, 1987, and informed him of her intention to take the following two work days (Thursday and Friday) off in order to go to New York to deal with family business matters. When Dunphy expressed reluctance to authorize the time off for Petitioner, she became angry and declared that she would be taking the time off anyway because her "family came first."

15. Dunphy, already disappointed with Petitioner's failure to meet expectations regarding operation of the personal computer and preparation of mass mailing materials, also became angry and told Petitioner to leave since she was going anyway. Petitioner took Dunphy's response to mean that she was fired and left the business premises. Later in the day, Petitioner contacted an accountant in the company's home office for assistance in persuading Dunphy to reconsider and continue her employment. Those efforts were unsuccessful.

    
    

16. After conclusion of her trip to New York, Petitioner wrote to Respondent's president at the company's home office on September 16, 1987, and complained of Dunphy's verbal abuse and unprofessional displays of anger. In the letter, she opined that Dunphy was a good salesman, but needed additional training in order to become a "people oriented supervisor." Notably, she made no specific reference to racial discrimination or sexual harassment in the letter, although she noted Dunphy's attempts "to pressure the Operations Manager into going out for drinks, when both parties are married."

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action. Section 120.57(1), Florida Statutes.

    
    

18. The discharge of an employee from employment on the basis of sex or race is an unlawful employment practice. Section 760.10(1)(a), Florida Statutes.

    
    

19. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for Petitioner's termination. If Respondent is successful and provides such reason, the burden shifts again to Petitioner to show that the proffered reason for termination is pretextual. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

20. The record is devoid of any evidence that Dunphy terminated Petitioner's employment as the result of her race. Therefore, Petitioner has failed to present a prima facie case withregard to employment discrimination on that basis.

    
    

21. With regard to alleged discrimination on the basis of sex, Petitioner has failed to show that Respondent's reason for terminating her employment was pretextual. As established by the evidence, her employment termination resulted from her own insubordination, and her failing job attendance and inability to adequately perform job chores.

    
    

22. While Petitioner immediately took steps to convey the fact of her firing to the "home office" on the day of her confrontation with Dunphy, there is no direct admissible evidence that Petitioner previously regarded her work environment to be intolerable or hostile as the result of Dunphy's attentions, or that such an environment existed.

    
    

23. Petitioner has failed to show that she was required to give sexual considerations in exchange for tangible job benefits or that a hostile environment resulted from sexual conduct that was sufficiently severe or

pervasive to alter the conditions of her employment and create an abusive environment. Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986).

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered dismissing the Petition for Relief.

DONE AND ENTERED this 10th day of April, 1990, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1990.

APPENDIX

The following constitutes my ruling on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings

1. Rejected, not supported by the weight of the evidence.

2. Adopted in substance, though not verbatim.

3. Rejected, a mere restatement of Petitioner's position. To the extent that this proposed finding seeks to establish that Petitioner rejected advances of Mark Dunphy, the proposed finding has been substantially adopted with regard to one occasion, but not verbatim.

4. Adopted in substance.

5. Rejected, argumentative as to legal conclusion regarding burden of proof rather than proposed finding of fact.

6 Rejected, not supported by the weight of the evidence.

1. Rejected, relevancy, conclusion of law.

2. Adopted in substance as to firing and date of same.

3. Rejected, not supported by weight of the evidence.

4. Rejected, not supported by the weight of the evidence, legal conclusion and argumentative.

5. Rejected, not supported by weight of the evidence.

6. Rejected, not supported by the weight of the evidence.

Respondent's Proposed Findings

1.-3. Rejected, unnecessary.

1. Modified to extent that Dunphy operated Respondent's Tampa office.

2. Addressed in substance as to Respondent Tom James Company. 6.-10. Adopted in substance, but not verbatim.

1. Petitioner's hiring found to have occurred on August 4, 1987, otherwise this proposed finding is adopted in substance.

2. Adopted by reference.

3. Not supported by weight of the evidence with regard to lack of capability of Petitioner, adopted in substance with regard to Dunphy's disappointment with her performance abilities.

4. Adopted in substance.

5. Petitioner's version that August 4, 1987, was her first day of work is adopted on the basis of the witness' credibility as opposed to Dunphy's testimony on this point.

16.-19. Adopted in substance.

20. Rejected, relevancy.

21.-23. Rejected, relevancy.

24. Adopted by reference.

26. Rejected, relevancy and cumulative. 27.-28. Adopted in substance.

29.-30. Rejected, relevancy.

1. Rejected, cumulative.

2. Rejected, cumulative.

33.-34. Rejected, unnecessary.

1. Adopted in substance.

2. Rejected as to Dunphy's version of these events on the basis of the comparative creditability of the witnesses on this particular point.

3. Adopted in substance, though not verbatim.

38.-41. Adopted in substance, though not verbatim.

42.-44. Rejected, not supported by the weight of the evidence. 45.-48. Rejected, unnecessary.

49.-66. Rejected as argumentative of proposed findings postulated by Petitioner.

COPIES FURNISHED:

Donald A. Griffin Executi

Docket for Case No: 89-003194

Orders for Case No: 89-003194