STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUTYE T. WILLIS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5572

) HUNTER HAIG OF NEW HAVEN, INC., )

)

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 October 29, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Lutye Willis, pro se

Post Office Box 646 Brownsville, Vermont 05037

For Respondent: Edwin J. Turanchik, Esquire

201 East Kennedy Boulevard, Suite 1206 Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent terminated Petitioner's employment on the basis of Petitioner's age and sex.

PRELIMINARY STATEMENT

On March 13, 1989, Petitioner filed a charge of discrimination against Respondent. Petitioner alleged that Respondent terminated her employment as the result of Petitioner'ssex and age.

On August 29, 1989, the Florida Commission on Human Relations entered a Notice of Determination: No Cause.

Petitioner filed a written request with the Commission on September 15, 1989, requesting further formal proceedings with regard to the allegedly discriminatory termination of her employment by Respondent.

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 March 13, 1990, denied that the termination of Petitioner's employment resulted from Petitioner's age or sex. Respondent

further alleged that Petitioner's employment was terminated for legitimate, non- discriminatory reasons.

At the hearing, Petitioner presented the testimony of one witness, herself, and three evidentiary exhibits. Respondent presented the testimony of three witnesses and 18 evidentiary exhibits.

No transcript of the final 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 Lutye T. Willis. She is white and over 40 years of age. She was employed by Respondent from July 21, 1987, until December 30, 1988.

   
   

2. Respondent in this matter is Crystal Brands, Inc., successor-in- interest to Hunter Haig, Inc., a subsidiary of Palm Beach Incorporated.

   
   

3. Respondent operated a number of retail clothing outlets throughout the country at all times pertinent to these proceedings. Respondent opened a new Evan Picone Factory Outlet store in the vicinity of Lake City, Florida, in July of 1988.

   
   

4. In conjunction with opening the new store, Herman Davis, Jack Williams and Steve Anderson, representatives of Respondent and acting as a group, conducted interviews of applicants for the position of store manager.

   Petitioner was hired as the manager of the new store, effective July 21, 1988.

   
   

5. Petitioner had approximately four years of experience in retail sales, although she had little experience in management or supervision. She was hired in the store manager position at a salary rate of $8.71 per hour for a 40 hour week.

   
   

6. Four days later, following conduct of other interviews with prospective applicants, a process in which Petitioner participated along with Davis, Williams and Anderson, an assistant manager for the new store was hired. Williams suggested that Petitioner might want to hire a male to assist in the sale of menswear.

   
   

7. Petitioner was happy with the choice of Trevor Hickman for the position. She knew the 22 year old white male and, many years earlier, had been his cub scout teacher. Her testimony to the effect that she was forced to hire a male assistant manageris not credited.

   
   

8. In the first few days following their hiring, Hickman and Petitioner were trained jointly by Jack Williams in the store's operations. Williams was not confident that Petitioner possessed adequate abilities and skills with regard to bookkeeping and cash register operation when he left the store three weeks later. He apprised home office personnel that Petitioner might require further assistance in these areas of the store's operation.

   
   

9. Subsequent to Williams' departure from the store, Petitioner received additional training and assistance from Tabitha Smith, the female manager of another store owned by Respondent.

10. Smith, manager of Respondent's store located in the neighboring vicinity of Valdosta, Georgia, was also consulted about once a week by Trevor Hickman, regarding reports and other store operations, during the period of Petitioner's employment.

    
    

11. While good with customers, Petitioner was not so adept at the administrative tasks of management. She generally delegated the preparation of reports to Hickman, although the reports were the responsibility of the manager and were normally signed by her. However, monthly balance reports, required to be completed by the manager, were not assigned to, or prepared by, Hickman. Those reports were delinquent at the time of Petitioner's termination and were subsequently completed by Hickman.

    
    

12. In October of 1988, Dan Hardin became the regional manager for Respondent. His regional supervisory role made him the immediate supervisor of Petitioner. He conducted a review ofthe store managed by Petitioner on October

    31 and November 1, 1988.

    
    

13. Hardin was disappointed with Petitioner's performance with regard to preparation of monthly balance reports and maintenance of the store's bank deposit log. Petitioner received a "poor" rating from Hardin with regard to these tasks in the review.

    
    

14. Hardin explained to Petitioner the importance of telephoning the home office on a daily basis with information concerning the amount of funds deposited by her in the bank each day.

    
    

15. In her role as the store manager, Petitioner established the work schedules for herself and Hickman. Sometime in late 1988, she arranged the schedules so that Hickman worked five days in a row from December 22 through December 28, in order that Petitioner might travel to Boston, Massachusetts to spend the Christmas holidays. Hickman was scheduled by Petitioner to be off several days around New Years' weekend and the week before Christmas.

    
    

16. Petitioner asked Hickman to cover for her in the event that anyone from the corporate offices inquired about her during her absence. Under the arrangement, Hickman was to telephone Petitioner in Boston, Massachusetts, regarding inquiries from the corporate office. However, Hickman was not to tell superiors that Petitioner was in Boston.

    
    

17. Hickman was discomfited by Petitioner's arrangements. He knew that Petitioner's plans were contrary tocompany policy and he feared he might be fired if he were viewed as collaborating with Petitioner's scheme.

    
    

18. Under Respondent's vacation policy, no employees were permitted a vacation until they completed at least six months of employment. In addition, company policy required approval of managerial vacation by the employee's immediate supervisor and the corporate president, John Lane. Petitioner had not complied with either provision of this policy regarding her planned absence.

    
    

19. Hardin normally communicated by telephone on a weekly basis with the store managed by Petitioner. Hardin spoke with Hickman by telephone in the early part of December and learned of the arrangement between Hickman and Petitioner to take time off during the holiday period.

    
    

20. Hardin subsequently telephoned the store again and spoke with Petitioner. He asked Petitioner to perform certain tasks during the time period

    that he now knew she planned to be absent from the store. At that point in the conversation, Petitioner informed Hardin of her intention to go to Boston during the December 22-28 time period.

    
    

21. Hardin attempted to dissuade Petitioner from carrying out her plans, pointing out the company vacation policy to Petitioner and the need for John Lane's approval of Petitioner's proposed absence.

    
    

22. Hardin further told Petitioner that he could not personally approve Petitioner's request as her supervisor, that he did not believe John Lane would approve such an absence, that shecould not be away from the store that long, and that the period for the proposed absence was one of the busiest times of the year for retail merchandising. Petitioner told Hardin that she still intended to follow through with her holiday travel plans.

    
    

23. Following the telephone conversation with Petitioner, Hardin informed Jim Shanis, Respondent's director of stores, of Petitioner's action. Subsequently, after telephoning the store during the period of December 22-28, 1988, and verifying that Petitioner was absent from the store, Hardin decided to terminate Petitioner's employment.

    
    

24. Hardin's discharge of Petitioner took place on Friday, December 30, 1988. At that time, he informed Petitioner that her discharge was the result of the unauthorized vacation and her unsatisfactory performance.

    
    

25. Hardin's discharge of Petitioner was consistent with Respondent's disciplinary policy which provided for immediate discharge for deliberate disregard of company policy or insubordination.

    
    

26. Respondent does not have a work practice prohibiting employment of females in managerial positions. Further, the proof establishes that Respondent had all female management teams at ten of it's 39 stores during the period of Petitioner's employment, as well as individuals in some managerial positions who were over 40 years of age.

    
    

27. After terminating Petitioner's employment, Hardin called Hickman to the store and promoted him to the store managerposition with a salary rate of

    $8.17 per hour, an amount less than that paid to Petitioner.

    
    

28. On or about January 20, 1989, Petitioner wrote a letter to the company president, John Lane, complaining that she had not received severance pay. Petitioner did not include within her complaint any allegation that her termination resulted from discrimination on the basis of age or sex.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

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

    
    

31. 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).

    
    

32. In the present case, Petitioner has failed to establish a prima facie case on the evidence presented. However, even if it is assumed that a prima facie case has been established, Respondent has articulated and substantiated alegitimate and nondiscriminatory reason for termination of Petitioner's employment. In turn, the direct admissible evidence presented by Petitioner fails to prove that Respondent's reason for terminating her employment was pretextual.

    
    

33. The company's policy regarding vacations or extended absences at a critical time of year for retail merchandisers was abundantly clear to Petitioner. Petitioner chose to disregard that policy and the directive of her supervisor, an action resulting in the termination of her employment. However, Petitioner's argument that she was terminated on the basis of her age and sex is unpersuasive and unsupported by a preponderance of direct admissible evidence.

RECOMMENDATION

Based on the foregoing, it is hereby

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

DONE AND ENTERED this 21st day of November, 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 21st day of November, 1990

APPENDIX

The following constitutes my rulings with regard to proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings

1.-3. Rejected, conclusions of law unsupported by weight of the evidence.

1. Adopted by reference.

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

3. First part of this proposed finding is rejected as unnecessary with regard to Petitioner's background. Remainder rejected as unsupported by the weight of the evidence.

4. Rejected, unsupported by the evidence.

5. Rejected, unnecessary.

9.-15. Rejected, not supported by weight of the evidence.

1. Rejected, relevancy.

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

3. Rejected, although a male assistant was suggested to Petitioner because of fitting of male apparel, the weight of the evidence does not support that Petitioner was forced to hire Hickman or that she opposed his hiring.

4. Rejected, hearsay. While Petitioner was granted leave to file the deposition of Herman Davis as a posthearing exhibit, no authority was provided to quote documents not in evidence as a basis for a finding of fact.

20.-21. Rejected, not supported by the evidence.

22. Adopted by reference.

23.-25. Rejected, not supported by weight of the evidence.

26. Rejected as argumentative. Although Hardin remained in the hearing room as Respondent's agency representative, Petitioner was not unfairly prejudiced as a result.

Respondent's Proposed Findings

1.-5. Adopted in substance. 6.-10. Adopted by reference. 11.-21. Adopted in substance. 22.-24. Adopted by reference. 25.-41. Adopted in substance.

42. Adopted by reference.

43.-44. Adopted in substance.

45.-49. Rejected, unnecessary to result.

COPIES FURNISHED:

Dana Baird, Esq.

Acting Executive Director

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Lutye Willis

P.O. Box 646

Brownsville, Vermont 05037

Edwin J. Turanchik, Esq.

501 East Kennedy Boulevard Suite 1206

Tampa, Florida 33602

Clerk

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-005572

Orders for Case No: 89-005572