STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE A. GLOVER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1317

)

MARRIOTT CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 15, 1991, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William G. Dayton, Esquire

P.O. Box 1883

Dade City, Florida 33526-1883

For Respondent: Mary Helen Medina, Esquire

Marriott Corporation 10400 Fernwood Road

Law Department 923

Bethesda, Maryland 20817 STATEMENT OF THE ISSUE

The issue in this case is whether the Petition for Relief, charging the Respondent with age and race discrimination, should be granted.

PRELIMINARY STATEMENT

The record in this case reveals that the Petitioner, Willie L. Glover, filed with the Florida Commission on Human Relations (FCHR) a Charge of Discrimination against the Respondent, Marriott Corporation, on April 19, 1990. The Charge of Discrimination alleged age and race discrimination. It was assigned FCHR No. 90-4616.

The Charge of Discrimination was investigated, and on or about October 30, 1990, the FCHR issued a Notice of Determination: No Cause, i.e., a determination was made that there was no reasonable cause to believe that unlawful discrimination had occurred. On or about January 19, 1991, the FCHR issued a Notice of Redetermination: No Cause.

The Petitioner then filed with the FCHR a Petition for Relief again alleging age and race discrimination (among other things). On or about February 26, 1991, the FCHR forwarded the Petition for Relief to the Division of Administrative Hearings for formal administrative proceedings under Section 120.57(1), Fla. Stat. (1989). Final hearing was scheduled for May 15, 1991.

At the outset of the final hearing, the Respondent, through counsel, moved to dismiss on the ground that the Charge of Discrimination against the Respondent filed with the FCHR was untimely. The Petitioner, who also was represented by counsel, produced a copy of a charge of discrimination that appeared to have been filed on or about October 20, 1989. But that charge of discrimination was filed against St. Leo College, not the Respondent, and alleged that St. Leo discriminated against the Petitioner on the basis of race, only, in refusing to rehire him, not that the Petitioner's termination was illegal. In addition, that charge of discrimination appeared to have been filed with the federal Equal Employment Opportunity Commission (EEOC) office in Tampa, Florida, instead of with the FCHR. The Petitioner was given the opportunity to submit evidence of what was filed with the FCHR but no such evidence has been filed.

At the final hearing, the Petitioner testified in his own behalf and called two other witnesses in his behalf. The Petitioner also had Petitioner's Exhibits 1 through 4 admitted in evidence. The Respondent called three witnesses and had Respondent's Exhibits 1 through 9 admitted in evidence.

At the conclusion of the hearing, the Respondent ordered the preparation of a transcript of the final hearing. Proposed recommended orders were required to be filed within ten days after the filing of the transcript. The transcript was filed on June 14, 1991, making proposed recommended orders due June 24, 1991. However, the parties' joint request for an extension of time to July 9, 1991, was granted. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 91-1317.

FINDINGS OF FACT

1. The Petitioner, Willie L. Glover, is a black male, who worked in housekeeping for St. Leo College in San Antonio, Florida, for approximately 30 years. For over 20 years, he was the supervisor of housekeeping for St. Leo.

   
   

2. Starting July 1, 1989, St. Leo contracted housekeeping and certain other related functions to the Respondent, Marriott Corporation. The Petitioner, like the other former St. Leo employees, were allowed to stay in the approximate Marriott equivalent of their former positions on probationary status and were required to learn the Marriott way of doing things. It was understood that, within the 90 day probation period, Marriott was authorized to terminate former St. Leo employees who did not measure up to Marriott standards.

3. Marriott put the Petitioner in the position of director of Marriott's Environmental Services Department at St. Leo. This position had some of the attributes of the Petitioner's former position but also had some additional requirements.

   
   

4. Marriott quickly perceived that the Petitioner was weak in the area of written communication, a required job skill that Marriott emphasized more than St. Leo had in the Petitioner's former position. Marriott decided early on that it would have to send the Petitioner to school for training in written communications.

   
   

5. As part of Marriott's reorganization of functions at St. Leo's, Marriott began a process of moving all supervisory personnel to central Marriott offices. The Petitioner was moved out of his old private office adjacent to one of the dormitory buildings and into the central Marriott offices where he shared an office, with telephone, with another supervisor. The Petitioner perceived this move as a demotion of sorts and dragged his feet in actually physically moving to and using the new offices. Later, the Petitioner perceived the move as an attempt by Marriott to force the Petitioner to quit. The evidence in the case did not prove that these perceptions were true.

   
   

6. Within a month or two of July 1, 1989, Marriott Corporation received several complaints about the Petitioner and how he performed as supervisor of housekeeping.

   
   

7. One substantiated complaint was that two dormitory buildings, which were supposed to be prepared for occupancy for a summer camp session beginning July 20, 1989, were not ready as of July 19. The Petitioner, in discussion with other housekeeping employees, but not with the Marriott managerial staff, blamed the situation on Marriott's all-out effort to beautify one of the other dormitories for the start of the fall college term. A few days before, a Marriott training consultant began training sessions for all housekeeping personnel, including the Petitioner. The training consultant had all of the housekeeping crew, including the Petitioner, working on the beautification project. During training, the Petitioner contends that he and the others viewed the trainer as "the boss" and that he did not think he had the authority to do what was necessary to get ready for the summer camp session. However, some of the work readying one of the buildings for the summer camp session should have been done before the training consultant even arrived, and there is no evidence that the training consultant knew or should have been expected to know the scheduling requirements for the summer camp session. The Petitioner was aware of the scheduling requirements for the summer camp session, and Marriott expected the Petitioner to be in charge of scheduling the housekeeping crew so as to make sure that all deadlines were met, not just the beautification project for the fall session. The Petitioner was reprimanded for not attending to the dormitories needed for the summer camp session and was ordered to get the work done immediately.

   
   

8. Marriott also received several complaints from workers under the Petitioner to the effect that he swore at them, verbally abused them and

   generally did not treat them properly. Although the workers were telling the truth, the Petitioner denied the allegations.

   
   

9. On September 14, 1989, Marriott decided that the Petitioner was not qualified to perform the functions Marriott would require of its director of Environmental Services at St. Leo and fired him. There were no other positions available on St. Leo's housekeeping staff at the time.

   
   

10. The Petitioner was 61 years old at the time he was fired. The evidence did not prove that Marriott fired him because of his age. There was no evidence as to the age of the Petitioner's replacement, or any of the other employees except one. The Petitioner's assistant, who had 17 years experience at St. Leo, was age 38. He was fired before the Petitioner was. One of the other employees had 20 years experience at St. Leo. Her age was not revealed. She still is employed by Marriott.

    
    

11. No credence is given to the Petitioner's testimony that his supervisor told him not to consider any "old men" for hiring on the housekeeping staff. Besides, it is not clear from the testimony exactly what the Petitioner's supervisor allegedly was attempting to communicate to the Petitioner, and it is not clear what impact this communication allegedly had on the Petitioner.

    
    

12. The evidence did not prove that the Petitioner was fired because he is black. There was no evidence as to the race of the Petitioner's replacement. Of the housekeeping employees and former employees who testified at the hearing, all were black. When Marriott took over, it created a new night shift and promoted a black woman to supervisor of the night shift.

    
    

13. A good part of the Petitioner's case was directed to his contention that the Petitioner was targeted for firing because Marriott wanted to avoid the financial consequences of assuming the retirement obligations owed by St. Leo College to an employee with as many years towards retirement as the Petitioner had. 1/ To the contrary, the clear evidence was that Marriott did not assume the retirement obligations owed by St. Leo College to the former St. Leo employees. St. Leo paid out retirement benefits to those entitled to them as of June 30, 1989. The employees receiving retirement benefits from St. Leo included the Petitioner, who has received retirement benefit payments of approximately

    $200 a month since the start of Marriott's contract to do the housekeeping at St. Leo.

    
    

14. On or about October 27, 1989, the Petitioner filed a Charge of Discrimination with the EEOC. The Charge of Discrimination was against St. Leo College and alleged that St. Leo denied him reemployment in housekeeping because of race. There was no evidence of any charge filed with the Florida Commission on Human Relations, any charge against the Marriott Corporation, or any charge alleging that the Petitioner was fired because of age or race, until the Charge of Discrimination initiating this proceeding was filed on or about April 19, 1990.

    
    

    CONCLUSIONS OF LAW

15. Section 760.10(1), Fla. Stat. (1989), makes it illegal to discharge or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's race or age (among other things). Section 760.10(10)-(14) sets out an administrative remedy for violations.

    
    

16. Section 760.10(10) provides: "Any person aggrieved by a violation of this section may file a complaint with the commission within

    180 days of the alleged violation, naming the employer, employment agency, labor organization, or joint labor-management committee, or, in the case of an alleged violation of subsection (5), the person, responsible for the violation and describing the violation." Section 760.02(1) defines the "commission" as the Florida Commission on Human Relations.

    
    

17. In this case, the evidence is that no complaint was filed with the FCHR within 180 days of the alleged incident. Therefore, the administrative remedy set out in Section 760.10(10)-(14) no longer is available to the Petitioner. See St. Petersburg Motor Club v. Cook, 567 So. 2d 488 (Fla. 2d DCA 1990).

    
    

18. Even if the administrative remedy set out in Section 760.10(10)-(14) still were available to the Petitioner, the Petitioner did not prove unlawful discrimination based on race or age. Indeed, the Petitioner did not even make out a prima facie case of unlawful discrimination. Cf. Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720,

    53 L.Ed.2d 786 (1977)(a prima facie case of facially neutral discrimination can be made out of evidence that the neutral standards result in a discriminatory pattern); 2/ McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)(prima facie showing of racial discrimination requires evidence of disparate treatment on the basis of race); Green v. Armstrong Rubber Co., 612 F.2d 967 (5th Cir. 1980), cert. den., 449 U.S. 879 (1980)(same); Jackson v. U.S. Steel Corp., 624 F.2d 436, 440-441 (3d Cir. 1980)(same). 3/ There was no evidence of disparate treatment.

    
    

19. Some of the Petitioner's evidence seemed designed to prove that he was singled out for disparate treatment for reasons other than unlawful discrimination based on race or age. For example, some of the Petitioner's evidence seemed designed to suggest that he was singled out in part because, as the most senior employee, he would have been entitled to the greatest amount of retirement benefits. Even though the evidence did not prove the suggestion, if it had, it would have proven reasons for disparate treatment that are not actionable under Section 760.10, Fla. Stat. (1989). Cf. Dept. of Corrections v. Chandler, 16 F.L.W. D364 (Fla. 1st DCA 1991), on rehearing, Slip Opinion, Case No. 90-648, entered July 10, 1991, (the evidence suggested that the petitioner may have been passed over for a promotion because of the personal friendship of one of his competitors for the position with an influential member of the interview team, not because of racial discrimination).

    
    

20. Assuming that there had been evidence of disparate treatment, the Respondent produced evidence of legitimate, nondiscriminatory reasons for terminating the Petitioner. This would have returned the burden to

the Petitioner to prove that the Respondent's alleged legitimate, nondiscriminatory reason for terminating him was a pretext and that an illegal, discriminatory reason more likely motivated the Respondent to terminate the Petitioner. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). As reflected in the Findings of Fact, the Petitioner did not meet his burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case.

RECOMMENDED this 25th day of July, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 25th day of July, 1991.

ENDNOTES

1/ It should be noted that, even if Marriott had targeted the Petitioner for the reason alleged, it is not one of the reasons made unlawful by Section 760.10, Fla. Stat. (1989). See Conclusion of Law 1.

2/ In Dothard v. Rawlinson, height and weight requirements of employment were alleged to have resulted in discrimination. In this case, it seems to be alleged in part that the facially neutral personnel policies were used to discriminate against the Petitioner on the basis of race or age.

3/ Because Florida's Human Rights Act of 1964 is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, Florida courts have looked to interpretive federal case law for guidance in determining whether an unlawful employment practice has occurred. School Bd. of Leon County v. Hargis, 400 So. 2d 103, 108 & n.2 (Fla. 1st DCA 1981).

APPENDIX TO RECOMMENDED ORDER

To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-10. Accepted and incorporated to the extent not subordinate or unnecessary.

11.-12. Accepted but subordinate and unnecessary.

13.-15. Accepted and incorporated to the extent not subordinate or unnecessary.

16. Accepted but subordinate and unnecessary. 17.-18. Accepted and incorporated.

Respondent's Proposed Findings of Fact.

1.-5. Accepted and incorporated. 6.-10. Rejected as not proven.

1. Accepted and incorporated.

2. Rejected as not proven.

COPIES FURNISHED:

William G. Dayton, Esquire

P.O. Box 1883

Dade City, Florida 33526-1883

Mary Helen Medina, Esquire Mariott Corporation

10400 Fernwood Road

Law Department 923

Bethesda, Maryland 20817

Ronald M. McElrath Executive Director

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones Clerk

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE FLORIDA COMMISSION ON HUMAN RELATIONS WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE FLORIDA COMMISSION ON HUMAN RELATIONS CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

WILLIE A. GLOVER,

EEOC Case No. l5D09

Petitioner, FCHR Case No. 90-4616 DOAH Case No. 91-1317

vs. FCHR Order No. 91-038

MARIOTT CORPORATION,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Willie A. Glover filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended.

Sections 760.01-760.10, Fla. Stat. (1989). Petitioner alleged Respondent Mariott Corporation unlawfully discriminated against him on the bases of race (black) and age (61).

The allegations of discrimination set forth in the complaint were investigated. On October 30, 1990, the Executive Director found no reasonable cause to believe an unlawful employment practice occurred. A Redetermination: No Cause was issued January 14, 1991.

Thereafter, Petitioner filed a Petition for Relief from an Unlawful Employment Practice, requesting that a formal proceeding be conducted on the claim. The petition was referred to the Division of Administrative Hearings (DOAH). Fla. Admin. Code Rule 22T-8.016(1) on July 25, 1991, DOAH Hearing Officer J. Lawrence Johnston entered a Recommended Order of dismissal

Public deliberations were held on November 8, 1991, in Tampa, Florida before this panel of commissioners.

Findings of Fact

We have considered the hearing officer's Findings of Fact and are mindful of the record in this cause. The hearing officer's Recommended Order contains an erroneous statement of law in his findings of fact (Recommended Order p.7, footnote 1). If Respondent had targeted Petitioner for termination to avoid paying his retirement benefits, such action would be prohibited under section 760.10 based on the protected status of age. Based hereon, the footnote is not adopted by the panel.

As the rest of the hearing officer's findings are supported by comPetent substantial evidence, they are hereby adopted. Section l20.57(1)(b)10, Fla. Stat. (1989).

Conclusions of Law

We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. Accordingly, we adopt the hearing officer's conclusions.

Dismissal

The Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order.

The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 16 day of January 1991 FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Geraldine F. Thompson Panel Chairperson;

Commissioner Ronald P. Townsend; and Commissioner Robert R. Joyce.

FILED this 22 day of January 1991 in Tallahassee, Florida.

Margaret A. Jones Clerk of the Commission

Copies Furnished:

William G. Dayton, Attorney for Petitioner Mary Helen Medina, Attorney for Respondent

J. Lawrence Johnston, DOAH Hearing Officer

Danica W. Parker, Legal Advisor for Commission Panel

Docket for Case No: 91-001317

Orders for Case No: 91-001317