STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK CLEVELAND, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5274

) SEARS, ROEBUCK AND COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Diane Cleavinger, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 7, 1992, at Pensacola, Florida.

APPEARANCES

For Petitioner: Cheryl Johnson Howard, Esquire

700 S. Palafox Street, Suite 1A Pensacola, Florida 32501

For Respondent: No appearance.

PRELIMINARY STATEMENT

On May 18, 1989, Petitioner, Mark Cleveland, filed a Charge of Discrimination against Respondent Sears, Roebuck and Company, alleging that he had been denied employment because of his sex. Subsequent to the Charge of Discrimination, the Florida Commission on Human Relations (FCHR) determined twice that there was cause to believe that an unlawful employment practice had occurred. On July 23, 1991, Petitioner filed a Petition for Relief, again alleging discrimination based on sex. The Petition for Relief was forwarded to the Division of Administrative Hearings for purposes of conducting a final hearing.

A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Petitioner, through his attorney, responded to the Notice of Hearing.

Respondent did not respond to the Notice. However, on October 18, 1991, Respondent did file a statement in answer to the Petition for Relief. The answer did confirm Respondent's address.

On October 10, 1991 a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief.

Neither Respondent nor its representative appeared at the place set for the formal hearing on the date and time specified in the Notice of Hearing. The Petitioner was present at the hearing along with his attorney. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it or its representative would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced.

At the hearing, Petitioner testified in his own behalf but did not introduce any exhibits into evidence. Petitioner later filed two exhibits consisting of an affidavit of costs and attorney's fees incurred by Petitioner in this matter and an affidavit on the reasonableness of those costs and attorney's fees. Both exhibits were accepted into evidence.

Petitioner filed a Proposed Recommended Order on February 12, 1991.

Respondent did not file a Proposed Recommended Order. Petitioner's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were irrelevant, immaterial, cumulative or subordinate. Specific rulings on Petitioner's proposed findings of fact are contained in the Appendix to this Recommended Order.

STATEMENT OF THE ISSUES

Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.

FINDINGS OF FACT

1. On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio

   station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers.

   
   

2. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal.

3. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice.

   
   

4. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings.

   
   

5. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/

   
   

6. Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Sections 120.57(1) and 57.111, Florida Statutes.

   
   

8. Chapter 760, Florida Statutes, regulates the area of discriminatory employment practices. Section 760.10(1) and (7) states:

   
   

   1. It is an unlawful employment practice for an employer:

      1. To discharge or to fail or refuse to hire any individual, or otherwise to discrim- inate against any individual with respect to

         compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

      2. To limit, segregate, or classify employees or applicants for employment in any way which

         would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion,

         sex, national origin, age, handicap, or marital status.

         (7) It is an unlawful employment practice for

         an employer, an employment agency, a joint labor- management committee, or a labor organization

         to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated

         in any manner in an investigation, proceeding, or hearing under this section.

         
         

9. The Respondent, Sears Roebuck and Company, is an employer within the definition of the Florida Human Rights Act of 1987 ("the Act"), as amended. Sections 760.01-760.10, Florida Statutes (1987).

   
   

10. Petitioner timely filed a charge of discrimination with the Florida Commission on Human Relations alleging discrimination based on sex.

    
    

11. Because of the similarity between the Act and Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. Sections 2000e-2000e17, the burden of proof in Title VII cases applies in cases brought under Chapter 760, Florida Statutes. School Board of Leon County v. Hargis, 400 So.2d 103,

    108 (Fla. 1st DCA 1981).

    
    

12. In order to demonstrate a prima facie case of sex discrimination, the Petitioner must prove by a preponderance of the evidence:

    
    

    1. Petitioner was a member of a protected class;

    2. Petitioner was qualified for and able to perform the position sought;

    3. Petitioner was not hired; and

    4. The position was filled by persons outside Petitioner's protected class.

    
    

    Perryman v. Johnson Products Company, Inc., 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973). Clearly, Petitioner has established these four elements.

    
    

13. Once Petitioner successfully presents a prima facie case, it is incumbent upon the Respondent employer to rebut Petitioner's prima facie case by articulating legitimate, non-discriminatory reasons for not employing the Petitioner. Perryman, 698 F.2d at 1142. In this case no such rebuttal evidence was presented. Petitioner is therefore entitled to relief from Respondent's unlawful employment practice.

    
    

14. In this case, Petitioner was employed approximately four months after being denied employment with Sears. Petitioner's employment benefits were similar to what he would have received had he been employed by Sears. Moreover, Petitioner is currently not interested in receiving the Sears position. Given these facts, award of the telemarketing job to Petitioner would not be an

appropriate remedy. However, backpay for the two month interim period Petitioner was without employment of $1,462.00 is appropriate as well as reasonable costs of $100.95 and an attorney's fee of $2,550.00.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00.

RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida.

DIANE CLEAVINGER

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 30th day of April, 1992.

ENDNOTES

1/ It should be noted, that formal hearings conducted under Section 120.57(1), Florida Statutes, are de novo hearings and each party is required to establish its case with appropriate evidence at the scheduled formal hearing.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5274

1. The facts contained in paragraphs 1,2,3,4 and 5, of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material.

COPIES FURNISHED:

Cheryl Johnson Howard, Esquire 700 S. Palafox Street, Suite 1A Pensacola, FL 32501

Mark Cleveland

404-B Seamarge Lane Pensacola, FL 32307

Margaret A. Jones Agency Clerk

Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

Dana Baird General Counsel

Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

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 contact 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: 91-005274

Orders for Case No: 91-005274