STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DAVID LUCAS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1024

)

MARC DOWNS, 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 April 17, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David Lucas, pro se

3265 Nekoma Lane Apartment B

Tallahassee, Florida 32304 For Respondent: No Appearance 1/

STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

On March 16, 1990, Petitioner filed a charge of discrimination against Respondent. Petitioner, who is black, alleged that he was terminated from his employment with Respondent as the result of Petitioner's race.

On July 12, 1991, the Florida Commission on Human Relations entered a Notice of Determination: Cause.

Following notice from the Commission that efforts to conciliate his complaint with Respondent had failed, Petitioner filed a Petition for Relief with the Commission on December 13, 1991. The Petition alleged that Respondent had committed an unlawful employment practice with respect to compensation, conditions and privileges of Petitioner's employment on the basis of Petitioner's race in violation of Sections 760.01-760.10, Florida Statutes. The Petition also contained Petitioner's request for back pay from the time of his termination and a letter of apology to himself and other employees terminated by Respondent for racial reasons.

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

At the final hearing, Petitioner presented the testimony of two witnesses, himself, and Brenda Williams. He also offered two exhibits in evidence, which were accepted. No representation or evidence was presented on behalf of Respondent. Neither party requested a transcript of the final hearing. No proposed findings were timely filed by Respondent and none had been received on its behalf at the time of the preparation of this recommended order. Petitioner waived the filing of proposed findings of fact.

FINDINGS OF FACT

1. Petitioner is David L. Lucas. He was employed by Respondent, Marc Downs, Inc., a clothing store chain, from August of 1989 until January 28, 1990.

   
   

2. Approximately two months before the conclusion of his employment with Respondent, Petitioner and other employees employed in the Marc Downs Store located in the Wal-Mart Shopping Center on East Apalachee Parkway in Tallahassee, Florida, began working under the supervision of a new store manager.

   
   

3. The new store manager was Desiree DeVelder, a white female. In addition to DeVelder, there was one other white female employee on the store's sales staff. The remainder of the ten person sales force in the clothing store was black. Petitioner was the only black male member of that sales force.

   
   

4. Petitioner and other employees became increasing aware of DeVelder's discomfort at working with a predominantly black sales force. She kept to herself when at all possible. She confided to Petitioner that she did not like the way that the black people acted and on one occasion she stated that there were too many blacks working in the store.

   
   

5. On January 28, 1991, DeVelder called a meeting of the store employees after the store had closed for the day. She presented each of the black employees, but not the solitary white employee, with a form entitled "Employee Disciplinary Notice".

   
   

6. The form had been filled out for each black employee recipient and documented that the employee was the subject of disciplinary action for "poor attitude and not following Marc Down's Employee Policy Manual". The form further documented that the corrective action was to be a 30 day probationary period for the employee and that unemployment compensation would not be paid if the employee quit or was dismissed from employment during the probationary period. Each form for each employee was signed by DeVelder.

   
   

7. DeVelder asked each of the black employees to sign their individual forms. Petitioner asked for an explanation of the form. DeVelder refused to provide an answer and Petitioner said he would think about it and provide DeVelder with a decision the next day. As he turned to leave, DeVelder struck him in the back and began screaming at him that he was fired.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The adverse effectuation of an employee's compensation, conditions and privileges of employment on the basis of race is an unlawful employment practice. Section 760.10(1)(a), Florida Statutes.

   
   

10. 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).

    
    

11. In this case, Petitioner has shown a prima facie case of employment discrimination which has not been rebutted by Respondent.

    
    

12. Since the final hearing, copies of two documents were filed with the Division of Administrative Hearings on April 22, 1992, presumably by counsel for Respondent. One of the documents is entitled "Order And Notice Of Bar Date For Filing Post-Petition Claims" and the other document is entitled "Corrective Notice". Both document copies purport to be issued by the United States Bankruptcy Court for the Northern District of Florida in Gainesville, Florida. The manner in which these documents have appeared in this case does not permit consideration of the issue of whether Respondent is in fact a party to bankruptcy proceedings. Similarly, the issue of whether such a proceeding precludes the effectuation of final agency action against a business entity that is subject to proceedings in the federal bankruptcy court is not adequately presented and has not been considered in determining whether to recommend that the requested relief be granted to Petitioner.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered granting the Petition for Relief and directing the payment to Petitioner by Respondent of back pay at the rate of

$400 per month from January 28, 1990.

DONE AND ENTERED this 13th day of May, 1992, 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 13th day of May, 1992.

ENDNOTES

1/ Frank P. Saier, Esq. of Gainesville, FL, filed pleadings on behalf of Respondent but did not appear at the final hearing. When contacted by telephone regarding his absence immediately prior to the commencement of the final hearing, Mr. Saier informed personnel of the Division of Administrative Hearings that he would not attend inasmuch as he had been informed by another attorney for Respondent that Respondent was filing for bankruptcy. For further discussion of this subject, please see paragraph 5 of the conclusion of law portion of this recommended order.

COPIES FURNISHED:

David Lucas

3265 Nekoma Lane Apartment B Tallahassee, FL 32304

Margaret Jones Clerk

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Dana Baird, Esq.

General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Frank P. Saier, Esq. 1330 N. W. 6th Suite B Gainesville, FL 32601

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: 92-001024

Orders for Case No: 92-001024