STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICOLAS POLANCO, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1302

) MARRIOTT HOTELS AND RESORTS, INC., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on October 18, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Nicolas Polanco, pro se

88-05 171st Street, Apartment 1-K Jamaica, New York 11432

For Respondent: Carlton J. Trosclair, Esquire

Vice President and Associate General Counsel

Marriott International

One Marriott Drive, Department 923 Washington, D.C. 20058

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.

PRELIMINARY STATEMENT

At the formal hearing, Petitioner testified in his own behalf and presented the testimony of two witnesses. Petitioner submitted a composite exhibit for admission in evidence. Respondent presented the testimony of one witness and submitted 12 exhibits for admission in evidence. The witnesses and exhibits of the parties and rulings with respect to each are set forth in the transcript of the formal hearing filed on November 12, 1993.

Proposed findings of fact and conclusions of law were not timely filed by Petitioner. Respondent timely filed proposed findings of fact on November 18, 1993. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida.

   
   

2. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year.

   
   

3. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly.

   Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991:

   
   

   March 8, 1991 - Written Warning (refused to follow a reasonable job order)

   March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91

   May 15, 1991 - Written Warning (failure to follow Respondent's work policies)

   July 30, 1991 - Termination Recommendation (changed to a written warning)

   August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness)

   October 7, 1991 - Suspension and Termination Recommendation.

   
   

4. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started.

   
   

5. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male.

   
   

6. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

8. The burden of proof in this proceeding is on Petitioner. Petitioner must establish by a preponderance of evidence that his termination from employment unlawfully discriminated against Petitioner. Department of

   Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

9. Petitioner must make a prima facie showing of discrimination. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). Petitioner must show that he was a member of a protected group, that an adverse employment action took place, that Petitioner and a similarly situated unprotected group received dissimilar treatment, and that sufficient direct or circumstantial evidence exists to infer a causal connection between Petitioner's group status and the disparate treatment. See Pugh v. Heinrich, 695 F.Supp. 533, 540 (M.D. Fla. 1988) affd. 933 F.2d 1020 (11th Cir. 1992).

   
   

10. If Petitioner satisfies the threshold requirement of a prima facie showing, then Respondent has the burden of articulating a legitimate, nondiscriminatory reason for the action complained of. If Respondent articulates such a reason, then Petitioner must prove by a preponderance of evidence that the reasons offered by Respondent are a pretext for discrimination.

    
    

    If the plaintiff meets [the] initial burden, the burden shifts to the defendant employer to articulate some legitimate, non- discriminatory reason for rejecting the plaintiff. If the defendant carries this burden, the plaintiff must prove by preponderance the reasons offered by the employer were a pretext for discrimination by showing, for instance, discriminatory intent. The employer may rebut the pretext charge by proof of absence of discriminatory motive.

    See also Chalk v. Secretary of Labor, U.S. Dept. of Labor, 565 F.2d 764, 766-67 (D.C.

    Cir. 1977), cert. den., 435 U.S. 945, 98

    S.Ct. 1527, 55 L.Ed.2d 542 (1978). When the

    burden shifts initially after plaintiff establishes a prima facie case, the employer need not prove that it was actually motivated by articulated non-discriminatory reasons or that the hired applicant was more qualified than plaintiff. Texas Dept. of Community Affairs v. Burdine, U.S. , 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981).

    
    

    School Board of Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981); See also, Department of Corrections v. Chandler, 582 So.2d 1183, 1185- 1186 (Fla. 1st DCA 1991); School Board of Leon County v. Weaver, 556 So.2d 443,

    444 (Fla. 1st DCA 1990).

    
    

11. Petitioner failed to satisfy the threshold requirement of a prima facie showing of discrimination. Petitioner's testimony failed to establish that an adverse employment action took place, that Petitioner and a similarly situated unprotected group received dissimilar treatment, and that sufficient direct or circumstantial evidence exists to infer a causal connection between Petitioner's group status and any disparate treatment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of

unlawful discrimination.

DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida.

DANIEL MANRY

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 7th day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302

Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance.

COPIES FURNISHED:

Carlton J. Trosclair, Esquire Marriott Corporation

One Marriott Drive, Department 923 Washington, D.C. 20058

Sharon Moultry, Clerk Commission On Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Nicolas Polanco 88-05 71st Street Apartment 1-K

Jamaica, New York 11432

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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

NICOLAS POLANCO,

Petitioner, EEOC Case No. 15F920038 FCHR Case No. 92-0638

vs.

DOAH Case No. 93-1302

MARRIOTT HOTELS AND RESORT, INC., FCHR Order No. 94-048

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

1. Panel of Commissioners

   
   

   The following three Commissioners participated in the disposition of this matter:

   
   

   Commissioner Sandra Garcia Panel Chairperson;

   Commissioner Elena Flom, and Commissioner Geraldine Thompson.

   
   

2. Appearances

   
   

   Petitioner Nicolas Polanco did not appear before the Panel for deliberations in this matter.

   For Respondent Marriott Hotels and Resorts, Inc.:

   
   

   Carlton J. Trosclair, Esquire Marriott International

   One Marriott Drive, Dept. 923 Washington, D.C. 20058

   
   

3. Preliminary Matters

   
   

   Mr. Nicolas Polanco, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1991), alleging that Marriott Hotels and Resorts, Inc., Respondent herein, unlawfully discriminated against him on the basis of national origin (Dominican Republic).

   
   

   In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred.

   
   

   Petitioner filed a Petition for Relief from an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

   
   

   A formal administrative hearing was held in Tallahassee, Florida before DOAH hearing officer Daniel Manry, who has issued a Recommended Order.

   
   

   Pursuant to notice, public deliberations were held in Orlando, Florida before the aforementioned panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

   
   

4. Findings of Facts

   
   

   The DOAH hearing officer's findings of fact are supported by competent substantial evidence. We adopt the hearing officer's findings of fact.

   
   

5. Conclusions of Law

   
   

   We expressly reject the subordinate, intermediate legal conclusion that Petitioner did not establish a prima facie case of discrimination within the requirements of the McDonnell Douglas evidentiary analysis. The hearing officer's overall legal conclusion, however, is correct, i.e., that Petitioner retains the burden of proof and that Petitioner's proof is insufficient to establish the occurrence of unlawful discrimination.

   
   

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

   
   

6. Dismissal

The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination are DISMISSED with prejudice.

Each party is advised of his right to petition the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal must be filed within 30 days of the date that this order is filed with the clerk of the Commission. Section 120.68, Florida Statutes, and Fla.R.App.P. 9.110(b).

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Sandra Garcia, Panel Chairperson;

Commissioner Elena Flom, and Commissioner Geraldine Thompson.

FILED this 3rd day of June 1994, Tallahassee, Florida.

Clerk of the Commission

NOTICE TO COMPLAINANT/PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission's final agency action. To secure a "substantial weight review" by EEOC, you must request it in writing within 15 days of your receipt of this order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Boulevard, Suite 2700 - 27th Floor, Miami, Florida 33131.

Copies furnished to:

Nicolas Polanco, pro se

88-05 171st Street, Apt. 1-K Jamaica, New York 11432

Carlton J. Trosclair, Esquire Marriott International

One Marriott Drive, Dept. 923 Washington, D.C. 20058

Daniel Manry, DOAH Hearing Officer Harden King, FCHR Legal Advisor

Docket for Case No: 93-001302

Orders for Case No: 93-001302