STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA GREEN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1948

) PERSONNEL POOL OF AMERICA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on August 31, 1993. As stipulated by the parties, the hearing was conducted by telephone conference. The Petitioner participated from Jacksonville, Florida; the Respondent participated from its office in Orlando, and attorney's office in Ft. Lauderdale, Florida; and the Hearing Officer and court reporter were located at the division office in Tallahassee, Florida.

APPEARANCES

For Petitioner: Barbara Green

(representing herself)

46 East Robinson Street Orlando, Florida 32801

For Respondent: Lisse R. Groff, Esquire

Personnel Pool of America, Inc. 2050 Spectrum Boulevard

Fort Lauderdale, Florida 33309 STATEMENT OF THE ISSUES

Petitioner's complaint and petition for relief allege that Respondent has discriminated against her on account of her race, black, by refusing to refer her for employment in 1991. The issue for determination is whether that violation of section 760.10, F.S. occurred, and if so, what relief is appropriate.

PRELIMINARY STATEMENT

Petitioner's complaint and petition were referred by the Florida Commission on Human Relations to the Division of Administrative Hearings on April 8, 1993. After Petitioner failed to appear at a hearing scheduled in Orlando on July 21, 1993, a series of telephone conferences were held, and the hearing proceeded by telephone as described above.

Petitioner testified in her own behalf and submitted no exhibits nor other witnesses. Respondent presented the testimony of Elvis Nail and Bill Lupo.

Respondent's exhibit #1, a computer printout of Petitioner's employment history with Respondent, was received in evidence without objection.

After the hearing, Respondent filed a post-hearing brief with proposed statement of facts. Those facts are substantially adopted here. Petitioner did not file a proposed recommended order, nor was the transcript filed.

FINDINGS OF FACT

1. Petitioner is an African-American woman who lives sometimes in Orlando, Florida, and sometimes in Jacksonville, Florida or elsewhere. At the time in question she was in Orlando.

   
   

2. Respondent operates a daily labor temporary help agency with an office in Orlando and a corporate service center, Interim Services, Inc., in Ft. Lauderdale, Florida.

   
   

3. Petitioner received assignments for work by Respondent beginning in 1983. This was temporary, sporadic employment in unskilled labor jobs. Her recent employment file reflects that she received thirty-seven (37) assignments in 1987, ninety-three (93) assignments in 1990, and twenty-three (23) assignments between March of 1991, and July of 1991.

   
   

4. Individuals seeking work with Respondent are dispatched on a daily basis to assignments from Respondent's office, or they can preschedule assignments by calling into the office in advance. The best way to guarantee work is to preschedule. Priority for assignments is given to persons who preschedule, have their own transportation, come in or call for work daily, or are requested back by a specific client.

   
   

5. Transportation is provided by van for some assignments, and Respondent also assists persons in car-pooling, but those arrangements can only be provided for persons who come in the morning. For Disney, a large user of Respondent's services, the trip is approximately forty-five minutes from the Respondent's office. Persons coming in the afternoons need their own transportation to get to Disney.

   
   

6. In 1987 and 1990, Petitioner had her own car. She claims she had a car in 1991, but Respondent's employees responsible for arranging assignments and dispatching work were not aware that she had a car in 1991. Petitioner concedes that she did not preschedule assignments. She claims that she came every day for work from the time the office opened until it closed, but that she was not given work every day.

   
   

7. Respondent's employees recall that Petitioner appeared for work sporadically and was an "afternoon person". Petitioner was not the only person who did not get work every day. Without transportation to Disney and without advance scheduling, it was hard for anyone to get assignments. With advance scheduling, Respondent often can accommodate a person's preference for varied hours.

8. Petitioner's own testimony was inconsistent. She first stated that she came to the Respondent's office every day and waited all day for work. She then conceded that between April and July 1991, she worked as a live-in employee and could only get outside work on her days off. In fact, Respondent did get work for her from time to time between March and July 1991.

   
   

9. Petitioner's last assignment by Respondent was in July 1991. She states that after August 5, 1991, she stopped going to the office to look for work.

   
   

10. Respondent's workforce is approximately evenly divided between African-Americans and whites. Assignments are made on a basis of the preferences described above, and not according to race.

    
    

11. Respondent considered Petitioner a good worker and gave her an excellent recommendation for the live-in job. She is still eligible for work with Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S.

    
    

13. Subsection 760.10(1)(a), F.S., provides that it is an unlawful employment practice for an employer to discharge or fail to hire or otherwise discriminate against an individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

14. Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, resort to federal court interpretations of that act is appropriate. School Board of Leon County

    v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

15. In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the U.S. Supreme Court established the basic allocation of burden of proof in discrimination cases. Petitioner retains the burden of proof throughout the proceeding, although once a prima facie case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove that the reasons offered are not true, but are rather a pretext for discrimination.

    The prima facie case "...raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors..." Furnco Construction Co. v.

    Waters, 438 U.S. 567 (1978), cited in Burdine, supra. This evidentiary scheme is reiterated in St. Mary's Honor Center v. Hicks, 113 S.Ct 2742 (1993).

    
    

16. Petitioner has failed to meet her burden of proof. It is uncontroverted that she is a member of a protected class and that from time to time she was not hired or given assignments by Respondent. There is no credible evidence that others of any race in similar circumstances were given work. Respondent adequately explained its policy and the reasons why Petitioner was not hired every time she sought work.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That a final order be entered dismissing Ms. Green's petition and complaint.

DONE AND RECOMMENDED this 22nd day of November, 1993, in Tallahassee, Leon County, Florida.

MARY CLARK

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 22nd day of November, 1993.

COPIES FURNISHED:

Barbara Green

46 East Robinson Street Orlando, Florida 32801

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1510

Lisse R. Groff, Esquire Personnel Pool of America, Inc. 2050 Spectrum Boulevard

Ft. Lauderdale, Florida 33309

Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1510

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: 93-001948

Orders for Case No: 93-001948