STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAVON A. BAKER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1137

) JR. FOOD MART OF AMERICA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Marianna, Florida.

APPEARANCES

For Petitioner: Lavon A. Baker, pro se

Post Office Box 1276 Sneads, Florida 32460

For Respondent: No appearance

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent has committed an act of employment discrimination by totally reducing the employment hours of the Petitioner, such that the Petitioner was constructively discharged and whether such action was on account of his race, in the manner proscribed by Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Petition for Relief from an unlawful employment practice by the above-named Petitioner. In that Petition and in the Petition for Relief filed subsequently, it is charged by the Petitioner that his working hours were cut by the Respondent employer from 40 hours per week to 10 hours per week and finally to 0 hours, while at the same time, white employees were given more hours and were allowed to take second jobs to supplement their income during hours when they were not working for the Respondent, without penalty. The Petitioner, when he took a second job, had his hours cut by his employer after allegedly being threatened with termination by the employer's store manager if he took a second job.

The cause came on for hearing as noticed. The notice of hearing was served on the Respondent corporation at its address of record, addressed to Ms. Cheryl Little, Administrative Assistant, Jr. Food Mart of America, Inc., Post Office Box 3500, Jackson, Mississippi 39207-3500. The issuance and service date of the notice was April 11, 1994 for a hearing scheduled for June 13, 1994. The

Respondent corporation failed to appear through counsel or through any representative at the hearing. After waiting in excess of one-half hour for an appearance by the Respondent, the Hearing Officer proceeded to conduct the hearing by adducing the Petitioner's evidence. The Petitioner's case consisted of his testimony and that of a corroborating witness, Debra McDaniel. Three witnesses were alleged by the Petitioner to have been subpoenaed by him, but failed to attend the hearing. He stated that he subpoenaed those witnesses only on Friday, June 10, 1994, before the hearing of June 13, 1994. In any event, the cause came to issue on the Petitioner's and the above-named witness' testimony.

The Hearing Officer accorded the Petitioner the opportunity to file a Proposed Recommended Order by instructions at the conclusion of the hearing.

The time set for the filing of a Proposed Recommended Order has elapsed and none has been filed. Consequently, the Hearing Officer will render his Recommended Order based upon the Hearing Officer's observation of the witnesses and their testimony and notes taken during the course of the hearing, the agency having elected not to order and file a transcript thereof.

FINDINGS OF FACT

1. The Petitioner, Lavon A. Baker, was employed by the Respondent at a convenience store which operated in Jackson County, Florida, at times pertinent hereto. He performed various jobs involving cooking, cleaning, cashier duties, checking and maintenance of inventory at the "Jr. Food Store" involved. His employment record is without blemish, having no disciplinary incidents on his record with that employer, the Respondent.

   
   

2. The Petitioner's immediate supervisor and employment decision-maker was Dina C. Bonine, the manager of the store involved. The Respondent, Jr. Food Mart of America, Inc., is a corporation headquartered in Jackson, Mississippi, which owns and operates convenience stores in various locations, employing more than 15 employees.

   
   

3. The Petitioner is a black man. He was employed at the Respondent's store until October 1992 with no difficulties with his employer. His work record was good and free of disciplinary incidents. Beginning in early October 1992, he began to have his hours of employment per week reduced in number. This became a problem for him because he was earning insufficient income to meet his monthly expenses. He discussed the possibility of obtaining a second job so that he could earn sufficient income, but his supervisor, Ms. Bonine, advised him that he had to work "at her convenience" and would risk termination if he took a second job. Upon his hours of employment at the Respondent's place of business being reduced to approximately 8-10 hours per week, he was forced to take a second job at the Pizza Hut. He began working at the Pizza Hut for 28 hours per week at the minimum wage rate of $4.65 per hour, beginning in March of 1993.

   
   

4. Although his supervisor, Ms. Bonine, cautioned him against taking a second job at the risk of being terminated from his job with the Respondent, she allowed a white female employee, Becky Baxter, and a white male employee named "Bobby", who were more recently hired than the Petitioner, to get additional hours of employment, while the Petitioner's hours were being reduced. At the same time, she allowed these two white employees to work at a second job with another employer, as well. Both Ms. Baxter and "Bobby" had been discharged by the Respondent, or Ms. Bonine, in the past, but had been rehired by her and given preferential treatment, in terms of working hours and accommodation of a

   second job, which treatment was not accorded to the Petitioner. In fact, Ms. Baxter worked in a second job at the Pizza Hut at the same time the Petitioner did, but received the overtime hours formerly given to the Petitioner at the Respondent's place of employment, while the Petitioner's hours were cut to nothing. The Petitioner testified that "she was already at 40 hours and she just got more". These employees, hired since the Petitioner, got all the working hours they wanted from the Respondent and convenient working time schedules, as well, compared to the Petitioner's hours.

   
   

5. Ultimately in April of 1993, the Petitioner's working hours were totally eliminated and therefore his employment was effectively terminated.

   Upon taking the second job at the Pizza Hut, his employer at that facility allowed him to schedule his hours at the Pizza Hut so that he could still obtain all of the working hours he needed at the Respondent's facility. Nevertheless, his hours were constantly reduced by Ms. Bonine to the point that, in April, he had no hours scheduled for several weeks, effectively resulting in his termination.

   
   

6. Debra McDaniel is a home health aide and certified nursing assistant. She is a friend of the Petitioner, and when he lost his automobile due to his reduced working hours and reduced income, she often transported him to and from his job. She therefore was able to observe on several occasions the work schedule placed at the Respondent's facility. She observed, for several weeks at a time, that the Respondent had given the Petitioner no working hours. She testified that Ms. Bonine told the Petitioner that she would post a new schedule with his working hours on it, but that never occurred. This observation was made sometime in April of 1993. Ms. McDaniel's testimony thus corroborates that of the Petitioner.

   
   

7. Up until the first of October of 1992, the Petitioner earned $160.00 per week at the Respondent's employment facility, without overtime hours calculated in that figure. There is no evidence of what he earned in terms of overtime hours. His employment hours at the Respondent's facility were reduced to 8 hours per week by March 1, 1993. At that point in time, he took the job at Pizza Hut at 28 hours per week at a rate of $4.25 per hour. He worked at that job at Pizza Hut at the rate of 28 hours per week until the end of November, 1993. He was out of employment and looking for work until December 18, 1993, when he became employed with "Seminole Outdoors", at the rate of $5.00 per hour for 32 hours per week. He remained with that employer at that rate until February 28, 1994, when he resigned to return to school full time. He is in a law enforcement education program at Chipola Junior College.

   
   

8. The Respondent adduced no evidence in this proceeding and failed to appear. The notice of hearing was issued on April 11, 1994 and served on the Respondent at its address of record, as previously mentioned in the above Preliminary Statement.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

10. Section 760.10(1), Florida Statutes, makes it unlawful for an employer to discriminate against an employee because of that person's race. The Respondent is an "employer" and the Petitioner is an "employee", within the meaning of Chapter 760, Florida Statutes.

11. Chapter 760, Florida Statutes, is patterned generally after Title VII of the Civil Rights Act of 1964, 42 U.S.C., Section 2000E, et seq. See, Hargis

    v. School Board of Leon County, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). Thus, federal decisions construing similar provisions of Title VII should be accorded great weight in construing similarly-cast Florida statutory provisions. See, Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corporation, 10 FALR 6189 (Fla. 1985).

    
    

12. In McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 258,

    25 FEP Cases 113 (1981), the U.S. Supreme Court established the basic allocation of burdens and order of presentation of proof in discrimination cases. The burden of proof is allocated by the U.S. Supreme Court in Burdine, as follows:

    
    

    First the plaintiff has the burden of proving by the preponderance of the evidence

    a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant, to articulate some legitimate nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons by the defendant were not

    its true reasons, but were a pretext for discrimination.

    
    

13. The federal burden and allocation of proof standards have been adopted in Florida, by the Commission and the Florida courts, as being applicable to cases arising under Chapter 760, Florida Statutes. See, School Board of Leon County v. Hargis, supra.; Kilpatrick v. Howard Johnson Company, 7 FALR 5468, 5477 (1985).

    
    

14. Whether a petitioner has demonstrated a prima facie case of discrimination is a factual question. It must be resolved by asking whether an ordinary person could reasonably infer discrimination from the facts shown, if they are unrebutted. See, Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1443, rehrg. denied, 765 F.2d 154 (11th Cir.), cert. denied, 474 U.S. 1005 (1985). If the trier of fact accepts the sufficiency of the petitioner's evidence to establish a prima facie case, the respondent must then rebut the presumption of discrimination thus created by articulating a legitimate, nondiscriminatory reason for the employment decision involved. See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Although the burden of articulating a legitimate, nondiscriminatory reason shifts to the employer upon the demonstration of a prima facie case by the petitioner, the burden of going forward with evidence thereafter shifts back to the petitioner to show that such an articulation is really a pretext for discrimination. The ultimate burden of persuasion never shifts, however, and remains with the petitioner. In a disparate treatment case, the petitioner's ultimate burden is to show that he was treated differently because of his race. Morrison v. Booth, 763 F.2d 1366, rehrg. denied, 770 F.2d 1084 (11th Cir. 1985).

    
    

15. The Petitioner may prove a prima facie case of unlawful discrimination with respect to the reduction of his working hours and what amounted ultimately to a constructive discharge, by showing that he is a member of a protected

    class, that he was discharged, and that at the time he was discharged, he was performing his job at a level which met the employer's legitimate expectations, and that he was qualified for the job, and that similarly-situated white employees were accorded disparate, more favorable treatment, including not being discharged for similar acts (obtaining outside employment). See, Green v.

    Armstrong Rubber Co., 612 F.2d 967, 968, rehrg. denied, 615 F.2d 919 (5th Cir.),

    cert. denied, 449 U.S. 879 (1980).

    
    

16. There is no question that the Petitioner has demonstrated a prima facie case of discrimination herein. The Petitioner is black. He was qualified for the employment position or positions which he held with the Respondent and, indeed, had performed in an exemplary fashion, according to his unrefuted testimony. He had held several positions, including that of cashier and had had no disciplinary action or other altercation with his employer on his record. In contrast, the two white employee exemplars were treated more favorably by the employer. They were not constructively discharged by having their hours reduced but, instead, were accorded all of the hours they wanted, plus overtime hours, as well as being allowed to hold outside part-time employment. The Petitioner was refused such favorable treatment. The white employees had had past disciplinary actions imposed against them by this employer and both had been terminated. They were then rehired, being restored to full employment status or even more favorable employment status in terms of hours accorded them to work and being allowed to take second jobs, than the Petitioner. Thus, the Petitioner has established that he is a member of a protected class in that he is black; he has established that he was constructively discharged from his employment; he has established that white employees, who had a less favorable employment record, were accorded better employment treatment in terms of being allowed to work outside part-time jobs, and were accorded more regular and overtime hours by the Respondent employer than the Petitioner was, all of which amounted to subjecting the Petitioner to disparate discriminatory treatment. Those white employees, who were more favorably treated in the above context, were similarly situated in terms of similar employment duties and positions to the Petitioner.

    
    

17. The Petitioner has thus established a prima facie case of discrimination in the employment action (constructive discharge) imposed upon him by the Respondent because of his race. No legitimate, nondiscriminatory reason for that employment action has been articulated by the Respondent, because the Respondent failed to appear and defend in this proceeding. Consequently, there is no burden to go forward with evidence to show pretext ever arising for the Petitioner to meet. Consequently, it has been established that the Petitioner has been the victim of a racially-discriminatory employment action. He is entitled to reinstatement in his position, if he so chooses, and to payment of back wages represented by the difference between the $160.00 per week he earned as of the 1st of October, 1992, and the reduction in salary occasioned by the employment action of reducing his hours to the point of effectively discharging him and the resultant employment he obtained at a lower salary, including the two weeks in December of 1993, when he was unemployed and which period of reduced income terminated on February 28, 1994, when he returned to full-time education.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner has established that he is a victim of employment discrimination in the form of constructive discharge, following discriminatory reduction of his hours of employment, and opportunity to hold non-conflicting outside employment, all on account of his race, and that he be

reinstated in his position with the Respondent and awarded back pay in an amount reflective of the above Findings of Fact and Conclusions of Law.

DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF 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 10th day of August, 1994.

COPIES FURNISHED:

Mr. Lavon A. Baker Post Office Box 1276 Sneads, FL 32460

Ms. Cheryl Little Administrative Assistant

Jr. Food Mart of America, Inc.

P.O. Box 3500

Jackson, MS 39207-3500

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

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esq.

General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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 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

LAVON A. BAKER,

Petitioner,

EEOC CASE NO. 15D9306

v. FCHR CASE NO. 93-6993

DOAH CASE NO. 94-1137 JR. FOOD MART OF AMERICA, INC., FCHR ORDER NO. 95-016

Respondent.

/

ORDER FINDING THAT AN UNLAWFUL EMPLOYMENT PRACTICE OCCURRED; AWARDING AFFIRMATIVE RELIEF; AND REMANDING THE MATTER TO THE HEARING OFFICER FOR DETERMINATION OF OTHER RELIEF

Preliminary Matters

Petitioner LaVon A. Baker filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (1993), alleging that Respondent Jr. Food Mart of America, Inc., committed an unlawful employment practice by reducing (eventually to zero) his work hours, and by denying him permission to seek a second job while he was employed by the Respondent, on the basis of his race (black).

The allegations set forth in the complaint were investigated and, on December 21, 1993, the Executive Director issued his determination, finding that no reasonable cause existed to believe that an unlawful employment practice occurred.

Petitioner filed a Petition for Relief, received by the Commission on February 11, 1994, and the case was transmitted to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

A formal administrative hearing was held on June 13, 1994, in Marianna, Florida, before Hearing Officer P. Michael Ruff.

Hearing Officer Ruff issued a Recommended Order, dated August 10, 1994. In that Recommended Order, Hearing Officer Ruff found that Petitioner was a victim of race-based discrimination as alleged, and recommended that Petitioner be

ordered reinstated and awarded back pay consistent with the Recommended Order's findings of fact and conclusions of law.

Pursuant to notice, public deliberations were held on March 2, 1995, in Tallahassee, Florida, before this panel of Commissioners.

Findings of Fact

Neither party filed a transcript of the proceeding before Hearing Officer Ruff. In the absence of a transcript, the Commission Panel is limited to the Hearing Officer's findings of fact contained in the Recommended Order. See National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894 at 897, 898 (Fla.App. 1 Dist. 1988).

Consequently, we find the Hearing Officer's findings of fact, including the findings that Respondent unlawfully reduced (eventually to zero) Petitioner's work hours and unlawfully denied Petitioner permission to seek non-conflicting outside employment, to be supported by competent substantial evidence.

We adopt the Hearing Officer's findings of fact.

Conclusions of Law

The overall application of law by the Hearing Officer is a correct disposition of the case. We adopt the Hearing Officer's conclusions of law, subject to the additions and clarifications to the relief to which Petitioner is entitled, outlined in the Remedies section of this Order, infra.

Remedies

Having found that an unlawful employment practice has occurred, the Commission orders the following relief:

AFFIRMATIVE RELIEF

Respondent is hereby ORDERED to cease and desist from engaging in such discriminatory practices as have been found to have occurred herein.

Further, Respondent is hereby ORDERED to immediately reinstate Petitioner to the position from which he was essentially terminated due to Respondent's unlawful reduction (eventually to zero) of Petitioner's work hours.

Further, Respondent is hereby ORDERED to provide the Florida Commission on Human Relations, for two years following the date of this order, quarterly reports containing the name, race, sex, position, number of hours worked and weekly income, of each of its employees.

MONETARY RELIEF

The Commission further finds the Petitioner entitled to back pay, with interest, and attorney's fees, but is unable to determine the precise amounts to which Petitioner is entitled from the findings in the Recommended Order.

Remand

We remand the Complaint of Discrimination and Petition for Relief to the Hearing Officer for a precise determination of the amount of back pay, with interest, and attorney's fees, owed Petitioner.

DONE AND ORDERED this 17th day of April, 1995. FOR THE COMMISSION ON HUMAN RELATIONS:

Commissioner Geraldine Thompson, Panel Chairperson;

Commissioner Clarethea Brooks; and Commissioner Chriss Walker

Filed this 17th day of April, 1995, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

COPIES FURNISHED:

LaVon A. Baker

c/o Marva A. Davis, Esquire

100 South Madison Street Post Office Drawer 551 Quincy, Florida 32351

Jr. Food Mart of America, Inc. Attn: Sue Emerson

Post Office Box 3500

Jackson, Mississippi 39207-3500

James Mallue, Legal Advisor for Commission Panel

P. Michael Ruff, DOAH Hearing Officer

Docket for Case No: 94-001137

Orders for Case No: 94-001137