STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARMIDA RAMOS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2042

) FCHR NO. 94-D695

ITT SHERATON CORPORATION, )

d/b/a WALT DISNEY WORLD )

DOLPHIN HOTEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, August 31, 1995, by videoconference from Tallahassee to Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Armida Ramos (pro se)

181 La Paz Drive Kissimmee, Florida 34743

For Respondent: Carl Maada, (Qualified Representative)

Division of Labor Relations Walt Disney World Dolphin Hotel 1500 Epcot Resort Boulevard

Lake Buena Vista , Florida 32830 STATEMENT OF THE ISSUES

Whether Petitioner, a member of a protected class, was terminated from her position with the Respondent in the Laundry Department on June 14 1994, on the basis of her race (Hispanic), in violation of Section 760.10(1)(a), Florida Statutes (1993).

PRELIMINARY STATEMENT

The Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations on July 14, 1994, which charge was amended on August 9, 1994. An investigation was conducted and, subsequently, on March 20, 1995, a determination was issued by the FCHR. By a Petition, dated April 4, 1995, the Petitioner requested a hearing, and filed a Petition for Relief with the FCHR.

This matter was referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on April 26, 1995. Respondent filed its Answer.

Discovery was conducted and the formal hearing was set and the hearing was conducted by videoconference.

At the hearing, Petitioner, proceeding pro se, testified in her own behalf, and offered a joint exhibit and five exhibits in evidence. The Respondent presented the testimony of three witnesses, and three exhibits were received in evidence.

A transcript was not prepared or filed. The parties were allowed ten days from the date of the hearing in which to file proposed findings of fact and conclusions of law. Neither party has filed proposed findings of as of the date of this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent is an employer under the 1992 Florida Civil Rights Act.

   
   

2. Petitioner was employed by Respondent as a laundry attendant in the Laundry Department. Petitioner was hired originally as a cashier in one of the restaurants but was transferred shortly thereafter. Petitioner was employed by Respondent from June 1990 through June 14,1994.

   
   

3. Petitioner is a female Hispanic American, and a member of a protected class.

   
   

4. Petitioner was born and raised in Puerto Rico and her first language is Spanish. Although she has lived and worked in the United States since 1979 and speaks English well, her reading and writing skills in English are not well developed.

   
   

5. On June 25, 1990, as part of the application process, Petitioner was given a medical questionnaire to complete. The questionnaire contained 25 questions relating to Petitioner's past and present physical condition.

   
   

6. Question 23 reads: "Have you ever had any occupational disease or serious injury resulting in a worker's compensation claim?". Petitioner checked "no".

   
   

7. Question 24 reads: "Have you had any other serious accidental injuries?". Petitioner checked "yes" and explained "arm operation".

   
   

8. Petitioner misread question no. 23. She thought that the question was asking if she was receiving worker's compensation benefits at that time, which she was not. She did not ask for assistance in completing the questionnaire because she believed that she had read and understood the questions correctly.

   
   

9. Petitioner did receive worker's compensation benefits for an elbow injury which occurred in 1984.

   
   

10. During her four year employment at the Dolphin Hotel, Petitioner had several supervisors who rated her work performance as average/satisfactory in her annual performance review. During her employment, her pay had been increased for a starting salary of $5.65 per hour to approximately $6.75 per hour, plus overtime.

11. At the time of her termination, Petitioner's job performance was rated as good by her immediate supervisor

    
    

12. On June 9, 1994, it came to the attention of the Respondent's Human Resources Department that Petitioner had filed a claim and received worker's compensation benefits in the early 1980's and had not acknowledged it on her application.

    
    

13. Following a conference between Petitioner and Human Resources personnel, Respondent made a determination that Petitioner had falsified information on her employment application. She was terminated on June 14, 1994.

    
    

14. Respondent's policy is that falsification of records is an offense which requires termination of the employee. There are no exceptions.

    
    

15. Over the four year period, 1990-1994, Respondent determined that between 12 and 15 employees had falsified information on their employment application and all had been terminated.

    
    

16. Petitioner failed to prove, as she alleged, that the real reason for her termination was due to her speaking Spanish with other co-workers while on the job.

    
    

17. Respondent demonstrated that of the 45 people working in Petitioner's department most were minorities, including 20 who were Hispanic including Petitioner's immediate supervisor.

    
    

18. Respondent's stated reasons for its decision to terminate Petitioner were not proven to be pretextual.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes and Rule 60Y-4.016(1), Florida Administrative Code.

    
    

20. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended 42 USC Section 2000e, et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or other discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race or national origin. (Sec. 760.10(1)(a), Florida Statutes).

    
    

21. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and again in the recent case of St. Mary's Honor Center v. Hicks,

    U.S. , 113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468,5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie case of racial or national origin discrimination.

22. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:

    
    

    1. The Petitioner is Hispanic;

    2. The employee is qualified for the position;

    3. The employee was subject to an adverse employment decision (Petitioner was terminated from a position for which she was qualified);

    4. The position was filled by a white person; and

    5. There must be shown by the evidence that there is a causal connection between a and c. Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729,

       29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

       
       

23. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See, Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

    
    

24. Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision.

    The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

25. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than the Petitioner. Texas Department of Community Affairs v. Burdine, at 257-8.

    
    

26. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, U.S. , 113 S.Ct. 2742 (1993).

27. In the case sub judice, the Petitioner has established that she is a Hispanic-American from the Commonwealth of Puerto Rico (a member of a protected class) and was qualified for her position as a laundry attendant and was performing her work in a satisfactory manner at the time of her termination.

    The Petitioner established that she was subjected to an adverse employment decision when she was terminated. However, no evidence was produced to indicate whether her vacant position was filled by a person who was not a member of a protected class. Therefore, the Petitioner did not come forward with sufficient evidence to meet her initial burden of proof on the issue of racial or national origin discrimination.

    
    

28. Assuming that Petitioner did meet her initial burden, the sequence of presentation of evidence then required the Respondent to come forward and "articulate" valid, nondiscriminatory reasons for the resulting promotion decisions. Respondent has done so. It established by a preponderance of the testimony and business records that the Respondent has an inflexible employment policy that anyone whom it determines has falsified employment records will be terminated. Respondent determined that Petitioner had falsified records by answering Question No. 23. incorrectly on the medical questionnaire which she completed on June 25, 1990. Therefore, Respondent established that the stated reason Petitioner had been terminated from employment was due to her violation of a major work rule.

    
    

29. Although Respondent's reason for terminating Petitioner may seen harsh and inflexible, the evidence was insufficient to prove that Respondent's action was pretextual and actually based on a discriminatory reason. As the Eleventh Circuit Court of Appeal stated in Nix v. WLCY Radio, 738 F.2d 1183, reh. denied 747 F.2d 710 (11th Cir. 1984), as follows:

    
    

    Title VII is not a shield against harsh treatment in the work place [citation omitted] nor does the statute require the employer to have good cause for his decisions. The employer may fire an employee based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason [citations omitted]. While an employer's judgment or course of action may seem poor or erroneous

    to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination. The employer's stated legitimate reason . . . does not have to be a reason the judge or jurors would act on or approve. [citations omitted].

    
    

30. Respondent also demonstrated that of the 45 people employed in Petitioner's department most were minorities, and 20 were Hispanic, including Petitioner's immediate supervisor. The subject matter of the pending action is whether Petitioner was discriminated against on the basis of race or national origin when she was terminated. In a disparate treatment case, Petitioner must prove discriminatory motive. Statistical data showing an employer's pattern of conduct toward a protected class can create an inference that an employer discriminated against individual members of the class and may, therefore, be relevant. See Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir. 1990). However, in order for statistical evidence to create an inference of discrimination, a Petitioner's statistical evidence must focus on eliminating

    nondiscriminatory treatment between comparable individuals. Fallis v. Kerr- McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991). Therefore, the statistical showing must measure disparate treatment in a relevant labor pool. Equal Employment Opportunity Commission v. North Hills Passavant Hospital, 466 F. Supp. 783, 795 (W.D. Pa. 1979). In this cause, the Form EEO-1 contains data regarding sex and race for all job classifications at the Respondent hotel, not just the job classification of Petitioner, and is therefore not relevant to the subject matter. Further, assuming that if the Form EEO-1 were found to be relevant, the statistics only become relevant in the demonstration of pretext by the employer in a disparate treatment case. Sweat v. Miller Brewing Co., 708 F.2d 655, 658 (11th Cir. 1983). There is no showing of disparate treatment in the relevant labor pool.

    
    

31. Petitioner has failed to produce any evidence to demonstrate that the Respondent's articulated reasons for its actions on June 14, 1994 were "pretextual".

    
    

32. From the testimony and the exhibits, the Petitioner has failed to carry the burden required by law to establish discriminatory conduct based on race or national origin.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order which DENIES the Petition for Relief.

DONE AND ENTERED this 3rd day of November, 1995, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 3rd day of November, 1995.

COPIES FURNISHED:

Armida Ramos

181 La Paz Drive Kissimmee, Florida 34743

Carl Maada

Division of Labor Relations Walt Disney World Dolphin Hotel 1500 Epcot Resort Boulevard

Lake Buena Vista, Florida 32830

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 their 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: 95-002042

Orders for Case No: 95-002042